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Malinski v. BNSF Railway Co.

United States District Court, N.D. Oklahoma

March 31, 2017

TYLER D. MALINSKI, Plaintiff, and PAULA SMITH, Intervenor,



         Before the Court is defendant BNSF Railway Company's (“BNSF”) Motion for Summary Judgment (the “Motion”) (Doc. 39), which plaintiff has opposed (Doc. 67). The Court has summarized the procedural background of this case in its previous orders. (Docs. 109, 127). For the reasons stated herein, the Court denies BNSF's Motion.

         I. Factual Background

         The following facts are undisputed by the parties. On December 4, 2014, a collision occurred between BNSF 8135, a train owned and operated by BNSF, and a motor vehicle driven by plaintiff. The collision took place at a railroad grade grossing on County Road 210 near Afton, Oklahoma. (Doc. 39 at 6, ¶ 1). The lead locomotive on the BNSF train was equipped with a video recording device that captured plaintiff's vehicle approaching the railroad crossing and the subsequent collision. (Doc. 39, Exh. 6). The video reflects that the lead locomotive was equipped with an event recorder (i.e., a black box), and that the locomotive sounded its horn for approximately fifteen seconds prior to the accident. (Id.). The video also demonstrates that the front of plaintiff's vehicle was approximately ninety-nine feet from the near rail. (Id., Exh. 2, 6). Plaintiff's vehicle was moving at approximately eight-and-a-half miles per hour at the time it crossed the crossbuck.[1] (Id.). At the time of the accident, the train was moving at a speed of fifty-five miles per hour. (Id. at 6, ¶ 34). The maximum authorized speed on the track where the accident occurred is sixty miles per hour. (Id., ¶ 33).

         The horn on the train's lead locomotive was tested ten days after the collision and produced a sound level of 100.5 decibels from a distance of one-hundred feet. (Id., ¶ 31). The train was also equipped with two nose-mounted headlights and two ditch-lights mounted above the front platform. These lights could illuminate a person at least eight-hundred feet in front of the locomotive. (Id., ¶ 32).

         The two reflectorized crossbucks at the County Road 210 crossing were installed in March 1981. (Id. at 5, ¶ 26). BNSF contends that the crossbucks were installed under project RRO-000S(64), pursuant to the Crossbuck Agreement between the State of Oklahoma and BNSF's predecessor-in-interest, the St. Louis-San Francisco Railway Company. The project was approved and authorized by the Federal Highway Administration. The Crossbuck Agreement further provided that federal funds would pay for ninety percent of the costs to install the warning devices. (Id. at 4, ¶¶ 21-26). The FWHA final voucher demonstrates that ninety percent of the installation costs under the Crossbuck Agreement from December 6, 1978 through January 31, 1990 were federally funded. The voucher makes specific reference to project RRO-000S(64). (Id. at 5, ¶¶ 26-27).

         II. Legal Standard

         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In considering a summary judgment motion, courts determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 at 251-52. The evidence of the non-movant is to be taken as true, and all justifiable inferences are to be drawn in non-movant's favor. Anderson, 477 U.S. at 255; see also Ribeau v. Katt, 681 F.3d 1190, 1194 (10th Cir. 2012). “Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment. . . .” Anderson, 477 U.S. at 255. “[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.

         “When the moving party has carried its burden under Rule 56[a], its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (citations omitted). When the record, taken as a whole, “could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Id. (quotations omitted). “The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the [trier of fact] could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. In its review, the Court construes the record in the light most favorable to the party opposing summary judgment. Garratt v. Walker, 164 F.3d 1249, 1251 (10th Cir. 1998).

         III. Discussion

         BNSF moves for summary judgment on the following grounds: (1) plaintiff violated Okla. Stat. tit. 47, § 11-701(A) by failing to stop for a plainly visible train sounding its horn and was therefore negligent per se; (2) plaintiff's obstruction claim fails as a matter of law; (3) the Federal Railroad Safety Act preempts plaintiff's state law claim related to the adequacy of warning devices; (4) any claims regarding the speed of the train or adequacy of locomotive warning devices are preempted; (5) the Manual on Uniform Traffic Control Devices for Streets and Highways preempts any claim regarding BNSF's duty to install additional warning devices at the crossing; and (6) the statute of repose bars plaintiff's claim regarding the design of the railroad track.

         A. Negligence Per Se

         Negligence per se under Oklahoma law requires that: “(1) the violation of a statute or ordinance must have caused the injury, (2) the harm sustained must have been of a type intended to be prevented by the statute or ordinance, and (3) ‘the injured party must be one of the class intended to be protected by the statute.'” Hamilton v. Allen, 852 P.2d 697, 699 (Okla. 1993) (quoting Ohio Casualty Ins. Co. v. Todd, 813 P.2d 508, 510 (Okla. 1991)). A party's negligence per se breaks the causal chain between a defendant's negligence and the injury if the negligent per se party's actions are the proximate cause of his injury. “Generally, the proximate cause of an injury in a negligence case is for the jury to determine. It becomes a question of law for the court only when there is no evidence from which a jury could reasonably find a causal nexus between the defendant's alleged negligent act and the injury.” Akin v. Mo. Pac. R.R. Co., 977 P.2d 1040, 1054 (Okla. 1998).

         BNSF asserts that plaintiff violated Okla. Stat. tit. 47, § 11-701(A)(3) and (A)(4). Okla. Stat. tit. 47, § 11-701(A) imposes a duty on motorists approaching railroad crossings to stop within fifty feet but not less than fifteen feet from the railroad when:

1. A clearly visible electric or mechanical signal device gives warning of the immediate approach of a railroad train;
2. A crossing gate is lowered or when a human flagman gives or continues to give a signal of the approach or passage of a railroad train;
3. A railroad train approaching within approximately one thousand five (1, 500) hundred feet of the highway crossing emits a signal audible from such distance and such railroad train, by reason of its speed or nearness to such crossing, is an immediate hazard;
4. An approaching railroad train is plainly visible and is in hazardous proximity ...

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