528 F. App'x 960
10th Cir.2013Background
- In 2006 a BNSF freight train struck and killed Elmer Ross as he drove a road grader across an unguarded rural railroad crossing; a train-mounted camera recorded the collision.
- Dorothy Ross sued BNSF for wrongful death in federal court (diversity).
- BNSF moved for summary judgment, arguing the video conclusively shows Ross violated Okla. Stat. tit. 47, § 11-701(A)(4) (must stop when an approaching train is "plainly visible" and in hazardous proximity), which Oklahoma law treats as negligence per se and a proximate, supervening cause insulating the railroad.
- Plaintiff submitted an expert report and an animation asserting limited sight lines from Ross’s position: at his earliest opportunity to see the train he would have been ~2 feet from the rail and the train 351 feet from impact, suggesting he could not have stopped 15 feet from the rail after the train became plainly visible.
- The district court granted summary judgment to BNSF based on the video. The Tenth Circuit reversed, holding the video did not "utterly discredit" plaintiff’s evidence and a genuine factual dispute exists on whether the train was "plainly visible."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the train was "plainly visible" under § 11-701(A)(4) | Ross's evidence (expert and animation) shows sightline limits such that a reasonably prudent driver in his position could not have seen the train in time to stop 15 feet from the rail | Train video shows grader approaching without stopping and the train clearly visible, conclusively proving violation | Reversed: video does not "utterly discredit" plaintiff evidence; genuine dispute exists for jury about plain visibility |
| Whether video conclusively defeats plaintiff under Scott v. Harris | Plaintiff: Scott requires video to utterly discredit opposing facts; here the video is from train's perspective and is grainy, so it does not | BNSF: Video plainly contradicts plaintiff; Scott supports summary judgment | Court: Scott inapplicable—video is from train, not motorist, perspective and does not unequivocally refute plaintiff evidence |
| Whether violations of other statutes (§ 11-701(A)(3) horn audible; § 11-801(E) reduced speed) independently bar recovery | Ross produced evidence disputing horn audibility and speed; genuine disputes exist | BNSF: Video (and audio) and other records establish horn and slow-speed violations, which would also be negligence per se | Court: Declined to affirm on these alternate grounds—record contains genuine disputes on audibility and speed |
| Whether plaintiff's expert was admissible (Daubert) | Plaintiff relied on expert to show sight limitations; district court never ruled on Daubert | BNSF argued motions in limine to exclude expert reports | Court did not decide admissibility on appeal; notes district court never ruled and BNSF did not raise exclusion on appeal |
Key Cases Cited
- Akin v. Mo. Pac. R.R. Co., 977 P.2d 1040 (Okla. 1999) (Oklahoma: failure to comply with § 11-701(A) is negligence per se and can be the supervening proximate cause insulating railroad)
- Hamilton v. Allen, 852 P.2d 697 (Okla. 1993) (same principle on motorist statute as negligence per se and effect on railroad liability)
- Scott v. Harris, 550 U.S. 372 (2007) (video evidence may justify summary judgment only when it so utterly discredits opposing evidence that no reasonable jury could believe it)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (movant’s initial burden in summary judgment and shifting burden to nonmovant)
- Texas & N. O. R. Co. v. Day, 316 S.W.2d 402 (Tex. 1958) (definition of “plainly visible”: what a reasonably prudent person situated like the motorist should have seen)