Opinion
Case No. 05-CV-305-D.
July 20, 2006
ORDER ON SUMMARY JUDGMENT
This matter comes before the Court on Defendant's Motion for Summary Judgment. The court, having carefully considered the material submitted in this case, having heard oral arguments of counsel, and being otherwise fully advised in the premises, FINDS and ORDERS as follows:
BACKGROUND
On December 8, 2003, Don Pribbernow and Tim Hill were released early from their work for McGarvin Moberly at the Granite Canyon Quarry due to inclement weather. McGarvin Moberly is a contractor which hauls sand for the Wyoming Department of Transportation in the winter. It was snowing and windy; visibility was about a half a mile. To get back to Cheyenne the two men drove in Pribbernow's pick-up along Gravel Pit Road parallel to a set of train tracks. At the Granite Canyon Crossing the road turns 90 degrees to cross the tracks. The Granite Canyon Crossing is a private crossing with a sign posted by Union Pacific which reads, "PRIVATE RXR CROSSING, NO TRESPASSING, RIGHT TO PASS BY PERMISSION, SUBJECT TO CONTROL OF OWNER." There is a stop sign, but no lights or barriers. When stopped at the stop sign, a driver cannot see very far down the tracks at all, but if the driver pulls forward just a few feet, he has an unobstructed view. No one knows whether the truck stopped at the stop sign, but the engineer of the train saw it continue slowly over the tracks where it was struck by a Union Pacific train traveling east at approximately 35 miles an hour. Both men were killed in the collision. At the time the train struck the passenger side of the vehicle, there was another engine standing, facing west, on the driver's side, approximately fifty-seven feet from the crossing waiting for the eastbound train to clear.
Ms. Fegler, Mr. Pribbernow's daughter, has sued Union Pacific under the Wyoming Wrongful Death Act in her capacity as the personal representative of Mr. Pribbernow's estate. Wyo. Stat. Ann. § 1-38-101. She alleges failure to exercise reasonable care under all the circumstances as well as a variety of failure to warn, failure to maintain, failure to operate, failure to inspect, failure to keep a proper lookout, and claims for failure to comply with applicable federal and state statutes.
Union Pacific has made two separate summary judgment motions. The first seeks partial summary judgment on Plaintiff's claims relating to train speed and train whistle. Essentially, Defendant argues that these areas are preempted by federal law, and therefore, Wyoming's negligence law does not apply. Union Pacific also argues that it should not be subject to punitive damages because there is no evidence of willful and wanton misconduct. Finally, Union Pacific moves for summary judgment on all other claims because, it argues, Mr. Pribbernow was a trespasser and the railroad owed him no duty.
STANDARD OF REVIEW
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). "By its very terms, [the Rule 56(c)] standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there is no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The relevant inquiry is "whether it is so one-sided that one party must prevail as a matter of law." Carey v. United States Postal Serv., 812 F.2d 621, 623 (10th Cir. 1987). "The movant bears the initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact and entitlement to judgment as a matter of law." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Once the movant carries this initial burden, the nonmovant, who bears the burden of persuasion at trial, may not simply rest upon its pleadings. The nonmovant must "`set forth specific facts' that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Id. at 671 (citing Fed.R.Civ.P. 56(e)).
In considering a party's motion for summary judgment, the court must examine all evidence in the light most favorable to the non-moving party. Barber v. General Elec. Co., 648 F.2d 1272, 1276 n. 1 (10th Cir. 1981). If after reviewing the evidence, there is but one reasonable conclusion as to the verdict and reasonable minds would not differ as to the import of the evidence, summary judgment is appropriate. Anderson, 477 U.S. at 250.
DISCUSSION
A. Federal Preemption of State Common-Law Negligence
Defendant contends that Plaintiff's claims regarding the train speed and the train whistle are preempted by federal law. The Plaintiff has conceded the issue with regard to the train's speed. Thus, the Court will only examine whether the train whistle was loud enough, and whether its loudness should be evaluated by the law of negligence or by federal law.
Defendant begins by noting that even Plaintiff's expert agrees that the horn on the lead locomotive complied with the FRA horn regulations. That is, it generated sound that measured at least 96 decibels 100 feet away from the train in the direction of travel. 49 C.F.R. § 229.129. Plaintiff's expert contends that despite its compliance, given the conditions, the horn was not loud enough to warn Mr. Pribbernow. He rests this conclusion on the horn's placement on the locomotive, the buildings clustered around the crossing, and noise from the heater in Mr. Pribbernow's truck.
While neither Wyoming, nor the Tenth Circuit has addressed this issue, the Eighth Circuit has. The Eighth Circuit upheld a district court's exclusion of Plaintiff's expert based on the Locomotive Inspection Act's preemption of the negligence claim. 49 U.S.C. §§ 20701. The court wrote, "If each state were to adopt different liability-triggering standards, manufacturers would have to sell locomotives and cars whose equipment could be changed as they crossed state lines, or adhere to the standard set by the most stringent state. Either way, Congress's goal of uniform, federal railroad regulations would be undermined." First Sec. Bank v. Union Pacific Railroad Co., 152 F.3d 877, 880-81 (8th Cir. 1998) see also, Law v. Gen Motors Corp., 114 F.3d 909, 910 (9th Cir. 1997); Strandberg v. Chicago, Central Pacific R. Co., 284 F.Supp.2d 1136, 11 43-44 (N.D. Iowa 2003).
Plaintiff contends that the 96 decibel regulation was written to create a standard of care for the railroad. Rather, it was simply written to provide a minimum for a properly functioning horn. 45 Fed. Reg. 63, 21107 (March 31, 1980) (standard later codified at 49 C.F.R. § 229.129). Thus, Plaintiff argues, a horn could function properly and still not be loud enough to adequately warn others of the train's approach. Since a horn's essential function is to warn others of a train's approach, it is hard to imagine a circumstance in which one could conclude that the horn was loud enough to function, but not adequate to warn. To hold Union Pacific liable in this case because of a horn that functioned at or slightly above the required decibel level, would, in effect, create a rule requiring every train to vary the horn's decibel level depending on the buildings and geographic features surrounding each crossing. Not only would this be nearly impossible to achieve, it would undermine the Congressional goal of uniformity discussed in First Sec. Bank even more than that case contemplated. 152 F.3d at 880-81. Therefore, summary judgment is appropriate on federal preemption of the horn adequacy claim.
B. Wilful and Wanton Misconduct
Defendant makes two essential arguments in its second motion. Both rely on its assertion that Plaintiff cannot show wilful and wanton misconduct. First, Defendant seeks summary judgment on the punitive damages claim because punitive damages are only appropriate when Defendant's conduct approaches the intent to do harm. Second, Defendant argues that decedent was a trespasser and therefore, Union Pacific owed him no duty except to refrain from wilful and wanton misconduct.
1. Punitive Damages
"Punitive damages are not a favorite of the law and are to be allowed with caution within narrow limits." Weaver v. Mitchell, 715 P.2d 1361, 1369 (Wyo. 1986). Because the purpose is to deter or punish, courts require "some element of outrage." Id. Punitive damages are available in Wyoming only when a defendant demonstrates willful or wanton misconduct. Danculovich v. Brown, 593 P.2d 187, 191 (Wyo. 1979). Willful and wanton misconduct has been defined as an extreme departure from ordinary care which is more than a "mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simple inattention." Id. "In order to prove that an actor has engaged in willful misconduct, one must demonstrate that he acted with a state of mind that approaches intent to do harm." Bryant v. Hornbuckle, 728 P.2d 1132, 1136 (Wyo. 1986).
Examining Union Pacific's conduct in the light most favorable to the non-moving party, it is clear that the railroad made certain choices about the crossing. The railroad chose not to employ flaggers even though the crew in the other engine could have come down to flag the crossing while the eastbound train came through. The railroad chose not to place barriers, lights, or bells at the crossing. The railroad, instead, put up "no trespassing" signs, decided not to take down certain buildings it had placed near the crossing, and put stop signs on either side of the tracks. While other collisions had occurred there, no one had ever been hurt at the crossing before. The collisions all involved empty vehicles. The parties generally agree that over the last twenty-three years a total of approximately 300,000 trains and 600,000 vehicles have used the crossing, and there have only been three collisions. These facts indicate that the railroad was, at most, negligent. Even viewed in the light most favorable to Plaintiff, they do not support "a state of mind approaching intent to do harm." Therefore, summary judgment is appropriate on punitive damages.
2. Decedent's Status as a Trespasser
Defendant rests this portion of the argument quite heavily on the assumption that Mr. Pribbernow was a trespasser when he was hit, and therefore, Union Pacific owed him no duty. Plaintiff raises several problems with that assumption. First, Plaintiff contends that Mr. Pribbernow was not a trespasser, but an invitee because the railroad had impliedly given people permission to cross the tracks there. Even if he was not an invitee or a licensee, Plaintiff argues, he was a known trespasser, and once a possessor of land knows of a trespasser, he has a duty of ordinary care toward that trespasser.
In Clarke v. Beckwith, 858 P.2d 293, 296 (Wyo. 1993), the Wyoming Supreme Court did away with the historic distinction between invitees and licensees holding that landowners would be held to a standard of reasonable care under the circumstances when dealing with both groups. The Court in that case emphasized that trespassers would continue to have a much higher burden of proof. Id. "The owner of land has no duty . . . to maintain the premises in a safe condition for their use . . . [W]hen strangers enter upon another's land, they take it as they find it. They cannot assume that the owner has made is safe for persons so entering and they must accept the danger arising from the conditions of the premises. The court did limit this rule by recognizing that the owner may not wantonly injure trespassers." Yalowizer v. Husky Oil Co., 629 P.2d 465, 467 (Wyo. 1981).
Plaintiff first contends that Mr. Pribbernow was an invitee because "by the establishment of such crossings, an invitation is extended to the public to use them, and it becomes the duty of the railroad company and its agents and employees to look out for and avoid injuring those who are using the crossing." Martin v. B. Q Ry. Co., 89 P. 1025, 1027 (Wyo. 1907). This quote, however, is dicta from a case which held that the railroad was not liable for injuries to stray cattle upon the tracks, and in addition, the Wyoming Supreme Court in Martin failed to differentiate between public crossings and private crossings.
Plaintiff next contends that if he was not an invitee, Mr. Pribbernow was a licensee. Plaintiff relies heavily on an ALR first published in 1947 which summarizes cases imposing a duty of ordinary care arising from continuous and open use of a private crossing. 167 A.L.R. 1253, see also, Hooks v. New York Cent. R. Co., 327 F.2d 259, 260 (2nd Cir. 1964) (farm worker was not trespasser where he had to cross tracks to get from one part of the farm to another); Spevak v. Pennsylvania R. Co., 173 F.2d 972 (3d Cir. 1949) (railroad was bound to use reasonable care to avoid injuring pedestrian using crossing that was permitted but not sanctioned by the railroad); but see, Chesapeake O. Ry. Co. v. Faison, 52 S.E. 2d 865, 868 (Va. 1949) ("Since the plaintiff was not within the category of those persons for whose use the crossing was installed, he was at best a bare licensee . . . and took the crossing as he found it.").
Plaintiff has submitted testimony from several workers at the Granite Canyon Quarry and the Sutherland Ranch that they have used the crossing continuously for at least the last 30 years. (Pl. Ex. 12 at ¶ 4, 7). One employee at the Quarry indicates that she has had several phone calls from the Defendant over the years complaining about near misses between trains and quarry workers. (Pl. Ex. 10 at ¶ 2, 5, 8). At no time did Union Pacific ever indicate that quarry workers who used the crossing were trespassers. (Id.). In addition, the no trespassing signs posted by the railway at the crossing say "right to pass by permission subject to control by owner." Plaintiff contends that Union Pacific gave permission to the Ranch and the Quarry to use the crossing. This evidence creates a genuine issue of fact as to whether the crossing had been used openly and continuously for long enough that the railroad owed decedents a duty of ordinary or reasonable care. Although duty is generally a question for the court, the facts have not been sufficiently developed at this time to allow the Court to make that determination now.
Defendant objects to some of the material in the affidavits as hearsay, so the Court relies only on the personal knowledge of the affiants.
THEREFORE, Defendant's Motions for Summary Judgment are hereby GRANTED with respect to the horn preemption and punitive damages. The Motion is DENIED as to decedent's status as a trespasser.