Opinion
C19-5425-BHS-MLP
01-12-2022
TIM NAY, et al., Plaintiffs, v. BNSF RAILWAY COMPANY, et al., Defendants.
REPORT AND RECOMMENDATION
MICHELLE L. PETERSON UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
This matter is before the Court on Defendants BNSF Railway Company (“BNSF”), National Railroad Passenger Company (d/b/a/ Amtrak), Timothy Burch, and Thomas Matlock's Motion for Summary Judgment (“Defendants' Motion”). (Defs.' Mot. (dkt. # 71).) Defendants' Motion seeks summary judgment in their favor on claims by Plaintiffs Tim Nay, in his capacity as personal representative of the estate of Maria Gonzalez Torres (“Ms. Gonzalez Torres”), and Gregory Price, in his capacity as guardian ad litem of minor I.G., for wrongful death and survival arising from a BNSF and Amtrak (“Railroad Defendants”) train collision that resulted in the death of Ms. Gonzalez Torres. (Id. at 1-2.) Plaintiffs oppose Defendants' Motion (Pls.' Resp. (dkt. # 86)) and Defendants filed a reply (Defs.' Reply (dkt. # 92)). Neither party requested oral argument. 1
Having considered the parties' submissions, the governing law, and the balance of the record, the Court recommends that Defendants' Motion (dkt. # 71) be GRANTED in part and DENIED in part, as further explained below.
II. BACKGROUND
A. Factual Background
Beginning in approximately May 2016, Ms. Gonzalez Torres and her employees began cleaning several houses located on Southwest 5th Avenue, in Camas, Washington. (Yates Decl. (dkt. # 72) at ¶ 2, Ex. A (dkt. # 72-1) at 4 (Tedoro Dep. at 15:4-16:13).) On May 16, 2017, at approximately 10 a.m., Ms. Gonzalez Torres drove her vehicle with her minor son I.G. in a southwest direction along Southwest Viola, a private road that connects to Southwest 5th Avenue, to reach one of the homes that she cleaned. (Am. Compl. (dkt. # 31) at ¶¶ 14, 18; Yates Decl. at ¶ 3, Ex. B (dkt. # 72-2) at 6; Young Decl. (dkt. # 75) at ¶¶ 9, 12, Ex. 5 (dkt. # 75-5) at 4.) At the intersection of Southwest 5th Avenue and Southwest Viola there is an at-grade, unguarded private railroad crossing (“the Crossing”), which allows for ingress and egress for homes located on Southwest 5th Avenue. (Am. Compl. at ¶¶ 19-20; Flynn Decl. (dkt. # 73) at ¶ 7, Ex. 2 (dkt. # 73-2) at 10); see also Heikkila Decl. (dkt. # 74) at ¶ 9, Ex. 2 (dkt. # 74-2) at 4, 8-9.)
As Ms. Gonzalez Torres drove along Southwest Viola, she eventually encountered the Crossing. (Am. Compl. at ¶ 15.) The Crossing did not have any active warnings, such as bells, flashing lights, or crossing arms, but did have a stop sign posted. (Am. Compl. at ¶¶ 18-20; Young Decl. at ¶¶ 9, 12, Ex. 5 at 4.).) On that day, the weather was “partly sunny,” and the road was damp from a recent rain shower. (Young Decl. at ¶¶ 9, 12, Ex. 5 at 4.) Ms. Gonzalez Torres was speaking with her sister on a cellphone as she approached the Crossing. (Yates Decl. at ¶¶ 4-6, Ex. C (dkt. # 72-3) at 4-5 (I.G. Dep. at 78:5-25, 85:19-86:7), Ex. E (dkt. # 72-5) at 2.) 2 Ms. Gonzalez Torres did not have any hearing or visual impairments. (Yates Decl. at ¶ 3, Ex. B at 6.)
As Ms. Gonzalez Torres attempted to navigate the Crossing, her vehicle collided with a westbound Amtrak passenger train near the left front tire. (Am. Compl. at ¶ 16; Young Decl. at ¶¶ 9, 12, Ex. 5 at 3.) Ms. Gonzalez Torres was declared dead at the scene, and I.G. was transported by ambulance to the hospital with minor physical injuries. (Young Decl. at ¶¶ 9, 12, Ex. 5 at 3.) Ms. Gonzalez Torres's vehicle did not come to a complete stop before entering the Crossing. (Id. at 5-9.) The crash data retrieval report from Ms. Gonzalez Torres's vehicle indicates she slowed from 16 miles per hour to three miles per hour in the last five seconds before the collision. (Young Decl. at ¶¶ 9-12, Ex. 4 (dkt. # 75-4) at 7, 13.)
Defendant Burch was the train's engineer, and Defendant Matlock was the train's assistant conductor. (Am. Compl. at ¶ 17.) Two or three seconds before the collision, Defendant Matlock sounded the train's horn because he saw Ms. Gonzalez Torres's vehicle approach the Crossing. (Yates Decl. at ¶ 9, Ex. H (dkt. # 72-8) at 5 (Matlock Dep. at 30:23-31:4).) Defendant Matlock applied the train's air braking system upon seeing Ms. Gonzalez Torres's vehicle.(Yates Decl. at ¶¶ 8-9, Ex. G (dkt. # 72-7) at 2, Ex. H at 4 (Matlock Dep. at 27:17-28:7).) At the time of the collision, the train was traveling at approximately 70 miles per hour. (Yates Decl. At ¶¶ 8-9, 3 Ex. G at 2, Ex. H at 4 (Matlock Dep. at 27:11-13); see also Heikkila Decl. at ¶ 9, Ex. 2 at 8.)
To have avoid a collision at the Crossing, Defendants' expert Brian Heikkila opined that Defendant Matlock would have needed to “apply the emergency brakes approximately 1,495 feet prior to reaching [the Crossing] . . . However, at that point the train would have been more than 14 seconds away with no indication to the engineer of any need to take any such action.” (See Heikkila Decl. (dkt. # 74) at ¶ 9, Ex. 2 (dkt. # 74-2) at 9.)
Plaintiffs contend that Amtrak's Maintenance Analysis Program Condition Reports demonstrate that the speedometer was malfunctioning, and as such, the train violated the federal regulations and the Air Brake and Train Handling Rules by operating in excess of 20 miles per hour. (Pls.' Resp. at 4; Ogden Decl., Ex. 1 at 19.)
Ms. Gonzalez Torres regularly drove her employees to work locations in operating her cleaning business. (Yates Decl. at ¶ 2, Ex. A at 5 (Tedoro Dep. at 18:23-25).) Ms. Gonzalez Torres's cleaning employee, Martha Tedoro, testified that Ms. Gonzalez Torres was familiar with the Crossing, had traveled across the railroad tracks several times, but that she never stopped at the stop sign posted at the Crossing. (Yates Decl. at ¶ 2, Ex. A at 5 (Tedoro Dep. at 15:4-16:13, 19:3-10).) I.G. testified that he could not recall whether Ms. Gonzalez Torres ever stopped at the stop sign at the Crossing. (Yates Decl. at ¶ 4, Ex. C (I.G. Dep. at 75:25-2, 79:5-7).)
The Clark County Sheriff's Office (“CCSO”) investigated the scene of the accident, analyzing event recorder data from Ms. Gonzalez Torres's vehicle and video footage from the Amtrak train. (Young Decl. at ¶¶ 9, 12, Ex. 5 at 3-11.) Per the CCSO report, there were two stop signs posted prior to the Crossing. (Young Decl. at ¶¶ 9, 12, Ex. 5 at 4.) The first sign was a private sign posted on the east side of Southwest Viola about 25 feet north of the railroad tracks that read, “Stop Proceed with Caution.” (Id.) The second sign was a traditional stop sign posted by Railroad Defendants on the west side of Southwest Viola approximately 10 feet north of the railroad tracks. (Id.)
In the course of the CCSO investigation, Detective Young took photographs of the railroad tracks from the vantage point of where a driver is required to stop at the traditional stop sign on Southwest Viola Street at the Crossing. (Young Decl. at ¶¶ 5, 7, Ex. 2 at 2, Ex. 3 (dkt. # 75-3) at 2.) The CCSO report noted that the “railroad tracks run east west and are straight and level with excellent sight distance. At the crossing on [Southwest] Viola looking east I measured 4 the sight distance is approximately a half a mile ....” (Young Decl. at ¶ 9, 12, Ex. 5 at 4.) The report additionally notes that, per review of video from the train, that the train's horn was sounded, and that the emergency braking system was engaged once Ms. Gonzalez Torres's vehicle entered the Crossing. (Id. at 5.)
The CCSO investigation ultimately concluded that Ms. Gonzalez Torres failed to stop at the stop sign located at the Crossing. (Young Decl. at ¶¶ 9-12, Ex. 5 at 5-9; Payne Decl. (dkt. # 76) at ¶ 12.) Based on the CCSO's investigation, the event data recorder, and video from the train, the CCSO determined that Ms. Gonzalez Torres's failure to stop at the posted stop sign resulted in her being “the proximate cause of the collision event.” (Young Decl. at ¶¶ 9, 12, Ex. 5 at 11.)
B. Expert Reports
i. Plaintiffs' Experts
Due to the nature of the accident, Plaintiffs engaged Brandon Ogden, a railway operations consultant, and Joellen Gill, a human-factors engineering consultant, to provide expert testimony regarding Railroad Defendants train operations and rule interpretations. (Order (dkt. # 95) at 2; see also Pls.' Resp. at 1-4.) The parties are familiar with the facts pertaining to both Mr. Ogden and Ms. Gill's expert testimonies and this Court has previously laid out the background of both Mr. Ogden and Ms. Gill's expert reports in detail in its previous Order on Defendants' Motion to Strike Expert Disclosures and Proposed Testimonies. (See Order (dkt. # 95) at 2-7.) 5
As a result of the Court's previous Order, the Court found that: (1) Mr. Ogden's expert testimony was permitted in full, save for the portion of his opinion concluding Defendants violated RCW 36.86.100; and (2) Ms. Gill's expert testimony was permitted in full, save for the portion of her opinion referencing any unproduced BNSF materials. (Order (dkt. # 95) at 26-27.) Neither party filed objections to the Court's previous Order.
In summary, and relevant to the instant matter, Mr. Ogden's expert report concluded that Railroad Defendants: (1) failed to give a proper audible warning at the Crossing because Defendant Matlock did not blow the horn until about a second prior to the collision and there were no active or audible warning devices at the Crossing, (2) provided an improper visual warning due to impaired sight distances at the Crossing; and (3) allowed several dangerous and hazardous conditions to exist at the Crossing. (Ogden Decl. (dkt. # 89) at ¶ 2, Ex. 1 (dkt. # 89-1) at 7, 10.) Mr. Ogden additionally found that Defendants violated federal regulations, their own operating rules, and industry standards of care in operating the train over the Crossing. (Id. at 19-27.) Ms. Gill's expert report documented several system design factors of Railroad Defendants' safety or risk management program for the Crossing. (Gill Decl. (dkt. # 88) at ¶ 2, Ex. 1 (dkt. # 88-1) at 5, 11.) Ms. Gill concluded that the Crossing was “extremely dangerous for drivers,” that Railroad Defendants should have known of the conditions at the Crossing before Ms. Gonzalez Torres's collision, and that Railroad Defendants' failures to remedy the conditions at the Crossing were “gross violations” of safety and risk management. (Id.)
ii. Defendants' Experts
Defendants secured James Flynn, a consulting engineer with experience in vehicular accident reconstruction, and Brian Heikkila, a railroad consultant, to provide expert reports on Ms. Gonzalez Torres's collision. (Flynn Decl. at ¶¶ 2, 6-7, Ex. 2 at 1-13; Heikkila Decl. at ¶¶ 1, 9, Ex. 2 at 1-14.)
1. James Flynn
Mr. Flynn has worked as a consulting engineer since 1985 and has provided expert testimony in over 100 cases in state and federal court. (Flynn Decl. at ¶¶ 2-5, Ex. 1 (dkt. # 73-1) at 3.) Mr. Flynn has previously published papers, delivered presentations, and attended scientific 6 meetings on vehicular accident reconstruction and collision analysis. (Id. at ¶ 3; see id., Ex. 1 at 2-12.)
Per his expert report, Mr. Flynn found that the presence of the Crossing, and the requirement for drivers to stop at the stop signs located at the Crossing, were “unambiguous” for motorists traveling on Southwest Viola street toward the Crossing. (Flynn Decl. at ¶ 7, Ex. 2 at 2.) Mr. Flynn opined that a motorist who brought their vehicle to a stop at the posted stop sign would have a clear and unobstructed view of east and westbound trains approaching the Crossing. (Id.) In coming to his conclusion, Mr. Flynn cited the CCSO's report on the collision, contemporaneous photos that were taken by the investigating officers at the scene of the accident, and a video recording from the vantage point of a motorist if they stopped at the stop sign at the Crossing. (Id. at 3-4.) Mr. Flynn further noted that the deposition testimony of Ms. Tedoro and I.G. acknowledged that Ms. Gonzalez Torres was aware of the stop sign at the Crossing but had previously failed to come to a complete stop in her prior encounters, and that she was likely distracted because she was on the phone as she approached the Crossing. (Id. at 5-6.)
Mr. Flynn's report also contained an analysis of event data recorder information from Ms. Gonzalez Torres's vehicle and video from the train's perspective of the collision. (Flynn Decl. at ¶ 7, Ex. 2 at 6-7.) Based on his review, Mr. Flynn concluded Ms. Gonzalez Torres failed to bring her vehicle to a complete stop before the stop sign at the Crossing, and due to that failure, there was no way for Defendant Matlock to avoid a collision. (Id.) In sum, Mr. Flynn opined that based on his review of the record, the Crossing was safe when used as intended and that he concurred with the CCSO's finding that the proximate cause of the collision was Ms. Gonzalez Torres's failure to stop at the stop sign before the Crossing. (Id. at 12-13.) 7
2. Brian Heikkila
Mr. Heikkila has worked as a railroad consultant since 2000 and has worked in railroad operations in various capacities with several railroads, including BNSF, since 1969. (Heikkila Decl. at ¶¶ 1-6, Ex. 1 (dkt. # 74-1) at 2-4.) Mr. Heikkila has previously investigated several railroad accidents and incidents and has previously qualified to testify as an expert witness in the area of railroad safety, training, rules, operating practices, and mechanical matters in federal and state court. (Id. at ¶ 9, Ex. 2 at 2.)
Per his expert report, Mr. Heikkila opined that the train would have been visible to Ms. Gonzalez Torres had she stopped at the stop sign at the Crossing and looked for train traffic given the sight lines available to motorists approaching the Crossing. (Heikkila Decl. at ¶ 9, Ex. 2 at 7.) Mr. Heikkila noted that the train's speed complied with the railroad timetable speed limit for the class of track. (Id. at 8.) Mr. Heikkila additionally noted that, per federal regulations and Railroad Defendants operating rules, the train's horn did not need to be sounded on approach because the Crossing was a private grade crossing. (Id. at 8-9.) Finally, Mr. Heikkila found that the train itself was highly conspicuous to motorists due to its height and illuminated headlights. (Id. at 11.)
Mr. Heikkila determined that there was no way for Defendant Matlock to avoid the collision because Ms. Gonzalez Torres failed to stop at the posted stop sign. (Heikkila Decl. at ¶ 9, Ex. 2 at 8-9.) As a result, Mr. Heikkila concluded Defendant Matlock's actions were appropriate given the unfolding events, consistent with the rules and standards of care in the industry, and that Defendant Matlock did not cause or contribute to the accident. (Id. at 11, 13, 15.) 8
C. Plaintiffs' Claims
Per Plaintiffs' amended complaint, Plaintiffs argue that Defendants breached a duty to exercise reasonable care to avoid injuring or killing members of the public in their operation of trains over the Crossing. (Am. Compl. at ¶ 21.) Plaintiffs argue that Defendants breached their duty by failing to exercise reasonable care in the operation of trains over the Crossing, by failing to properly maintain the Crossing, and by failing to provide adequate warning of the approaching train. (Id. at ¶ 23.) Plaintiffs argue that all acts or omissions of Defendants constitute negligence, gross negligence, willful and wanton conduct, recklessness, and intentional conduct, and demonstrate a reckless and intentional disregard for the safety of the motoring public. (Id. at ¶ 21.)
Specifically, Plaintiffs' claims are based on allegations that Defendants were negligent and grossly negligent because Defendants: (1) provided inadequate audible warnings at the Crossing, including failing to properly sound the train's whistle, siren, or horn; (2) provided inadequate visual warnings at the Crossing, including failing to properly maintain an adequate, unobstructed sight distance at the Crossing; (3) ignored known hazardous conditions that existed at the Crossing due to Defendants' train operations, including exceeding the speed limit, and failing to slow and/or stop the train in order to avoid a specific individual hazard; (4) failed to identify, inspect, and repair hazardous conditions at the Crossing; (5) failed to require any reporting of the unsafe conditions that existed at the Crossing; (6) failed to provide adequate sign, signal devices, and warning devices at the Crossing, including failing to use any means of active warning; and (7) failed to properly train, instruct, manage, or properly monitor Defendants Burch and Matlock (collectively, “Train Crew Defendants”). (See Am. Compl. at ¶¶ 24-63.) 9
Plaintiffs' amended complaint requests economic and noneconomic damages for Ms. Gonzalez Torres's estate as a result of her death. (Am. Compl. at ¶¶ 64-66.) Plaintiffs further request damages for I.G. on account of his injuries, medical expenses, pain and suffering, and loss of future earning capacity. (Id. at ¶¶ 66-72.)
D. Procedural Background
On May 16, 2019, Plaintiffs filed their original complaint. (Compl. (dkt. # 1).) On May 21, 2019, this Court entered an order appointing Gregory Price as I.G.'s guardian ad litem. (Dkt. # 15.) On November 27, 2019, this Court granted Plaintiffs leave to amend their complaint (dkt. # 30) and Plaintiffs filed their amended complaint (Am. Compl. (dkt. # 31).) On January 30, 2020, Defendants filed their answer to Plaintiffs' amended complaint. (Defs.' Answer (dkt. # 32).) From April 1, 2020, through June 14, 2021, this Court granted the parties' multiple extensions of time to accommodate witness depositions throughout discovery. (Dkt. ## 37, 41, 45, 52, 67, 70.)
On August 23, 2021, Defendants filed their Motion. (Defs.' Mot.) On September 27, 2021, Plaintiffs filed a response to Defendants' Motion (dkt. # 86), and on October 1, 2021, Defendants filed a reply (dkt. # 92). In addition to the instant Motion, as previously discussed above, Defendants filed a Motion to Strike Expert Disclosures and Proposed Testimonies on August 23, 2021. (Dkt. # 77.) On November 16, 2021, this Court entered an order granting in part and denying in part Defendants' Motion to Strike. (Order (dkt. # 95).) This matter is now ripe for the Court's review.
III. DISCUSSION
Defendants argue that summary judgment in their favor is appropriate with respect to Plaintiffs' claims on the basis that: (1) the Federal Railroad Safety Act (“FRSA”) preempts 10 Plaintiffs' state-law claims; (2) Defendants did not breach a duty owed to Ms. Gonzalez Torres that proximately caused the collision; and (3) Ms. Gonzalez Torres was the sole and proximate cause of the collision at the Crossing due to her failure to stop. (Defs.' Mot at 1-2, 7-10.) Plaintiffs counter that their claims are not preempted under the FRSA because the applicable regulations do not cover Plaintiffs' claims, and that even where regulations did cover Plaintiffs' claim, the FRSA does not preempt claims where the railroad violated either a federal standard of care or an internal rule created pursuant to a federal regulation. (Pls.' Resp. at 10-11.) Plaintiffs additionally contend that Ms. Gonzalez Torres's failure to stop at the Crossing was not the sole proximate cause for the collision because she had no obligation to stop at the stop sign, the train's visibility remains a jury question, and that Defendants breached a duty owed to Ms. Gonzalez Torres by failing to exercise reasonable care in operating trains over the Crossing, failing to properly maintain the Crossing, and by failing to provide adequate warning of approaching trains at the Crossing. (Id. at 5-10.) The Court will examine the parties' arguments in turn.
A. Summary Judgment Standard
Summary judgment is appropriate when 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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party bears the initial burden of showing the Court “that there is an absence of evidence to support the nonmoving party's case.” Id. at 325. The moving party can carry its initial burden by producing affirmative evidence 11 that negates an essential element of the nonmovant's case or by establishing that the nonmovant lacks the quantum of evidence needed to satisfy its burden at trial. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). The burden then shifts to the nonmoving party to establish a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The Court must draw all reasonable inferences in favor of the nonmoving party. Id. at 585-87.
Genuine disputes are those for which the evidence is such that a “reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 257. It is the nonmoving party's responsibility to “identify with reasonable particularity the evidence that precludes summary judgment.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (quoted source omitted). The Court need not “scour the record in search of a genuine issue of triable fact.” Id. (quoted source omitted); see also Fed.R.Civ.P. 56(c)(3) (“The court need consider only the cited materials, but it may consider other materials in the record.”). Nor can the nonmoving party “defeat summary judgment with allegations in the complaint, or with unsupported conjecture or conclusory statements.” Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003); see McElyea v. Babbitt, 833 F.2d 196, 197-98 n.1 (9th Cir. 1987) (per curiam).
B. Federal Preemption
Congress enacted the FRSA to promote “safety in every area of railroad operations and reduce railroad-related accidents and incidents.” Norfolk Southern Ry. Co. v. Shanklin, 529 U.S. 344, 347 (2000) (quoting 49 U.S.C. § 20101). The FRSA contains an express preemption provision noting that “laws, regulations, and orders related to railroad safety and laws, regulations and orders related to railroad security shall be nationally uniform to the extent practicable” and preempts state authority to adopt safety rules. 49 U.S.C. § 20106(a)(1); see also Union Pac. R.R. Co. v. Cal. Pub. Util. Comm'n, 12 346 F.3d 851, 858 (9th Cir. 2003) (citations omitted). The FRSA allows the Secretary of Transportation (“Secretary”) to “prescribe regulations and issue orders for every area of railroad safety.” Id. (quoting 49 U.S.C. § 20103(a)). As a result, the Secretary, acting through the Federal Railroad Administration (“FRA”), has promulgated regulations covering track safety standards. See generally 49 C.F.R. § 213.
The preemptive effect of the Secretary's regulations is governed by § 20106, which contains two savings clauses allowing states to adopt railroad safety rules. Union Pac., 346 F.3d at 858. Under the first clause, states are permitted to adopt railroad regulations until the Secretary, with respect to railroad safety matters, “prescribes a regulation or issues an order covering the subject matter of the State requirement.” Id. (quoting 49 U.S.C. § 20106(a)(2)). For an FRSA regulation to “cover” a state-law claim, a party must establish more than that the regulation “touches upon” or “relates to” that subject matter; the party must demonstrate that “the federal regulations substantially subsume the subject matter” of the claim. CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993); see also Shanklin, 529 U.S. at 352. However, if the Secretary has “covered” the subject matter states may adopt more stringent railroad regulation under the second clause where the regulation: “(1) is necessary to eliminate or reduce an essentially local safety . . . hazard; (2) is not incompatible with a law, regulation, or order of the United States Government; and (3) does not unreasonably burden interstate commerce.” Union Pac., 346 F.3d at 858 (quoting 49 U.S.C. § 20106(a)(2)). “It is the burden of the party advocating preemption under § 20106(a)(2) to show that a federal law, regulation, or order covers the same 13 subject matter as the state law, regulation, or order it seeks to preempt.” Duluth, Winnipeg & Pac. Ry. Co. v. City of Orr, 529 F.3d 794, 797 (8th Cir. 2008).
The United States Supreme Court has previously held that duties imposed by railroads under state common law can also be preempted under the FRSA. Easterwood, 507 U.S. at 664.
In 2007, Congress amended 49 U.S.C. § 20106 to note that it did not “preempt an action under State law seeking damages for personal injury, death, or property damage” under certain conditions. 49 U.S.C. § 20106(b); see also Henning v. Union Pac. R.R. Co., 530 F.3d 1206, 1214 (10th Cir. 2008). As a result, § 20106(b) additionally permits state-law actions for claims based on a failure to comply with: (1) “the Federal standard of care established by a regulation or order issued by the [Secretary]”; (2) a party's “own plan, rule, or standard that it created pursuant to a regulation or order issued by either of the Secretaries”; or (3) a State standard otherwise permitted by § 20106(a)(2). 49 U.S.C. § 20106(b). Nevertheless, “[t]he 2007 amendment is narrow in scope; it was designed to preserve state law causes of action where railroads were not in compliance with federal law.” Veit, ex rel. Nelson v. BNSF, 171 Wash.2d 88, 114 (2011) (citing Murrell v. Union Pac. R.R. Co., 544 F.Supp.2d 1138, 1148 (D. Or. 2008)). Similarly, 49 U.S.C. § 20106(b) “does not save all state law claims based on internal rules and standards . . . only those claims based on a ‘plan, rule, or standard that it created pursuant to a regulation or order issued by either of the Secretaries.'” Id. (emphasis in original).
For the reasons explained below, the Court finds that some, but not all, of Plaintiffs' claims are preempted under the FRSA.
i. Train Operations Claims
1. Audible Warning
Plaintiffs advance several claims regarding the sounding of the train's horn and that Defendants failed to give a proper audible warning of the train's approach. (Am. Compl. at ¶¶ 24-31.) Specifically, Plaintiffs' amended complaint alleges that: (1) the horn was not properly 14 sounded-blown in the correct sequence for a specific duration-when approaching the Crossing; (2) that the horn was sounded improperly given the nature of the “specific, individual hazard” present at the Crossing; and (3) that the train horn failed to meet federal audibility requirements. (Id.)
Federal regulations regarding the sounding of a train horn do not generally apply to trains approaching a private highway-rail grade crossing. 49 C.F.R. § 222.25. However, where “state law requires the sounding of a locomotive horn at private highway-rail grade crossings, the locomotive horn shall be sounded in accordance with [49 C.F.R.] § 222.21 ....” Id.; see also 49 C.F.R. § 222.21 (providing that a train horn must be sounded with two long blasts, one short blast, and one long blast between 15 and 20 seconds before approaching a public highway-rail grade crossing and shall be repeated or prolonged as necessary).
Per 49 C.F.R. § 222.9, a “private highway-rail grade crossing” is a highway-rail grade crossing that is not a public highway-rail grade crossing. A “public highway-rail grade crossing” is defined as “a location where a public highway, road, or street, including associated sidewalks or pathways, crosses one or more railroad tracks at grade.” 49 C.F.R. § 222.9.
Plaintiffs argue that, pursuant to 49 C.F.R. § 222.25, the FRSA does not preempt their claim that the horn should have been sounded at the Crossing. (Pls.' Resp. at 11-14.) Plaintiffs argue that Washington common law requires that a train's horn be sounded at private crossings under certain circumstances and such circumstances existed because the Crossing was dangerous given its condition. (Id. at 13 (citing Ploegman v. BNSF Ry. Co., 112 Wash.App. 1001 (Wash. App. Div. I 2002)). Defendants counter that Plaintiffs fail to cite any precedential or persuasive Washington law requiring that the train's horn be sounded at the Crossing because Ploegman is an unpublished Washington Court of Appeals decision. (Defs.' Reply at 4-5.) 15
On this issue, the parties do not dispute that the Crossing is a private at-grade crossing. (See Am. Compl. ¶¶ 19-20, 60; Defs.' Mot. at 1, 15.) Therefore, pursuant to 49 C.F.R. § 222.25, the train's horn was not required to be sounded in a particular manner for a particular duration prior entering the Crossing absent a requirement under Washington state law. Plaintiffs cite to Ploegman for such a requirement. However, Washington General Rule 14.1 provides that unpublished opinions of the Washington Court of Appeals have no precedential value and are not binding upon any court. The rule permits citations to unpublished Washington Court of Appeals decisions only if these cases were decided on or after March 1, 2013. Spesock v. U.S. Bank, N.A., 2018 WL 4613163, at *5 n.8 (W.D. Wash. Sept. 26, 2018) (“[U]npublished opinions of the [Washington] Court of Appeals filed on or after March 1, 2013, may be cited as non-binding authorities . . . and may be accorded such persuasive value as the Court deems appropriate.”).
While Washington General Rule 14.1 is not binding in federal court, this Court follows GR 14.1 as a matter of comity. Cont'l W. Ins. Co. v. Costco Wholesale Corp., 2011 WL 3583226, at *4 (W.D. Wash. Aug. 15, 2011) (“Because Washington courts have made the judgment that ‘unpublished' state court decisions should not shape their decisions, this court follows their lead.”).
Here, Ploegman was published in 2002, and thus is not binding or precedential authority on this Court. Plaintiffs have not cited any additional authority demonstrating a Washington common law requirement to sound a horn at a private crossing. Nevertheless, the Court notes that Ploegman primarily relies on Mulkey v. Spokane, Portland & Seattle Ry. Co., 65 Wash.2d 116, 123 (1964), a published Washington Supreme Court decision. In Mulkey, the Washington Supreme Court held it was negligence as a matter of law for a train to fail to sound a warning at a private crossing at issue in that case. 65 Wash.2d at 123. The trial court in Mulkey instructed the jury that failure to sound a whistle and bell at the subject private crossing was negligence as a matter of law based on the effect of RCW 81.48.010, which previously made it a misdemeanor 16 for a train engineer to fail to sound a warning when crossing a “traveled road or street.”However, the trial court later vacated the verdict because “[t]he trial judge became convinced that [RCW 81.48.010] did not apply to private roadways . . . and that it was error to charge that a violation of the statutory requirement was negligence as a matter of law.” Mulkey, 65 Wash.2d at 123. Pertinent to the instant matter, the Washington Supreme Court held, regardless of the applicability of RCW 81.48.010 to private crossings, that a common-law duty to warn can exist at private crossings under certain circumstances. Id. Specifically, the Washington Supreme Court found that “[t]he adequacy of the defendant's warning must be determined from the circumstances relative to [the] particular road at [the] particular time and under [the] particular circumstances ....” Id.
RCW 81.48.010 was repealed by the Washington State Legislature in 2007. RCW 81.48.010, repealed by Laws 2007, ch. 234, § 102, eff. July 22, 2007.
The Washington Supreme Court found that the circumstances relative to the subject crossing made it negligence as a matter of law for the engine crew to fail to sound a warning “whether or not [RCW 81.48.010] was applicable.” Mulkey, 65 Wash.2d at 123.
Plaintiffs have set forth evidence in the record that the conditions of the Crossing made it innately dangerous and warranted that the train's horn be sounded. (See Ogden Decl. at ¶ 2, Ex. 1 at 6, 23-24; Gill Decl. at ¶ 2, Ex. 1 at 5-11.) Moreover, Defendants' cited authority under Marsh v. Norfolk Southern, Inc., 243 F.Supp.3d 557 (M.D. Penn 2017) and Lopez v. CSX Transportation, Inc., 269 F.Supp.3d 668 (W.D. Pa. 2017) that Defendant Matlock had no legal duty to sound the horn at the Crossing is inapposite. Both of those cases concerned the duty to sound the horn in an emergency situation under 49 C.F.R. § 222.23. See Marsh, 243 F.Supp.3d at 572; Lopez, 269 F.Supp.3d at 683-84. Here, Plaintiffs' claims instead assert that the horn should have been sounded at the Crossing pursuant to 49 C.F.R. § 222.25 because it was a dangerous 17 private crossing regardless of any emergency circumstances presented by Ms. Gonzales Torres's vehicle.
In emergency situations, 49 C.F.R. § 222.23 places it in the “locomotive engineer's sole judgment” whether to sound the horn but creates “no legal duty” to do so. 49 C.F.R. § 222.23; see also Lopez v. CSX Transportation, Inc., 269 F.Supp.3d 668, 683-84 (W.D. Pa. 2017) (“The regulation expressly states that it does not impose a duty to sound the horn in emergency situations.”).
The Court finds that whether the train's horn should have been sounded in a particular manner, pattern, or for a specific duration, prior to entering the Crossing remains an issue for the jury's determination under Washington common law. Plaintiffs' train horn claims are not preempted under the FRSA.
2. Excessive Speed
Plaintiffs next allege that the train was traveling at a speed in excess of the track speed limit. (Am. Compl. at ¶ 39.) Plaintiffs argue that Defendants violated 49 C.F.R. § 229.117 and Defendants' Air Brake and Train Handling Rule 101.11, which both required the train to reduce its speed to 20 miles per hour because the train's speedometer was faulty. (Pls.' Resp. at 14-16 (citing 49 C.F.R. § 229.117 and Air Brake and Train Handling Rule 101.11).) Defendants argue 18 that because it is undisputed that the train was traveling within the statutory track speed limit, any claims based on excessive speed must be dismissed as preempted. (Defs.' Mot. at 11-12.)
Pursuant to 49 C.F.R. § 229.117:
(a) After December 31, 1980, each locomotive used as a controlling locomotive at speeds in excess of 20 miles per hour shall be equipped with a speed indicator which is
(1) Accurate within ± 3 miles per hour of actual speed at speeds of 10 to 30 miles per hour and accurate within ± 5 miles per hour at speeds above 30 miles per hour; and
(2) Clearly readable from the engineer's normal position under all light conditions.
(b) Each speed indicator required shall be tested as soon as possible after departure by means of speed test sections or equivalent procedures.Air Brake and Train Handling Rule 101.11 provides that if “a speed indicator on a controlling locomotive fails in route, the locomotive may continue as a controlling locomotive at normal track speed only to the next facility where repairs can be made or until the locomotive is due a daily inspection, whichever occurs first,” and that movement “beyond a facility where repairs can be made or location where daily inspection was conducted must not exceed 20 miles per hour.” (Ogden Decl. at ¶ 2, Ex. 1 at 42-43.)
The FRSA has established regulations setting the maximum train speeds for different classes of track. 49 C.F.R. § 213.9. In Easterwood, the United States Supreme Court held that the FRSA's express preemption clause preempts common law tort claims regarding excessive speed. 507 U.S. at 675. The Court explained that 49 C.F.R. § 213.9 covers the subject matter of train speed, and thus, § 213.9 substantially subsumes relevant state law as to claims based on train speed. Id. As a result, the Supreme Court held § 213.9 preempted the plaintiff's common law negligence claims for excessive speed. Id. at 675-76. Generally, since Easterwood, “if the train was traveling within the federal speed limit, then the FRSA preempts any state or common law claim as to excessive speed.” Peters v. Union Pac. R.R. Co., 455 F.Supp.2d 998, 1002 (W.D. Mo. 2006) (citing Easterwood, 507 U.S. at 675); see e.g., Hesling v. CSX Transp., Inc., 396 F.3d 632, 638 (5th Cir. 2005) (finding FRSA preempted excessive speed claim based on violation of self-imposed speed limit); see also Veit, 171 Wash.2d at 103-04 (collecting cases rejecting excessive speed claims where railroads exceeded internal speed limits under Easterwood).
Here, Plaintiffs' excessive speed claims are preempted. As previously noted, the Crossing was on a section of track rated as Class 4. (See Heikkila Decl. at ¶ 9, Ex. 2 at 8.) Class 4 track has a maximum allowable speed of 80 miles per hour for passenger trains. 49 C.F.R. § 213.9. The maximum speed for passenger trains under BNSF's timetable is 70 miles per hour. (Yates Decl. at ¶ 7, Ex. F (dkt. # 72-5) at 3.) Although there is some evidence in the record that the speedometer was malfunctioning, it is undisputed by the parties that the train operated at 70 miles per hour and followed the maximum speed limit for the track location at the time of the 19 collision at the Crossing. (See Yates Decl. at ¶¶ 2, 8-9, Ex. A (Ogden Dep. at 126:2-7 (“Given the fact that the event recorder shows that the train was going 70 miles per hour, I don't believe that the engineer was speeding over the maximum authorized speed.”), 127:5-8 (“I think given -given that the event recorder shows the train was going 70 miles per hour, I believe the engineer was in compliance with the maximum authorized speed for the territory.”), Ex. G at 2, Ex. H at 4 (Matlock Dep. at 27:11-13).) Because the train was traveling within the allowable track speed per 49 C.F.R. § 213.9, any speed-related claim is preempted by the FRSA. See e.g., Murrell, 544 F.Supp.2d at 1150-51 (applying federal regulations and railroads speed timetable in finding excessive speed claims preempted); Hesling, 396 F.3d at 638 (“Because Amtrak maintained its train speed well within the speed ratings promulgated by the FRA, the magistrate judge did not abuse his discretion in finding that [plaintiff's] excessive speed claims are preempted by federal law.”); see also Singh v. Nat'l R.R. Passenger Corp., 2018 WL 3407598, at *4 (N.D. Cal. June 4, 2018), aff'd, 799 F. App'x. 516 (9th Cir. 2020) (“As the train was traveling under the maximum allowable speed, Plaintiffs' claims based on train speed are not actionable.”).
Based on the record before the Court, per the train's maintenance reports, it appears that one engineer noted on May 14, 2017, that the speedometer fluctuated between 76 miles per hour and 82 miles per hour at 79 miles per hour and that there was no light on the speed indicator. (Ogden Decl. at ¶ 2, Ex. 1 at 40; Yates Decl. at ¶ 16, Ex. O (Ogden Dep. at 130:11-24).) Another engineer indicated on May 15, 2017, that the speedometer was “erratic” and “swings five miles per hour.” (Ogden Decl. at ¶ 2, Ex. 1 at 41.)
Accordingly, the Court finds that Plaintiffs' claims based upon excessive train speed preempted.
3. Slow Order
Plaintiffs' amended complaint alleges that the area around the Crossing should have been protected by a “slow order.” (Am. Compl. at ¶ 40.) Defendants argue that because a “slow order” 20 was not issued by a FRA track inspector for the section of track at the Crossing, Plaintiffs' claim is preempted. (Defs.' Mot. at 12.)
Although the Supreme Court in Easterwood found that excessive speed claims are preempted, the Court noted that “related tort law duties, such as the duty to slow or stop a train to avoid a specific, individual hazard” might not be preempted. 507 U.S. at 675 n.15. “Federal law leaves the decision to issue a ‘slow order' to an FRA inspector, as designated by the requirements set forth in 49 C.F.R. § 213.7.” Murrell, 544 F.Supp.2d at 1151-52; see also 49 C.F.R. § 216.15(a) (“When a FRA track inspector . . . determines the track does not comply with the requirements of the class at which the track is being operated, . . . he notifies the railroad in writing that the track is being lowered in class ....”).
On this issue, Plaintiffs have failed to identify any evidence that a FRA inspector issued a slow order-or should have issued a slow order-for the section of track at the Crossing where the incident occurred. (See Pls.' Resp.) In fact, Plaintiffs' Response failed to address Defendants' argument that this claim is preempted. (See id.) Because there is no evidence in the record that a FRA inspector issued a slow order for the section of track where the collision occurred, or that Defendants failed to comply with the alleged slow order, the Court finds that Plaintiffs' slow order claim is preempted.
ii. Crossing Conditions
Next, Plaintiffs bring a series of claims related to allegedly dangerous conditions that existed at the Crossing. (Am. Compl. at ¶¶ 24-63.) The Court will examine each of these claims in turn: 21
1. Warning Devices
Plaintiffs' amended complaint alleges that Defendants breached their duty to install adequate active warning devices. (Am. Compl. ¶¶ 54-56.) Defendants argue that Plaintiffs' warning devices claim is preempted by the FRSA because the warning devices provided complied with federal law. (Defs.' Mot. at 20.) Plaintiffs counter that Defendants failed to meet their burden of establishing federal funds were used at the Crossing for FRSA preemption. (Pls.' Resp. at 16-18.)
In Shanklin, the Supreme Court addressed whether the FRSA, by virtue of 23 C.F.R. §§ 646.214(b)(3) and (4), preempts state tort claims concerning a railroad's failure to maintain adequate warning devices at crossings where federal funds have participated in the installation of such devices. 529 U.S. 344, 551 (2000). The Supreme Court found that 23 C.F.R. §§ 646.214(b)(3)-(4) 22 only have preemptive effect if the warning devices were installed with federal funds. Id. at 352-54.
Pursuant to 23 C.F.R. § 646.214(b)(3)-(4):
(3)(i) Adequate warning devices, under § 646.214(b)(2) or on any project where Federal-aid funds participate in the installation of the devices are to include automatic gates with flashing light signals when one or more of the following conditions exist:
(A) Multiple main line railroad tracks.
(B) Multiple tracks at or in the vicinity of the crossing which may be occupied by a train or locomotive so as to obscure the movement of another train approaching the crossing.
(C) High Speed train operation combined with limited sight distance at either single or multiple track crossings.
(D) A combination of high speeds and moderately high volumes of highway and railroad traffic.
(E) Either a high volume of vehicular traffic, high number of train movements, substantial numbers of schoolbuses or trucks carrying hazardous materials, unusually restricted sight distance, continuing accident occurrences, or any combination of these conditions.
(F) A diagnostic team recommends them.
(ii) In individual cases where a diagnostic team justifies that gates are not appropriate, FHWA may find that the above requirements are not applicable.
(4) For crossings where the requirements of §646.214(b)(3) are not applicable, the type of warning device to be installed, whether the determination is made by a State regulatory agency, State highway agency, and/or the railroad, is subject to the approval of FHWA.
Here, as noted by Plaintiffs, there is no evidence in the record demonstrating that federal funds participated in the installation of the warning devices located at the Crossing for FRSA preemption. Defendants argue that this issue is a red herring due to Ms. Gonzalez's Torres's failure to stop at the posted stop sign and because the Crossing had the necessary warning devices to comply with BNSF's standard plan for private crossings. (Defs.' Reply at 6 (citing Ogden Decl., Ex. 1 at 19).) But whether federal funds participated in the installation of the warning devices at the Crossing remains central to the Court's preemption analysis of a warning devices claim under the FRSA. See e.g., Lee v. BNSF Ry. Co., 245 F.3d 1102, 1105-07 (9th Cir. 2001) (holding that preemption of an inadequate warning device claim is only established when the Federal Highway Administration approves a railroad crossing improvement project and a state installs the warning device using federal funds); Peters, 455 F.Supp.2d at 1004 (holding that the only FRSA regulations pertaining to warning signs with preemptive effect are 23 C.F.R. § 646.214(b)(3) and (4), and such regulations only have preemptive effect if the warning devices were installed with federal funds). The Court cannot conclude as a matter of law that 23 C.F.R. § 646.214 clearly applies and the inadequate warning device claims are preempted.
The Court finds that Defendants have failed to demonstrate that federal funds were utilized in the installation of any warning devices present at the Crossing for FRSA preemption. 23 At the very least, there is a dispute as to the expenditure of federal funds. Therefore, Plaintiffs' claims that Defendants breached their duty to install active warning devices are not preempted.
2. Visual Obstruction
Plaintiffs' amended complaint alleges that there were impaired sight distances, impaired “sight triangles,” and inadequate visual warnings at the Crossing to provide approaching drivers with an unimpaired sight distance to determine the location of the Crossing, its condition, the type of warning devices, and whether a train was approaching. (See Am. Compl. at ¶¶ 34-37.) Plaintiffs allege that Defendant BNSF failed to clear visibility obstructions from its own right of way to provide motorists with an adequate view down the track in both directions, and to the extent visibility obstructions at the Crossing were off the railroad right-of-way, that BNSF should have exercised reasonable care to work with adjoining landowners or the local road authority to provide a safe crossing. (Id. at ¶¶ 35-36.) Defendants argue that this claim is preempted under 49 C.F.R. § 213.37 as Plaintiffs' claims relates to vegetation on railroad property that is on or immediately adjacent to the roadbed. (Defs.' Mot. at 19.)
Under 49 C.F.R. § 213.37, vegetation on railroad property which is on or immediately adjacent to the tracks must be kept under control so that it does not obstruct visibility of railroad signs and signals along the right-of-way. “It is well established that 49 C.F.R. § 213.37 24 preempts state regulation of vegetation on or immediately adjacent to the tracks.” Peters, 455 F.Supp.2d at 1003 (citing Easterwood v. CSX Transportation, Inc., 933 F.2d 1548, 1554 (11th Cir. 1991), aff'd, 507 U.S. 658 (1993), and Missouri Pac. R.R. Co. v. R.R. Comm'n of Texas, 833 F.2d 570, 577 (5th Cir. 1987)). Though § 213.37 preempts state-law claims concerning vegetative growth on or immediately adjacent to the tracks, it does not “impose a broader duty to control vegetation so that it does not obstruct a motorist's visibility of oncoming trains.” Shanklin v. Norfolk S. Ry. Co., 369 F.3d 978, 987 (6th Cir. 2004) (quoting O'Bannon v. Union Pac. R.R. Co., 960 F.Supp. 1411, 1422-23 (W.D. Mo. 1997)). As such, courts have found that state law claims alleging negligence in allowing vegetation to obscure sight lines at railroad crossings are not preempted. See Murrell, 544 F.Supp.2d at 1154 (finding claims for failing to provide adequate visibility not preempted under the FRSA); Peters, 455 F.Supp.2d at 1003 (finding that vegetation in crossing and right-of-way were not areas on or immediately adjacent to tracks, and therefore, claims that they obstructed sight lines were not preempted by § 213.37).
Under 49 C.F.R. § 213.37, vegetation on railroad property which is on or immediately adjacent to roadbed shall be controlled so that it does not:
(a) Become a fire hazard to track-carrying structures;
(b) Obstruct visibility of railroad signs and signals:
(1) Along the right-of-way, and
(2) At highway-rail crossings; (This paragraph (b)(2) is applicable September 21, 1999.)
(c) Interfere with railroad employees performing normal trackside duties;
(d) Prevent proper functioning of signal and communication lines; or
(e) Prevent railroad employees from visually inspecting moving equipment from their normal duty stations.
On this issue, Plaintiffs have alleged that Defendants failed to clear visibility obstructions at the Crossing from its own right-of-way to provide motorists with an adequate view down the track in both directions. (Am. Compl. at ¶ 36.) Plaintiffs have not alleged that vegetation on or immediately adjacent to the tracks was not properly maintained, but instead that vegetation outside the area created visual obstructions. Because § 213.37 does not cover state common law sight distance claims, the Court finds that Plaintiffs' claims that the Crossing and right-of-way 25 were not adequately free of vegetation is not preempted by the FRSA. See Peters, 455 F.Supp.2d at 1003; see also Shanklin, 369 F.3d at 988; Strozyk v. Norfolk Southern Corp., 358 F.3d 268, 276-77 (3d Cir. 2004).
3. Track Inspection
Plaintiffs allege that Defendants failed to inspect and repair the Crossing. (See Am. Compl. at ¶¶ 44-45.) Plaintiffs allege that had Defendants properly conducted track inspections at the Crossing, hazardous conditions that existed would have been identified and addressed prior to Ms. Gonzalez Torres's collision. (Id. at ¶ 45.) Defendants argue that 49 C.F.R. §§ 213.1(a), 213.5(a), and 213.233 all govern track inspections, and therefore, Plaintiffs' track inspection claim is preempted. (Defs.' Mot. at 22.)
Section 213.233 sets forth several substantive requirements for how and when track shall be inspected. Pertinent to the instant matter, § 213.233 requires Class 4 track to be inspected twice weekly with at least one calendar day interval between inspections. 49 C.F.R. § 213.233(c).
In Plaintiffs' Response, Plaintiffs contend that Defendants breached a duty to provide a safe grade crossing, and therefore, their claims regarding a failure to inspect and repair the Crossing are not preempted. (Pls.' Resp. at 20-21.) However, Plaintiffs' amended complaint specifically refers to Defendants' alleged failure to conduct track inspections, and not grade crossing inspections. (See Am. Compl. at ¶ 45 (“If BNSF would have properly conducted track inspections at this crossing, the hazardous conditions at this crossing would have been identified and remedial action taken long before this crash, thereby preventing this crash.”) (emphasis added).) Defendants have additionally set forth evidence that weekly track inspections were performed at the Crossing, which Plaintiffs have failed to rebut. (Yates Decl. at ¶ 21, Ex. T (Reaves Dep. (24:24-25:17).) Because Defendants have identified federal regulations governing 26 track inspections that cover Plaintiffs' claim as pleaded in their amended complaint, the Court finds Plaintiffs' track inspection claim preempted.
iii. Failure to Train
Plaintiffs claim that Defendants failed to report unsafe conditions that existed at the Crossing and that this was in violation of federal regulations that require Railroad Defendants to instruct Train Crew Defendants to comply with their own operating rules. (Am. Compl. at ¶¶ 52-53.) Plaintiffs additionally allege that Defendants failed to instruct or otherwise provide adequate training to the Train Crew Defendants. (Am. Compl. at ¶¶ 57-59.) Defendants argue that Plaintiffs' allegations of failure to train are preempted under controlling federal regulations. (Defs.' Mot. at 23-24 (citing 49 C.F.R. §§ 217.1, 240.123, 242.1).) Plaintiffs counter that 49 C.F.R. §§ 217.1, § 217.11, 217.9, and 218.11 set the federal standard of care as to training, which Train Crew Defendants failed to comply with, in addition to violations of Defendants' internal operating rules. (Pls.' Resp. at 21-22 (citing Zimmerman v. Norfolk S. Corp., 706 F.3d 170, 177-78 (3d Cir. 2013).) Therefore, Plaintiffs argue their claims are not preempted. (Id.)
See 49 C.F.R. § 217.1 (“[E]ach railroad . . . shall periodically instruct each [ ] employee on the meaning and application of the railroad's operating rules in accordance with a written program ....”); 49 C.F.R. § 240.123 (“A railroad shall provide for the continuing education of certified locomotive engineers to ensure that each engineer maintains the necessary knowledge, skills and ability concerning personal safety, operating rules and practices, mechanical condition of equipment, methods of safe train handling....”); 49 C.F.R. § 242.1(b) (“This part prescribes minimum Federal safety standards for the eligibility, training, testing, certification and monitoring of all conductors to whom it applies. This part does not restrict a railroad from adopting and enforcing additional or more stringent requirements consistent with this part.”).
Section 240 specifies standards for the “eligibility, training, testing, certification and monitoring of all locomotive engineers.” 49 C.F.R. § 240.1(b). Pursuant to § 217, railroads must periodically conduct operational tests and inspections to determine the extent of employees' 27 compliance with its operating rules, timetables, and other special instructions. 49 C.F.R. § 217.9. The Ninth Circuit has previously held that §§ 217 and 240 “substantially subsume” the subject of railroad employee training. Union Pac., 346 F.3d at 868 (citing Easterwood, 507 U.S. at 664). As a result, courts have routinely held that federal training regulations preempt state laws concerning employee training or negligence with respect to such training. Id.; see also Marsh, 243 F.Supp.3d at 570-71 (finding plaintiff's claims for failure to properly train, supervise, or instruct were preempted); Carter v. Nat'l R.R. Passenger Corp., 63 F.Supp.3d 1118, 1155-56 (N.D. Cal. 2014).
On this claim, Plaintiffs do not dispute that Defendant Matlock was a certified locomotive engineer or that Defendant Burch was a certified conductor in accordance with the applicable FRA regulations. (See Pls.' Resp.) Instead, Plaintiffs submit as evidence of deficient training that Train Crew Defendants were not aware of requirements to test the train's speedometer or to reduce the train's speed, and that both Defendant Matlock and Burch testified that they do not blow the horn for private crossings. (Id. at 21-22.)
Although Plaintiffs allege that Train Crew Defendants' lack of awareness and actions breached federal regulations on railroad employee training, Plaintiffs' allegations fail to demonstrate how any of Railroad Defendants' certifications, training, policies, procedures, and practices violated the federal standards contained in 49 C.F.R. §§ 217, 218, and 240 or an internal rule created pursuant to those regulations. Plaintiffs must do more than make conclusory allegations to meet their burden in opposing summary judgment-they must come forward with evidence in support of their claim. See Celotex Corp, 477 U.S. at 323. As such, Plaintiffs have failed to establish that Railroad Defendants violated the applicable federal regulations governing the training of its employees. See Nat'l R.R. Passenger Corp. v. Cimarron Crossing Feeders, 28 2018 WL 5962876, at *38-39 (D. Kan. Nov. 14, 2018) (finding inadequate training allegations preempted under 49 C.F.R. §§ 217, 240, and 242, “which provide comprehensive and specific regulations as to train crew qualifications and training.”); Marsh, 243 F.Supp.3d 557, 570-71 (finding failure to train claims preempted where plaintiff failed to demonstrate railroad's certifications, training, policies, procedures, and practices violated federal standards contained in 49 C.F.R. § 240); see also BNSF Ry. Co. v. Doyle, 186 F.3d 790, 796 (7th Cir. 1999).
Accordingly, the Court finds Plaintiffs' failure to train claims preempted.
iv. Local Safety Hazard Exception
Though the Court has found that some of Plaintiffs' claims are preempted under the FRSA, such claims may survive summary judgment if an “essentially local safety hazard” exists. See 49 U.S.C. § 20106(a)(2)(A); Murrell, 544 F.Supp.2d at 1156. To this point, Plaintiffs' amended complaint alleges that the conditions at the Crossing created “an essentially local safety hazard” and that the train crew was negligent when it failed to slow or stop the train to avoid a “specific individual hazard.” (Am. Compl. at ¶¶ 39, 41-42.) Defendants argue that the Crossing presented neither condition and Plaintiffs have otherwise failed to demonstrate evidence of either condition. (Defs.' Mot. at 13-14, 23.)
The Ninth Circuit has interpreted “essential local safety hazard” to mean “the type of hazard that is properly dealt with on a local level” or as one that is not “adequately encompassed within national uniform standards.” Union Pac. R.R. Co., 346 F.3d at 859-860; see also Duluth, Winnipeg, and Pac. Ry. Co., 529 F.3d at 798 (defining essentially local safety hazards as “local situations which are not statewide in character and not capable of being adequately encompassed within national uniform standards.”) (citation and internal quotations omitted)). While similar, “a specific, individual hazard” concerns the existence of a more temporary hazardous situation. See, e.g., Williams v. Norfolk S. Corp., 29 322 F.Supp.3d 896, 903 (N.D. Ind. 2018) (“The predominant view among courts is that the duty to stop for a specific, individual hazard arises when a ‘transient condition . . . could lead to a particular accident.'”). As previously noted, the presence of an “essential local safety hazard” serves as an exemption to the FRSA's preemptive effect where federal regulations cover the subject matter of state law. See 49 U.S.C. § 20106(a)(2)(A).
In regard to the existence of a “specific, individual hazard,” Plaintiffs failed to respond to Defendants' contentions regarding lack of evidence of a “specific, individual hazard.” (See Pls.' Resp.) In any event, the record evinces that there was but one other prior accident at the Crossing in 1993. (Yates Decl. at ¶¶ 14-15, Ex. M (dkt. # 72-13) at 2, Ex. N (dkt. # 72-14) (Hennessey Dep. at 38:7-17).) The existence of only one other accident at the Crossing fails to establish the existence of a “specific, individual hazard.” See Murrell, 544 F.Supp.2d at 1156-57 (finding that a high fatality rate in a given area is not a specific, individual hazard); Vigil v. BNSF Ry. Co., 521 F.Supp.2d 1185, 1211 (D. N.M. 2007) (finding that prior accident at a railroad crossing was not specific, individual hazard).
As to the presence of an “essentially local safety hazard,” Plaintiffs similarly fail to demonstrate that the Crossing has characteristics that could not by addressed by national track safety standards regarding the train's speed. In Union Pacific R.R. Co., the Ninth Circuit determined that an abnormally high derailment rate at the accident site and its steep grade and sharp curve combination were not sufficiently local to fall within the “essentially local safety hazard” exception. 346 F.3d at 859-861. The Ninth Circuit found the high derailment rate as not unusual because all steep grades and sharp curves in the nation increase the risk of derailment. Id. The Ninth Circuit further noted “although a high derailment rate may be evidence of an existing hazard, it says nothing about the nature of the hazard itself.” Id. at 861. Relevant to 30 the instant matter, the Ninth Circuit concluded that because there are many curves in the United States that shared the same characteristics as the one at the accident, the federal government could easily and adequately address such concerns with national standards as there is nothing “fundamentally” local about steep grade/sharp curve combinations. Id. at 862.
Here, Plaintiffs' amended complaint and submitted evidence details several features of the Crossing, including that it is unsafe because of the “horizontal alignment of the track and roadway at the crossing combined with the short approach to the crossing,” the “presence of a nearby intersecting roadway,” and “the maintenance of the transition between the approach roadway and the concrete surface.” (Am. Compl. ¶¶ 48-49.) But as noted by the Ninth Circuit in Union Pacific, there is nothing inherently unique about the Crossing's alleged combination of factors due to the presence of such features at railroad crossings nationwide. See Union Pac., 346 F.3d at 859-861. Because the Court fails to discern any features that would establish the Crossing as an “essentially local safety hazard,” the Court finds that § 20106(a)(2)(A) does not apply to exempt Plaintiffs' preempted claims.
C. Negligence
In Washington, tort claims arising from a death caused by the negligence of another are “strictly a matter of legislative grace and are not recognized in the common law.” Philippides v. Bernard, 151 Wash.2d 376, 390 (2004). The Washington wrongful death statute permits recovery by the deceased's personal representative for death caused by a “wrongful act” or neglect. RCW 4.20.010. To support a claim of negligence in a wrongful death action, the plaintiff must allege: (1) the defendant owed a duty of care; (2) that the defendant breached that duty; (3) proximately causing; (4) the resulting injury. See Degel v. Majestic Mobile Manor, Inc., 31 129 Wash.2d 43, 48 (1996); see also Weisenburg v. Townsend, 102 Wash.App. 1018 (Wash. App. Div. I 2000) (applying negligence factors to wrongful death action).
i. Duty of Care
Defendants first argue that Plaintiffs' negligence claim is barred because Plaintiffs failed to demonstrate Defendants breached a duty owed that proximately caused the collision at the Crossing. (Defs.' Mot. at 8-9.) Specifically, Defendants argue that the Crossing was a private crossing-and as such-Defendants did not breach a duty owed to Ms. Gonzalez Torres and I.G. because they were licensees. (Id.) Plaintiffs counter that a jury could find that Defendants owed Ms. Gonzalez Torres and I.G. a duty of reasonable care to avoid injury to those using the Crossing. (Pls.' Resp. at 9-10.) Plaintiffs cite that the majority view of jurisdictions hold that if the public for a long time has customarily, constantly, openly, and notoriously crossed tracks not on a public highway, the operating railroad is under a duty to exercise reasonable care and that those factors are met by the characteristics of the Crossing in the instant case. (Pls.' Resp. at 9 (citing Duty of Railroad Toward Persons Using Private Crossing or Commonly Used Footpath Over or Along Tracks, 167 A.L.R. 1253).)
Defendants argue that courts in at least one jurisdiction have held that a person using a private crossing “not known to be regularly and frequently used by the public is a licensee.” (Defs.' Mot. at 9 (citing Illinois Central Railroad Co. v. White, 610 So.2d 308, 316 (Miss. 1992) (internal citations omitted)).) Under Washington law, Defendants contend that a landowner is only subject to liability for physical harm to licensees if: (1) the possessor knows or should know of the condition and should realize that it poses an unreasonable risk of harm to the licensee; and (2) the possessor should expect that the licensee will not discover or realize the danger; and (3) the possessor fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and risks; and (4) the licensees do not know or have reason to know of the condition and the risk involved. (Id. (citing Tincani v. Inland Empire Zoological Society, 124 Wash.2d 121, 133-34 (1965)).)
Generally, the question of whether a duty exists is a question of law. Degel, 129 Wash.2d at 48. A duty exists where there is a legal obligation “to conform to a particular standard of 32 conduct toward another.” Affiliated FM Ins. Co. v. LTK Consulting Servs., Inc., 170 Wash.2d 442, 449 (2010) (citation and internal quotations omitted). The existence of a duty derives from “considerations of logic, common sense, justice, policy, and precedent,” id. at 449-50, and turns “on the foreseeability of the risk created” by an action. Parilla v. King County, 138 Wash.App. 427, 436 (Wash. App. Div. I 2007). “A duty can arise either from common law principles or from a statute or regulation.” Doss v. ITT Rayonier, Inc., 60 Wash.App. 125, 129 (Wash. App. Div. II 1991) (citing Bernethy v. Walt Failor 's, Inc., 97 Wash.2d 929, 932 (1982)).
Once it is determined that a duty exists, the scope of that duty in particular circumstances is a question of fact to be determined by the jury. See Jarr v. Seeco Const. Co., 35 Wash.App. 324, 329-30 (Wash. App. Div. I 1983) (citing Bernethy, 97 Wash.2d at 933). As previously noted, the Washington Supreme Court has held that-in determining the duty owed at a private crossing-the adequacy of a railroad defendant's warning must be determined from the circumstances presented relative to the crossing. See Mulkey, 65 Wash.2d at 123.
Here, as considered above, the Court has determined that Plaintiffs' claims regarding audible warning, warning devices, and visual obstruction at the Crossing are not preempted by the FRSA. Under Washington law, the scope of the duty owed by Defendants to Ms. Gonzalez Torres and I.G. as to these claims depends on the circumstances existing at the Crossing that Ms. Gonzalez Torres was faced with. See Mulkey, 65 Wash.2d at 123. As previously detailed, Plaintiffs and Defendants have both submitted competing evidence regarding the adequacy of the train's audible warning, the adequacy of the warning devices present at the Crossing, and the overall dangerousness of conditions that existed at the Crossing due to its approach, layout, and sightlines. (See Ogden Decl. at ¶ 2, Ex. 1 at 7, 10; Gill Decl. at ¶ 2, Ex. 1 at 5, 11; Flynn Decl. at ¶ 7, Ex. 2 at 2-7, 12-13; Heikkila Decl. at ¶ 9, Ex. 2 at 7-9, 11, 13, 15.) 33
Based on the Court's review of the record, there remain genuine issues of material fact regarding the conditions that existed at the Crossing. As such, the Court cannot find that Plaintiffs' negligence claim is barred on the basis that Defendants did not breach a duty owed to Ms. Gonzalez Torres and I.G. as they navigated the Crossing.
ii. Causation
A cause is a proximate cause if, “in a natural and continuous sequence, unbroken by any new, independent cause, [it] produces the event, and without [it,] that event would not have occurred.” See Graham v. Pub. Emps. Mut. Ins. Co., 98 Wash.2d 533, 538 (1983). Proximate cause consists of both cause in fact-the connection between the act and the injury- and legal causation. Baughn v. Honda Motor Co., 107 Wash.2d 127, 142 (1986). The question of cause in fact is generally a question for the jury, unless the facts are undisputed and reasonable minds could not differ, in which case cause in fact may be decided as a matter of law. Id.
Defendants argue that Ms. Gonzalez Torres's undisputed failure to stop at the Crossing was the sole and proximate cause of the collision. (Defs.' Mot. at 7-8.) Plaintiffs generally concede that Ms. Gonzalez Torres did not stop at the posted stop sign prior to entering the Crossing. (See Pls.' Resp. at 5.) Plaintiffs instead contend that Ms. Gonzalez Torres did not have a legal duty to stop at the posted stop sign and that a reasonable jury could find that Defendants breached the standard of care owed to Ms. Gonzalez Torres and were ultimately responsible for the collision. (Id. at 5-10.)
On this issue, the evidence is undisputed as to Ms. Gonzalez Torres's failure to stop at the posted stop sign. Event recorder data from Ms. Gonzalez Torres's vehicle, and contemporaneous footage from the train, demonstrate that Ms. Gonzalez Torres's vehicle never came to a complete stop before entering the Crossing. (Young Decl. at ¶¶ 9, 12, Ex. 5 at 3-11.) In addition, Ms. 34 Tedoro testified that Ms. Gonzalez Torres was aware of the stop sign, but routinely failed to stop before entering the Crossing. (Yates Decl. at ¶ 2, Ex. A at 5 (Tedoro Dep. at 15:4-16:13, 19:3-10).)
As to Plaintiffs' first contention, the Court finds that Ms. Gonzalez Torres maintained a legal duty to stop at the posted stop sign at the Crossing. Clark County Municipal Code 10.02.010 adopts the entirety of Washington Administrative Code Chapter 308-330. Pursuant to WAC 308-330-415 , and its adoption of RCW 46.61.190, “every driver of a vehicle approaching a stop sign shall stop” unless an applicable exception applies. Under WAC 308-330-421 , and its adoption of RCW 46.61.340 and 46.61.345, Ms. Gonzalez Torres maintained a legal duty to stop at the Crossing. See RCW 46.61.340 (“Whenever any person driving a vehicle approaches a railroad grade crossing . . . the driver of such vehicle shall stop within fifty feet but not less than fifteen feet from the nearest rail of such railroad, and shall not proceed until the crossing can be made safely. The foregoing requirements shall apply when . . . an approaching railroad train or other on-track equipment is plainly visible and is in hazardous proximity to such crossing.”); RCW 46.61.345 (“When such stop signs are erected the driver of any vehicle shall stop within fifty feet but not less than fifteen feet from the nearest rail of the railroad and shall proceed only upon exercising due care.”).
As to Plaintiffs' second contention, however, the Court agrees that genuine issues of material fact exist that preclude this Court from finding that Ms. Gonzalez Torres's failure to stop at the posted stop sign was the sole proximate cause of the collision at the Crossing. On this point, Plaintiffs cite to Eichler v. Yakima Val. Transp. Co., 83 Wash.2d 1 (1973). In Eichler, a motorist was killed when his car collided with a train at a railroad grade crossing. Id. at 2. The defendants contended that the deceased motorist was contributorily negligent as a matter of law 35 because he failed to yield the right-of-way to the train at the crossing. Id. The Washington Supreme Court found that because there were conflicts in the evidence as to the deceased motorist's speed and the provided audible warning, “it remained for the jury to decide whether the train was plainly visible and in hazardous proximity to the crossing thereby acquiring the right-of-way provided by RCW 46.61.340(1)(c).” Id. at 4. Thus, the Washington Supreme Court concluded whether the deceased motorist proximately caused the accident was a factual issue reserved for the jury. Id. (citing Ward v. Zeugner, 64 Wash.2d 570 (1964)); see also Speicher v. Union Pac. R.R., 2008 WL 4810293, at *3, 5 (W.D. Wash. Oct. 31, 2008) (finding material issue of fact existed as to whether defendant was negligent in crossing the railroad tracks, and whether or not such negligence was the proximate cause of train collision).
The Court agrees that whether Ms. Gonzalez Torres was the proximate cause of the collision at the Crossing remains a question for the jury based on the conflicts of evidence in this case. As noted above, it is undisputed that Ms. Gonzalez Torres failed to stop at the posted stop sign at the Crossing. However, Plaintiffs have submitted sufficient evidence demonstrating that conditions that existed at the Crossing interfered with her apprehension of the oncoming train. Of note, Ms. Gill found that the Crossing was inherently dangerous for several reasons, including that due to the angle of the approach of the roadway to the Crossing and vegetative obstructions that existed at the Crossing, a motorist approaching the Crossing from Southwest Viola would not have any visual cues as to the presence of an oncoming train until approximately 25 feet from the track. (See Gill Decl., Ex. 1 at 8.) Ms. Gill further concluded that Ms. Gonzalez Torres's motorist behavior of failing to stop at the Crossing was consistent with the majority of motorists traveling over the Crossing based on an observational study. (See id. at 11.) On this point, Ms. Tedoro testified that Ms. Gonzalez Torres regularly interacted with the Crossing as 36 part of her cleaning business, but never encountered a train at the Crossing, and therefore, did not routinely stop. (Yates Decl. at ¶ 2, Ex. A at 5 (Tedoro Dep. at 19:3-10, 36:3-15).) Finally, Mr. Ogden concluded that Railroad Defendants allowed hazardous conditions to exist at the Crossing, including improper design and layout, because the Crossing required motorists to descend a steep downhill grade and to round a sharp curve prior to a short roadway approach to cross and due to impaired sight distances from vegetative obstruction. (Ogden Decl. at ¶ 2, Ex. 1 at 6-8, 10-13.) Mr. Ogden additionally noted that Railroad Defendants failed to give a proper audible warning of the train's approach at the Crossing. (Id. at 6, 23-24.)
Viewing the evidence in the light most favorable to Plaintiffs, the Court finds that genuine issues of material fact exist regarding whether Ms. Gonzalez Torres's view of the train was obstructed and whether or not conditions present at the Crossing adequately warned of its oncoming approach. Accordingly, the Court concludes that summary judgment is not appropriate on Defendants' claim that Ms. Gonzalez Torres's failure to stop at the posted stop sign at the Crossing was the sole and proximate cause of the collision at the Crossing.
IV. CONCLUSION
For the foregoing reasons, this Court recommends that Defendants' Motion (dkt. # 71) be GRANTED in part and DENIED in part. Specifically, the Court finds that: (1) Plaintiffs' excessive speed, slow order, track inspection, and failure to train claims are preempted under the FRSA, and therefore, should be dismissed; (2) Plaintiffs' audible warning, warning devices, and visual obstruction claims are not preempted under the FRSA; and (3) genuine issues of material fact preclude dismissal of Plaintiffs' remaining negligence claims. A proposed Order accompanies this Report and Recommendation. 37
Objections to this Report and Recommendation, if any, should be filed with the Clerk and served upon all parties to this suit within fourteen (14) days of the date on which this Report and Recommendation is signed. Failure to file objections within the specified time may affect your right to appeal. Objections should be noted for consideration on the District Judge's motions calendar for the third Friday after they are filed. Responses to objections may be filed within fourteen (14) days after service of objections. If no timely objections are filed, the matter will be ready for consideration by the District Judge on January 28, 2021.
The Clerk is directed to send copies of this Report and Recommendation to the parties and to the Honorable Benjamin H. Settle. 38