United States District Court, E.D. Arkansas, Jonesboro Division
EARNEST CORNELIUS ROWELL individually and as special administrator of the Estate of Ernest Ebenezer Rowell PLAINTIFF
BNSF RAILWAY COMPANY UNION PACIFIC RAILROAD, DIETRICK YOUNG and CHARLES ESAW DEFENDANTS
Union Pacific Railroad Company's (“Union
Pacific”) motion for summary judgment [Doc. No. 22] is
granted as to all claims except the claim for failure to
a sad case in which Ernest Ebenezer Rowell was killed when a
train collided with the dump truck he was driving. Def.'s
Statement of Facts (“Def.'s F.”) ¶ 1,
Doc. No. 23. BNSF Railway Company (“BNSF”) owns
the train involved in the collision, and Union Pacific owns
the tracks where the collision occurred. Id.
¶¶ 1-3. The train was traveling west at
approximately 42 to 45 miles per hour near the city of
Edmondson, Arkansas. Id. ¶¶ 3, 6; Reaves
Aff. ¶ 4, Doc. No. 29-2. Rowell was traveling west along
a road that runs parallel to the train tracks. Resp. Mot.
Summ. J. at 2, Doc. No. 29; Bowser Aff. ¶ 12, Doc. No.
29-3. The train struck Rowell's truck when he turned left
and drove over the tracks. See Resp. Mot. Summ. J.
at 2-3; Bowser Aff. ¶ 9. The road in which the collision
occurred approaches the tracks at a sharp angle. See
Bowser Aff. ¶ 5. Moreover, there was vegetation growing
near the tracks, and there was an obstruction preventing
Rowell from having a clear view of the oncoming train. Hughes
Aff. at 5, Doc. No. 29-1; Bowser Aff. ¶ 8.
judgment is appropriate when there is no genuine dispute as
to any material fact and the moving party is entitled to
judgment as a matter of law. See Fed. R. Civ. P.
56(a); Anderson v. Liberty Lobby Inc., 477 U.S. 242,
249-50 (1986). Once the moving party demonstrates that there
is no genuine dispute of material fact, the non-moving party
may not rest upon the mere allegations or denials in his
pleadings. Holden v. Hirner, 663 F.3d 336, 340 (8th
Cir. 2011). Instead, the non-moving party must produce
admissible evidence demonstrating a genuine factual dispute
requiring a trial. Id.
a party fails to properly support an assertion of fact or
fails to properly address another party's assertion of
fact as required by Rule 56(c), the court may consider the
fact undisputed for purposes of the motion.”
Fed.R.Civ.P. 56(e)(2). All reasonable inferences must be
drawn in a light most favorable to the non-moving party,
Holland v. Sam's Club, 487 F.3d 641, 643 (8th
Cir. 2007), but a party's own self-serving, conclusory
allegations in an affidavit or deposition, standing alone,
are insufficient to defeat summary judgment. Haas v.
Kelly Services, 409 F.3d 1030, 1034 (8th Cir. 2005).
Finally, the evidence is not weighed, and no credibility
determinations are made. Jenkins v. Winter, 540 F.3d
742, 750 (8th Cir. 2008).
Failure to Issue a Slow Order
judgment is granted on Rowell's claim that Union Pacific
failed to issue a slow order because this claim is preempted
by federal law.
law preempts tort suits arising from most railroad
collisions. See 49 U.S.C. § 20106; CSX
Transp., Inc. v. Easterwood, 507 U.S. 658, 675 (1993);
Sipes v. Union Pacific R.R. Co., 925 F.Supp.2d 1051,
1055-56 (E.D. Ark. 2002). One exception to this rule is where
the circumstances pose a “specific, individual hazard,
” in which case a railroad can be held liable for
failing to order its train operators to lower their speeds to
avoid dangerous conditions. Stevenson v. Union Pacific
R.R. Co., 110 F.Supp.2d 1086, 1088-89 (E.D. Ark. 2000)
(quoting Easterwood, 507 U.S. at 675).
Rowell asserts that Union Pacific should have, but failed to,
issue a slow order, there is no admissible evidence
supporting this contention. Rowell relies on a crossing
inventory and affidavits based on that crossing inventory.
See Crossing Inventory, Reaves Aff.; Reaves Aff. Ex.
A, Doc. No. 29-2. Crossing inventories, however, are
inadmissible, Gleason v. Soo Line R.R. Co., No.
C98-2021 MJM, 1999 WL 33656833 at *7 (N.D. Iowa, Jan. 12,
1999) (relying on 23 U.S.C. section 409), and typically are
insufficient to create a dispute of fact, Sipes, 925
F.Supp.2d at 1055.
Inadequate Warning Devices
judgment is granted on Rowell's claim for insufficient
warning devices because this claim is preempted by federal
claims relying on the inadequacy of warning devices are
preempted when railroad warning devices are installed with
federal funds as part of a federal program. See Norfolk
S. Ry. Co. v. Shanklin, 529 U.S. 344, 356 (2000);
Easterwood, 507 U.S. at 675; Bock v. St. Louis
Sw. Ry. Co., 181 F.3d 920, 922-23 (8th Cir. 1999).
Rowell's claims are preempted by federal law because the
Federal Highway Administration ...