Wilcox v. BNSF Ry. Co.
| Decision Date | 28 September 2017 |
| Docket Number | No. 1 CA-CV 15-0740,1 CA-CV 15-0740 |
| Parties | TINA M. WILCOX, individually and as Personal Representative of the heirs of Michael Wilcox, Deceased, Plaintiff/Appellee, v. BNSF RAILWAY COMPANY, a corporation, Defendant/Appellant. |
| Court | Arizona Court of Appeals |
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
The Honorable Randall H. Warner, Judge
AFFIRMED
Mandel Young, PLC, Phoenix
By Taylor C. Young
St. John & Romero, PLLC, Mesa
By Jason J. Romero, Don A. St. John
Hildebrand McLeod & Nelson, LLP, Oakland, CA
By Anthony S. Petru, Kristoffer S. Mayfield
Thorpe Shwer, PC, Phoenix
By William L. Thorpe, Bradley Shwer, Kristin Paiva
Counsel for Defendant/Appellant
MEMORANDUM DECISIONPresiding Judge Peter B. Swann delivered the decision of the court, in which Judge Kent E. Cattani and Judge Donn Kessler (retired) joined.
¶1 BNSF Railway Company appeals from a jury verdict awarding Tina Wilcox ("Plaintiff") almost $3 million in damages for her husband's ("Wilcox['s]") death after he was struck by a train. We affirm the verdict and the resulting judgment and hold that railroad employees may pursue a Federal Employees Liability Act ("FELA") negligence claim against railroads for violation of the walkway requirements under A.A.C. R14-5-110.
¶2 We hold that R14-5-110, which requires railroads to provide walkways for employees engaged in "trackside duties," is not preempted by the Federal Railroad Safety Act ("FRSA"), because no federal regulation "substantially subsumes" walkways adjacent to railroad tracks. We further hold that when a state regulation is not preempted by FRSA, employees may maintain a negligence or wrongful death claim under FELA based on a violation of that regulation. When the federal government has determined that a safety concern is best regulated by the states, state regulations on that issue are "safety statutes" for purposes of FELA.
¶3 The determination of whether an activity is a "trackside duty" is a question of law to be resolved by the court, and that untying a train as part of a "dog catch" is a trackside duty under R14-5-110. The superior court erred by submitting the issue to the jury, but because the jury found Wilcox was engaged in a trackside duty, we affirm the verdict.
¶4 On February 7, 2009, BNSF employees Lynch and Ben were driving a train from Belen, New Mexico, to Winslow, Arizona. By the time they reached Gallup, New Mexico, Ben was concerned they did not have enough time to reach Winslow before their federally mandated 12-work-hour limit. See 49 C.F.R. § 228.19(b)(1). He tried to "put [the] idea in the dispatcher's mind" to swap crews in Gallup. The dispatcher did not respond to the request, and they continued toward Winslow after a three-hour stop in Gallup. At 8:50 p.m., with about 80 minutes of work-time left, they arrived in Holbrook, Arizona, and were ordered to tie the train down near the old Budweiser plant. Train crews can be swapped without tying down the train, but the train must be tied down if the original crew leaves before the relief crew arrives. Only a small percentage of crew swaps involve tying down a train.
¶5 The Budweiser plant is south of Holbrook, and the area has two adjacent, parallel mainline tracks less than nine feet apart: "Main 1" to the north, which usually handles eastbound trains, and "Main 2" to the south, which usually handles westbound trains. There are three "yard tracks" south of Main 2. If trains are on both mainlines, there is less than three feet of space between them. There is a knee-high drop-off to the south of Main 2 where the ballast (engineering material used to support the track, and, in some cases, provide a walking surface) slopes down, and a dirt road north of Main 1. Approximately 80 to 90 trains pass through the area per day.
¶6 With the train stopped on Main 2, Lynch tied up the hand brakes on several of the train cars, and they left the area via taxi. BNSF employees DeSpain and Wilcox were called around 7:15 p.m. and ordered to report to Winslow by 8:40 p.m. After arriving, they were assigned to "dog catch" the train in Holbrook. A "dog catch" happens when a crew hits the federally-mandated 12-hour limit, and a replacement crew is taxied to the train to relieve them. A "swap" is when two crews switch trains. DeSpain and Wilcox were picked up in Winslow and driven to Holbrook, arriving just before 9:30 p.m.
¶7 To untie the train, Wilcox had to walk about 500 feet down the track and unlock the hand brakes on several of the cars, possibly alternating between sides of the train.1 It takes 10 to 15 minutes to untie a train. While Wilcox was untying the brakes, a second train traveling on Main 1 struck him.2 The crew of the oncoming train could not see Wilcox until just before impact. Wilcox died of his injuries.
¶8 Plaintiff sued BNSF for negligence. After a jury trial, Plaintiff was awarded just under $3 million in damages. In response to special interrogatories, the jury found that Wilcox was 20% at fault for the accident and that he was engaged in "trackside duties" when he was killed. The superior court entered a judgment for the full amount under 45 U.S.C. § 53, without reducing the award under federal comparative fault principles. BNSF appeals.
¶9 BNSF challenges the superior court's denial of its pretrial motions for summary judgment, the denial of its motion at trial for judgment as a matter of law, the partial grant of Plaintiff's motion at trial for judgment as a matter of law, and the denial of its motion for a mistrial.
¶10 Generally, the denial of a motion for summary judgment is not reviewable on appeal after a trial on the merits, but a party may preserve a summary judgment issue by reasserting the argument in a motion for judgment as a matter of law at trial, as BNSF did here. John C. Lincoln Hosp. & Health Corp. v. Maricopa County, 208 Ariz. 532, 539, ¶ 19 (App. 2004). We review summary judgment rulings, rulings on motions for judgment as a matter of law, and questions of statutory construction de novo. See Brookover v. Roberts Enters., Inc., 215 Ariz. 52, 55, ¶ 8 (App. 2007); A Tumbling-T Ranches v. Flood Control Dist. of Maricopa County, 222 Ariz. 515, 524, ¶ 14 (App. 2009); Higginbottom v. State, 203 Ariz. 139, 142, ¶ 9 (App. 2002). We review rulings on motions for mistrial for abuse of discretion. See Gray v. Gardiner, 92 Ariz. 208, 210 (1962).
¶11 Plaintiff presented evidence at trial to support several theories of liability: (1) BNSF was negligent in not granting DeSpain and Wilcox "track and time" — holding all trains in all directions along Main 1 and Main 2 — while they untied the train; (2) BNSF was negligent in ordering the train tied down in Holbrook when (a) Ben and Lynch could have been held aboard until DeSpain and Wilcox arrived or (b) DeSpain and Wilcox could have been called to work earlier to meet the train when it arrived (collectively, "the negligent dispatching claims"); (3) BNSF employees failed to adequately warn Wilcox of the oncoming train;3 (4) BNSF was negligent per se by violating R14-5-110(A)(1); and (5) BNSF was negligent by not providing Wilcox with reflective clothing to wearwhile untying the train. The superior court granted BNSF's motion for judgment as a matter of law under Ariz. R. Civ. P. ("Rule") 50 on the reflective clothing theory and partially granted Plaintiff's Rule 50 motion by ruling as a matter of law that there was no walkway adjacent to Main 2.
¶12 BNSF argues that the superior court improperly permitted Plaintiff to present evidence of the negligent dispatching claims because there was no expert testimony on the standard of care for train dispatchers, which BNSF argues is a specialized trade or profession. BNSF also argues that the superior court erred by denying its motion for summary judgment, in which it argued that A.A.C. R14-5-110 may not be considered as a basis for negligence per se, because a tort claim based on that regulation is precluded or preempted by federal law. We need not address expert testimony on the negligent dispatching claims, because the negligence per se theory supports the verdict on those claims. And the controlling federal statutes prohibited BNSF from raising comparative fault as a defense.
¶13 To evaluate negligence per se and the availability of comparative fault, we must examine the relationship between a state regulation, R14-5-110, and two federal statutes, FELA and FRSA. "FELA provides the exclusive remedy for a railroad employee injured as a result of his employer's negligence," Lane v. R.A. Sims, Jr., Inc., 241 F.3d 439, 442 (5th Cir. 2001), "imposes on railroads a general duty to provide a safe workplace," McGinn v. Burlington N.R.R. Co., 102 F.3d 295, 300 (7th Cir. 1996), and creates (though using the term "contributory negligence") a pure comparative fault regime for negligence and wrongful death claims, 45 U.S.C. §§ 51, 53. But FELA also provides that if a railroad violates "[a] regulation, standard, or requirement," 45 U.S.C. § 54a, "enacted for the safety of employees [and if the violation] contributed to the injury or death of such employee," the railroad may not raise comparative fault or assumption of risk defenses, 45 U.S.C. §§ 53, 54.
¶14 "Congress enacted [FRSA] 'to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.'" Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344, 347 (2000) (quoting 49 U.S.C. § 20101). FRSA seeks national uniformity "to the extent practicable" in "[l]aws, regulations, and orders related to railroad safety." 49 U.S.C. § 20106(a)(1). FRSA specifies numerous requirements to ensure railroad safety, and it authorizes the federal Department of Transportation to "prescribe regulations...
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