Veit v. Burlington Northern Santa Fe Corp..

• Decision Date: 24 February 2011
• Docket Number: No. 83385–1.,83385–1.
• Parties: Alizon VEIT, an individual, by and through David M. NELSON, her power of attorney, Petitioner,v.BURLINGTON NORTHERN SANTA FE CORPORATION, a Texas corporation, Respondent,City of Bellingham, a Washington municipal corporation; Michael S. Burks and Jane Doe Burks, husband and wife, and the marital community composed thereof; and a number of unnamed Jane Does and/or John Does, Defendants.
• Court: Washington Supreme Court

171 Wash.2d 88

249 P.3d 607

Alizon VEIT, an individual, by and through David M. NELSON, her power of attorney, Petitioner,

v.BURLINGTON NORTHERN SANTA FE CORPORATION, a Texas corporation, Respondent,City of Bellingham, a Washington municipal corporation; Michael S. Burks and Jane Doe Burks, husband and wife, and the marital community composed thereof; and a number of unnamed Jane Does and/or John Does, Defendants.

No. 83385–1.

Supreme Court of Washington, En Banc.

Argued Oct. 19, 2010.Decided Feb. 24, 2011.

Douglas Ross Shepherd, Edward S. Alexander, Shepherd Abbott Alexander, Bellingham, WA, Kenneth Wendell Masters, Shelby R. Frost Lemmel, Masters Law Group PLLC, Bainbridge Island, WA, for Petitioner.Tom Montgomery, Bradley Patrick Scarp, Kelsey E. Endres, Montgomery Scarp MacDougall, PLLC, Paul J. Lawrence, Gregory J. Wong, K&L Gates LLP, Seattle, WA, Wayne L. Robbins, Jr., BNSF Railway Law Department, Fort Worth, TX, for Respondent.MADSEN, C.J.

[171 Wash.2d 93] ¶ 1 Alizon Veit brought suit against Burlington Northern Santa Fe Corporation (BNSF) after a train collided with her car at a railroad crossing, resulting in serious injuries. She alleged, among other claims, that BNSF was negligent in exceeding internally imposed speed limits. The trial court granted partial summary judgment in favor of BNSF, holding that Veit's common law excessive speed claim was preempted by federal law because the train was traveling below the federal speed limit at the time of the accident.

¶ 2 The case proceeded to trial, and the jury found that BNSF was not negligent. Veit appealed, challenging the trial court's summary judgment ruling as well as the trial court's failure to admit evidence at trial as to her exercise of due care at the crossing where the accident occurred.

¶ 3 The Court of Appeals affirmed, declining to address issues Veit had raised regarding her compliance with traffic safety laws because they were a matter of contributory negligence and the jury had found that BNSF was not negligent. We affirm the Court of Appeals.

FACTS AND PROCEDURAL HISTORY

¶ 4 On September 10, 2001, Alizon Veit was injured when her car collided with a freight train operated by BNSF at the Pine Street crossing in Bellingham, Washington. In 2003, Ms. Veit, by and through David M. Nelson, her court appointed guardian, brought suit against BNSF, the City of Bellingham, and the marital community of Michael Burks, the BNSF engineer who was operating the train.

¶ 5 Ms. Veit claimed that BNSF failed to exercise reasonable care in designing the railroad crossing, maintaining visibility at the crossing, operating the train at the crossing, and warning the public as to oncoming trains, and she further claimed that the railroad's negligence was the proximate cause of her injuries. She also alleged that the crossing was ultrahazardous and therefore that defendants were strictly liable for her injuries. BNSF denied any negligence and raised the affirmative defense of contributory negligence.

¶ 6 BNSF moved for summary judgment, arguing that Veit's excessive speed claims were preempted by federal law. In particular, BNSF maintained, regardless of its compliance or noncompliance with self-imposed speed limits, the train that collided with Veit's car was traveling below 40 miles per hour, the federal speed limit for freight trains on Class Three tracks. In support of BNSF's motion for summary judgment, John Leeper, director of engineering planning for BNSF, submitted a declaration asserting that BNSF had designated the stretch of track where Veit's accident occurred a Class Three track, based on the maximum allowable speed. Similarly, Carl Johnson, a track inspector for BNSF, submitted a declaration indicating that the track segment at the Pine Street crossing was designated a Class Three track, that the federal speed limit for freight trains on Class Three tracks was 40 miles per hour, and that BNSF's internal speed limit at the Pine Street crossing was 30 miles per hour, with a head-end restriction of 20 miles per hour.¹ Alex Franco, Jr., a roadmaster for BNSF, submitted a declaration distinguishing the speed limits found in BNSF's timetables from federally imposed speed limits and indicating that “BNSF typically sets its internal speed limits lower than federal law requires.” Clerk's Papers (CP) at 1923. In addition, Terrence L. Nies, a trainmaster for BNSF in Bellingham, submitted a declaration stating that the segment of track at the Pine Street crossing was a Class Three track and that he had erred when he indicated on an accident report form that it was a Class Two track.

¶ 7 The court granted the defendants' motion for summary judgment on the issue of excessive speed. Veit later moved unsuccessfully for reconsideration.

¶ 8 The City of Bellingham settled with Veit before trial, and the trial court dismissed Veit's claims against Mr. Burks with prejudice. Veit v. BNSF, 150 Wash.App. 369, 376–77, 207 P.3d 1282 (2009).

¶ 9 Prior to trial, BNSF moved in limine to preclude Veit “from arguing that BNSF violated any speed laws, or that traveling in excess of BNSF's internal speed limit of 30 m.p.h. or the head end restrictions of 20 m.p.h was in any way wrong or improper, or that Ms. Veit's accident was caused in any way by the train traveling an excessive speed.” CP at 517. The trial judge admitted only evidence as to actual speed and excluded all evidence as to BNSF's internal speed limits.² Consequently, Veit was unable to introduce BNSF's timetable, which indicated that, at the time of the accident, the internal speed limit at the Pine Street crossing was 30 miles per hour, with a head-end restriction of 20 miles per hour.

¶ 10 The trial court also excluded testimony by Burks, the BNSF engineer who was operating the train that collided with Veit's car. According to Veit's offer of proof, Mr. Burks would have testified as follows:

I understood and believed that the federal speed limit south of the crossing was 30 miles per hour and I understood and believed that the federal speed limit at the crossing was 20 miles per hour ... [b]ecause those were the speed limits described on the July 19, 1999 Timetable No. 3, which speeds I was told by BNSF supervisors were the maximum speeds allowed by federal law.

Pet. for Review at A32.

¶ 11 BNSF brought a motion in limine to exclude references to RCW 46.61.345, which requires drivers to stop “within fifty feet but not less than fifteen feet from the nearest rail of the railroad” when a “particularly dangerous” railroad crossing has a stop sign. Over Veit's strenuous objections, the trial court ruled that the statute would be inadmissible unless a city employee testified that the crossing in question was designated “particularly dangerous.”

¶ 12 Ms. Veit did not testify at trial, having no recollection of the accident. However, the jury heard testimony from two eyewitnesses. According to Jennifer Hendricks, Ms. Veit stopped before driving onto the tracks. However, another witness, LaDawn Ramsey, was less certain that Ms. Veit had reached a full stop before driving onto the tracks. Ms. Ramsey also testified that Ms. Veit “appeared confused by the actions of the car” and was “hesitant” and “jerking” in the moments before the collision. 4 Verbatim Report of Proceedings (VRP) (Mar. 13, 2007) at 596.

¶ 13 Veit also called Gerson J. Alexander, a human factors analyst. Mr. Alexander testified that Ms. Veit's car was found in third gear after the accident. While he noted that third gear was not a rational gear for quickly moving off the tracks to avoid an oncoming train, he opined that due to the defective design of the crossing, Ms. Veit “was put into an untenable position, and she responded foreseeably but inappropriately.” 3 VRP (Mar. 12, 2007) at 519–20.

¶ 14 Grant Wilder, Ms. Veit's friend, testified that Ms. Veit was a poor driver and that he used to help her back her car down her driveway after her husband passed away.

[171 Wash.2d 97] ¶ 15 Various expert witnesses testified as to conditions, safety features, and potential shortcomings of the railroad crossing and the surrounding traffic controls. For example, Edward Stevens, a private consulting transportation engineer, testified that the stop bar was located dangerously close to the railroad tracks, in violation of industry standards, which require the stop bar to be placed at least 15 feet away from the nearest tracks. Thomas Lee Rosenberg, who worked for the City of Bellingham's public works department, testified that the city had never “made an official finding or declaration” designating the Pine Street crossing as an extremely dangerous crossing. 2 VRP (Mar. 8, 2007) at 245. He also testified that placing the stop bar 15 feet away from the nearest tracks, per industry standards, would have been problematic from a visibility standpoint.

¶ 16 The jury also heard various estimates as to the actual speed of the train just before the collision. The highest estimate a witness provided was 33.2 miles per hour.

¶ 17 As a result of BNSF's motion in limine to exclude references to RCW 46.61.345, counsel for Veit was unable to reference the statute in his opening statement and unable to inquire about the statute in cross-examining three witnesses who suggested that Ms. Veit had a duty to stop at the stop bar (located less than five feet from the nearest rail).

¶ 18 Near the end of trial, on Veit's motion, the trial court reversed itself and instructed the jury on RCW 46.61.345. The jury instructions indicated that under Washington law, when a stop sign is erected at a railroad crossing, the driver must stop between 50 and 15 feet from the nearest rail and thereafter proceed with due care. In addition, the instructions provided that the violation of a statute or administrative rule may be considered evidence of negligence, that the Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD) has the authority of law...