Soo Line Railroad Company v. Werner Enterprises
Filing
45
ORDER denying 13 Motion for Summary Judgment (Written Opinion). Signed by Senior Judge David S. Doty on 1/28/2013. (PJM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 12-1089(DSD/JSM)
Soo Line Railroad Company, a
Minnesota corporation, doing
business as Canadian Pacific,
Plaintiff,
ORDER
v.
Werner Enterprises,
Defendant.
Timothy R. Thornton, Esq. and Briggs & Morgan, P.A., 80
South Eighth Street, Suite 2200, Minneapolis, MN 55402,
counsel for plaintiff.
Anthony J. Novak, Esq. and Larson King, LLP, 30 East
Seventh Street, Suite 2800, St. Paul, MN 55101, counsel
for defendant.
This matter is before the court upon the motion for summary
judgment by plaintiff Soo Line Railroad d/b/a Canadian Pacific
(CP).
Based upon a review of the file, record and proceedings
herein, and for the following reasons, the court denies the motion.
BACKGROUND
This property-damage dispute arises out of the collision
between a truck owned by defendant Werner Enterprises (Werner) and
a train operated by CP.
On March 31, 2012, nonparty Dale Buzzell
drove a Werner truck north on U.S. Highway 59, near Plummer,
Minnesota.
Am. Answer ¶ 11.
near Plummer.
CP’s railroad tracks cross Highway 59
Nagel Aff. Ex. A, at 0000559.
The crossing is
marked with stop lines, crossing signals, cross bucks and other
signals.
Id. Ex. B, at 0000001-0000026.
Buzzell
approached
southeast on the tracks.
the
crossing
as
a
CP
Id. Ex. A, at 0000559.
train
traveled
Buzzell’s truck
crashed into the ninth car of the train, a tanker carrying aromatic
concentrate.
Berzinski Aff. ¶ 6.
The collision started a fire
that engulfed Buzzell’s truck, and Buzzell died at the scene.
Nagel Aff. Ex. A, at 0000559-0000560. The collision also punctured
the tanker, derailed several cars and caused aromatic concentrate
to leak onto the tracks and surrounding ground.
Id. at 0000559.
Thereafter, CP funded and directed the reclamation efforts.
See
Compl. ¶¶ 17-23.
On May 3, 2012, CP filed suit, alleging that Werner is liable
for the cleanup costs based on respondeat superior, vicarious
liability and negligence. On July 13, 2012, prior to completion of
discovery, CP moved for summary judgment.
Thereafter, on August
16, 2012, CP amended its complaint to include allegations of
nuisance and trespass.
The court heard oral argument on September
28, 2012.1
1
After the court heard oral argument, Werner submitted a
supplemental affidavit and expert disclosure from Shannon MackeyBojack, a forensic and cardiovascular pathologist. Solheim Aff.
Ex. A.
2
DISCUSSION
I.
Standard of Review
“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed. R. Civ.
P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A fact is material only when its resolution affects the outcome of
the case.
(1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
A dispute is genuine if the evidence is such that it could
cause a reasonable jury to return a verdict for either party.
See
id. at 252.
On a motion for summary judgment, the court views all evidence
and inferences in a light most favorable to the nonmoving party.
See id. at 255.
The nonmoving party, however, may not rest upon
mere denials or allegations in the pleadings but must set forth
specific facts sufficient to raise a genuine issue for trial.
Celotex, 477 U.S. at 324.
See
A party asserting that a genuine dispute
exists — or cannot exist — about a material fact must cite
“particular parts of materials in the record.”
Fed. R. Civ. P.
56(c)(1)(A).
II.
Liability for Cleanup
CP argues that Werner is vicariously liable for the accident
under Minnesota Statutes § 169.09, which provides that “[w]henever
any motor vehicle shall be operated ... by any person other than
3
the owner, with the consent of the owner, express or implied, the
operator thereof shall in case of accident, be deemed the agent of
the owner of such motor vehicle in the operation thereof.”
Stat. § 169.09, subdiv. 5a.
Minn.
Specifically, CP argues that the
collision was an “accident” covered by § 169.09, and that nothing
more is required to impose liability on Werner.
See Pluntz v.
Farmington Ford-Mercury, Inc., 470 N.W.2d 709, 713 (Minn. Ct. App.
1991) (defining “accident” as “an event that takes place without
one’s foresight or expectation or an event which proceeds from an
unknown cause” (citation and internal quotation marks omitted)).
CP argues that Werner is liable regardless of whether Buzzell was
negligent. See id. (holding that precursor statute to § 169.09 was
“not restricted to negligence cases”).
Although § 169.09 establishes an agency relationship between
Buzzell and Werner, it does not, as a matter of course, impose
liability.
Instead, “a principal can be vicariously liable to a
third party for the conduct of its agent only if the agent would be
liable to the third party for that act.”
Remodeling Dimensions,
Inc. v. Integrity Mut. Ins. Co., 819 N.W.2d 602, 614 (Minn. 2012)
(citations omitted).
As a result, there must be a finding of
liability against Buzzell before § 169.09 imposes liability on
Werner.
See Pluntz, 470 N.W.2d at 711-12 (establishing driver
4
liability under strict liability trespass to trees statute, then
imputing liability to owner).
CP argues that such liability stems
from (1) trespass, (2) negligence per se and (3) nuisance.
A.
Trespass
CP first argues that Werner is vicariously liable based on
Buzzell’s alleged trespass.
Under Minnesota law, “a trespass is
committed where a plaintiff has the right of possession to the land
at issue and there is a wrongful and unlawful entry upon such
possession by defendant.”
Johnson v. Paynesville Farmers Union
Coop. Oil Co., 817 N.W.2d 693, 701 (Minn. 2012) (citations and
internal quotation marks omitted).
required for trespass liability.
In other words, intent is
See id. (“[T]he tort of trespass
is committed when a person intentionally enters or causes direct
and tangible
entry
upon
the
land in
possession
(citation and internal quotation marks omitted)).
of
another.”
In the present
matter, Werner has put forth evidence from a forensic pathologist
that “it is more likely than not that Buzzell was suffering from an
acute cardiac event at the time of the collision with the train and
that this sudden cardiac event is the cause of the truck-train
collision.”
Solheim Aff. Ex. A, at ¶ 19.
In other words, if
Buzzell was deceased or unconscious at the time of the collision,
he would have been acting without intent, and no trespass occurred.
See, e.g., First City Nat’l Bank of Hou. v. Japhet, 390 S.W.2d 70,
75 (Tex. Civ. App. 1965) (finding no trespass liability if driver
5
“was unconscious or dead prior to leaving the roadway”).
At this
stage in the proceedings, a reasonable jury could conclude that
Buzzell
did
not
possess
the
requisite
intent
for
trespass.
Therefore, summary judgment on the trespass claim is not warranted.
B.
Negligence Per Se
CP next argues that Buzzell was negligent per se based on his
violation of traffic statutes.
“Negligence per se is a form of
ordinary negligence that results from violation of a statute.”
Seim v. Garavalia, 306 N.W.2d 806, 810 (Minn. 1981).
CP argues
that Buzzell was negligent per se when he violated Minnesota
Statutes § 169.26, which provides that “when any person driving a
vehicle approaches a railroad grade crossing ... the driver shall
stop the vehicle not less than ten feet from the nearest railroad
track and shall not proceed until safe to do so.”
Minn. Stat.
§ 169.26, subdiv. 1(a).
This argument, however, is contrary to the plain language of
the traffic statutes, as violations “shall not be negligence per se
but shall be prima facie evidence of negligence only.”
See Minn.
Stat § 169.96(b); Wong v. Am. Family Mut. Ins. Co., 576 N.W.2d 742,
744 n.1 (Minn. 1998) (“The legislature explicitly changed [the per
se negligence] standard as applied to traffic statutes.”).
In
other words, even if CP could demonstrate a violation of the
traffic
statute,
Werner
would
have
an
opportunity
to
adduce
“evidence tending to show a reasonable ground for such violation.”
6
Olson v. Duluth, M.&I.R. Ry. Co., 5 N.W.2d 492, 496 (Minn. 1942).
At this stage in the proceedings, a reasonable jury could conclude
that Buzzell had reasonable grounds for violating the traffic
statute and that he has rebutted the presumption of negligence.
Therefore, summary judgment for CP based on negligence per se is
not warranted.
C.
Nuisance
CP next argues that Werner is liable because the collision
created a nuisance.
Under Minnesota law, “[a]nything which is
injurious to health, or indecent or offensive to the senses, or an
obstruction to the free use of property, so as to interfere with
the comfortable enjoyment of life or property, is a nuisance.”
Minn. Stat. § 561.01.2
CP argues that the spilled aromatic
concentrate impaired its use and enjoyment of the railroad tracks.
To be liable in nuisance, a defendant must engage in “some
kind of conduct ... which is wrongful.”
Highview N. Apartments v.
Cnty. of Ramsey, 323 N.W.2d 65, 70-71 (Minn. 1982) (citation and
2
It is unclear whether a single act or event, such as the
collision, can constitute a nuisance. See Dorman v. Ames, 12 Minn.
451, 455 (1867) (noting that nuisance “differs from trespass, which
is a single act”(citations omitted)); accord Sanders v. Norfolk S.
Ry. Co., 400 F. App’x 726, 729 (4th Cir. 2010) (explaining, under
South Carolina law, that “the accidental release of a large
quantity of gasoline into a creek near the plaintiff’s property was
not a nuisance because the plaintiff alleged only a single isolated
act of negligence, not continuous or recurrent” (citation and
internal quotation marks omitted)).
Even if nuisance can be
predicated on a single event, however, summary judgment is not
warranted, as a reasonable jury could find that Buzzell and Werner
engaged in no wrongful conduct.
7
internal quotation marks omitted).
Generally, to prove wrongful
conduct, “a plaintiff must show [that] the defendant intentionally
interfered with the use and enjoyment of the [plaintiff’s] land.”
Fagerlie v. City of Willmar, 435 N.W.2d 641, 643 (Minn. Ct. App.
1989) (citation omitted).
Wrongful conduct may also be shown,
however, through “negligence, ultrahazardous activity, violation of
a
statute
or
some
other
tortious
activity.”
Highview
N.
Apartments, 323 N.W.2d at 71 (citations omitted). At this stage in
the proceedings, there is no evidence in the record to impose
liability as a matter of law based on intentional interference,
negligence or ultrahazardous activity.
CP
argues,
however,
that
Buzzell’s
alleged
violation
of
§ 169.26, the railroad right-of-way statute, provides the necessary
wrongful conduct.
See H. Christiansen & Sons v. City of Duluth, 31
N.W.2d 270, 275 (Minn. 1948) (“[A]n action based upon the violation
of a statute may establish nuisance without negligence.”).
As
already discussed, a violation of a traffic statute is excusable in
some instances. See, e.g., Pouliot v. Fitzsimmons, 582 N.W.2d 221,
224 (Minn. 1998) (“[T]he jury was also instructed to consider
whether there was ‘reasonable excuse or justification’ for the
[traffic] violations.”).
At this stage in the proceeding, a
reasonable jury could determine that there was no violation of the
8
traffic statutes,
nuisance.
and
thus, no
wrongful
conduct
to
create a
Therefore, summary judgment based on the nuisance claim
is not warranted.
CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that the
motion for summary judgment [ECF No. 13] is denied.
Dated:
January 28, 2013
s/David S. Doty
David S. Doty, Judge
United States District Court
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