Sherwood v. BNSF Railway Company et al

Filing 210

MEMORANDUM CLARIFYING THE COURT'S ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT re: 126 Order. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
ROBERT WILLIAM SHERWOOD and
PAMELA LOUISE SHERWOOD,

Case No. 2:16-cv-00008-BLW
MEMORANDUM CLARIFYING
THE COURT’S ORDER ON
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT

Plaintiff,
v.
BNSF RAILWAY COMPANY, a
Delaware corporation, dba The
Burlington Northern and Santa Fe
Railway Company, and JOHN DOES I
through X,
Defendants.

INTRODUCTION
In March 2018, the Court entered an order denying Defendant BNSF Railway
Company’s motion for summary judgment. See Dkt. 126. In that order, the Court
reserved ruling on whether Idaho Code § 62-306 applies to this case, anticipating a fuller
factual record. Additionally, the Court indicated there was a possibility it would instruct
the jury on premises liability law, but it also stated that other duties may apply, including
the heightened duty of “special care and watchfulness.”

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With the benefit of additional briefing from the parties, and to help the parties
sharpen their focus in preparing for trial, the Court will now clarify these issues, which
relate to the duty element of plaintiff’s negligence claim. As will be explained further
below: (1) Idaho Code § 62-306 applies to this case; (2) the duty of special care and
watchfulness also applies; and (3) there is no need to instruct the jury regarding duties
arising under premises liability law.
BACKGROUND
This case involves a bicycle wreck at a railroad crossing on Schweitzer Mountain
Road, just outside Sandpoint, Idaho. Plaintiff Robert Sherwood alleges that as he was
riding over the crossing, his front tire lodged in a narrow gap between two cement panels,
which caused him to be thrown over his handlebars and onto the pavement. Defendant
contends Sherwood over-braked, which caused him to be thrown over his handlebars.
Either way, Sherwood’s injuries are extensive. He is suing BNSF for negligence.
DISCUSSION
Trial is scheduled to begin on March 4, 2019. The parties have submitted
competing jury instructions regarding the duty element of Sherwood’s negligence claim.
The four elements of negligence are: (1) duty; (2) breach; (3) causation; and (4) damages.
The existence of a duty is generally a question of law, although it may be a question of
fact if there are factual disputes. See Forbush v. Sagecrest Multi Family Prop. Owners’
Ass’n, Inc., 396 P.3d 1199, 1205 (Idaho 2017); see Gagnon v. W. Bldg. Maint., Inc., 306
P.3d 197, 200 (Idaho 2013).

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Plaintiff asks the Court to instruct the jury that BNSF owed him two duties: (1) a
statutory duty to maintain the railroad crossing in a smooth and firm condition; and (2) a
special duty of special care and watchfulness. BNSF, on the other hand, contends that as
a landowner, its only duty was to warn Sherwood of known hazards.
A.

The Duty Arising Under Idaho Code § 62-306.
Regarding the statutory duty, Idaho Code § 62-306 requires railroad companies to

maintain crossings “at all times in a smooth and firm condition.” Idaho Code § 62-306. 1
On summary judgment, BNSF argued that the railroad crossing at issue is not covered by
the statute because it only applies to “state or county highways,” and Schweitzer
Mountain Road is not a “state or county highway.” In denying BNSF’s motion, Judge
Lodge 2 discussed this issue extensively, stating that the statute was “ambiguous as
applied in this case,” Dkt. 126, at 7, and that there was a factual dispute as to whether the
statute applied to the crossing at issue. Id. Judge Lodge ultimately refrained from
deciding the issue, explaining that “the Court does not have sufficient record or argument

The entire statute reads as follows: “Whenever a state or county highway crosses or shall
hereafter cross a railroad at grade, the railroad company shall at its own expense construct and maintain
that portion of such highway between the rails and for a distance of not less than two (2) feet outside the
outer rails. The crossing shall be planked or surfaced with other suitable material for the full width of the
traveled way, including shoulders, and shall be maintained at all times in a smooth and firm
condition. Where a public agency having jurisdiction of the highway crossing the railroad wishes to have
the crossing surfaced with material of higher quality, the public agency and the railroad company may
agree that the railroad company install the material and that the additional cost, over and above the cost of
the railroad company's standard installation, may be paid for by the public agency with public funds.”
Idaho Code § 62-306 (emphasis added).
1

2

This case was reassigned to me in December 2018. Before that, Judge Edward J. Lodge
presided over the case, and he entered the March 2018 order. For that reason, and for the sake of clarity, I
will at times refer to the March 2018 order as Judge Lodge’s order.
MEMORANDUM DECISION AND ORDER - 3

to interpret the statute as applied to the Crossing at issue and simply finds that
Defendants have failed to meet their burden of persuasion on summary judgment.” Id. at
12.
At the pretrial conference on February 19, 2019, the Court raised this issue, asking
the parties whether they intended to present evidence at trial that would bear on the
resolution of this issue. Neither party indicated an intention to submit further evidence
regarding § 62-306, and defense counsel expressly stated that BNSF believed application
of § 62-306 is a legal question to be decided by the Court. Accordingly, the Court will
decide the issue on the current record.
After having reviewed the parties’ summary-judgment briefing and trial
submissions, the Court concludes that Schweitzer Mountain Road is encompassed within
the meaning of the statutory term “state or county highway.” See Idaho Code § 62-306.
Judge Lodge discussed this particular issue extensively in his March 2018 order, where
he carefully explained why plaintiff’s reading of the statute was reasonable. See Dkt. 126,
at 7-11. The Court agrees with that logic and will not restate it here, other than to clarify
that: (1) the Court finds plaintiff’s reading of the statute superior to defendant’s; and (2)
the Court concludes that the statute applies in this case.
In its trial briefing, BNSF raised a new argument as to why the statute should not
apply. See BNSF Reply in Support of Trial Br., Dkt. 203, at 8-9. BNSF now argues that
the statute fails to clearly define the required standard of conduct and thus cannot replace
duties arising under premises liability law.

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In Idaho, it is “well established” that a statute “may define the applicable standard
of care owed” and that “violations of such [a] statute[] . . . may constitute negligence per
se.” Boswell v. Steele, 348 P.3d 497, 506 (Idaho Ct. App. 2015). Generally:
In order to replace a common law duty of care with a duty of care from
a statute . . . the following elements must be met: (1) the statute . . .
must clearly define the required standard of conduct; (2) the statute . . .
must have been intended to prevent the type of harm [alleged]; (3) the
plaintiff must be a member of the class of persons the statute . . . was
designed to protect; and (4) the violation must have been the proximate
cause of the injury.
Obendorf v. Terra Hug Spray Co., 188 P.3d 834, 841 (Idaho 2008) (quoting O’Guin v.
Bingham Cnty., 122 P.3d 308, 311 (Idaho 2005)).
BNSF says nobody knows what it means to maintain the roadway in a “smooth
and firm” condition, and, therefore, “no one knows what exactly would violate the
statute.” See BNSF Reply, Dkt. 203, at 9. The Court is not persuaded. The jury can
determine whether BNSF maintained the crossing in a “smooth and firm” condition
giving those words their ordinary meaning. The Court therefore intends to instruct the
jury that BNSF owed plaintiff a duty under Idaho Code § 62-306. The Court will settle on
the precise wording of the instruction later, after conferring with the parties during the
jury instruction conferences.
B.

The Duty of Special Care and Watchfulness
Plaintiff also asks the Court to instruct the jury that BNSF owes him a duty of

special care and watchfulness. On this point, there is no particular need to clarify Judge
Lodge’s decision, as he plainly rejected defendant’s argument that the duty of special

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care and watchfulness cannot apply here. See Dkt. 126, at 13-15. Rather, after discussing
the relevant Idaho authority, Judge Lodge stated that “the heightened duty of
watchfulness and care may apply provided that the Plaintiffs present evidence that the
Crossing was used ‘constantly’ or people might otherwise be expected on the track at
that location.” Dkt. 126, at 15 (emphasis added). In other words, so long as plaintiff
presents this evidence at trial, the factual predicate for the duty is there, and the Court
will instruct accordingly. At the pretrial conference, plaintiff’s counsel indicated that
plaintiff intends to present evidence on this issue at trial.
Despite Judge Lodge’s ruling, BNSF continues to argue that the special duty of
care and watchfulness does not apply and that premises liability is the exclusive source of
duties it owes to Sherwood. For that reason, the Court will briefly address the point here.
BSNF says the duty of special care and watchfulness cannot be applied because
Sherwood was not injured by a moving train and there was no one around (a train
conductor, for example) to keep her eyes open and exercise the “special duty of care and
watchfulness.” To support this logic, BNSF characterizes the entire line of Idaho’s
“special care and watchfulness cases” as follows: “[T]he mechanism of injury in each of
the special care and watchfulness cases was railroad equipment (a train or something on a
train), which required railroad personnel to be present and exercise or perform the duty of
special care and watchfulness.” Defendant’s Reply in Support Trial Br., Dkt. 203, at 4.
This is not an accurate characterization of Idaho law. In Reardon v. Union Pacific
Railroad, 475 P.2d 370 (Idaho 1970), a twelve-year-old girl injured herself when she

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stepped on a broken bottle while walking across a railroad right-of-way. Under BNSF’s
logic, the Reardon case should have been analyzed under premises liability law because it
did not involve a moving train inflicting injury upon the plaintiff. But the Supreme Court
framed the analysis under the special care and watchfulness standard:
The first question then that must be answered is, did the Union Pacific
Railroad violate any duty to the injured pedestrian? In considering this
question, this Court is not unmindful of the line of decisions which hold
that where people may be expected on the right of way or where the
railroad property is used constantly by pedestrians, then the railroad
company is bound to exercise special care and watchfulness.
Id. at 372 (emphasis added; citing Anderson v. Great Northern Ry., 99 P. 91 (Idaho
1908); Keim v. Gilmore & Pittsburg R.R., 131 P. 656 (Idaho 1913); Pro v. Penn. R.R.,
390 Pa. 437 (Penn. 1957)). The Reardon Court determined that no duty arose, but only
because (1) the plaintiff, Karen Reardon, “was not proceeding along an established
pathway or one constantly used by pedestrians;” and (2) “people were not expected on
the route taken by Karen since the evidence supports the findings of the trial court that
the ‘pathway’ taken by Karen was covered with weeds.” Id. And perhaps more to the
point here, Reardon went on to clarify that “it is not necessary to determine the status
(e.g., invitee, licensee, trespasser) of the injured party with respect to the owner of the
land.” Id. (relying on Anderson, 99 P. 91).
The Court is thus unpersuaded by BNSF’s latest argument as to why the duty of
special care and watchfulness does not apply and will therefore reiterate Judge Lodge’s
earlier statement: so long as the factual predicate for the duty is presented at trial, the
Court will instruct on the duty of special care and watchfulness. The wording of that
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instruction will be decided later.
Based on its characterization of the special-care-and-watchfulness cases, BNSF
also has recently argued – for the first time – that Idaho tort law is preempted by federal
law. See Defendant’s Reply in Support of Trial Br., Dkt. 203, at 5-7. According to BNSF,
if the Court applies the duty of special care and watchfulness to this case, this means that
the Court would effectively be requiring BNSF – “in the State of Idaho only” – “to have
personnel present at all crossing at all times to perform the duty of special care and
watchfulness.” Id. at 5. For the reasons explained above, BNSF’s characterization of the
special-care-and-watchfulness cases is inaccurate, and, accordingly, its conclusion that it
now must have personnel at crossings at all times is illogical. The Court is thus
unpersuaded by the preemption argument. 3
C.

Premises Liability
The final issue is whether the Court must instruct the jury on premises liability

law. As noted, BNSF argues that premises liability law is the exclusive source of the
duties the railroad owed to Mr. Sherwood. This is incorrect, as illustrated by the cases
discussed earlier and also by O’Guin v. Bingham County, 122 P.3d 308, 311 (Idaho
2005). In O’Guin, the Idaho Supreme Court held that duties owed under the common law

BNSF has also stated that if this duty is applied, “BNSF reserves the right to argue preemption
and move for summary judgment on that basis.” BNSF Reply in Support of Trial Br., Dkt. 203, at 7. No
such motion will be entertained. The dispositive-motion deadline has long since passed and BNSF did not
even suggest it could satisfy the standard to extend the deadline to file a second, late summary-judgment
motion.
3

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could be replaced with a duty of care laid out in a statute or regulation. What’s more, the
O’Guin Court said it would be error for the trial court to insist upon applying duties from
premises liability law if “statutory negligence” applied. See id. This passage from the
opinion – in which the Idaho Supreme Court explains how the trial court erred – clarifies
the point:
After concluding the regulations established a duty and that the County
had breached that duty, the district court held ‘the O’Guins’ allegations
of negligence per se do not change the duty owed by the County to
trespassers.’ This was error. There was no need for the district court to
look to the common law duty owed to trespassers once it determined the
statutory duty applied. . . . A statute that adequately defines the
required standard of care ‘supplants the reasonable person standard
encompassed in the concept of ordinary negligence.’ If a breach of the
County’s statutory duty requires willful or wanton conduct, imposition
of the common law’s higher burden would be contrary to the express
language of the statute and essentially remove the statutory command to
fence or otherwise block access to unauthorized users.
Id. at 313 (emphasis added; internal citations omitted). Based on O’Guin, because the
Court has now determined that an Idaho statutory duty applies, there is no need to keep
hunting for a separate, lesser duty BNSF owed to Sherwood, and then apply that duty to
the exclusion of the duty laid out in the statute.
In light of this ruling, which is consistent with Judge Lodge’s March 2018
decision – as he repeatedly stated that premises liability duties were not the only duties
BNSF potentially owed to plaintiff – the Court will clarify this statement from the March
2018 decision:
To the exten[t] Plaintiffs’ claims are premised upon the Defendant’s
conduct apart from the condition of the property and Defendants’ acts
or omissions concerning property inspection and maintenance, then the
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ordinary duty of care may apply. However, if Plaintiffs’ claims are
premised solely on the condition of the property and Defendants’ acts
or omissions concerning property inspection and maintenance, then the
Court will instruct the jury on premises liability law.
Dkt. 126, at 17. Citing this portion of the decision, BNSF has repeatedly argued that the
Court is bound to instruct the jury on premises liability law.
The Court disagrees. First, it’s important to place those two sentences of the 19page decision in context. When Judge Lodge made these statements, he had had already
marched through a lengthy analysis of other duties BNSF might owe plaintiff. So in the
broadest sense, it’s not accurate to say that the Court intended to limit plaintiff to
premises liability law. Additionally, Judge Lodge discussed duties arising under premises
liability law only after he had left open the possibility that plaintiff might not be able to
proceed to trial on his two preferred theories – statutory negligence and violation of the
duty of special care and watchfulness.
In that context, it made sense to attempt to figure out whether premises liability
law might ultimately apply. But the Court has now determined that plaintiff may pursue
his theory of statutory negligence. That decision alone means that the Court is not
required to instruct the jury on duties arising under premises liability law.
CONCLUSION
For all these reasons, the Court clarifies the March 2018 Order as follows: (1) the
statutory duty to maintain the railway crossing in a smooth and firm conditions applies to
this case; (2) assuming plaintiff presents the necessary facts, the Court will instruct the
jury on the special duty of care and watchfulness; and (3) the Court does not intend to
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instruct the jury on duties arising under premises liability law.

DATED: February 22, 2019
_________________________
B. Lynn Winmill
U.S. District Court Judge

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