526 F.Supp.3d 494
D. Neb.2021Background:
- On Dec. 21, 2015, an eastbound Union Pacific freight train struck a Swift-contracted semi at a private crossing near Sidney, Nebraska; conductor Benton Miller alleges physical and psychological injuries.
- Train crew (engineer Kinsinger, conductor Miller) saw the truck seconds before impact, alerted and engaged emergency braking; train speed was ~69 mph (under 70 mph federal limit).
- Truck driver Abdikadir Mohamed (driving for owner Dirie under contract with Swift) testified he followed GPS, mistakenly turned onto the tracks, and the tractor became stuck; occupants exited and called 911 shortly before collision.
- Miller sued Union Pacific under FELA and sued Swift, Mohamed, and Dirie in negligence and vicarious liability; Swift/Mohamed asserted contributory negligence by Miller (alleging failure to slow for fog).
- Court considered four summary‑judgment motions: Union Pacific moved on Miller’s FELA claim and on Swift/Mohamed defenses; Miller (joined by Union Pacific) moved to preclude contributory negligence; Swift/Mohamed moved against Miller’s negligence claims.
Issues:
| Issue | Miller's Argument | Swift/Mohamed/Union Pacific's Argument | Held |
|---|---|---|---|
| 1) Is Union Pacific liable to Miller under FELA (duty/foreseeability/causation)? | Miller: evidence permits a jury to find UP negligence or that UP’s crossing conditions contributed to the collision. | UP: Mohamed’s conduct was unforeseeable and an independent cause; crew acted reasonably and had no notice; crossing design did not cause the truck to become stuck. | Granted in favor of Union Pacific — Miller failed to show even "but for" causation or actionable railroad negligence. UP dismissed. |
| 2) Are Swift/Mohamed’s contributory‑negligence claims (failure to slow in fog) against Miller preempted by the FRSA? | Miller: FRSA preempts state law speed-based duties; contributory negligence claim is essentially an excessive‑speed claim and thus preempted. | Swift/Mohamed: claim saved by §20106(b) or by asserting local hazard/specific hazard exceptions. | Granted to Miller — contributory negligence theory based on not slowing for fog is preempted (fog is not an "essentially local" hazard). |
| 3) Can Swift/Mohamed pursue comparative/contributory negligence against UP based on crossing design (ICCTA/causation)? | Miller/UP: crossing design did not cause the truck to become stuck; Mohamed’s voluntary turn onto tracks was the cause. | Swift/Mohamed: UP negligently designed a narrow/steep crossing that facilitated the truck getting stuck; ICCTA preemption not controlling. | Granted to Union Pacific — evidence fails to show UP’s design caused the collision; Mohamed’s actions were the proximate cause. |
| 4) Is Swift vicariously liable for Mohamed (employee/agent vs independent contractor)? | Miller: facts show Swift exercised sufficient control (DOT authority, routing, Qualcomm) to create a question for jury. | Swift/Mohamed: Dirie/Mohamed were independent contractors, so Swift is not vicariously liable. | Denied as to Swift — existence of master–servant relationship is a fact question for the jury. |
Key Cases Cited
- Conrail v. Gottshall, 512 U.S. 532 (FELA requires traditional negligence elements)
- Rogers v. Missouri Pac. R. Co., 352 U.S. 500 (FELA causation: railroad negligence that "played any part" may be actionable)
- CSX Transp., Inc. v. Easterwood, 507 U.S. 658 (FRSA preemption of state excessive‑speed claims; specific‑individual‑hazard exception explained)
- Cowden v. BNSF Ry. Co., 690 F.3d 884 (8th Cir. 2012) (federal speed regs preempt state limits imposing lower speed ceilings)
- Grade v. BNSF Ry. Co., 676 F.3d 680 (8th Cir. 2012) (weather such as fog is not an "essentially local" hazard for FRSA savings clause)
- Duluth, Winnipeg & Pac. Ry. Co. v. City of Orr, 529 F.3d 794 (8th Cir. 2008) (definition of "essentially local safety hazard")
- Sinkler v. Missouri Pac. R.R. Co., 356 U.S. 326 (employer liability for fellow employee negligence under FELA)
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment burden shifting)
- Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. en banc) (summary judgment standards)
- Cruz v. Lopez, 301 Neb. 531 (Nebraska test and factors for employee versus independent contractor determination)