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Rowell v. BNSF Railway Co.

United States District Court, E.D. Arkansas, Jonesboro Division

July 23, 2019

EARNEST CORNELIUS ROWELL individually and as special administrator of the Estate of Ernest Ebenezer Rowell PLAINTIFF
v.
BNSF RAILWAY COMPANY UNION PACIFIC RAILROAD, DIETRICK YOUNG and CHARLES ESAW DEFENDANTS

          ORDER

         Defendant 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 remove obstructions.

         I. BACKGROUND

         This is 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.

         II. LEGAL STANDARD

         Summary 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.

         “If 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).

         III. DISCUSSION

         A. Failure to Issue a Slow Order

         Summary judgment is granted on Rowell's claim that Union Pacific failed to issue a slow order because this claim is preempted by federal law.

         Federal 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).

         Although 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.

         B. Inadequate Warning Devices

         Summary judgment is granted on Rowell's claim for insufficient warning devices because this claim is preempted by federal law.

         Tort 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 ...


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