Vigil v. Burlington Northern and Santa Fe Ry. Co.

Decision Date03 August 2007
Docket NumberNo. CIV 06-0212 RB/WDS.,CIV 06-0212 RB/WDS.
Citation521 F.Supp.2d 1185
PartiesEric VIGIL and Kimberly Vigil, Individually, as Personal Representatives of the Estate of Justin Vigil, and as Next Friends of Jacob Vigil, and Juan Moya and Josie Moya, Individually, and Personal Representatives of the Estate of Jacob Moya, and as Next Friends of Justina Moya, Plaintiffs, v. BURLINGTON NORTHERN AND SANTA FE RAILWAY CO., a Delaware Corporation and The National Railroad Corp., a/k/a Amtrak, Defendants.
CourtU.S. District Court — District of New Mexico

Kenneth G. Egan, Angel L. Saenz, Las Cruces, NM, for Plaintiffs.

Earl E. Debrine, Jr., Tim L. Fields, Modrall, Sperling, Roehl, Harris & Sisk, PA, Alex Cameron Walker, Albuquerque, NM, for Defendants.

MEMORANDUM OPINION AND ORDER

ROBERT C. BRACK, District Judge.

THIS MATTER came before the Court on Defendants' Motion to Strike Affidavit of Allen Haley and to Exclude Opinions (Doc. 124), filed on May 7, 2007; Defendants' Motion to Strike Second Affidavit of Allen Haley and to Exclude New Opinions (Doc. 136), filed on May 24, 2007; Defendants' Motion for Summary Judgment (Federal Preemption) (Doc. 74), filed on March 9, 2007; Plaintiffs' Cross Motion for Sanctions Against Defendants (Doc. 89), filed on April 6, 2007; Defendants' Motion for Summary Judgment: Federal Preemption of Claims Regarding Crew Training and Train Event Recorders (Doc. 99), filed on April 9, 2007; Defendants' Motion for Partial Summary Judgment on the Driver's Negligence Per Se and on Plaintiffs' Claim that the Train Crew Failed to Maintain a Proper Lookout or Take Action to Avoid the Collision (Doc. 72), filed on March 9, 2007; Defendants' Motion for Summary Judgment on Plaintiffs' Negligence and Punitive Damage Claims (Doc. 96), filed on April 9, 2007; and Defendants' Brief in Support of Their Objections to Plaintiffs' Designation of Claims and Witnesses in the Pretrial Order (Doc. 159), filed on July 3, 2007. Jurisdiction arises under 28 U.S.C. § 1332.

The Court, having considered the motions, briefs, record, and relevant law, and being otherwise fully advised, finds: Defendants' Motions to Strike should be granted as to Mr. Haley's opinions regarding the integrity of data downloaded from the event recorders, the effectiveness of the event recorders, the responsibility of BNSF and Amtrak for the actions of the Amtrak crew, and denied as to Mr. Haley's opinions concerning whether the train crew properly operated the whistle; a decision on the admissibility of Mr. Haley's opinion on whether dangerous conditions existed at the crossing that warranted modification of the crossing is reserved pending a hearing pursuant to Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Defendants are directed to file a motion identifying any documents relied upon by Mr. Haley that are allegedly covered by 23 U.S.C. § 409 or 49 U.S.C. § 20903 by August 10, 2007; and Defendants' request for costs with respect to their Motions to Strike is denied at this time, subject to renewal at the conclusion of this litigation.

The Court further finds: Defendants' Motion for Summary Judgment (Federal Preemption) should be granted as to Plaintiffs' claims relating to the speed of the train and the adequacy of the whistle and denied as to claims that the train crew failed to properly sound the whistle; Plaintiffs' Cross Motion for Sanctions Against Defendants should be denied; Defendants' Motion for Summary Judgment: Federal Preemption of Claims Regarding Crew Training and Train Event Recorders should be granted; Defendants' Motion for Partial Summary Judgment on the Driver's Negligence Per Se and on Plaintiffs' Claim that the Train Crew Failed to Maintain a Proper Lookout or Take Action to Avoid the Collision should be granted; and Defendants' Motion for Summary Judgment on Plaintiffs' Negligence and Punitive Damage Claims should be granted on Plaintiffs' claims for punitive damages and Plaintiffs' claims that Defendants had authority to close the North Farm Road crossing or the responsibility to maintain North Farm Road and denied on the issues of whether the train crew properly operated the whistle; and a decision on whether Defendants are entitled to summary judgment on the issue of whether dangerous conditions existed at the crossing that warranted modification of the crossing is reserved. Defendants' objections to Plaintiffs' designation of witnesses in the Pretrial Order were resolved by a stipulated order filed contemporaneously herewith. Defendants' objections to Plaintiffs' designation of claims in the Pretrial Order are overruled to the extent stated herein.

I. Facts.

This wrongful death and loss of consortium action stems from a tragic collision between an Amtrak train and a 1998 GEO Tracker sport utility vehicle ("SUV"). The following statement of facts is set forth in the light most favorable to Plaintiffs, with all reasonable inferences from the record drawn in their favor. See Fuerschbach v. Southwest Airlines Co., 439 F.3d 1197, 1207 (10th Cir.2006).

On the afternoon of March 21, 2003, fifteen-year-old Jacob Moya drove the SUIT southbound on New Mexico Highway 313 ("SR 313") in Sandoval County, New Mexico. Thirteen-year-old Justin Vigil was the only passenger. SR 313 runs parallel to railroad tracks, which are located to the east of the roadway. The boys were on their way to tend cattle on Sandia Pueblo land on the east side of the tracks.

At about 3:35 p.m., the SUV turned east onto North Farm Road, a dirt road that crosses the tracks. ([Doc. 73] Defs. Ex. A, "Arnold Aff.") The SUV was struck by a southbound Amtrak train. (Arnold Aff.) Jacob Moya and Justin Vigil died in the collision. (Arnold Aff.)

The North Farm Road railroad crossing predates automobile traffic. ([Doc. 86] Pls. Resp. Br., Exs. B and C.). On the day of the collision, there was a stop sign located on the west side of the North Farm Road railroad crossing that faced eastbound traffic approaching the crossing. (Arnold Aff.) There was also a crossbuck sign posted on the same pole, below the stop sign. (Arnold Aff.) The stop sign and the current crossbuck sign were installed after a train-vehicle collision in March 1996. (Arnold Aff.) The stop sign and crossbuck sign were clearly visible to vehicles approaching the North Farm Road crossing from Highway 313. (Arnold Aff.)

At the time of the collision, Plaintiffs Eric Vigil and Kimberly Vigil were on North Farm Road on the east side of the tracks to the south of the crossing. ([Doc. 128] Pls. Ex. 2, "Arnold Report.") Eric and Kimberly Vigil saw the SUIT approach the crossing. (Arnold Report.) Mr. Vigil testified in his deposition that he had gotten into his truck to start it and turn into the pasture gate, when he "looked through the windshield, they [Justin Moya and Jacob Vigil] were on top of the track, and boom, they got hit." ([Doc. 128] Pls. Ex. 3, E. Vigil Dep. 45.) Mr. Vigil did not hear the train whistle blowing prior to the impact; he only heard the whistle when the train was on top of the SUIT. (Vigil Dep. 45.)

Before the accident, Cynthia Herrera was driving southbound on SR 313, behind the SUIT. ([Doc. 75] Defs. Ex. C, "Herrera Aff.") Ms. Herrera could hear the whistle and see the headlight of the train from approximately a quarter of a mile away from the North Farm Road turnoff. (Herrera Aff.) Ms. Herrera slowed down when the SUV stopped to turn left. (Herrera Aff.) After northbound traffic passed, the SUV turned east onto North Farm Road. (Herrera Aff.) As the SUV turned east onto North Farm Road, Ms. Herrera could hear the train whistle inside her vehicle with the windows closed. (Herrera Aff.)

After the SUV turned onto North Farm Road, Ms. Herrera proceeded southbound and watched the SUV in her driver's side mirror. (Herrera Aff.) Ms. Herrera recalled that the SUV did not come to a stop at the stop sign for the railroad crossing. (Herrera Aff.) Instead, the SUV proceeded onto the railroad track, moving slowly forward onto the track where it collided with the train. (Herrera Aff.)

Ms. Herrera observed the debris from the SUV thrown away from the site, as well as the bodies of the two persons in the SUV as they were ejected from the vehicle. (Herrera Aff.) According to Ms. Herrera, the whistle on the train was blowing the whole time, and the train could be clearly seen in the approach, to the crossing as there were no obstructions in either direction. (Herrera Aff.) Ms. Herrera "vividly remembers" the events leading up to the accident. (Herrera Aff.)

Mike Avila was traveling north on SR 313. (Arnold Aff.) Mr. Avila recalled he almost had to stop as the SUV pulled out in front of him to turn onto North Farm Road. (Arnold Aff.)

James Steiner was the first engineer on the train, which was traveling from La Junta, Colorado to Albuquerque, New Mexico. ([Doc. 90] Pls. Ex. 2, "Steiner Dep." 14.) Mr. Steiner has been operating Amtrak trains on the same route since 1988. (Steiner Dep. 31; 38.) At the time of the accident, Mr. Steiner was trained, qualified and certified as a locomotive engineer. ([Doc. 97], Defs. Ex. B, "Nerkowski Aff.")

Mr. Steiner testified in his deposition that the train lights were on, the bell was ringing, and the horn1 was blowing as the train approached the North Farm Road crossing. ([Doc. 75] Defs. Ex. A; "Steiner Dep." 107-08; 116-18.) The whistle, bell and lights were checked before the train left La Junta earlier that day and were found to be operational. ([Doc. 97] Defs. Ex. C, "E step Dep." 23-25.)

According to Mr. Steiner, the SUV appeared as if it were going to stop, but it continued onto the tracks without stopping. (Steiner Dep. 104.) The distance between the tracks and the road was about 50 yards. (Steiner Dep. 104.) The SUV did not stop, but rolled onto the tracks at a very slow speed. (Steiner Dep. 104.) The SUV ...

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