Kenny v. BNSF Railway Company et al, No. 2:2011cv00624 - Document 83 (W.D. Wash. 2012)
Court Description: ORDER denying 36 Plaintiff's Motion for Partial Summary Judgment, signed by Judge Ronald B. Leighton.(DN)
Download PDF
<![CDATA[
Kenny v. BNSF Railway Company et al Doc. 83 HONORABLE RONALD B. LEIGHTON 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 9 LORRAINE KENNY, 11 12 No. 2:11-cv-00624-RBL Plaintiff, 10 v. BNSF RAILWAY COMPANY, et al., ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT RE LIABILITY Defendants. 13 14 consolidated with 15 16 LOEHR v. BNSF RAILWAY COMPANY, et al., C11-729 MJP 17 18 THIS MATTER comes before the Court on Plaintiff’s Motion for Summary Judgment Re 19 Liability [Dkt. #36]. The action involves the deaths of two railroad workers, Thomas J. Kenny 20 and Christopher James Leohr. 21 I. BACKGROUND 22 Defendant Burlington Northern Santa Fe Railway Company (BNSF) is a Delaware 23 corporation that owns and operates railroads throughout the United States, including in the State 24 of Washington. Def. BNSF’s Answer at 1 [Dkt. #26]. BNSF entered into a service agreement 25 with Outsource Administrators, Inc. (OAI) to manage the transportation of its employees, and OAI selected Defendants Coach America and Coach USA (collectively, CUSA) to perform 26 shuttle services for BNSF employees in Washington. Def. BNSF’s Resp. at 2 [Dkt. #61]. 27 BNSF owns and maintains a private grade crossing at its Longview Yard near Kelso, 28 Washington, that enables vehicles to access the BNSF Yard Office and other facilities. Id. at 2. ORDER - 1 Dockets.Justia.com 1 The crossing consists of a road intersecting three sets of railroad tracks. Pl.’s Mot. at 2 [Dkt. #36]. The road is not guarded by crossing bars, but a rail crossing sign and a stop sign are posted 2 at the crossing’s entrance. Decl. of Darr Kirk at 8, 19 [Dkt. #37]. On March 23, 2011, a CUSA 3 4 shuttle was scheduled to transport three BNSF crew members, Thomas Kenny, Christopher Loehr, and Dwight Hauck, from the Longview Yard to a hotel in Vancouver, Washington. Pl.’s 5 Mot. at 4 [Dkt. #36]. The shuttle, driven by a CUSA employee, entered the crossing and collided 6 with a northbound freight train that pushed the vehicle down a nearby embankment. Id.; Decl. of 7 David Ortner at 6 [Dkt. #38]. The accident killed Mr. Kenny, Mr. Loehr, and the driver. Pl.’s 8 Mot. at 2 [Dkt. #36]. Mr. Hauck was hospitalized with severe head injuries and is unable to 9 testify. Pl.’s Reply at 3 [Dkt. #64]. Members of the Kelso Police Department responded to the scene of the accident and 10 11 produced a report detailing the results of their investigation. Decl. of Darr Kirk at 2 [Dkt. #37]. Detective Dave Voelker interviewed Edward Whitman, the train’s engineer, who stated he was 12 driving the train when the collision occurred. Id. at 19. Mr. Whitman told Detective Voelker 13 14 that because the grade crossing was private, he was not required to use and therefore did not use the train’s whistle. Id. He said that he did sound the train’s warning horn, however. Id. Mr. 15 Whitman also indicated the train was traveling at approximately forty-seven miles per hour at the 16 time of impact. Id. In addition to the statements from Mr. Whitman and other witnesses, the police viewed 17 18 footage from two video cameras—one positioned in the cab of the train involved in the accident 19 and the other positioned in the rear of a stationary train—that captured some of the events 20 leading up to the collision. Def. BNSF’s Resp. at 2 [Dkt. #61]. Captain Darr Kirk and Detective 21 Hochhalter viewed the videos. Kirk Decl. at 30–35 [Dkt. #37]. Kirk reported that the video showed the shuttle entering the crossing without stopping. Id. at 30. Hochhalter indicated the 22 colliding train’s video revealed approximately thirty seconds of ringing bells prior to the train’s 23 impact with the shuttle. Id. at 35. He also described the footage from the stationary train as 24 follows: 25 The video shows that the driver of the Suburban swung wide to the left before turning east over the crossing and it appears to indicate that the driver of the Suburban did not stop for the stop sign west of the tracks prior to making this turn at the crossing. 26 27 28 Id. ORDER - 2 1 Lorraine Kenny and Carl Loehr filed separate actions against BNSF and CUSA on behalf 2 of the decedents’ estates and their statutory beneficiaries. The Court consolidated the suits under 3 the Kenny litigation for pretrial purposes. [Dkt. #23]. Plaintiff Kenny now moves for partial 4 summary judgment as to the liability of both defendants. Plaintiff alleges liability against BNSF 5 under the Federal Employers’ Liability Act, 45 U.S.C. §51 et seq., and against CUSA under state 6 statutory and common law negligence theories. II. AUTHORITY 7 Summary judgment is appropriate when, viewing the facts in the light most 8 favorable to the nonmoving party, there is no genuine issue of material fact which would 9 preclude summary judgment as a matter of law. Once the moving party has satisfied its 10 burden, it is entitled to summary judgment if the nonmoving party fails to present, by 11 affidavits, depositions, answers to interrogatories, or admissions on file, “specific facts 12 showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 13 324 (1986). “The mere existence of a scintilla of evidence in support of the nonmoving 14 party’s position is not sufficient.” Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 15 1221 (9th Cir. 1995). Factual disputes whose resolution would not affect the outcome of 16 the suit are irrelevant to the consideration of a motion for summary judgment. Anderson 17 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In other words, “summary judgment should be granted where the nonmoving party fails to offer evidence from which a 18 reasonable [fact finder] could return a [decision] in its favor.” Triton Energy, 68 F.3d at 19 20 21 22 23 24 25 26 27 1220. The Federal Employers’ Liability Act (FELA) provides for the recovery of railroad employees that are injured or killed due to the negligence of the railroad: Every common carrier by railroad while engaging in commerce between any of the several States or Territories . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment. 28 ORDER - 3 1 45 U.S.C. § 51. The words “common carrier by railroad” mean “one who operates a railroad as a 2 means of carrying for the public.” Edwards v. Pac. Fruit Exp. Co., 390 U.S. 538, 540 (1968) 3 (internal quotation marks omitted). The measure of duty owed to a railroad employee under the 4 FELA is to exercise “reasonable and ordinary care” within the circumstances. E.g., Del., L. & 5 W.R. Co. v. Koske, 279 U.S. 7, 11 (1929); McGivern v. N. Pac. Ry. Co., 132 F.2d 213, 217 (8th 6 Cir. 1942). The causal connection between the railroad’s act and the employee’s injury that is 7 necessary to establish liability differs from the common law concept of proximate cause, and the 8 employee need only show that the railroad’s negligence “played any part, even the slightest, in 9 producing the injury or death.” Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500, 506 (1957); accord 10 11 Model Civ. Jury Inst. 9th Cir. 6.4 (2007). III. DISCUSSION 12 Plaintiff’s motion for summary judgment with respect to BNSF’s liability relies solely on 13 the argument that CUSA was acting as BNSF’s agent during the accident, and therefore CUSA’s 14 negligence is imputed to BNSF under the FELA. The issue of whether BNSF’s officers or 15 employees were directly negligent is not before the Court. Thus, the questions presented are: (1) 16 whether CUSA is, in fact, BNSF’s agent as a matter of law; and (2) whether reasonable minds 17 could disagree that CUSA acted negligently when its shuttle driver entered the grade crossing. 18 A. Establishing Agency Under the Hopson/Sinkler Doctrine 19 A railroad’s agent, for purposes of the FELA, is one who performs operational activities 20 for the railroad under contract. Sinkler v. Mo. Pac. R.R. Co., 356 U.S. 326, 331 (1958). This 21 principle is what has become known as the Hopson/Sinkler doctrine. In Sinkler, a cook 22 employed by the railroad was injured when his railcar collided with another railcar. 356 U.S. at 23 326. The accident occurred because the switching crew failed to switch the car from one rail to 24 another. Id. A Texas state court of appeals held that the employee could not recover under the 25 FELA because the railroad contracted out the railcar switching services, and the doctrine of 26 respondent superior did not extend to independent contractors. Id. at 328. The Supreme Court 27 of the United States reversed the decision, reasoning the switching employees were “as much a 28 ORDER - 4 1 part of the [railroad’s] total enterprise as was the [cook] while engaged in his regular work.” Id. 2 at 331. BNSF does not dispute that transporting employees from the Longview Yard to a hotel in 3 4 Vancouver constitutes an “operational activity.” It is well established that the transportation of 5 employees to and from a jobsite or a place of lodging is an operational activity for the purpose of 6 establishing agency. See, e.g., Hopson v. Texaco, Inc., 383 U.S. 262, 263 (1966) (holding the 7 Jones Act incorporates the standard of the FELA); Robinson v. CSX Transp., Inc., 535 F. Supp. 8 2d 875, 878 (N.D. Ohio 2008); Keller v. St. Louis-Sw. Ry. Co., 952 F. Supp. 711, 713 (D. Kan. 9 1996). 10 BNSF does contest, however, that CUSA and BNSF were ever engaged in a contractual 11 relationship because OAI, not BNSF, selected and contracted CUSA to perform shuttle services 12 in Washington. BNSF points to two Ninth Circuit admiralty cases to support this proposition: 13 Craig v. Atl. Richfield Co., 19 F.3d 472 (9th Cir.), cert. denied, 513 U.S. 875 (1994) and Tim v. 14 Am. President Lines, Ltd., 409 F.2d 385 (9th Cir. 1969). In Tim, the court applied the 15 Hopson/Sinkler doctrine to an injured electrician working onboard the S.S. President Tyler. 409 16 F.2d at 385. A crane operating company’s negligence caused the injury, but the court held the 17 crane operator was not the defendant shipping line’s agent because the defendant did not select 18 the crane operator, or enter into a written or oral contract with the crane operator, or have a 19 financial interest in the crane operating company. Id. at 388. 20 Similarly, Craig involved an airplane accident that occurred while transporting drilling 21 employees between Singapore and Indonesia. 19 F.3d at 474–75. The court applied the 22 Hopson/Sinkler doctrine to determine whether the charter airline carrying the employees was the 23 agent of the drilling vessel’s owners. Id. at 477–78. The court concluded it was not because the 24 vessel owners did not enter into a contract with the airline, they did not select the airline, and 25 they did not have an ownership interest in the airline. Id. at 478. Furthermore, the vessel owners 26 did not have “actual control” over the airline’s flight plans. Id. 27 28 Like in Craig and in Tim, BNSF did not select CUSA to transport its employees, and it did not directly contract with CUSA—OAI performed these functions. Moreover, there is no ORDER - 5 1 evidence suggesting BNSF had a financial interest or ownership stake in CUSA. For these 2 reasons, CUSA does not appear to constitute BNSF’s agent under the Hopson/Sinkler doctrine, 3 but the remaining question is whether BNSF exerted actual control over CUSA. See Craig, 19 4 F.3d at 478. Genuine issues of material fact exist as to the level of control BNSF exerted over 5 CUSA, such as the extent to which BSNF dictated the scheduling and other details of employee 6 transportation. Because unresolved factual questions preclude the Court from holding CUSA is 7 BNSF’s agent as a matter of law, and because Plaintiff has not asserted any evidence of direct 8 negligence on the part of BNSF’s officers or other employees, the Court must deny the motion 9 for summary judgment as to BNSF’s liability. 10 11 B. CUSA’s Negligence Predicated on a Violation of a Safety Statute Plaintiff moves for partial summary judgment as to liability against CUSA on the basis 12 that CUSA violated a safety statute, RCW 46.61.350, when it failed to stop the shuttle before 13 crossing the railroad tracks. First, the parties disagree about which version of the statute was in 14 effect at the time of the accident. RCW 46.61.350 was amended in 1977 to provide as follows: 15 16 17 18 (1) The driver of any motor vehicle carrying passengers for hire, . . . before crossing at any track or tracks of a railroad, shall stop such vehicle within fifty feet but not less than fifteen feet from the nearest rail of such railroad and while so stopped shall listen and look in both directions along such track for any approaching train, and for signals indicating the approach of a train, . . . and shall not proceed until he can do so safely. 19 RCW 46.61.350 (1977) (emphasis added). The statute was rewritten during the 2010 20 21 22 23 24 25 26 27 Regular Session of the Washington State Legislature to read as follows: (1)(a) The driver of any of the following vehicles must stop before the stop line, if present, and otherwise within fifty feet but not less than fifteen feet from the nearest rail at a railroad grade crossing unless exempt under subsection (3) of this section: (i) A school bus or private carrier bus carrying any school child or other passenger; (ii) A commercial motor vehicle transporting passengers; * * * 28 ORDER - 6 1 2 3 4 5 (b) While stopped, the driver must listen and look in both directions along the track for any approaching train and for signals indicating the approach of a train. The driver may not proceed until he or she can do so safely. * * * (4) For the purposes of this section, “commercial motor vehicle” means: Any vehicle with a manufacturer’s seating capacity for eight or more passengers, including the driver, that transports passengers for hire; . . . . 6 RCW 46.61.350 (2010) (emphasis added). Plaintiff relies on the earlier version of the 7 statute, while CUSA relies on the later version of the statute. The later version of the 8 statute became effective on June 10, 2010, therefore it was controlling at the time of the 9 accident on March 23, 2011. 2010 Wash. Legis. Serv. Ch. 15 § 1 (West). Plaintiff 10 11 argues the amended RCW 46.61.350 did not become effective until July 22, 2011, when the statute was reenacted and further amended, because the amendment conflicted with a second amendment passed in the same session. Pl.’s Reply at 5 [Dkt. #64]. The second 12 2010 amendment Plaintiff refers to made technical corrections to include gender neutral 13 14 language in Washington’s Revised Code. 2010 Wash. Leg. Serv. Ch. 8 § 9069 (West). These amendments are not in conflict, and the substantive changes to RCW 46.61.350 15 were not changed when the law was reenacted and amended in 2011. See 2011 Wash. 16 Legis. Serv. Ch. 151 § 6 (West) (deleting the words, “United States Department of 17 Transportation in” from Section (1)(a)(iv)). The current language was controlling at the 18 time of the accident. 19 20 21 The CUSA driver did not stop before entering the grade crossing as required by RCW 46.61.350(1)(a). But there is no showing of whether the CUSA shuttle, a Chevy Suburban, constitutes a “commercial motor vehicle” or a “private carrier bus” under RCW 46.61.350. Even if the Suburban meets the statutory definition of a commercial motor vehicle, and the driver 22 violated the safety statute, the violation does not support an inference of negligence per se. See 23 RCW 5.40.050 (abolishing per se negligence in all but a few limited circumstances not relevant 24 here). The violation may be considered evidence of negligence by the trier of fact. Id. Because 25 Plaintiff has failed to demonstrate that the vehicle in question is, in fact, a commercial motor 26 vehicle applicable under the safety statute, and because the statutory violation does not implicate 27 negligence per se, the Court declines to hold CUSA liable as a matter of law based on the alleged 28 statutory violation alone. ORDER - 7 1 The Court’s inquiry does not end here, however. Summary judgment is still appropriate where reasonable minds could not disagree that CUSA obviated its duty of care under the 2 circumstances. See Pudmaroff v. Allen, 138 Wash. 2d 55, 58, 69–70, 977 P.2d 574 (1999) 3 4 (finding motorist who struck bicyclist in a crosswalk negligent as a matter of law). A railroad crossing is “a proclamation of danger” that requires a driver to exercise reasonable care by 5 looking and listening before entering the crossing. Carroll Union Pac. R.R. Co., 20 Wash. 2d 6 191, 197, 146 P.2d 813 (1944) (citing Haaga v. Saginaw Logging Co., 169 Wash. 547, 549, 14 7 P.2d 55 (1932). Plaintiff alleges CUSA breached this duty when the driver failed to stop before 8 entering the crossing and colliding with the train. Based on statements from Robert House, 9 Officer Voelker, and Officer Ortner, CUSA responds that stationary train cars obstructed the 10 11 driver’s line of sight, which would explain why he entered the crossing at such an unfortunate time. Def. CUSA’s Resp. at 9–10 [Dkt. #62]. An obstruction to one’s line of sight does not relieve a driver’s duty to exercise reasonable caution. See Keene v. Pac. Nw. Traction Co., 153 12 Wash. 310, 279 P. 756 (1929) (“If [the driver] could not see whether or not he was entering a 13 14 15 zone of danger in venturing onto the railway track, it was his duty to take some other means of ascertaining the fact.”). In short, viewing the facts in the light most favorable to CUSA, reasonable jurors might 16 disagree about whether the CUSA driver acted reasonably under the circumstances, and therefore 17 Plaintiff’s Motion for Partial Summary Judgment Re Liability is DENIED. 18 IT IS SO ORDERED. 19 Dated this 25th day of June, 2012. 20 A 21 22 Ronald B. Leighton United States District Judge 23 24 25 26 27 28 ORDER - 8
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
