Sportsman v. BNSF Railway Company

Filing 40

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendant BNSF Railway Company's Motion for Summary Judgment (Docket No. 19) is GRANTED. A separate Judgment in accordance with this Memorandum and Order is entered this same date. Signed by Magistrate Judge Terry I. Adelman on 5/26/11. (KXS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LONNIE SPORTSMAN,
Plaintiff,
v.
BNSF RAILWAY COMPANY,
Defendant.

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Case No. 4:10CV513 TIA

MEMORANDUM AND ORDER
This matter is before the Court on Defendant BNSF Railway Company’s Motion for Summary
Judgment. (Docket No. 19). Plaintiff filed a Memorandum in Opposition (Docket No. 25) and
Defendant filed a Reply (Docket No. 31) thereto. All matters are pending before the undersigned
United States Magistrate Judge, with the consent of the parties, pursuant to 28 U.S.C. § 636(c).
Plaintiff Lonnie Sportsman (“Sportsman”) filed a Complaint against Defendant BNSF Railway
Company (“BNSF”) alleging he sustained injuries and damages as result of a motor vehicle accident
("MVA") while being transported in a 2009 Toyota Sienna van. (Plaintiff’s Compl. at ¶¶ 6-7).
Sportsman contends that his injuries and damages were caused by BNSF's negligence. (Id. at ¶ 7).
Pursuant to Rule 56(c), Federal Rules of Civil Procedure, a court may grant summary
judgment if the information before the court shows that there are no material issues of fact in dispute
and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986). The burden of proof is on the moving party to set forth the basis of
the motion, Celotex Corp. v. Citrate, 477 U.S. 317, 323 (1986), and the court must view all facts and
inferences in the light most favorable to the non-moving party, Matsushita Elec. Indus. Co. v. Zenith

Radio, 475 U.S. 574, 587 (1986). Once the moving party shows there are no material issues of fact
in dispute, the burden shifts to the adverse party to set forth facts showing there is a genuine issue
for trial. Id. The non-moving party may not rest upon her pleadings, but must come forward with
affidavits or other admissible evidence to rebut the motion. Celotex, 477 U.S. at 324.
Summary judgment is a harsh remedy and should not be granted unless the movant “has
established [its] right to judgment with such clarity as to leave no room for controversy.” New
England Mutual Life Ins. Co. v. Null, 554 F.2d 896, 901 (8th Cir. 1977). The Eighth Circuit has
noted, however, that “summary judgment can be a tool of great utility in removing factually
insubstantial cases from crowded dockets, freeing courts’ trial time for those that really do raise
genuine issues of material fact.” City of Mt. Pleasant, Iowa v. Associated Elec. Coop., Inc., 838 F.2d
268, 273 (8th Cir. 1988).
The Supreme Court has relaxed the standard of proof necessary to get a FELA case to the
jury, articulating the standard as whether “employer negligence played any part, even the slightest in
producing the injury.” Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 542 (1994). The FELA
imposes on a railroad a general duty to provide a safe workplace. Peyton v. St. Louis Southwestern
Ry. Co., 962 832, 833 (8th Cir. 1992).

Plaintiff is proceeding on his negligence claim under the

FELA, a process “significantly different from the ordinary common-law negligence action,” Rogers
v. Missouri Pac. R.R. Co., 352 U.S. 500, 509-10 (1957), which holds an employer to a standard of
“reasonable foreseeability of harm” and measures that standard by what “a reasonably prudent person
would anticipate” in light of all the surrounding circumstances. Gallick v. Baltimore & Ohio R.R.
Co., 372 U.S. 108, 117-19 (1963). Recovery is permitted if injury results “in whole or in part from
the negligence of” the railroad, or due to any “defect or insufficiency, due to its negligence, in its ...
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tracks, roadbed, ... or other equipment.” 45 U.S.C. § 51. An employee bringing a FELA claim must
prove that the railroad was negligent and that such negligence was the cause of the injury. Atchison,
T. & S.F.R. Co. v. Toops, 281 U.S. 351, 354 (1930); Northwestern P.R. Co. v. Bobo, 290 U.S. 499,
502-03 (1934) (“The jury may not be permitted to speculate as to its cause, and the case must be
withdrawn from its consideration, unless there is evidence from which the inference may reasonably
be drawn that the injury suffered was caused by the negligent act of the employer.”). The employee
must prove negligence on the part of the railroad in a FELA claim. Tennant v. Peoria & Pekin P.U.
Ry. Co., 321 U.S. 29, 32 (1944). Each and every element as is required under a common-law
negligence action must be proved in a FELA negligence action or the cause of action fails. Davis v.
Burlington Northern, Inc., 541 F.2d 182, 185 (8th Cir. 1976).

In determining negligence on the

part of the railroad the general rule is “the lack of due care under the circumstances; or the failure to
do what a reasonable and prudent man would ordinarily have done under the circumstances of the
situation; or doing what such a person under the existing circumstances would not have done.” Tiller
v. Atlantic Coastline R.R. Co., 318 U.S. 54, 67 (1943). The scope of a railroad’s duty is therefore
limited to those workplace hazards that the railroad could have reasonably foreseen. See Gallick, 372
U.S. at 117 (“[R]easonable foreseeability of harm is an essential ingredient of [FELA] negligence.”).
To prevail, a FELA plaintiff need only show that “employer negligence played any part, even the
slightest, in producing the injury ... for which damages are sought.” Rogers v. Missouri Pac. R.R.
Co,, 352 U.S. 500, 506 (1957).

The Undisputed Evidence before the Court on the Motion
Viewing all facts and drawing all reasonable inferences in the light most favorable of the
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nonmoving party, A. Brod, Inc. v. SK & I Co., L.L.C., 998 F. Supp. 314, 320 (S.D.N.Y. 1998) the
Court sets forth the following facts:
1. Background
Sportsman filed the instant Complaint pursuant to the Federal Employers’ Liability Act
(“FELA”), 45 U.S.C. §§ 51-60, alleging he sustained injuries and damages as result of a motor
vehicle accident ("MVA") while being transported as a passenger in a 2009 Toyota Sienna van.
(Pltf.’s Compl. at ¶¶ 6-7). The accident occurred at/near West Quincy, Missouri on November 7,
2008. (Id. at ¶¶ 5-6). Kevin Doran ("Doran") operated the van in the course and scope of his
employment with Rail Crew Xpress. (Id. at 5). Sportsman contends that his injuries and damages
were caused by BNSF's negligence. (Id. at ¶ 7). In particular, Sportsman alleges that BNSF and its
officers or agents were negligent in failing to provide reasonably safe conditions for work and a
reasonably safe place to work; negligent by failing to keep a careful lookout; and by failing to
properly inspect, test or maintain the van and its seat belts. (Id.).
The only other vehicle involved in the MVA on US 24 at the east entrance to the Ayerco
Convenience Store in West Quincy, Missouri was a 1993 Mercury Tracer operated by Vicki Hoener.
(Deft.’s Exh. A).1 Sportsman, a BNSF locomotive engineer, was a passenger in the van and was
1

The report at issue is the Missouri Uniform Accident Report prepared pursuant to
§ 43.250 R.S.Mo. Sportsman’s objection to the admission of the police report on the basis of
hearsay is without merit inasmuch as police accident investigation reports are admissible under the
public records exception to hearsay and thus appropriately offered in support of BNSF’s motion
for summary judgment. See Gaddy v. Hartford Life Ins. Co., 218 F.Supp. 1123, 1126 (E.D. Mo.
2002) (applying Fed.R.Civ.P. 803(8)(C) to police report). Rule 803(8)(C) carves out an
exception for hearsay contained in public records and reports consisting of “factual findings
resulting from an investigation made pursuant to the authority granted by law, unless the sources
of information or other circumstances indicate lack of trustworthiness.” Fed.R.Civ.P. 803(80(C).
Indeed, not only does Sportsman offer no grounds as to why the document might be inaccurate,
evidence of its reliability is corroborated by Sportsman's deposition testimony agreeing that the
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sitting in the second row on the passenger side at the time of the MVA. (Id.). Gary Collier
(“Collier”), a BNSF conductor, was the other passenger in the van and was sitting in the front
passenger seat. (Id.).
2. The Motor Vehicle Accident
On November 7, 2008, Doran picked up Sportsman and Collier from a hotel in Quincy,
Illinois to transport them to BNSF’s train depot in West Quincy, Missouri. (Deft.’s Exh. C at 34,
51). Prior to making the trip, Doran conducted a pre-trip inspection of the van including checking
the seat belts for fraying and pulling to ensure the seat belts would latch. (Deft.’s Exh. D at 16-17).
Upon entering the van at the hotel, Sportsman buckled his seat belt but he testified that he did not
recall whether he checked the operation of the seat belt by pulling it tight. (Id. at 45-46, 61).
Sportsman testified that he never found anything wrong or deficient with his seatbelt from the time
he entered the van at the hotel until the MVA. (Id. at 46, 86-87).
In transit from the hotel to the train depot, Doran drove the van to a Burger King in Quincy,
Illinois. (Deft.’s Exh. C at 61-62). At Burger King, Sportsman released his seatbelt and entered the
restaurant and purchased food and beverage and then returned to the van and once again buckled his
seat belt. (Id. at 62). Doran continued driving the van on west bound highway U.S. 24 across a
bridge over the Mississippi River from Quincy, Illinois to West Quincy, Missouri. (Id. at 73).
According to Sportsman, while transiting the bridge to the Missouri side, the van was behind a semi
tractor-trailer in the right lane. (Id. at 73). According to Doran and Collier, after transiting the
bridge, the van was in the left lane. (Deft.’s Exh. M at 27-28; Exh. N at 14). Highway U.S. 24 has
two lanes in each direction, separated by a grass median the MVA site. (Deft.’s Exh. A).
police report to be accurate.
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After crossing the bridge and heading in the direction of the Ayerco gas station (“Ayerco”),
Sportsman recalled the van gaining on the semi tractor-trailer. (Deft.’s Exh. C at 74; Exh. D).
According to Sportsman, after the tractor-trailer put on its right turn signal before entering the
eastern entrance to Ayerco, Doran operated the van from the right lane to the left lane of westbound
highway U.S. 24. (Id.). To enter the BNSF West Quincy, Missouri train depot, Doran would have
to turn left off of highway U.S. 24 just at the western edge of Ayerco. (Deft.’s Exh. C at 51; Exh.
D). As Doran approached Ayerco, the speed limit was 45 mph, and Doran estimated that he was
traveling about 40 mph. (Deft.’s Exh. D; Exh. N at 14, 52-53; Doran Depo. at 32, 35-36).
According to Sportsman, Doran chose to pass the tractor trailer once the truck driver signaled he was
turning. (Deft.’s Exh. C at 74). According to Doran, he changed into the left lane while traversing
the bridge. (Deft.s’ Exh. 5 at 27). As Doran passed the tractor-trailer, Hoener pulled out from
Ayerco’s eastern exit and propelled the front of the Tracer into the van’s right front passenger door
and wheel area. (Deft.’s Exhs. A and C at 66-67, 74-76). Doran saw the Tracer at the last second
before impact and noted that Hoener “pulled out right into the side of my van.” (Deft.’s Exhs. A and
M at 34-35). Immediately prior to the MVA, Sportsman testified that Collier said "Oh, shit!" (Pltf.'s
Exh. 2-1 at 76).According to Doran, neither he nor Hoener could see through the tractor trailer, and
if he would have been able to see Hoener pull out, he could have slowed down. (Pltf.’s Exh. 5 at 39).
According to Collier, Hoener’s car came out of the first entrance and “ran into the side of us.”
(Deft.’s Exh. N at 18). The witness at the scene of the MVA stated that Hoener’s vehicle pulled into
the path of the van. (Deft.’s Exh. A). The reporting officer noted that the MVA occurred when
Hoener’s vehicle hit the van in the passing lane of U.S. 24. (Id.).
After the MVA, Sportsman had no problem unbuckling the seatbelt, and he did not inspect
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the seatbelt. (Deft.’s Exh. C at 87-90). Missouri State Highway Patrol Officer Paul Behrens
investigated the MVA and authored the Missouri Uniform Accident Report dated November 7, 2008.
(Deft.’s Exh. A). Officer Behrens cited Hoener for failure to yield. (Id.). On December 23, 2008,
Hoener entered a guilty plea to Failing to Yield to Approaching Vehicle when Entering/Crossing
Highway from Alley/Driveway. State v. Hoener, No. 060778426 ( Marion Palmyra) December 23,
2008); http://www.courts.mo.gov/casenet/.
Dave Nickles, the West Quincy, MO BNSF Trainmaster, interviewed Sportsman at the scene
of the MVA but Sportsman did not report an allegation regarding the defectiveness of the seat belt.
(Deft.’s Exh. C at 99). At the time of the MVA, Sportsman never said anything to Collier about the
seat belt at the scene of the MVA. (Deft.’s Exh. C at 98; Deft.’s Exh. N at 23). After the MVA,
Sportsman was not transported to the hospital for treatment of his injuries, but he was transported
back to his hometown in another crew van by a different driver. (Deft.’s Exhs. A and C at 81-82).
Sportsman did not recall telling the driver anything about the seatbelt or how the MVA occurred.
(Deft.’s Exh. C at 81-82). On the ride back, Sportsman did not tell Collier anything about the alleged
defective seatbelt. (Deft.’s Exh. N at 23-27).
Scott Tweet, the Brookfield, MO BNSF Trainmaster, interviewed Sportsman on November
8, 2008, the morning after the MVA. (Deft.’s Exh. C at 99-105). Sportsman did not recall telling
Tweet about the alleged defective seatbelt. (Id.). Sportsman completed a BNSF Personal Injury
Report wherein he indicated that the “driver of the other car” caused the MVA. (Id.). Sportsman
first reported telling any BNSF manager or supervisor about the alleged seat belt defect was during
the recorded statement made on November 25, 2008. (Deft.’s Exhs. C at 97-98 and L at 9).
Sportsman also indicated that he did not see the other vehicle until “right at impact.” (Deft. Exh. L
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at 6). Likewise, Sportsman reported that Doran did nothing wrong to cause the MVA. (Deft.’s
Exhs. C at 11-20 and L at 23-24). In the Employee Personal Injury/Occupational Illness Report,
Sportsman reported that the accident was caused by the driver of the other car who received a
citation and no defect or malfunction problem existed with any of the equipment. (Deft.’s Exh. J).
Collier testified that Doran did nothing wrong to cause the MVA. (Deft.’s Exh. N at 181-19).
At the time of his recorded statement on November 25, 2008, Sportsman reported that upon
impact, he “was whipped, my head and shoulders, behind the driver’s seat, at one time I remember
my head and shoulders, being clear over there.” (Deft.’s Exh. L at 3). Sportsman also reported that
the shoulder harness on his seatbelt failed to properly lock and restrain him inasmuch as he whipped
around like a rag doll. (Pltf.’s Exh. 2-1 at 78-79). After the MVA, Sportsman unbuckled his seatbelt
without any problems, but he did not test the shoulder strap before exiting the van. (Pltf.’s Exh. 2-2
at 89-90).
In his deposition, Sportsman opined that both drivers were at fault and that the accident could have
been prevented if Doran elected to stay behind the tractor trailer instead of taking the unsafe route
of passing the tractor trailer through the intersection. (Pltf.’s Exh. 2-1 at 20-21).
In her affidavit, Hoener avers that Doran was driving too fast for the conditions; that if Doran
had been in the right lane of travel behind the tractor trailer the collision would not have occurred;
that if Doran had been driving slower he would have been able to swerve and avoid the collision; and
that it was unsafe for Doran to pass the tractor trailer at an intersection. (Stover Aff. at ¶¶ 7, 10-12).
Hoener further opined that she “did not see the van prior to the collision because my vision was

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blocked by the semi-tractor trailer in the right lane.” (Id. at 9).2
The five keys to Smith System of driving are “Aim High in Steering, Get the Big Picture,
Keep Your Eyes Moving, Leave Yourself an Out, and Mark Sure They See You.” (Pltf.’s Exh. 4 at
33). According to Warren Grogan, a field safety advisor at RailCrew Xpress, a safe RCX driver
should always leave himself an out, in other words, the driver should allow space to prevent a
collision from happening. (Id. at 34). Grogan further testified that there are situations when a driver
cannot keep a space cushion such as when the driver is in a left lane passing another vehicle in the
right lane. (Id. at 36-37).
According to Sportsman, the accident could have been prevented if Doran would have stayed
in the right lane behind the tractor trailer and allowed it to turn instead of taking the unsafe route and
pass the tractor trailer through the intersection. (Pltf.’s Exh. 2-1 at 20-21). Sportsman claims that
the lap part of his seatbelt loosened upon impact. (Pltf.'s Exh. 2-2 at 88).
Discussion
In deciding a motion for summary judgment, the Court may consider only admissible evidence,
and must disregard portions of declarations that were made without personal knowledge, consist of
hearsay, or purport to state legal conclusions of fact. See Shaver v. Independent Stave Co., 350 F.3d
716, 723 (8th Cir. 2003); Fed. R. Civ. P. 56(e). As BNSF noted, Hoener’s affidavit contains in large
part Ms. Hoener’s statement of personal opinion, speculation, and conjecture rather than facts.
“Under Rule 56(e), an affidavit filed in support of or in opposition to a summary judgment motion
must be based upon the personal knowledge of the affiant; information and belief is insufficient” to
2

Rule 56(e)(1) of the Federal Rules of Civil Procedure requires affidavits to be made on
personal knowledge, set out facts that would be admissible in evidence, and show the affiant is
competent to testify on the matters stated. Jenkins v. Winter, 540 F.3d 742, 748 (8th Cir. 2008).
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create an issue of material fact. Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1367
(8th Cir. 1983). The Court therefore does not consider averments which merely constitute personal
opinions as opposed to facts.
Hoener's conclusory assertions regarding Doran speeding and that he could have avoided the
accident had he not been driving so fast are unsupported by any evidence and refuted by the record.
Unsubstantiated and conclusory statements without support are not sufficient to create an issue of
fact to defeat summary judgment. See Davidson & Assocs. v. Jung, 422 F.3d 630, 638 (8th Cir.
2005) ("A plaintiff may not merely point to unsupported self-serving allegations, but most
substantiate allegations with sufficient probative evidence that would permit a finding in the plaintiff's
favor."). Hoener avers that her knowledge is based on her being a twenty-three year old licensed
driver in Illinois. Because Hoener is not competent to testify as to the ultimate issue in dispute, the
undersigned will disregard her averments regarding Doran speeding and that he could have avoided
the accident.
In the Motion for Summary Judgment, BNSF argues that Sportsman cannot provide
substantial evidence to support his claim that BNSF or Doran could have reasonably foreseen the
motor vehicle accident and that the van’s seatbelt would fail to properly restrain Sportsman. Under
FELA, an employer has a duty to provide its employees with a reasonably safe place to work.
Crawford v. Norfolk & Western Ry. Co., 901 S.W.2d 252, 254 (Mo. Ct. App. 1995). The duty of
providing a reasonably safe place to work does not require the elimination of all dangers, but it does
require th elimination of the dangers which could be removed by the exercise of reasonable care on
the part of the employer. Qualls v. St. Louis Southwestern Ry. Co., 799 S.W.2d 84, 86 (Mo. banc
1990); Crawford, 901 S.W.2d at 254. The burden is on the employee to show such negligence and
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its causal connection to the injury. Id. However, the employee only needs to show the he was injured
because of an unsafe condition that could have been reasonably removed by the employer, and that
the employer’s negligence played any part, even the slightest in producing the injury.” Consolidated
Rail Corp. v. Gottshall, 512 U.S. 532, 542 (1994). “The defendant’s duty is measured by what a
reasonably prudent person should or could have reasonably anticipated as occurring under like
circumstances.” Davis v. Burlington N., Inc., 541 F.2d 182, 185 (1976).
BNSF's assertion that the instant action is most analogous to Richardson v. Missouri Pac.
R.R., 677 F.2d 663 (8th Cir. 1982) is with merit. In Richardson, the plaintiff alleged negligence on
the part of the railroad's agent, an automobile driver, for failure to avoid an accident. The accident
occurred when a second driver ran a flashing red light at an intersection; further, the impact was
almost simultaneous with a passenger's warning. The Richardson court found that Richardson had
failed to adduce any evidence of any probative facts to support a finding that the railroad's agent
could have foreseen such an accident or that the agent could have avoided the accident. Id. at 666.
In the instant case, the MVA occurred when Hoener failed to yield to the approaching vehicle
when entering/crossing highway from alley/driveway. Hoener received a citation for failing to yield
and according to Collier, Hoener’s car came out of the first entrance and “ran into the side of us.”
Sportsman also reported that he did not see the other vehicle until “right at impact.” From
Sportsman’s deposition testimony that he heard a sudden exclamation from Collier in the van
immediately prior to the MVA, a reasonable inference can be made that the other vehicle acted in a
way to surprise or alarm the passenger. Sportsman’s contention that the accident could have been
prevented if Doran would have stayed in the right lane behind the tractor trailer and allowed it to turn
instead of taking the unsafe route and pass the tractor trailer through the intersection. Speculation
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is not evidence, and even a FELA plaintiff needs some evidence to survive summary judgment. Lisek
v. Norfolk & Western Ry. Co., 30 F.3d 823, 831 (7th Cir. 1994). There is no evidence to suggest
that Doran was driving the vehicle in an unsafe manner in violation of any motor vehicle laws at the
time of the accident or found to be the cause of the motor vehicle accident or ticketed for any traffic
violation. Rather, all the proof is to the contrary. The record establishes that Hoener was responsible
for causing the accident by her failure to yield by pulling into the path of the van driven by Doran.
Sportsman has not submitted sufficient evidence showing that Doran could have reasonably foreseen
that Hoener would have failed to yield and pulled her vehicle into the path of the van or could have
prevented the accident.

Sportsman has not presented more than a scintilla of evidence that his

injuries were proximately caused, in some part, by BNSF's negligence. See Brady v. Southern Ry.
Co., 320 U.S. 476, 479-80 (1943) (weight of evidence under FELA "must be more than a scintilla").
In light of the foregoing, Sportsman cannot defeat summary judgment by pointing to the his own
conclusory and self-serving, and self-serving assertions in his deposition and the conclusory assertions
in Hoener's affidavit.
BNSF also contends that Sportsman failed to show that the seatbelt did not properly restrain
him, and thus BNSF cannot be liable for failing to discover the alleged defect prior to the accident.
Beyond Sportsman's deposition testimony, he has offered no testimony, expert or otherwise, to
support his defective seatbelt allegations. See, e.g., Briant v. Timpte, Inc., 2001 WL 388856, * 1
(8th Cir. 2001); Thudium v. Allied Prods. Corp., 36 F.3d 767, 769 (8th Cir. 1994) ("[T]he plaintiff
must prove his claim without resort to conjecture or speculation and must demonstrate circumstances
which point reasonably to the desired conclusion and exclude any other reasonable conclusion.");
Bryant v. Laiko Int'l Co., Inc., 2006 WL 2788520, *9 (E.D. Mo. 2006). The undersigned finds that
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Sportsman has failed to present any evidence beyond his personal opinion giving BNSF notice of the
alleged defective seatbelt. Here, there is no evidence from which to infer that BNSF breached its duty
to provide Plaintiff with a reasonably safe workplace, because there is no evidence that Defendant
knew, or should have known, that the seatbelt was defective. See, e.g., Peyton v. St. Louis
Southwestern Ry. Co., 962 F.2d 832, 833 (8th Cir. 1992) (“an employer is not liable if it had no
reasonable way of knowing about the hazard that caused the employee’s injury.”).
Sportsman cannot establish his claim by asserting the seatbelt was defective. Sportsman must
have evidence to establish the defective condition of the seatbelt. The record is devoid of any
evidence showing that BNSF was negligent for failing to discover the allegedly defective seatbelt.
The record shows that prior to making the trip, Doran conducted a pre-trip inspection of the van
including checking the seat belts for fraying and pulling to ensure the seat belts would latch. Upon
entering the van at the hotel, Sportsman buckled his seat belt but he testified that he did not recall
whether he checked the operation of the seat belt by pulling it tight. Sportsman testified that he never
found anything wrong or deficient with his seatbelt from the time he entered the van at the hotel until
the MVA. Thus, the record is devoid of any evidence showing that BNSF had any knowledge that
the seat belt worn by Sportsman was defective in any manner prior to the MVA. BNSF cannot be
held liable as a matter of law inasmuch as BNSF had no reasonable way of knowing about the alleged
defective seatbelt.
The undersigned having concluded that Sportsman has failed to set forth any facts to
demonstrate either the breach of duty or foreseeability elements of their prima facie case, BNSF is
entitled to judgment as a matter of law. Accordingly, the Court grants BNSF's motion for summary
judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.
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IT IS HEREBY ORDERED that Defendant BNSF Railway Company’s Motion for
Summary Judgment (Docket No. 19) is GRANTED.
A separate Judgment in accordance with this Memorandum and Order is entered this same
date.
/s/ Terry I. Adelman
UNITED STATES MAGISTRATE JUDGE

Dated this 26th

day of May, 2011.

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