MEMORANDUM AND ORDER
Jacquline Seyler sustained injuries in a passenger train derailment near Kingman, Arizona. She filed suit against the National Railroad Passenger Corporation (Amtrak), which operated the train, and Burlington Northern Santa Fe Corporation and Burlington Northern Santa Fe Railway Company (BNSF), 1 which owns and maintains the railroad track and bridge on which the train was traveling at the time of the derailment. The matter is before the Court on Defendant National Railroad Passenger Corporation’s Motion For Summary Judgment (Doc. # 80) and Defendant BNSF’s Motion For Partial Summary Judgment (Doc. #82), both filed March 1, 2000. For reasons set forth below, the Court sustains Amtrak’s motion in part and sustains BNSF’s motion in its entirety.
Summary Judgment Standards
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c);
accord Anderson v. Liberty Lobby, Inc.,
The moving party bears the initial burden of showing the absence of any genuine issue of material fact.
Celotex Corp. v. Catrett,
“[W]e must view the record in a light most favorable to the parties opposing the motion for summary judgment.”
Deepwater Investments, Ltd. v. Jackson Hole Ski Corp.,
Discussion
1. Amtrak’s Motion For Summary Judgment
A. Factual Background
The Amtrak Southwest Chief passenger train runs between Los Angeles and Chicago. During the late evening of August 8 and the early morning of August 9, 1997, plaintiff was a passenger on the train. In the early morning of August 9, BNSF received warnings of heavy rains, thunderstorms, and flash floods in the area east of Kingman, Arizona. At approximately 1:48 a.m. Mountain Daylight Time (“MDT”), in response to the weather information, BNSF ordered track inspector Michael Putt to make an inspection of the track over which the Southwest Chief would pass upon leaving Kingman. Putt did an inspection which included an inspection of the track over the bridge at milepost (“MP”) 504.1 (“bridge 504.1S”). 2 Putt did not report any problems with the track or bridge, but he had no training in bridge inspection and did not consider himself to be a bridge inspector. Putt inspected the line (straightness), surface (shape and profile), and gage (distance between the two rails) of the track. He also looked for scour behind the bridge’s dump planks and checked to see whether water appeared to flow in a normal manner from one side of the bridge to the other.
When the train arrived in Kingman, Amtrak changed crews. After Putt had completed his inspection, at approximately 5:43 a.m. MDT, the Southwest Chief headed east from the Kingman station and traveled on the south track of BNSF double-track main line. Thirteen minutes later, at approximately 5:56 a.m. MDT, the train derailed at MP 504.1 because the bridge was structurally unsound and it had collapsed.
It was dark at the time of the derailment, and the train was operating with headlights. It had received clear signals (on the indicators next to the track) from the time it left Kingman until it derailed. At the time of the derailment, the Federal Railroad Administration classified the track from Kingman to bridge 504.1S as Class 5 track. By federal law, the maximum allowable operating speed for passenger trains on such track was 90 miles per hour (“m.p.h.”). The BNSF timetable also pennitted passenger trains to travel at 90 m.p.h. over this section of track. 3
From the time the train left Kingman until it derailed, the engineer, Donald Hos-kins, and the assistant engineer, Harry Miller, were constantly watching the track in front of and around the train and keeping an eye on the controls, including the speed. Hoskins was not aware of any unusually heavy rain, storms or high water between Kingman and bridge 504.1S. Up until a few seconds before the derailment,
BNSF owned, operated and maintained the track and bridge over which .the Southwest Chief was traveling at the time of the derailment. BNSF is responsible for inspection and repair of its track and bridges. BNSF controls the operation and movement of trains over its track, but Amtrak engineers and conductors operate the Amtrak trains on BNSF track.
On August 9, BNSF dispatchers were in radio contact with the crew of the Southwest Chief, but they did not report any adverse or dangerous conditions of the track or bridges over which the train would travel. In the early morning of August 9, unnamed Amtrak employees knew of heavy rains and flash flooding in the area through which the Southwest Chief would pass. The crew of the Southwest Chief had no information, however, that any track or bridge was unfit for passage at timetable speed.
Dan Bodeman, BNSF Director of Dispatching Practices, and Rules, testified that generally if BNSF knows about adverse or dangerous track or bridge conditions, its dispatcher will inform train crews and stop trains or require them to travel at reduced speed. Before the derailment, BNSF had no training program for employees who were required to do emergency high water bridge inspections. 5
Hoskins testified that he operates his trains in accordance with the General Code of Operating Rules (“Operating Rules”) which BNSF and other track operators have adopted. Section 6.21 of the Operating Rules provides:
[Railroad companies must] [p]rotect trains and engines against any known condition that may interfere with their safety. When conditions restrict visibility, regulate speed to ensure that crew members can observe and comply with signal indications.
In unusually heavy rain, storm,- or high water, trains and engines must approach bridges, culverts, and other potentially hazardous points prepared to stop. If they cannot proceed safely, they must stop until it is safe to resume movement.
Hoskins testified that if he had known of any listed condition, Operating Rule 6.21
B. Analysis
Amtrak seeks summary judgment on plaintiffs claims for compensatory and punitive damages. The parties agree that Arizona law applies because the derailment occurred in Arizona and plaintiffs injuries were sustained there.
See Hawley v. Beech Aircraft Corp.,
1. Amtrak’s Failure To Request A Bridge Inspection And Failure To Ask About Track And Bridge Conditions
Plaintiff contends that Amtrak was negligent because it did not ask BNSF about the condition of the track and bridges or ask that a qualified bridge inspector check them. Amtrak responds that it did not have any right or duty to demand inspections of BNSF bridges or to insist that they be performed by certain qualified individuals.
Generally, the determination whether a duty exists is a question of law for the Court.
See Robertson v. Sixpence Inns of America, Inc.,
Here, Amtrak had no legal right to control or direct the operation of BNSF. BNSF owned, operated and maintained the track and bridges in question, and it controlled the operation and movement of trains over those tracks. Amtrak had no right to control BNSF track and bridge
Plaintiff also claims that Amtrak was negligent in failing to ask BNSF about track and bridge conditions. Amtrak contends that it did not have a duty to do so. Amtrak correctly points out that. BNSF knew about the condition of its track and bridges and was responsible for informing Amtrak of dangerous conditions. Accordingly, Amtrak had the right to rely on BNSF to inform it of dangerous or potentially dangerous conditions on BNSF track in BNSF territory. Plaintiff has not shown any facts which imposed on Amtrak an independent duty to learn about dangerous conditions on BNSF track and bridges.
Amtrak also argues that plaintiff cannot show that its failure to inquire about track conditions was the proximate cause of the accident.
See Robertson,
Plaintiff contends that a common carrier has a duty to its passengers to exercise the “highest degree of care,” and that Amtrak therefore had a duty to request a bridge inspection and ask about track conditions. In dicta, the Arizona Supreme Court has noted that a railway carrier owes its passengers a duty to exercise “the highest degree of care practicable under the circumstances.”
See Atchison, T. & S.F. Ry. Co. v. France,
Nothing in
Hogan
or
Atchison
suggests that a train operator such as Amtrak must investigate and approve the track and bridge inspection procedures which a track operator uses. Arizona law does not suggest that Amtrak should be held to a higher standard of care because it is a common carrier.
See Block v. Meyer,
In sum, plaintiff has failed to present sufficient evidence that Amtrak had a duty to ask about track and bridge conditions or demand inspection of BNSF bridges by a qualified bridge inspector. Plaintiff has also failed to show that Amtrak’s breach of any alleged duty to ask about track and bridge conditions was the proximate cause of the derailment. Accordingly, the Court sustains Amtrak’s motion for summary judgment on these claims.
2. Plaintiffs Negligence Claims Based On Speed
Plaintiff claims that Amtrak failed to abide by the BNSF posted speed restriction of 79 m.p.h. and failed to slow or stop the Southwest Chief in response to known flash floods in the Kingman area. See Pretrial Order (Doc. # 84) filed March 6, 2000 at 9. Amtrak argues that both claims are preempted by the Federal Railroad Safety Act of 1994 (“FRSA”), 49 U.S.C. §§ 20101-21311. Congress enacted FRSA “to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.” 49 U.S.C. § 20101. FRSA authorizes the Secretary of Transportation “to prescribe regulations and issue orders for every area of railroad safety.” 49 U.S.C. § 20103(a). FRSA contains an express preemption clause which provides:
Laws, regulations, and orders related to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force a law, regulation, or order related to railroad safety until the Secretary of Transportation prescribes a regulation or issues an order covering the subject matter of the State requirement.
49 U.S.C. § 20106. The statute also has a savings clause which provides:
A State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety when the law, regulation, or order—
(1) is necessary to eliminate or reduce an essentially local safety hazard;
(2) is not incompatible with a law, regulation, or order of the United States Government; and
(3) does not unreasonably burden interstate commerce.
Id.
When a statute contains an express preemption clause, “the task of statutory construction must in the first instance focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ pre-emptive intent.”
CSX Transp., Inc. v. Easterwood,
In
Easterwood,
the Supreme Court noted that the Secretary of Transportation set maximum allowable operating speeds for all trains for each class of track and that federal regulation substantially subsumed the subject matter of the relevant state law.
See id.
at 673-75,
Plaintiff contends that Amtrak failed to obey the 79 m.p.h. speed limit which BNSF set for the section of track on which the derailment occurred. As an initial matter, however, plaintiff has failed to produce admissible evidence of the speed restriction.
See supra
note 3. Even if it were to consider the geometry car chart which shows the alleged speed restriction, the Court would reach the same result. Claims based on a railroad’s failure to obey a self-imposed speed limit are preempted by FRSA.
See St. Louis Southwestern Ry. Co. v. Pierce,
Plaintiff also claims that due to existing weather conditions, Amtrak had a
Plaintiff argues that her claim is not preempted because the known flash floods in the Kingman area constitute a “specific, individual hazard” within the meaning of footnote 15 of Easterwood. In OBannon, supra, the district court explained the meaning of the exception for specific, individual hazards:
They must be aberrations which the Secretary could not have practically considered when determining train speed limits under the FRSA. More precisely phrased, the “local hazard” cannot be statewide in character and cannot be capable of being adequately encompassed within uniform, national standards. An alternative, expansive construction of the local safety hazard language would excessively preserve local speed regulations and significantly undermine the Secretary’s ability to prescribe uniform operational speeds.
Id.
at 1420-21. Generally, courts which have considered this issue have ruled that a “specific individual hazard” must be a discrete and truly local hazard such as a child standing on the railway,
O'Bannon,
Several courts have rejected claims that adverse weather conditions generally may constitute specific, individual hazards.
See Cox,
[snowy weather] is not an aberration which the Secretary could not have practically considered when determining train speed limits under the FRSA, and weather conditions such as these are capable of being adequately encompassed within uniform, national standards .... To hold that these conditions are not preempted by the FRSA would mean that every time it was not a perfectly sunny day and a train accident occurred, a plaintiff could bring a state suit based on train speed. Such a result would swallow the federal regulations dealing with train speed, undermine the Secretary’s ability to prescribe uniform operational speeds, and act contrary to Congress’ intent that laws, regulations, and orders related to railroad safety be nationally uniform to the extent practicable.
Id. at 685, 687.
Based on
Easterwood,
the Court finds that heavy rainfall, combined with a weather service flash flooding warning,
11
is not a “specific, individual hazard” within the meaning of footnote 15 of
Easterwood.
Heavy rains occur frequently all across the country. The weather service warning in this particular case covered the area from Truxton to Harris, Arizona, which involved approximately 44 miles of track. No specific, individual hazard existed at bridge 504.1S; rather, bridge 504.1S was within a large area of heavy rain. Inclement weather can be taken into account by the Secretary of Transportation when prescribing uniform national standards.
See, e.g., Cox,
In support of her claim that adverse weather conditions may constitute a specific, individual hazard, plaintiff cites Bakhuyzen, supra. There, the court held that the FRSA does not preempt a state common law duty to slow a train due to snowy weather conditions. Id. at 1117-18. “Maximum train speeds, like automobile speed limits, do not remove from the driver the obligation to exercise due care when and if the circumstances such as poor visibility due to snow make operation at the maximum speed careless.” Id. at 1118. The Bakhuyzen court reasoned that weather conditions are not capable of being adequately encompassed within uniform national standards because they are not static, they “arise and abate, requiring independent responses from individual engineers.” Id.
This Court finds that the reasoning of
Bakhuyzen
does not apply to the instant action. First, in contrast to the present case, plaintiff in
Bakhuyzen
argued that the train had to operate at a slower speed because 'of “limited visibility due to snowy weather conditions” and an engineer’s admission that the particular crossing was dangerous. Here, plaintiff has not presented evidence of impaired visibility or knowledge by Amtrak that bridge 504.1S had been undermined. Moreover, the Court agrees with the reasoning of
Cox
that weather conditions generally are capable of being adequately encompassed within uniform national standards.
See Cox.
Even if the flash flood warnings constituted a “specific individual hazard,” the Court finds that plaintiff’s claim
In sum, plaintiffs claim that Amtrak failed to obey the alleged 79 m.p.h. speed limit is both unsupported by admissible evidence and preempted by FRSA. The Court also rejects plaintiffs argument that flash flood warnings are a “specific, individual hazard” within the meaning of footnote 15 of Easterwood. Even if flash flood warnings could constitute a “specific, individual hazard,” plaintiffs claim is preempted by FRSA and is not saved by the statutory savings clause.
3. Amtrak’s Alleged Failure To Keep A Proper Lookout
In her complaint, plaintiff alleges that Amtrak was negligent in failing to keep a proper lookout for dangerous track and bridge conditions. Amtrak first argues that plaintiff has not presented evidence which would allow a reasonable jury to find that it breached such a duty. The Court agrees. Plaintiffs evidence on this point is woefully inadequate. Plaintiff concedes that the Amtrak engineers were constantly watching the track and surrounding area, and keeping an eye on the controls, from the time the train left King-man until it derailed. As soon as Miller observed the “hump” in the track, he yelled for Hoskins to “plug it.” Hoskins applied the emergency brakes as soon as he possibly could. Plaintiff concedes that the crew did not have enough time to avoid the “hump” and the resulting derailment. In response to defendant’s argument, plaintiff has offered only her expert’s conclusion that the crew failed to keep a proper lookout. See plaintiffs additional statement of fact no. 37. Plaintiffs expert bases his conclusion on the fact that Hoskins was looking down at his controls when Miller observed the “hump” in the tracks. Plaintiffs expert does not contend that the crew should have more promptly seen the “hump,” however, and he does not explain the basis for his opinion that the crew was negligent. Accordingly, plaintiff cannot show that the Amtrak crew breached its duty to keep a proper lookout.
Even if plaintiff could show that Amtrak failed to keep a proper lookout, she has not presented evidence of causation.
See Robertson,
The Court sustains Amtrak’s motion for summary judgment on plaintiffs claim that Amtrak failed to keep a proper lookout.
After carefully reviewing the parties’ briefing and the pretrial order, the Court finds one remaining claim of negligence based on Amtrak’s failure to inform Hos-kins of the heavy rains and flash flooding in the Kingman area. See Pretrial Order (Doc. # 84) filed March 6, 2000 at 9. Hoskins testified that if he had known of any condition listed in Operating Rule 6.21, which includes “unusually heavy rain, storm, or high water,” he would have been required to prepare to stop as he approached bridges in the area. Because Amtrak has not specifically sought summary judgment on plaintiffs claim that Amtrak breached a duty to inform its own engineers of known adverse weather conditions, and neither party has briefed the issue, the Court must allow that claim of negligence to go forward. 12
5. Plaintiffs Claim For Punitive Damages
To recover punitive damages under Arizona law, plaintiff has the burden of proving by clear and convincing evidence, either direct or circumstantial, that “defendant’s evil hand was guided by an evil mind.”
Rawlings v. Apodaca,
Punitive damages cannot be based merely on evidence of defendant’s gross negligence or reckless disregard of the circumstances.
See Volz v. Coleman Co., Inc.,
Plaintiff has not presented clear and convincing evidence that Amtrak deliberately withheld weather information from Hoskins or that it knew that withholding such information would create a substantial risk of significant harm to Amtrak passengers. The only record evi
In sum, the Court overrules Amtrak’s motion for summary judgment on plaintiffs claim that Amtrak was negligent because it did not inform its engineers of heavy rains. Amtrak’s motion is sustained on plaintiffs other claims of negligence and on plaintiffs claim for punitive damages.
II. BNSF’s Motion For Partial Summary Judgment
A. Factual Background
For purposes of the BNSF motion for partial summary judgment, the following facts are uncontroverted, deemed admitted or where disputed, viewed in the light most favorable to plaintiff.
During the late evening of August 8 and the early morning of August 9, 1997, plaintiff was a passenger on the Amtrak Southwest Chief train traveling, from Los Ange-les, California to Lawrence, Kansas. Frank Greaves was on duty as a BNSF dispatcher when he received warnings of heavy rains, thunderstorms, and flash floods in the area east of Kingman, Arizona. At approximately 1:48 a.m. MDT, in response to the weather information, BNSF delayed the Southwest Chief so that track supervisor Michael Putt could make a special inspection of the track east of Kingman, which included MP 504.1. Putt had no training in bridge inspection and did not consider himself a bridge inspector.
BNSF owns two railroad bridges which are located side by side at MP 504.1 near Kingman, one that carries westbound traffic (the “north track” or “504.1N”) and one that carries eastbound traffic (the “south track” or “504.1S”). Less than two hours before the accident, Putt stopped at bridge 504.1S, but did not see any problem; he believed that the bridge was safe for travel by passenger trains. Putt did not exit his vehicle to look underneath the bridge, and he did not know that he was inspecting a shallow foundation “mud sill” bridge which had no deep pilings supporting it. Putt inspected the line, surface, and gage of the track, looked for scour behind the bridge’s dump planks, looked for scour upstream of the bridge, and checked to see if water appeared to be flowing in a normal manner from one side of the bridge to the other.
Before the Southwest Chief arrived in Kingman, Craig Newton replaced Greaves at the dispatch post. Greaves told Newton of the flash flood warning. When Greaves left his shift, he had not informed the Southwest Chief of the flash flood warning because the train had not yet entered the area of the warning. Greaves expected Newton to tell the train crew about the potential flooding and Newton had a duty to do so under the dispatcher manual. Greaves and Newton knew that flash flooding could cause a danger to trains. BNSF policies require that in unusually heavy rain, storm or high water, trains and engines must approach bridges, culverts and other potentially hazardous points prepared to stop.
13
At approximately 5:41
As the Southwest Chief approached bridge 504.1S, Hoskins and Miller saw a “hump” in the tracks at the bridge, but could not stop the train before it derailed. The flash flood warning for the area expired five minutes after the train derailed. Post accident investigation revealed that several feet of the soil under bridge 504.1S had eroded, thereby leaving its foundation without support. In his 35 years of experience, Jerry Walters, the BNSF Bridge Supervisor for the Arizona territory, had never- seen anything like the depth and magnitude of the erosion at bridge 504. IS.
History Of Bridge 504.1S And Its Cross Wall
Bridge 504.1N was built in 1907 and rebuilt in 1940, both .times on a deep foundation of wooden piles driven into the earth. Bridge 504.1S was built in 1922 on wooden blocks laid on the surface of the stream bed with no driven piling beneath them. As it existed before the accident, bridge 504.1S was a shallow foundation “mud sill” bridge, which means that its foundations were not driven into the earth but instead sat on timber sills and blocks. 504.1N survived the flash flood of August 9,1997 but 504. IS collapsed.
In the 75 years before the Kingman accident, bridge 504.1S had never failed or washed out. BNSF made several repairs to the bridge. In 1954, inspectors noted “pumping” of the piers (bouncing up and down) and swinging of the rails, which indicated an unstable foundation. In 1955, BNSF placed stone “rip rap” (large rocks) in the stream bed to prevent undermining
In 1975, because of the incidents of erosion and scouring of the mudloeks, BNSF considered replacing bridge 504.1S in the 1977 capital improvement program. 15 A BNSF employee in the Division Office in Winslow, Arizona, recommended that the railroad install a cross wall down stream from the bridge to prevent further erosion and thereby protect the bridge foundations. In December 1975, BNSF placed a cross wall down stream from bridge 504.1S. The purpose of the cross wall was to prevent erosion by holding dirt in place under the bridge, thereby maintaining the level of the stream bed around the foundations. The cross wall was not designed by a competent designer, however, and no calculation or engineering was performed to determine whether the cross wall was adequate. The cross wall technique has been criticized by expert witnesses for BNSF, who testified that it was an ineffective measure for protecting the bridge foundations. In June 1976, BNSF added grouted rip rap around the sills because due to the lack of rain, the erosion which existed when the cross wall was installed had not yet been filled in.
Jack King was the BNSF bridge engineer for Arizona when the cross wall was placed, and he was responsible for maintaining bridges in Arizona. BNSF installed the cross wall, however, before consulting with King. When King first learned that the Division office was proposing a cross wall, he did not believe that it was the approach to take because a recent drainage survey indicated that the bridge was undersized — the opening beneath the bridge was perceived to be too small to convey the water that would be expected to pass under it during heavy rain. In a letter to King dated January 13, 1976, Art McGinnis, one of King’s assistants, reported that the capacity of the bridge was 480 cubic feet per second and that the Division office proposed a down stream cross wall. King wrote on the bottom of the letter “I don’t think this is the approach to take.” King wanted to verify whether the drainage study was accurate because he was not aware of any history of high water incidents at the bridge, which he would have suspected if the bridge was in fact undersized. King asked his assistant, Art McGinnis, to do field work to confirm the accuracy of the drainage study.
16
By May 1976, King agreed to the cross wall and decided that the bridge did not need to be replaced because the cross wall was an
Several BNSF witnesses acknowledged that an undersized bridge which backs up water is more susceptible to undermining: the water is forced to flow faster and at higher pressure beneath the bridge, thereby scouring away more soil under the bridge.
The “Headcut” That Caused The Bridge Failure
A “headcut” which originated down stream of bridge 504.1S, off of BNSF property, caused the bridge to fail on August 9, 1997. A headcut is a vertical or steeply sloping face of a stream bed which occurs at a break in slope at the channel profile. Headcuts move upstream. 18
The ground which surrounds the bridges at MP 504.1 contains a layer of caliche, a soil which is more resistant to erosion than other soils. The caliche layer erodes naturally, but the rate of erosion was accelerated when BNSF built an embankment at bridge 504.1S which channeled water from a 19 square mile area through a 30 foot opening. During subsequent rains, the he-adcut, capped by the caliche layer, moved upstream, below the cross wall, removing the otherwise erosion resistant caliche layer from the stream bed as it went. During the storm of August 1997, the headcut moved upstream and through the stream bed below bridge 504.1S-, thereby removing the support from under the bridge foundations, and causing the bridge to fail.
BNSF Inspection Of Bridge 504.1S
From 1976 to 1999, Melvin George was the bridge inspector who performed routine bridge inspections in Arizona. At the time of the derailment, he performed two such inspections each year. From 1976 to 1999, George’s supervisor was Jerry Walters, whose job as structures supervisor included an annual inspection in which he and George inspected bridges together. In addition to these inspections, BNSF annually sent a bridge (structures) engineer to Arizona td inspect bridges with Walters. The purpose of this inspection was to determine whether any bridge should be renewed or replaced and if so, to set priorities for budgetary purposes (the “budget bridge inspection”). Kenneth Dout, Walters’ supervisor, typically accompanied Walters and the bridge engineer on bridge inspections in Arizona. Before the engineer traveled to Arizona, Walters would' prepare a packet of materials for Dout and the engineer. The packet indicated which bridges, in Walters’ opinion, should be considered for renewal or replacement. Sometimes while Walters, Dout and the engineer were inspecting these bridges, the group stopped at other nearby bridges.
During two such budget bridge inspections, in August 1995 and in April 1997, BNSF employees stopped at bridge
On February 18, 1997, George and Walters conducted their annual inspection of bridge 504. IS, but did not believe that anything was wrong. George was at bridge 504.IS on July 9, 1997, but believed that the bridge was “okay” at the time. He did note in his inspection record: “watch S.T. [south track] for scour S.T. [south track] has frame bents on mud sills.” George made this notation because the bridge he had previously inspected had been scoured down to the bottom of its mud blocks. 20
On July 9, 1997, George inspected approximately 33 bridges. On the morning of the derailment, he was on vacation. George testified that no one filled in for him when he was on vacation, and that BNSF had never called him out to do an emergency high water bridge inspection. At the time of the derailment, neither George nor Walters believed that the bridge or cross wall faced any danger due to erosion caused by down stream sources.
B. Additional Motions In Limine
Subsequent Remedial Measures (Doc. # 92-16), Previous Bridge Collapses (Doc. # 92-14)
Plaintiff argues that because BNSF track inspectors examined only the track line, gage and surface during emergency high water inspections, it failed to detect the imminent collapse of shallow foundation bridges in 1981, 1983 and 1990. See plaintiffs additional fact no. 53. In support of her contention, plaintiff relies on a script, and accompanying pictures, which Don Lozano prepared for BNSF internal scour awareness training after the Kingman accident. BNSF seeks to exclude such evidence under Rule 407 of the Federal Rules of Evidence as a subsequent remedial measure. See Defendants’ Motions In Limine (Doc. # 92-16) filed March 14, 2000. Rule 407 provides:
When, after an injury or harm allegedly caused by an event, measures are takenthat, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence [or] culpable conduct.... This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
Rule 407 is based on the theory that remedial measures are not in fact admissions but are equally consistent with injuries by mere accident. See 1972 Advisory Committee Note, Fed.R.Evid. 407. Exclusion of remedial measures also favors “a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety.” Id.
Plaintiff argues that although the fact of the training program is inadmissible, the training script — which contains historical facts regarding the three bridge collapses — can be presented without reference to the subsequent remedial measure. As an initial matter, however, the Court finds that presentation of the “historical facts” without reference to the training program is not practicable. If the Court were to carve out the “historical facts” without reference to the training program, the jury would not have the contextual information necessary to evaluate the probative value of the statements. See David P. Leonard, The New Wigmore: A Treatise On Evidence § 2.6.2 at 2:56-7 (Supp.2000). Lo-zano, who prepared the training script, testified that he did not have personal knowledge of the three incidents, that others had told him different stories of the incidents, and that for teaching effect he made up many of the “facts” in the training materials. Because the historical facts cannot be excised without effectively revealing the existence of the training program, the Court will exclude them. See id.
The policy behind Rule 407, ie. to encourage people to take steps for added safety, is best promoted by exclusion of the statements. BNSF implemented the training program to avoid accidents similar to the one at bridge 504.1S. To emphasize the importance of the program to its employees, BNSF — at some cost — accumulated data regarding bridge collapses which arguably could be attributed to less than diligent inspections. If plaintiff were allowed to present such information as historical fact, defendants such as BNSF would be discouraged from preparing such information for their employees. Through discovery, plaintiff had the opportunity to obtain information regarding the three pri- or incidents from individuals who had firsthand knowledge of the relevant circumstances. Instead, plaintiff chose to rely on the incident description in. the BNSF training program. Excluding the training materials' under Rule 407 does not necessarily prevent plaintiff from presenting information regarding the three prior incidents; it simply requires plaintiff to obtain such information from other sources. For these reasons, defendants’ motion in limine on subsequent remedial measures is sustained. 21
BNSF also seeks to exclude evidence related to the three incidents based on the lack of similarity between the incidents and the collapse of bridge 504.1S,
see Defendants’ Motions In Limine
(Doc. # 92-14) filed March 14, 2000. For prior accidents to be relevant, plaintiff must demonstrate that they are substantially similar to the accident at issue.
See Cox v. Kansas Gas & Elec. Co.,
1. In 1981 during heavy rains, a BNSF track inspector and roadmaster checked the line, gage and surface over bridge 562.8 in Arizona. They did not notice anything unusual and cleared the track for traffic. Because of an unrelated delay of an Amtrak train, the BNSF dispatcher allowed the track inspector to turn around and return on the track. At bridge 562.8, the track inspector discovered that the bridge which he had inspected 45 minutes earlier had collapsed into the water.
2. During heavy rains, in 1983, a BNSF track inspector checked the line and surface over bridge 691.2 in Arizona, and took- no exception to the bridge. One mile further east, the track inspector discovered water over the track so BNSF took both of the main lines out of service. After the water receded around bridge 691.2, a second inspector found that a pier had sunk eight feet and was no longer supporting the bridge, which could have caused the bridge to collapse if a train had crossed over it.
3. In 1990, a spread footing foundation concrete pier scoured and settled approximately two inches during a storm. The track gang tamped up a low spot in the track at bridge 645.3 and shoveled some ballast to the spot. The track gang did not tell the bridge department about the repair. Later, the bridge inspector found a broken pier.
Plaintiff has not met her burden of showing that the above incidents are “substantially similar” to the accident near Kingman. First, plaintiff has not shown that bridges 562.8, 691.2 or 645.3 were shallow foundation bridges similar to bridge 504.1S, or that down stream conditions contributed to the problems at bridges 562.8, 691.2 and 645.3. Second, the three incidents, particularly the 1981 and 1983 incidents, are remote in time to the derailment at bridge 504.1S. Finally, with respect to the 1990 incident, plaintiff has not presented evidence that the bridge inspector discovered the broken pier before any trains crossed the bridge. Plaintiffs statement that the bridge was “dangerously unstable and ready to collapse if a train had crossed it” is completely unsupported by her citations to the record. Most importantly, the defect at bridge 645.3 went unnoticed because the track inspector did not call the bridge department, not because the track inspector did not make an adequate inspection. At bridge 645.3, the track inspector discovered the potential defect but erred by failing to inform the bridge inspector. For these reasons, the Court sustains defendants’ motion in limine on previous bridge collapses.
Number Of Bridge Inspectors (Doc. # 92-13)
Plaintiff points out that BNSF previously had three bridge inspectors for the Arizona territory; that George was the only bridge inspector in July 1997; and that at some point, Walters requested additional bridge inspectors because of his concern for the safety of the inspectors working in the middle of the desert without anyone nearby. BNSF argues that such evidence should be excluded because plaintiff has not shown a casual connection between the number of bridge inspectors and the train derailment.
See Defendants’ Motions In Limine
(Doc. #92-13) filed March 14, 2000. Plaintiff points out that George saw two and one half feet of scour on the down stream side of the cross wall during his last inspection before the derailment and failed to follow up on it. Plaintiff claims that being grossly overworked is a possible explanation for his failure to follow up. Plaintiff ignores the fact that although George observed scour on the down stream side of the cross wall, the danger of such a condition was not apparent to George. No one at BNSF had told him of the potential danger and George did not
Bridge Replacement Budget (Doc. # 92-8)
Defendant seek to exclude evidence of the BNSF budget for bridge upkeep and replacement. See Defendants’ Motions In Limine (Doc. # 92-8) filed March 14, 2000. Plaintiff argues that the BNSF budget was never sufficient to replace all bridges which its bridge inspectors recommended for replacement. Plaintiff, however, ignores the fact that bridge 504.1S has not been recommended for replacement at any time after 1979. Regardless of the bridge replacement budget, a bridge is not replaced unless a bridge inspector recommends it for replacement. Plaintiff has not shown that the BNSF budget influenced the recommendations of bridge inspectors. Evidence that other field engineers could not obtain funding to improve other bridges because of the BNSF budget is not probative of the negligence (or malice) of either defendant with respect to bridge 504.1S or the derailment of the Southwest Chief.
C. Analysis
BNSF only seeks summary judgment on plaintiffs claim for punitive damages. The parties agree that Arizona law applies because the derailment occurred in Arizona and plaintiffs injuries were sustained there.
See
Hawley,
1. BNSF Failure To Replace The Bridge
Plaintiff contends that BNSF acted with an “evil mind” because in 1975 it chose to install a cross wall as a temporary solution for erosion problems instead of building a new bridge with deep pilings.
In the 1950s, 1960s and 1970s, BNSF employees observed erosion of the stream bed under the bridge. BNSF made several attempts to remedy the problem and finally considered replacing the bridge with one on piles. Instead of replacing the bridge, however, BNSF decided to install a cross wall to keep the soil under the bridge from flowing down stream during water flow. After the cross wall was installed, bridge engineer King believed that it was an appropriate, safe way to correct the erosion problems. In May 1976, he agreed to remove the bridge from the replacement list. He had never heard of a bridge collapsing because a cross wall had failed.
George and Walters also thought that the cross wall had cured the previous erosion problems. During their inspections, George and Walters did not see any indication that the stream bed beneath the bridge was eroding or otherwise threaten
Plaintiff contends that after the cross wall was installed, BNSF repeatedly overruled bridge inspector recommendations to replace bridge 504.1S. In support, plaintiff cites two notes on inspector records: Walters’s notation “place on 5-year” renewal list and George’s “Renew Budget 79 to match N. T.” notation. Walters made his notation in 1975 or 1976 and George made his notation sometime in the late 1970s. Walters and George cannot recall why they recommended bridge replacement. In any case, neither of them recommended replacement of the bridge in the next 20 years. In fact, Walters crossed off his previous notation and did not include it on the budget inspection lists which he later prepared for the engineers. Finally, plaintiff has failed to show that BNSF “overruled” any requests by George and Walters.
Plaintiff also argues that the inspections in 1995 and 1997, during budget inspections of other bridges, show that BNSF knew that the bridge posed a danger. Although the precise reason why -the crews inspected bridge 504.1S in 1995 and 1997 is unclear, 22 plaintiff has failed to show that based on the inspection, BNSF was consciously aware of any danger at the bridge. Walters did not identify bridge 504.1S as a possible candidate for renewal or replacement. During the 1995 and 1997 inspections, no one took exception to the condition of the bridge. Walters, George, Dout, Michelbook, and Burns all testified that they did not consider bridge 504.1S to be dangerous and, had they believed a danger existed, that they would have either fixed the condition or at least noted it somewhere. Although plaintiff may be able to show that the crew was negligent for failing to recognize the bridge or cross wall as a danger, no evidence suggests that the engineers or other BNSF employees thought that the bridge posed a substantial risk.
George testified that on July 9, 1997, he observed two and one half feet of scour on the down stream side of the cross wall. Based on this testimony, plaintiff contends that BNSF was aware of erosion on the down stream side of the cross wall. Plaintiff fails to cite evidence, however, that George or any other BNSF employee understood that erosion on the down stream side of the cross wall posed a “substantial risk” of harm. Indeed, George explained that during his inspections, he did not specifically look for scour in that location, that he did not know how deep the cross wall was, and that he did not know that scour on the down stream side of a cross wall could be dangerous.
As explained above, a headcut which originated down stream and off railroad property caused bridge 504.1S to collapse. Before the cross wall was installed, BNSF had observed erosion as soil washed away down stream but it did not know about or observe erosion from down stream sources. In 1976, bridge engineer King did not know that the cross wall or bridge faced a potential down stream danger.’
2. BNSF Decision To Send Putt To Inspect The Bridge
Plaintiff next claims that BNSF acted with an evil mind because it sent track supervisor Putt, instead of a bridge inspector, to inspect the track ahead of the Southwest Chief. Plaintiff points out that BNSF made this decision despite three prior incidents in which untrained inspectors had failed to detect an imminent bridge collapse during high water.
As an initial matter, plaintiffs evidence regarding the three prior incidents is inadmissible. See supra. Even if the evidence were admissible, no reasonable jury would find from the fact that BNSF sent Putt, instead of a bridge inspector, that BNSF had the requisite evil mind. BNSF called Putt at approximately 1:00 a.m. to inspect conditions on the track ahead of the Southwest Chief, which had been delayed pending his inspection. Plaintiff does not allege that Putt was unqualified as a track inspector/supervisor. Based on the record evidence, no reasonable jury could find that Putt failed to recognize obvious “humps” in the track. BNSF’s decision to send a track supervisor does not show a complete disregard for the passengers of the Southwest Chief. Indeed, the decision to send Putt complied with the pertinent federal regulations which specifically address a railroad’s obligation to inspect its track in bad weather. See 49 C.F.R. § 213.239. At the time of the derailment, the regulation stated:
In the event of fire, flood, severe storm, or other occurrence which might have damaged track structure, a special inspection must be made of the track involved as soon as possible after the occurrence.
49 C.F.R. 213.239 (1996). Although compliance with the regulation does not insulate BNSF from claims of negligence, it certainly negates a claim that BNSF consciously ignored a “substantial risk” of harm to others. In sum, no reasonable jury could find by clear and convincing evidence that by sending Putt instead of a bridge inspector, BNSF had the necessary state of mind to warrant punitive damages.
3. BNSF Failure To Inform Amtrak Crew Of Flooding
Plaintiff next claims that BNSF had an evil mind because dispatcher Newton did not inform the crew of the Southwest Chief of recent weather reports. BNSF responds that plaintiff has not shown clear and convincing evidence that Newton was “conscious” of a “substantial risk” in his actions. The Court agrees. Newton knew that in response to reports of heavy rain, BNSF had dispatched Putt to look over the track ahead of the Southwest Chief. He also testified that because of Putt’s inspection, he did not think the heavy rains were a hazard for train traffic. Newton may have relied too heavily on the track inspection and improperly discounted the threat from flash floods (particularly in light of Operating Rule 6.21), but no reasonable jury could find that he or BNSF did so with a conscious disregard for the safety of others.
4. Combined Conduct
BNSF installed a cross wall to protect the bridge in 1975, and inspected the bridge at least twice annually. On August 9, after it learned of heavy rains, it delayed the Southwest Chief until Putt could inspect the track and bridges potentially affected by the storm. Putt inspected the track and did not observe any irregulari
The absence of similar train accidents suggests that the risk of a train derailment from down stream conditions was not “substantial.”
See Piper v. Bear Medical Systems, Inc.,
The authorities cited by plaintiff in support of her punitive damages claim are inapposite. None of these cases involved railroad accidents or personal injuries.
See Thompson,
Here, plaintiff has not presented evidence that BNSF had similar accidents, that it violated industry standards, or that its inspection and train operation procedures were unreasonable or dangerous. Plaintiff apparently claims that BNSF had an economic incentive to ignore “substan
In sum, no reasonable jury could award punitive damages to plaintiff based on the BNSF decision to install a cross wall instead of replacing the bridge and to call Putt instead of a bridge inspector. Similarly, a reasonable jury would not conclude from this record that BNSF failed to warn the Southwest Chief of the weather conditions because it valued profit over safety and assess punitive damages accordingly. For these reasons, the Court sustains BNSF’s motion for partial summary judgment on plaintiffs claim for punitive damages.
IT IS THEREFORE ORDERED that Defendant National Railroad Passenger Corporation’s Motion For Summary Judgment (Doc. # 80) filed March 1, 2000, be and hereby is SUSTAINED in part and OVERRULED in part. As to plaintiffs claim that Amtrak was negligent because it did not inform its engineers of heavy rains, Amtrak’s motion is overruled. Amtrak’s motion is sustained on plaintiffs remaining claims of negligence and on plaintiffs claim for punitive damages
IT IS FURTHER ORDERED that Defendant BNSF’s Motion For Partial Summary Judgment (Doc. # 82) filed March 1, 2000, be and hereby is SUSTAINED.
IT IS FURTHER ORDERED that defendants’ motion in limine regarding BNSF budget information (Doc. #92-8) filed March 14, 2000, be and hereby is SUSTAINED.
IT IS FURTHER ORDERED that defendants’ motion in limine regarding financial incentives between BNSF and Amtrak for on time runs (Doc. # 92-9) filed March 14, 2000, be and hereby is SUSTAINED.
IT IS FURTHER ORDERED that defendants’ motion in limine regarding disciplinary action against Frank Greaves (Doc. # 92-10) filed March 14, 2000, be and hereby is SUSTAINED.
IT IS FURTHER ORDERED that defendants’ motion in limine regarding the number of bridge inspectors in the Arizona Division (Doc. #92-13) filed March 14, 2000, be and hereby is SUSTAINED.
IT IS FURTHER ORDERED that defendants’ motion in limine regarding failures at other railroad bridges (Doc. # 92-14) filed March 14, 2000, be and hereby is SUSTAINED.
IT IS FURTHER ORDERED that defendants’ motion in limine regarding the applicable speed limit for the Southwest Chief (Doc. # 92-15) filed March 14, 2000, be and hereby is OVERRULED as moot.
IT IS FURTHER ORDERED that defendants’ motion in limine regarding subsequent remedial measures (Doc. # 92-16) filed March 14, 2000, be and hereby ’ is SUSTAINED.
Based on the statement of counsel that defendants intend to stipulate to liability if the Court sustains their motions for summary judgment on punitive damages, IT IS FURTHER ORDERED that on or be
Notes
. BNSF was formed in 1995 when the Santa Fe Railway merged with Burlington Northern.
. The train station at Kingman is located at MP 516.4. Railroad mileposts on BNSF track divisions are in descending order from west to east.
. Plaintiff alleges that BNSF had a posted speed restriction of 79 m.p.h. for this section of track. Plaintiff failed to authenticate the geometry car chart which shows the alleged speed restriction.
See
Exh. B to
Plaintiff’s Response To Defendant National Railroad Passenger Corporation’s Motion For Summary Judgment
(Doc. # 104) filed March 24, 2000. Even if the document would be admissible at trial, the Court cannot consider it unless plaintiff has properly authenticated it.
See IBP, Inc. v. Mercantile Bank of Topeka,
. Plaintiff objects to this testimony by Miller and Hoskins as speculative and improper lay testimony. As an initial matter, however, plaintiff has failed to show that Miller and Hoskins should have seen the "hump” even a second earlier. Moreover, plaintiff has not offered evidence which suggests that an additional one or two seconds would have prevented the derailment. Plaintiff concedes that a train traveling at 90 m.p.h. is traveling 135 feet per second. Given the speed of the train and the obvious knowledge of engineers regarding the distance necessary to stop a train, the Court finds that the testimony of Miller and Hoskins is proper under Rule 701, Fed.R.Evid. Accordingly, plaintiff's objection is overruled.
. Ray Duffany, one of plaintiff's experts, testified that BNSF should have immediately slowed train traffic when it received the flash flood warning, and that Putt should have stopped traffic and called for a trained inspector at bridge 504.IS.
See
plaintiff's statement of facts no. 36. BNSF objects to Duffany’s statements because they are not relevant to the negligence of Amtrak and are conclusory. The Court agrees and will exclude plaintiff’s statement of fact 36.
See Reazin v. Blue Cross & Blue Shield of Kan., Inc.,
. Hoskins also testified that if he had been aware of any condition listed in Operating Rule 6.21, he would have called the BNSF dispatcher "to see what was going on," and "[s]ee if he put a track inspector out there and if he found out if everything was okay to go, or if we should be running at restricted speed or reduced speed or what have you." Hoskins explained that "[t]he dispatch is our communication with the track conditions and everything else,” and that "[i]f he don't tell us, we don’t know.” Hoskins Depo. at 70-71.
. Plaintiff states that immediately after the accident, BNSF adopted a policy which restricted train speed whenever a flash flood warning was received. Defendants seek to exclude this evidence under Rule 407, Fed. R.Evid. The Court agrees that the new BNSF policy constitutes a subsequent remedial measure and is inadmissible. Moreover, the policy is not relevant to plaintiff's claims against Amtrak. Accordingly, the Court will exclude plaintiff's additional fact 38.
. Although plaintiff apparently abandoned her claims that Amtrak was negligent because it did not request a bridge inspection, ask about track and bridge conditions, and did not keep a proper lookout, see Pretrial Order (Doc. # 84) filed March 6, 2000 at 9, the Court nevertheless will address these claims because Amtrak briefed them shortly before entry of the pretrial order.
. The Court has analyzed whether Amtrak had a duty to request a bridge inspection. More precisely, the Court has determined as a matter of law that Amtrak’s duty to its passengers does not extend so far as to require it to ask BNSF and other track owners to send only certain individuals for track and bridge inspections.
. Here, the Southwest Chief was a passenger train, traveling on Class 5 track. Federal regulations permitted the train to operate at 90 m.p.h. At the time of the derailment, the train was traveling 90 m.p.h. or less. Based on the Easterwood holding, any claim by plaintiff that Amtrak failed to operate the train at a reasonable speed is preempted by federal law.
. Plaintiff states several times that Amtrak knew about dangerous conditions at bridge 504.IS. The only evidence which plaintiff cites, and which the Court can find, is Amtrak's admission that unnamed employees knew within several hours of the derailment that the area through which the Southwest Chief would pass had experienced heavy rains and flash flooding. Based on such limited evidence, no reasonable jury could find that Amtrak specifically knew about dangerous conditions at bridge 504.1S.
. The Court recognizes that this claim of negligence is interrelated to several of plaintiff's other claims discussed above, but plaintiff also specifically pled the claim as a separate theory of negligence. See Pretrial Order (Doc. # 84) filed March 6, 2000 at 9.
. At the time of the derailment, BNSF received a financial incentive from Amtrak if Amtrak trains ran on time and were not delayed. Greaves had previously been disciplined for causing the loss of such an incen
The disciplinary action against Greaves is of marginal relevance because Newton had relieved Greaves before the Southwest Chief entered the area covered by the flash flood warning and no evidence suggests that Newton feared disciplinary action if he delayed the train. Greaves also testified that he was unaware of any prior disciplinary action and that BNSF simply put a note in his personnel file. Accordingly, the Court sustains defendants’ motion in limine regarding the prior disciplinary action against Greaves.'
The evidence of the financial incentive for on time performance is relevant only to the issue of punitive damages. Plaintiff has not offered evidence regarding what conditions must be satisfied for the incentive or the amount of the incentive. Based on the financial incentives, the BNSF dispatcher manual provides that dispatchers shall not delay passenger trains unless authorized by a supervisor. According to Greaves, this provision did not apply to delays caused by adverse weather conditions. See also Affidavit of R.D. Simo-nen ¶¶ 4-8, attached to Defendants' Reply memorandum In Support Of Their Motions In Limine (Doc. #113) filed April 14, 2000. Greaves also testified that to the extent any financial incentive might have applied to the Southwest Chief on August 9, BNSF had already lost its incentive because of the train's delay for heavy rains and Putt’s inspection. See id. ¶ 6. Therefore BNSF had foregone any financial incentive (to the extent it applied in the weather conditions) so that Putt could inspect the tracks. Such evidence is relevant to whether BNSF had an "evil mind” when it failed to inform the crew of the Southwest Chief of heavy rains in the area. The Court finds that with respect to plaintiff’s claims for compensatory damages, however, the probative value of the financial incentives evidence is substantially outweighed by the danger of unfair prejudice to BNSF, confusion of the issues, and misleading the jury under Rule 403, Fed.R.Evid. Accordingly, the Court sustains defendants’ motion in li-mine with respect to financial incentives between BNSF and Amtrak. The Court will consider such evidence for purposes of the instant motion but the parties cannot present such evidence at trial on plaintiff's claims for compensatory damages.
. Plaintiff's expert Gene Corley testified that the placement of grouted rip rap in the stream bed is not a suitable measure to protect the bridge piers against local scour of the flowing water.
. Sometime in 1975 or 1976, bridge supervisor Jerry Walters also recommended that the bridge be replaced. Walters stated in the bridge inspection record to "place on five-year” renewal list.
. Plaintiff has attempted to introduce certain documentation allegedly related to the calculations made by McGinnis and King.
See
attachments N and O to
Plaintiffs Response [To] Defendant Burlington Northern Santa Fe’s Motion For Partial Summary Judgment
(Doc. # 105) filed March 24, 2000. The Court must exclude the documents because plaintiff has failed to authenticate them.
See IBP,
The Court also excludes plaintiff's allegation that Putt testified that water was running into the bridge from multiple directions because she failed to attached the cited testimony to her opposition brief and the cited pages are not in any of the excerpts submitted by the parties.
. Sometime after BNSF installed the cross wall, bridge inspector Melvin George copied a notation out of the office inspection book into his field inspection book which read "renew budget [19]79 to match N.T. [north track].”
. Water flows over (and thus undermines) the base of the face of the headcut. The headcut face will eventually fall, thereby causing the face to move upstream. Stream bed erosion by means of head cutting is a natural process in the vicinity of bridge 504.1S.
. In April 1997, Michelbook stopped at several bridges which Walters had not listed, but other than bridge 504.IS, he could not remember which ones he visited.
. George did testily that during his inspection on July 9, he observed two and one half feet of scour on the down stream side of the cross wall. George explained that he did not specifically look for scour in that location during his inspections, however, and that he did not know how deep the cross wall was or that scour on the down stream side of a cross wall could be a dangerous condition.
Based on the fact that the cross wall was three feet tall, BNSF vice president Steve Milsap testified that it eventually would have fallen if earth was not replaced on the down stream side. In fact, a BNSF videotape from 1992 shows some drop in height on the down stream side of the cross wall.
. Plaintiff has not filed any opposition to -defendants’ motion in limine regarding the BNSF subsequent remedial measures of (1) rebuilding bridge 504.IS and surrounding bridges, (2) creating new speed restrictions in areas covered by flash flood warnings or (3) creating a list of scour susceptible bridges.
. Bridges 501.5 and 505.9 were on Walters' lists to be inspected in both 1995 and 1997. Thus, the engineers had to physically pass by bridge 504.1 to go from one to the other.
. Plaintiff has not offered evidence that BNSF knew of a substantial risk yet decided that it would be less costly to pay off accident victims than fix the problem. An example of such behavior is the case of
Grimshaw v. Ford Motor Co.,