*1 KIEMELE; Kiеmele, Lillian Appellants Plaintiffs — COMPANY, RAILROAD LINE
SOO Appellee
Defendant —
No. 95-3700. Appeals, Court of States
United
Eighth Circuit. June 1996.
Submitted Aug.
Decided
Rehearing Suggestion Rehearing 1,1996.*
En Banc Denied Oct. *Judge Judge grant Wollman and Beam would consideration or decision of this case. suggestion. Judge Magill part took no in the *2 Greenwood, Dickinson,
Dann North Dako- ta, appellant. argued, for Plambeck, Fargo, North Stephen William (Adele Dakota, Hedley Page, on the argued brief), appellee. HEANEY, BEAM and Circuit
Before BOGUE,* Judge. District Judges, and Senior BOGUE, Judge. District Senior appeal Rodney and Lillian Kiemele summary judgment dismissal court’s district find negligence action. Because we their exist, we of material fact issues and remand. reverse
I. BACKGROUND Rodney Kiemele December On (Kiemele) three co- driving himself and was rig an oil outside of employees to work at Portal, which The road on North Dakota. traveling covered with com- Kiemele ice, heavy fog limited pacted snow and p.m., Kiemele visibility. approximately At 112th car of a into the ran his automobilе Line Rail- operated train owned and (Soo Line). train was Company road Transportation Department of stopped on * Dakota, sitting by BOGUE, South the District of Senior vision of ANDREWW. The HONORABLE designation. Judge for the Western Di- States District United 699031G, also known as “Swen- 475 U.S. 106 S.Ct.
Crossing No.
“[wjhere
crossing was marked
the record as a whole could not lead
Crossing.” The
son’s
warning sign
cross-
an advance
a rational trier of fact to find for the nonmov-
injuries
ing party,
‘genuine
sufferеd
as a result
bucks. Kiemele
there is no
issue for
”
*3
of this collision.
trial.’
Id. We review the district court’s
grant
summary judgment
of
de novo. Allen
brought
diversity action
The Kiemeles
Inc.,
793,
Bridgestone/Firestone,
v.
F.3d
81
against
alleging that
Line was
Soo Line
Soo
(8th Cir.1996);
795
Landreth v.
Nat’l
First
train, in its
negligent
operation
in its
of the
267,
County,
Bank
268
Cleburne
45 F.3d
of
crossing,
operation
maintenance and
Cir.1995).
(8th
upgrade
improve
and in its failure to
the
granted
crossing. The district court
Soo
negligence, proximate
The
of
issues
summary judgment. The
Line’s motion for
cause,
contributory negligence
gen
are
court found that no material facts
district
erally questions of fact for the trier of fact.
dispute,
that Soo Line demonstrated
were
Holmes,
Inc.,
Steckler v. Miller &
303
duty
performed
it “had no
to have
the vari-
560,
(N.D.1981); Schalesky
N.W.2d
563
v.
alleges
plaintiff
ous tasks which the
should
(N.D.
R.R.,
236,
Soo Line
180 N.W.2d
239
done,”
application
and that
of
have been
the
1970).
only
questions
These issues
bеcome
§
required
39-09-01
dismissal.
N.D.C.C.
of law when
one conclusion could be
Having
appeal
The
this order.
Kiemeles
drawn from the record in the
Id.
case.
The
carefully
argu-
and the
reviewed the record
pending
disputes
case involves factual
con
parties,
conclude that
the
ments of the
we
cerning
any duty
whether Soo Line breached
in its dismissal of the
district
erred
Rodney
it owed to the Kiemeles and whether
Kiemeles’ action.
сontributorily negligent.
Kiemele was
Be
cause the record in this
a
case could lead
II. DISCUSSION
Kiemeles,
rational trier of fact to find for the
summary judgment
inappropriate.
A.
of review
Standard
We review de novo a district court’s
duty
B. Breach of
grant
summary judgment.
of
United States
The law of the state of North Dakota
Enter., Inc.,
130,
v.
Acres
86 F.3d
133
Green
diversity
governs
negligence
action. See
(8th Cir.1996). Under Rule 56 of the Feder
R.R.
Tompkins,
Erie
Co. v.
304 U.S.
58
Procedure,
al
Rules
Civil
movant
is
(1938). According
S.Ct.
The gent “must do more on fact these issues must be than show that metaphysical there is some resolved the trier of fact. Barsness v. facts,” Matsushita, doubt as to the Equip. material Diesel Gen. & 383 N.W.2d case, Line owed The Ríemeles next assert that Soo In this duty by failing general duty to exercise Line breached its to maintain сircumstances. the crossbucks at the Pursuant to care under reasonable Constr., 24-09-03, City Inc. v. N.D.C.C. Soo Line has a Beuchler See Tom Williston, (N.D.1986); erect and maintain crossbucks at the cross ing. un- or not “Reasonable care Whether Soo Line did fact N.D.C.C. 9-10-06. necessarily maintain includes the crossbucks Swenson’s Cross der the circumstances facts, ing any specialized knowledge, or skill on issue. The Ríemeles contend that duty.” charged Crossing Id. the crossbucks at Swenson’s had part of one reflectivity. lost their district court found that Soo Line The where the accident occurred *4 any duty it owed to the Ríem- did not breach by designated warning signs was advance question assert that a of eles. Ríemeles and crossbucks. Soo Line contends that as to whether or not Soo Line fact exists signs warning these were sufficient the it owed breached crossing regardless existing conditions. crossing, by improperly by bloсking the Section 24-09-01.1 of N.D.C.C. states that crossing signs, by failing maintaining the to warning signs advance and crossbucks “must precautions take further to warn of the train adequate appropriate be deemed and for crossing, by failing once it did block the warning of the existence and nature of each crossing so that it to construct or alter the crossing purposes railroad for all whatsoev- Generally, traveling public. was safe the face, er.” On its statute would seem to actions or inac- whether or not Soo Line’s preclude the Ríemeles’ claim that failure to duty would tions constituted a breach of its provide warning further constituted a breach be a of fact. case, however, duty. of In this there is a fact The Ríemeles first assert that Soo Line’s signs as to whether or not these had issue crossing blocking act of the constituted a reflectivity.2 signs their If the not lost were duty.1 of Fact issues exist as to when breach apparent improper to travelers due to their they employees the of Soo Line knew would maintenance and if Line knew or should Soo stop have to the train. These would bear on fact, § have known of this then N.D.C.C. 24- the issue of whether or not Soo Line’s em- Thus, inapplicable. genu- 09-01.1 be would ployees stopped could have the train at some material fact exist as to this ine issues of point оn the tracks so that it not other would issue. Crossing. have blocked Swenson’s There is any long asserts that an issue as to how the train had Soo Line further also sufficiency warning stopped may regarding claim the been before the collision. This determining crossing preempted federal law be relevant to whether or not the separate upgrade train federal funds were used to Soo Line’s failure to the at the because Crossing addressing in In сrossing 1981. was reasonable. Swenson’s waiting parties engaged regard- 5. When there is no vehicular traffic 1.The in some discourse crossing; to use or ing application the the of N.D.C.C. 49-11-19 to necessary comply govern- 6. When to with provides this claim. Section 49-11-19 as fol- regulation.... or ment statute lows: the We find that this statute is irrelevant to operate any person in such a No shall train in this case. How- determination prevent manner as to vehiculаr use of ever, regardless or not N.D.C.C. of whether roadway period for a of time in excess of ten violated, length that 49-11-19 was of time except: consecutive minutes crossing before the the train blocked accident necessary safety sig- comply 1. When to may is- occurred be relevant to breach of affecting nals of the movement of sues. trains; striking any necessary 2. When to avoid ob- Supreme Court has held that The North Dakota track; ject person on the regarding a railroad’s similar evidence failure disabled, by warning 3. When the train is accident or material on maintain the reflectorized otherwise; signs properly v. Nat'l admissible. South (AMTRAK), except Passenger Corp. 4. When the train is in motion when R.R. engaged switching operations; in 840-41 issue, rely in the Court Elrod formed Soo Line. The Kiemeles on preemption similar deposition testimony Line’s Public Railroad held Soo Burlington Northern Anderson, Engineer, to estab- Works Chuck common-law that: railroad’s “[A] lish that when ballast added to the federally prescribed until the care continues “probable” it is actually operating.” installed devices are was modified. Not did Mr. Anderson (8th Cir.1995). 241, 244 After feder- 68 F.3d knowledge lack definite as to whether or not warning are installed and ally devices funded approaches to the were modified preemption occurs. Id. In operating, federal but he also testified he did not know case, a fact issue as whether there is performed who the modifications. The modi- “operating.” If were or not the crossbucks fications, occurred, they could have been reflectivity, they they were not had lost their performed by highway either Soo Line or the not entitled to the operating, and Line is Soo authority. This for a evidence is too tenuous preemption. benefit of federаl jury reasonable to find that Line breach- Soo assert that Soo Line The Kiemeles any duty constructing ed it owed or alter- by failing duty of due care breached its ing approaches crossing so that it was construct or alter the Line added ballast to the Contributory negligence safe. In C. *5 Crossing sight. In Line Swenson Soo court a mat The district found as crossing. Kiem laid a new rail over the Rodney law ter of that Kiemele was contribu- §§ argue pursuant that to N.D.C.C. 49- eles torily negligent. Contributory negligence is 49-11-06,5 11-04,3 49-11-05,4 and Soo Line normally jury. a of fact for the adjust crossing had a to and restore the Stockier, 563; Schalesky, N.W.2d highway approaches after it altered the and plaintiffs N.W.2d at 239. In North Dakota a crossing in 1977 and 1980. We find that the contributory negligence recovery will bar not allow a rational record as a whole could negligence great if his or her was as as trier of fact to conclude that Soo Line negligence the combined of all of the other any duty regarding the construc breached injury. individuals who contributed to the Crossing. tion or alteration of Swenson’s § apportionment N.D.C.C. 32-03.2-02. The plaintiff of fault a between and a defendant is allege duty, In of this order to a breach generally an issue for fact. the trier of Kiemeles would have to establish the condi- States, Champagne v. United crossing approach tion and bеfore Line, any performed by work was Soo crossing actually fact that the raised or Rodney The district court found that altered, § and if the had been raised Kiemele violated N.D.C.C. 39-09-01. Sec- altered, per- provides or the work was tion the fact that 39-09-01 as follows: provides performed 3. Section 49-11-04 of N.D.C.C. as fol- shall be in accordance with N.D.C.C. § lows: 49-11-06. In section 49-11-05 was re- thus, pealed; there is some issue as to whether constructing, Every corporation owning, or us- applies or not it in this case. every ing a railroad shall restore stream of water, watercourse, street, highway, or canal across, 49-11-6(1) along, upon provides which such railroad 5.Section of N.D.C.C. that constructed, may public highway-railroad crossing grade be to its former state or to "A such condition that its usefulness shall not be grade shall be constructed aof of earth on one or materially impaired, trаck, and thereafter shall main- both sides of the railroad as the location against any tain the same in such condition may require, grade ... and such shall be of such any produced by effects in manner such rail- slope necessary safety as shall be for and road. traveling public.” convenience of the 49-11-6(3) provides Section of N.D.C.C. that Kiemeles, According to the from 1943 to through “At such time as tracks a railroad cross- provided: N.D.C.C. 49-11-05 "All railroad ing are raised or otherwise altered the rail- corporations operating railway a line of in this road, shall, the railroad unless otherwise ordered kept state shall build or cause to be built and commission, adjust repair, and crossings restore the cross- safe and sufficient over such surfaces, ing highway points approaches, and the line at all where and it shall intersect public highway grades necessary in use." Between 1979 and as shall be for the provided traveling public....” section 49-11-05 that this convenience of the speed which must be resolved. Ríemele testi- may a vehicle at a issue person drive No prudent night fied that the of the accident he knew he greater than is reasonable having regard to conditions and railroad tracks. He stat- under the would be however, potential ed, hazards then exist- thought actual and that he the tracks were every foregoing, with the ing. Consistent the turn the road miles from onto where appropri- a person shall drive at safe The tracks were ac- the accident occurred. approaching and speed ate when tually over 2 miles from the turn. a little grade cross- or railroad an intersection that Soo Line also asserts Ríemele ing. ... 39-09-02(l)(a). violated N.D.C.C. Section It this determination. agrees Line 30-09-02(l)(a) a provides that when driver’s as a result of thе decreased contends that obstructed, presumably it view is is lawful compacted and ice on the visibility and snow an hour the driver to travel at 20 miles when road, traveling at an excessive Ríemele was approaching fifty feet of a railroad within contends that Kiemele’s speed. Soo Line 39-09-02(l)(a) crossing. presup- Section speed was failing to reduce his poses fact that the driver knew he or she injuries or at least that cаuse of his the sole crossing. approaching a railroad This fifty greater percent. than fault was his applicable in statute would not be cases the district appears It also where the driver did not see or have notice of operate his found Ríemele failed crossing. impending There him in a manner which would enable vehicle of material fact as to whether or not issue clear distance stop within the “assured or had notice of the saw law, Dakota a driver Under North ahead.” §§ 39-09-01 or Even N.D.C.C. speed proceed at a rate of has 39-09-02(l)(a) *6 case, apply in this in did stop him or her to within which will enable Dakota, highway safety violation of a North clear distance ahead. See Wis the assured negligence. Keyes only evidence of statute is (N.D. Oster, 288, 110 288 newski v. N.W.2d (N.D. 602, Amundson, v. 391 N.W.2d 608 Treiber, 1961); 914 76 N.W.2d Doll 1986). negli A violation of a statute is not (N.D.1956). Finken, 239 gence per se. Haider v. N.W.2d a of either In оrder to find violation 508, 516 rule or N.D.C.C. assured clear distance the 39-09-01, the one must determine argues that Ríemele Line also proceeding too fast. Before de driver was contributorily negligent because the was Rodney termining not Ríemele whether or Generally, right way. trains the train had appropriate speed for the driving at an way. N. right of Schnell v. Pac. do have the conditions, must be re several factual issues (1941). 63 Ry. 71 N.D. genuine example, is a sоlved. For there however, question, as to some There is as to Riemele’s rate of of material fact issue have the not the train would still whether or train. Ríemele speed when he struck the a right way parked when it is on accident he was trav testified that before the moving being temporarily opposed to or as per hour. eling 35 and 40 miles between crossing for a moment. stopped on a was travel expert Riemele’s determined he cannot, Nevertheless, because “[r]ailroads per hour. One ing between 30 and 35 miles way, disregard reason they right of have the passengers believed he was of Riemele’s public. precautions for the able traveling per and 45 miles hour. between 40 say public shall cross They that the cannot fact genuine are also issues material There Schalesky, peril.” 180 their tracks at its night which existed the as to the conditions at 240. N.W.2d the accident. These issues involve by was obstructed extent Riemele’s vision III. CONCLUSION road fog and the extent the conditions the material fact as is a issue of driving stopping abili There affected Riemele’s was eontribu- ty. Ríemele should have to whether Whether or not genuine is- torily negligent. are also fact There expecting is also a been the case, precluding summary material fact we need not reach that issue to affirm sues of the district court. judgment relative to whether Soo Line by it duties owed Kiemeles breached point Neither the court nor the Kiemeles crossing, im- blocking the whether Soo Line statute, any duty supported by common- crossing signs, properly maintained the principles required law or case law that improperly Line failed to take whether Soo stopping Soo Line to avoid the train at a precautions to warn of the train once further Moreover, grade crossing. there was no crossing. These issues must it did block the duty apart in break the train order to by Accordingly, trier of fact. be resolved blocking avoid this or other judgment of the district court is reversed vicinity, at least as far as the claims and remanded. asserted the Kiemeles are concerned. attempt duty by The Kiemeles’ to create a BEAM, Judge, dissenting. Circuit 49-11-19, showing a violation of N.D.C.C. a statute that is North Dakota’s version оf duty by There can be no breach of the Soo the well-established “ten-minute rule.” As And, Line unless there is a owed. correctly court, recognized by the this stat- correctly finds that North Da “[u]nder situation, ute is supra irrelevant note law, prelimi kota of a is a the existence purpose because the statute’s is to facili- nary question Supra of law for the court.” flow, prevent tate traffic not to an automobile p. (citing Bulman v. Hulstrand Constr. train, running frоm moving into the side of a Inc., (N.D.1994)). Co. N.W.2d court, stopped. reaching after concerning Without itself with whether the conclusion, then, right legal curiously, finds appropriately correctly district court some relevance in stop the evidence of the function, performed this initial the court ven purported' analysis might of whether it tangled perceived tures into a web of dis have been “reasonable” for the railroad to fact, putes of none of which are material to “separate the train” at Supra litigation, the outcome of this and holds that p. part Unless there was a on the summary judgment improper. From “separate of the Railroad to the train” in result, I dissent. circumstances, these which was not estab- Any duty owed the Soo Line to the lished, reasonability any length *7 Kiemeles must be considered under two lines stopping consequence. time is of no real First, inquiry. anаlyze of we must Perhaps problematic the most approach by owed, any, regard opera- with actual the court application preempted is its of Second, tion of the train. we must determine North Dakota statutes to the ade- responsibility the Railroad’s for the mainte- quacy warning, including adequacy of the of nance, operation upgrade and reflectivity, imparted by place in devices at which the аccident occurred. Unless and First, at policy No. 699031G. as a until the court establishes the nature consideration, instances, in most the railroad owed, of character its “Breach of place lines have been in well before motor 474-76) duty” (supra pp. discussion is irrele- widespread cars were in use. The advent of unnecessary. vant and existing increased motor vehicle traffic over Here, operation really the issue оf train is trackage brought about concerns at non-operation. a matter grade of The train was crossings. Congress, recognition of stopped. Depart- It was at rest across equitable U.S. an responsibility division of Transportation Crossing ment of safety problems, No. these adopted legis- federal 699031G, designation which, and this of circumstances, some lation under certain importance Ias will discuss later. extinguishes While the state law duties inherent in rail- position, train grade Kiemele crossings. vehicle road/motor 646.214(b)(3) (4) (1995). drove his automobile into the side of car 112. C.F.R. & These though clearly Even guilty Kiemele was promulgated by rules were the Federal contributory (FHWA) Highway as a matter of law Administration under the undisputed under the Railway Safety material facts of this Federal Act of 1970 and the Elrod v. 1973. See Safety Act of Highway (8th America, Appellee, 68 F.3d
Burlington N.R.R. UNITED STATES here, Cir.1995). Where, federally ap- as federal implemented with are designs proved THOMAS, Appellant. Shaun preemption occurs. money, federal No. 95-3940. by the De- shown dispute, as There is no Appeals, Court of United States designation Transportation partment Eighth Circuit. design adequacy crossing, that the 699031G, warning devices April 1996. Submitted Likewise, by FHWA. approved were Aug. Decided dispute that the no material factual there is installed and warning devices were approved funding as contem- through federal
operating indicated, Thus, as by federal law.
plated they apply, as regulations these federal
when ” “ here, pre-empted.’ tort law is ‘state do Transp., Inc. v. (quoting CSX at 244
Id. 658, 670,
Easterwood, 113 S.Ct. 507 U.S. (1993)). Accord- 123 L.Ed.2d § 24-09-03 of N.D.C.C.
ingly, the court’s use issue, in face reflectivity a factual
to erect imple- federally approved the use of devices, pre- violates federal warning
mented short, duty owed there is no
emption law. In under the Line to Kiemeles the Soo this action.
undisputed material facts be differences are no substantial
There case and of this the circumstances
tween Any in Elrod. the court dealt
those by the disputes discerned factual
material illusory. The district are in this case
court ruling violates Any other was correct. court as of this preexisting precedents Louis also St. Elrod. See
established Lines, Inc., Freight Ry. Co. v. Malone
S.W.
*8
—
denied,
(8th Cir.1994), cert.
U.S.-, L.Ed.2d 854 S.Ct.
(1995). I dissent.