Owen v. BNSF RAILROAD, INC.
| Decision Date | 04 November 2002 |
| Docket Number | No. 48093-6-I.,48093-6-I. |
| Citation | 56 P.3d 1006,114 Wash. App. 227 |
| Parties | Jean M. OWEN, as ExPR of the Estate of Glenn and Margie Nelson, deceased, and Jean Owen, personally, Appellant, v. BURLINGTON NORTHERN SANTA FE RAILROAD, INC., City of Tukwila and State of Washington, Respondents. |
| Court | Washington Court of Appeals |
Mark Conlin Jobson, Assistant Attorney General, Office of the Atty. Gen. Torts, Olympia, WA, for Respondents, State of Washington.
Brian Paul Russell, Attorney At Law, Seattle, WA, for Appellant, Jean Owen.
Brenda Louise Bannon, Andrew George Cooley, Keating, Bucklin & McCormack, Seattle, for Burlington Northern Railroad.
Glenn and Margie Nelson were killed when a train collided with their vehicle at a railroad crossing in Tukwila. The City of Tukwila and the State of Washington, sued for wrongful death by the Nelsons' daughter, Jean Owen, were dismissed on summary judgment. Because Owen supplied sufficient evidence that Tukwila was negligent with respect to traffic control measures at the intersection, we reverse the order dismissing Tukwila. The order dismissing the State is affirmed in view of the lack of any argument or authority establishing a duty.
An appellate court reviews summary judgment de novo, performing the same inquiry as the trial court. Herron v. Tribune Publ'g Co., Inc., 108 Wash.2d 162, 169, 736 P.2d 249 (1987). A motion for summary judgment may be granted only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). All reasonable inferences from the facts must be considered in the light most favorable to the nonmoving party. Scott v. Pacific West Mt. Resort, 119 Wash.2d 484, 502, 834 P.2d 6 (1992). It is the responsibility of the moving party to raise in its summary judgment motion all of the issues on which it believes it is entitled to summary judgment. White v. Kent Medical Center, 61 Wash.App. 163, 168, 810 P.2d 4 (1991).
The railroad crossing where the accident occurred consists of two sets of Burlington Northern tracks running parallel to each other, just inside the city limits of Tukwila. The tracks cross South 180th Street, which is a four-lane arterial connecting the East Valley Highway with State Route 181, the West Valley Highway.1 Westbound drivers on the arterial see various warnings as they approach the crossing. The warnings include the large white letters "X" and "RR" on the pavement; yellow railroad crossing signs; a crossbuck sign that says "RAILROAD CROSSING"; a sign that says "2 TRACKS"; and another sign that says "DO NOT STOP ON THE TRACKS". The roadway rises for westbound travelers as they approach the crossing. Photographs suggest that it is difficult for drivers at that point to see the traffic lights and congestion west of the crossing.2
A short distance past the two sets of Burlington Northern tracks, westbound drivers encounter another north-south railroad track, this one belonging to Union Pacific. Another 530 feet west3 of the Union Pacific tracks is an intersection with 72nd Avenue South. An intersection with the West Valley Highway is 450 feet further west.4 There are traffic lights at both intersections. These traffic lights routinely cause westbound traffic to stop and back up. Due to the high volume of traffic destined for the West Valley Highway, backups sometimes extend as far as one-third of a mile east of the crossing, with vehicles stopped on the tracks.
The accident occurred shortly after 4 p.m. on a Friday afternoon in June, 1998. Glenn Nelson was driving his wife home from a doctor's appointment in Renton. Their route was west on South 180th Street. The rush hour traffic was heavy. As the Nelsons approached the Burlington Northern crossing, their line of traffic was moving across the tracks. However, as they drove on to the Burlington Northern tracks, traffic came to a stop. The Nelsons' car stopped on the first set of tracks with vehicles located directly in front of and behind it.
The pick-up truck ahead of the Nelsons was stopped on the second set of Burlington Northern tracks. The driver of the pick-up saw a train approaching on those tracks and heard its whistle, and pulled forward off the tracks.5 Within moments, flashing light signals activated and bells began to ring, signaling the presence of an approaching train. These signals are programmed to provide a 20-second warning before an approaching train reaches the crossing. The automatic, reflectorized crossing arms came down, surrounding several vehicles stopped on the tracks. The Nelsons' car moved in the same direction as the pick-up, but stopped again on the second set of tracks. The Nelsons, aged 75 and 76, remained belted into their vehicle. The train struck the vehicle, and they were killed.
The Nelsons' daughter, Jean Owen, sued Burlington Northern, the City of Tukwila, and the State of Washington for wrongful death.6 She settled with Burlington Northern. The trial court dismissed Tukwila and the State on summary judgment. Owen appeals from the orders dismissing those two defendants.
We first address the order dismissing the City of Tukwila. As to Tukwila, Owen alleged in her complaint that the intersection of South 180th Street with the Burlington Northern tracks was negligently designed and maintained. She alleged that it constituted a "hazard and a trap" and "an unreasonably dangerous threat of harm" due to the location of the traffic signals and the heavy traffic. She alleged that Tukwila had breached its duty to maintain its streets in a safe condition by failing to properly install all traffic signals and provide adequate warning of the hazards. She specifically alleged that Tukwila "failed to adjust the traffic control devices to the proper time intervals between the lights, traffic and the Burlington Northern crossing ... to prevent an unreasonably hazardous condition."7
The City of Tukwila's memorandum in support of its motion for summary judgment below, and its brief in this court, are devoted almost entirely to the legally erroneous argument that a municipality owes no duty to negligent drivers. The City recites its allegations of negligence on the part of the Nelsons: Glenn Nelson failed to obey the signs warning him not to stop on the tracks; he failed to look and listen; he failed to yield the right of way to the train; he and his passenger failed to exercise ordinary care for their own safety when they stayed in their car instead of getting out of the way. According to the City, the Nelsons' negligence removed them "from the class of persons to whom the City owes a duty".8
A municipality "owes a duty to all persons, whether negligent or fault-free, to build and maintain its roadways in a condition that is reasonably safe for ordinary travel." Keller v. City of Spokane, 146 Wash.2d 237, 249, 44 P.3d 845 (2002). Undisputed facts showing that the Nelsons were negligent are not enough to excuse the City from its duty and do not justify the order of dismissal.
The City's motion below set forth a second basis for summary judgment when it alleged that the City could not be liable for failing to install apparatus not required by law.9 Owen responded that Tukwila negligently failed to install additional warnings and traffic control measures, such as a signal preemption mechanism that would cause the traffic signals west of the crossing to turn green upon the approach of the train in order to disperse the traffic at the crossing.
Defending its position on this issue on appeal, the City first argues that it had no responsibility for the signals.
Plaintiff's evidence does not demonstrate a breach of a legal duty by Tukwila. All of the complained of traffic control devices and crossing apparatus are owned by Kent, Renton, and Burlington Northern Railroad. Any additional advanced warning signs to theoretically benefit the Nelsons would have had to be installed by Renton.[10]
But both signals are located within the city limits of Tukwila. A local government entity such as Tukwila is required to place and maintain such traffic control devices as are necessary to regulate, warn and guide traffic. RCW 47.36.060. According to an interlocal agreement executed in 1992, Tukwila contracted with the City of Kent to construct the traffic signal at 72nd Avenue South and South 180th Street, after which the City of Tukwila agreed to assume the operation and maintenance of the signal.11 The declaration of Tukwila's public works director, engineer Jim Morrow, asserts that Kent continues to own and operate the signal,12 but such an assertion does not conclusively establish the non-liability of Tukwila for a signal located within its jurisdiction. Similarly, it is immaterial that the State of Washington constructed the signal at the intersection of State Route 181 and South 180th Street. The State transferred the ownership, maintenance and operational responsibilities of the signal to the City of Tukwila by agreement in 1990.13
Tukwila also argues that the decision and implementation of a preemption mechanism are solely within the control of Burlington Northern. The Manual on Uniform Traffic Control Devices, published by the United States Department of Transportation, has been adopted by the Washington State Highway Commission under the authority of RCW 47.36.020.14 Section 8A-1 of the manual sets forth the applicable standards for traffic signals and warning devices at or near railroad crossings. It provides, in relevant part, for a municipality to have joint responsibility with the railroad:
[T]he highway agency and the railroad company are entitled to jointly occupy the right-of-way in the conduct of their assigned duties. This requires joint responsibility in the traffic control function between the public...
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Owen v. Burlington Northern and Santa Fe RR Co.
...appropriately disposed of Tukwila's primary argument that it did not owe any duty to the Nelsons. Owen v. Burlington N. Santa Fe R.R., Inc., 114 Wash.App. 227, 232-33, 56 P.3d 1006 (2002). After noting that a municipality's duty to maintain its roadways reasonably safe for ordinary travel i......