Veit v. Burlington Northern Santa Fe Corp., 60126-1-I.

• Decision Date: 01 June 2009
• Docket Number: No. 60126-1-I.,60126-1-I.
• Citation: 207 P.3d 1282,150 Wn. App. 369
• Parties: Alizon VEIT, Appellant, v. BURLINGTON NORTHERN SANTA FE CORPORATION, a Texas Corporation, Respondent.
• Court: Washington Court of Appeals

207 P.3d 1282

150 Wn. App. 369

Alizon VEIT, Appellant, v. BURLINGTON NORTHERN SANTA FE CORPORATION, a Texas Corporation, Respondent.

No. 60126-1-I.

Court of Appeals of Washington, Division 1.

June 1, 2009.

Douglas R. Shepherd, Law Offices of Douglas R. Shepherd, Bellingham, WA, for Appellant.

Tom Montgomery, Bradley Patrick Scarp, Kelsey E. Endres, Montgomery Scarp MacDougall PLLC, Seattle, WA, and Wayne L. Robbins, Attorney at Law, for Respondent.

PUBLISHED OPINION IN PART

SCHINDLER, C.J.

¶ 1 Alizon Veit was seriously injured when a Burlington Northern Santa Fe Railroad freight train collided with her car at the Pine Street crossing in Bellingham. Veit sued the City of Bellingham (the City) and the Burlington Northern Santa Fe Railroad Corporation (BNSF) for damages. Veit alleged that the City and BNSF negligently designed and maintained the Pine Street crossing. Veit also alleged that the BNSF engineer negligently operated the train at an unreasonable and excessive speed. The trial court denied the railroad's motion to dismiss Veit's negligent design and maintenance claims on summary judgment, but granted the motion to dismiss her excessive speed claims. There was no dispute that the train was traveling at a speed that was less than 40 miles per hour. Because the court concluded that the track was designated as Class 3 with a federally imposed speed limit of 40 m.p.h., the court ruled that under CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993), Veit's excessive speed claims were preempted by the Federal Railroad Safety Act of 1970 (FRSA). After a three week trial, the jury returned a verdict in favor of BNSF. On appeal, Veit contends the trial court erred in dismissing her excessive speed claims and excluding evidence of the railroad's internal speed limits. Veit also contends that the exceptions to preemption that the Supreme Court noted in Easterwood apply. In addition, Veit claims that the trial court erred in denying her request for a jury instruction on spoliation, allowing witnesses to testify about driving across the railroad tracks at the Pine Street crossing, and refusing to instruct the jury on the duty to have flashing lights at the crossing.

¶ 2 If a train is traveling at or below the maximum speed prescribed by the FRSA, state law claims based on excessive speed are preempted unless the State adopts a more stringent speed limit in order to eliminate "an essentially local safety hazard" or the train was traveling too fast to avoid a "specific, individual hazard." Because reasonable minds could only conclude that the track at the Pine Street crossing was designated as Class 3, with a maximum speed limit of 40 m.p.h., and there was no evidence that the crossing was either designated as a local safety hazard or that there was a specific individual hazard, we affirm summary judgment dismissal of the excessive speed claims and the court's decision to exclude evidence of the railroad's internal speed limits. We reject Veit's other claims of error, affirm the jury verdict, and entry of the final judgment.

FACTS

¶ 3 At approximately 11:40 a.m. on September 10, 2001, Alizon Veit drove her manual transmission Mercedes Benz west on Wharf Street toward the Pine Street railroad crossing (Pine Street crossing). Wharf Street curves right before becoming Pine Street. At the Pine Street crossing there is a two lane paved asphalt roadway with two sets of railroad tracks. The track closest to the Pine Street crossing is a railroad yard or "spur" track. The second track is the main railway line. The two tracks are located approximately 30 feet apart. To the south of the Pine Street crossing is an embankment with vegetation on it. There were seven different signs and markings at the Pine Street crossing to warn westbound vehicles. The warnings included a round "RXR" sign, an "X" with lines painted on the street, a Highway Rail Grade Crossing ("crossbuck")¹ sign, a smaller sign that says "2 TRACKS", a sign that says "NO STOPPING ON TRACKS," a "STOP" sign, and painted pavement markings including a crossbuck and a stop line.

¶ 4 The weather was clear and the roadway was dry. The engineer of the BNSF train, Michael Burks, first sounded the train whistle approximately a quarter mile south of the Pine Street crossing. One eyewitness testified that Veit slowed down, but did not completely stop, and drove slowly, in a "hesitant ... kind of jerking with the car," eventually stopping on the second set of tracks in the path of the moving train. Burks testified that he first saw Veit's car when it was about 150 feet away from the Pine Street crossing. Because it appeared that Veit was going to drive across the tracks. Burks said that he sounded a long whistle signal, hit the emergency brakes, and attempted to make an emergency stop. Burks testified that the train was traveling at approximately 20 m.p.h. when it hit Veit's car.

¶ 5 When the police arrived, Veit was unconscious and unresponsive, but still breathing. Veit's car was heavily damaged from the impact. The left front door was crushed inward and the windows were shattered. The manual transmission of the car was in third gear. When an officer replaced the batteries in Veit's portable radio, classical music began to play at level three. Veit suffered head and chest injuries, as well as multiple leg fractures.

¶ 6 In September 2004, Veit's court appointed guardian sued the City, BNSF, and the BNSF train engineer for damages. Veit alleged that the City and BNSF breached their duty to adequately design the Pine Street crossing and negligently maintained the right-of-way.² Veit alleged that the placement of the stop bar and the vegetation on the embankment created a hazard that prevented a driver from seeing the approaching train. Veit also alleged that the BNSF engineer negligently operated the train at an unreasonable and excessive speed.

¶ 7 The City filed a motion for summary judgment asserting there was no evidence that the Pine Street crossing was negligently designed or maintained, and the City did not have notice that the vegetation on the embankment impaired a driver's ability to see an approaching train. BNSF joined in the City's motion for summary judgment. BNSF also argued there was no evidence that the crossing was negligently designed or that the vegetation blocked a driver's line of sight and that the embankment was not part of the BNSF right-of-way.

¶ 8 In addition, BNSF argued that Veit's excessive speed claims were preempted by federal law. There was no dispute that the train was traveling far below 40 m.p.h. when it collided with Veit's car. BNSF presented evidence establishing that under federal law, the track at the Pine Street crossing, which is located at milepost 96.2, was designated as Class 3 with a speed limit of 40 m.p.h.

¶ 9 John Leeper, the BNSF Director of Engineering Planning, stated that on the date of the accident, "the segment of track where the incident occurred was designated Class 3...."

¶ 10 Carl Johnson, the full time track inspector for the BNSF Northwest Division in Bellingham, FRSA explained the difference between the mandated speed limit and the internal speed limits set by BNSF: "The [FRSA] maximum allowable speed limit for freight trains traveling on Class 3 track is 40 m.p.h. The BNSF maximum authorized speed for freight trains on the track segment between MP [mile post] 93.6 to 96.7 is 30 m.p.h., with a 20 m.p.h. head end restriction at MP 96.2 (Pine Street crossing)."

¶ 11 Alex Franco, Jr., the BNSF Northwest Division Roadmaster, also stated that the Pine Street crossing at "milepost 96.2 had a head-end timetable speed restriction of 20 m.p.h." and that "BNSF typically sets its internal speed limits lower than federal law requires." Franco stated that the head-end restriction imposed by BNSF "means a BNSF train must travel at or below the indicated speed when the front of its head locomotive first enters the crossing."

¶ 12 In opposition, Veit relied on a report that was prepared after the accident by BNSF trainmaster Terrence Nies, to argue that because the track was designated as a Class 2 track with a speed limit of 25 m.p.h., federal law did not preempt her excessive speed negligence claims. Veit also argued that violation of BNSF's internal speed limits was evidence of negligence. As to the negligent design and maintenance claims, Veit asserted that under the Manual on Uniform Traffic Control Devices published by the United States Department of Transportation Federal Highway Administration (the MUTCD), BNSF and the City had a duty to provide adequate warning signals and were jointly responsible for the right-of-way.

¶ 13 In reply, BNSF submitted a declaration from Nies. Nies testified that the statement in the accident report that the track at the Pine Street crossing was designated as Class 2 track was a mistake, and the track designation at the Pine Street crossing "was, and still is, Class 3." Nies also stated that the 20 m.p.h. head-end restriction was "not a speed limit, but the speed that BNSF dictates the `head end' of the train must go only as it enters the crossing."

¶ 14 The City settled with Veit before the summary judgment hearing. The trial court denied the railroad's motion to dismiss Veit's negligent design and maintenance claims because there were disputed issues of material fact. However, the court concluded that because the track at the Pine Street crossing was designated as Class 3 with a speed limit of 40 m.p.h., Veit's excessive speed claims were "preempted by federal law."³

¶ 15 For the first time in the motion for reconsideration, Veit argued that because her excessive speed claims were based on "obstruction to view," the "essentially local safety hazard" or the specific individual hazard exceptions noted in Easterwood precluded summary judgment. The court denied Veit's motion for reconsideration, but allowed her to present evidence at...