Security First Bank v. Burlington Northern

Citation213 F.Supp.2d 1087
Decision Date02 August 2002
Docket NumberNo. 7:01CV3247.,7:01CV3247.
PartiesThe SECURITY FIRST BANK, Conservator of the Estate of Shane R. Norman, A Minor, Plaintiff, v. BURLINGTON NORTHERN and Santa Fe Railway Company, A Foreign Corporation, Defendant. Burlington Northern and Santa Fe Railway Company, Defendant and Third-Party Plaintiff, v. Fred A. Lockwood, Special Administrator of the Estate of Ben C. Norman, Third-Party Defendant. Burlington Northern and Santa Fe Railway Company, Defendant and Third-Party Plaintiff, v. County of Dawes, A Political Subdivision of the State of Nebraska, Third-Party Defendant.
CourtU.S. District Court — District of Nebraska

Page 1087

213 F.Supp.2d 1087
The SECURITY FIRST BANK, Conservator of the Estate of Shane R. Norman, A Minor, Plaintiff,
v.
BURLINGTON NORTHERN and Santa Fe Railway Company, A Foreign Corporation, Defendant.
Burlington Northern and Santa Fe Railway Company, Defendant and Third-Party Plaintiff,
v.
Fred A. Lockwood, Special Administrator of the Estate of Ben C. Norman, Third-Party Defendant.
Burlington Northern and Santa Fe Railway Company, Defendant and Third-Party Plaintiff,
v.
County of Dawes, A Political Subdivision of the State of Nebraska, Third-Party Defendant.
No. 7:01CV3247.
United States District Court, D. Nebraska.
August 2, 2002.

Page 1088

Patrick M. Connealy, Crites, Shaffer Law Firm, Chadron, NE, Michael J. Javoronok, Javoronok Law Firm, Scottsbluff, NE, Counsel for Security First Bank, Shane R. Norman.

Page 1089

Thomas C. Sattler, Wolfe, Snowden Law Firm, Lincoln, NE, Counsel for Burlington Northern and Santa Fe Railway.

Leland K. Kovarik, Jr., Holtorf, Kovarik Law Firm, Gering, NE, Counsel for Fred Lockwood, Special Administrator of the estate of Ben C. Norman.

Vincent Valentino, Angle, Murphy Law Firm, York, NE, Counsel for County of Dawes, a Political Subdivision of the State of Nebraska.

MEMORANDUM AND ORDER

KOPF, District Judge.


This matter is before the court upon the motion for partial summary judgment (filing 27) filed by the defendant and third-party plaintiff, Burlington Northern and Santa Fe Railway Company (BNSF), and upon the motion to dismiss (filing 48) filed by the third-party defendant, County of Dawes (County). Both motions will be granted in part and denied in part.

This action stems from a railroad crossing accident that occurred on March 8, 1999, near Crawford, Nebraska. The two-track crossing, locally known as "Horn Crossing," was marked with reflectorized cross buck warning signs. Involved in the accident were a minivan, operated by Ben Norman, and a short train of BNSF pusher engines. Ben Norman was killed in the accident, while his 15-year-old son, Shane, who was the only other occupant of the vehicle, sustained severe personal injuries.

The plaintiff, The Security First Bank, as conservator for Shane Norman, filed suit in the District Court of Dawes County, Nebraska, on September 7, 2001. BNSF removed the action to federal court, based upon diversity jurisdiction, on September 27, 2001, and has since filed separate third-party complaints against the County and the special administrator of Ben Norman's estate, seeking either indemnification or contribution in the event that BNSF is found liable (or equitable subrogation in the event that BNSF settles the claims against it). The third-party complaints also request that the plaintiff's damages be allocated among BNSF, the County, and the Norman estate, in accordance with Nebraska's comparative negligence statute.

The plaintiff alleges that "lack of visibility due to weather and vegetation made the pusher engine difficult to see especially considering the grade and angle of this crossing, and the condition of the road was slick and snow covered." (Filing 1, exhibit A, "Petition," at ¶ 6.) Further, "[i]mmediately before the grade crossing, Shane saw the northbound pusher engine. Shane did not see a light on the pusher engine, nor did the pusher engine give an audible signal. Shane yelled for his father, but his father was unable to stop in time to avoid a collision between the minivan and the pusher engine." (Id., at ¶ 7.)

It is claimed that BNSF was negligent in (a) "failing to warn of the approach of the train by sounding its whistle and bells in a timely fashion or with guards or flag personnel or lights," (b) "maintaining an extra hazardous crossing," (c) its train crew failing "to keep the train from traveling at or below the stated speed limit for the crossing," (d) its train crew failing "to keep and maintain a proper lookout for motor vehicles approaching the crossing," (e) its train crew failing "to timely apply the brakes to the train," and (f) failing "to maintain the right of way, including appropriate site (sic) distances." (Id., at ¶ 8.)

In support of its motion for summary judgment, BNSF argues that any claim involving crossing warnings or signalization, locomotive speed or equipment, or right-of-way maintenance is preempted by federal law, and that the evidence shows its compliance with applicable safety regulations in these several areas. The only specification of negligence which is not directly

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challenged by BNSF's motion is the plaintiff's claim that the train crew failed to maintain a proper lookout for approaching vehicles.

For its third-party complaint against the County, BNSF alleges that the County "is or may be liable to Third-Party Plaintiff BNSF for all or part of Plaintiff's claim against BNSF arising out of the circumstances as alleged in ... [Plaintiff's petition]." (Filing 35, ¶ 6.) The "circumstances as alleged" in the petition are generally stated to include, without limitation, the specifications of negligence against BNSF and also the allegation concerning road conditions and vegetation.

In support of its motion to dismiss, the County challenges the sufficiency of this allegation and contends that BNSF has failed to specify any acts of negligence on the part of the County. It is also argued that the third-party complaint must be dismissed because BNSF has failed to comply with provisions of the Nebraska Political Subdivisions Tort Claims Act.

BNSF's Motion for Partial Summary Judgment

If federal funds have been expended for warning devices at a grade crossing, state law tort claims alleging negligence in the maintenance of the crossing are preempted. Bock v. St. Louis Southwestern Ry. Co., 181 F.3d 920, 922 (8th Cir.1999), cert. denied, 529 U.S. 1086, 120 S.Ct. 1718, 146 L.Ed.2d 640 (2000). An allegation that a crossing is "extra hazardous" or inadequately protected does not change this result. Preemption occurs once a federally funded warning device is installed and operational. See id.

BNSF has submitted the affidavit of Dan J. Rosenthal, a records custodian at the Nebraska Department of Roads (NDOR), to establish that the cross buck signs in this case were installed by the railroad sometime between 1978 and 1986 as part of a state-wide project that was undertaken pursuant to the federal Railroad-Highway Grade Crossing Program. (Filing 28, exhibit 2.) The documents that are attached to Mr. Rosenthal's affidavit show that Horn Crossing was included in the project, and that all work on the project was accepted as complete by the NDOR and the Federal Highway Administration as of 1988. Although this documentation is less detailed and less complete than might be desired, it is sufficient. See O'Bannon v. Union Pacific R. Co., 169 F.3d 1088, 1089-91 (8th Cir.1999) (affirming summary judgment granted to railroad on similar evidence).

The only countervailing evidence offered by the plaintiff are the affidavits of two local residents, who each state that "[t]here have been cross bucks at Horn Crossing for as long as I can remember." (Filing 41, exhibits 5, 6.) These statements do not create a genuine issue of material fact. See id. (rejecting similar affidavits). Similarly, while the plaintiff has offered deposition testimony that was provided by Mr. Rosenthal and by a BNSF official in connection with another lawsuit (filing 41, exhibits 9, 12), that testimony does not refute the NDOR documentation. Merely showing that there is some "metaphysical doubt" as to whether the work that was scheduled for Horn Crossing was actually performed, or whether the railroad was actually paid for the work with the ear-marked federal funds, will not suffice. See id. Thus, there is no triable issue of fact regarding BNSF's alleged negligence in "failing to warn of the approach of the train by ... guards or flag personnel or lights," or in "maintaining an extra hazardous crossing."

To the extent that the reference to "lights" in this allegation is intended to include the train's headlight, I also fail to find a genuine issue of material fact. While the petition alleges that "Shane did

Page 1091

not see a light on the pusher engine," he testified in his deposition that the did not know whether the train's headlight was on. (Filing 41, exhibit 7, at 15:7-18:8.) In an interview with the Nebraska State Patrol eleven days after the accident, he stated that "he did not hear a train horn or identify if the lights were on." (Id.) Not knowing or not being unable to identify if the train's headlight was on is not satisfactory proof of negligence.

It does not appear that the plaintiff is attempting to claim that the headlight equipment was inadequate. Likewise, the allegation that "the pusher engine [did not] give an audible signal" does not appear to involve an equipment issue (which would be subject to federal preemption). It merely is claimed that the pusher engine failed to "sound[] its whistle and bells in a timely fashion." I find that there is a genuine issue of material fact as to this limited claim of negligence.

Evidence supporting this claim includes Shane's deposition testimony and the affidavit of a neighbor who saw both the Norman vehicle and the pusher engines shortly before the accident. This witness "specifically remember[s] that the train did not blow its whistle as it approached the crossing," and she provides sufficient information to support her conclusion that "[i]f there had been a whistle on the day of the accident, I would have heard it." (Filing 41, exhibit 6.)

BNSF argues, however, that the plaintiff should be estopped from taking this position. In an earlier lawsuit brought against Ben Norman's estate, the plaintiff relied upon an affidavit by BNSF's engineer to oppose the defendant's motion for summary judgment. Included in the affidavit is a statement that "[a]s the pusher engines approached the crossing, we were traveling at about 50-51 miles per hour...

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