Neb. SC: No preemption on plaintiff's claim

Jessica M. Karmasek Oct. 20, 2011, 10:00am


LINCOLN, Neb. (Legal Newsline) - The Nebraska Supreme Court last week partially reversed a district court's judgment in favor of Union Pacific Railroad Co.

The Court, in its opinion filed Friday, said the Lancaster County District Court erred in finding one of the plaintiffs' claims was preempted and in finding that no genuine issue of material fact existed on that claim.

It reversed and remanded the case on the claim. However, it affirmed the district court's judgment in all other respects.

Plaintiff Krista A. Rosencrans was severely injured after a Union Pacific train collided with a vehicle in which she was a passenger.

She and her mother, Rebecca L. Dresser, subsequently filed suit against Union Pacific, the driver of the vehicle and her mother.

The railroad company argued that the driver's negligent operation of the vehicle was the sole proximate cause of the accident.

The plaintiffs responded that the company was negligent in failing to sound the train's horn and to slow or stop the train once it became apparent to the engineer that to proceed would most likely result in a collision.

The Lancaster County District Court granted summary judgment in favor of Union Pacific, after which Rosencrans and Dresser appealed.

Justice Kenneth Stephan, who authored the state high court's opinion, said the testimony from the engineer and the conductor and the event record data show that the horn was, indeed, activated.

And no evidence, Stephan said, supports a reasonable inference that there was some defect that prevented the horn from sounding when activated.

To the contrary, the record shows the horn was working properly when it was tested just two days after the accident, he said.

"Thus, despite Rosencrans' and McDonald's statements that they did not hear the horn, there are no facts upon which a finder of fact could reasonably conclude that the horn did not sound when it was activated," Stephan wrote.

"Because we conclude there is no genuine issue of material fact on this issue, we do not reach appellants' argument that the alleged failure to sound the horn was a proximate cause of the accident."

On appeal, the plaintiffs also argued that genuine issues of material fact exist as to whether Union Pacific negligently failed to avoid the accident once it became apparent the result would be a collision.

More specifically, they claim that issues of fact exist as to whether the railroad company breached its duty to exercise ordinary care to avoid the accident by failing to take timely action to stop or slow the train.

The district court did not address the claim because it concluded it was "speed-related" and preempted by federal law.

The Court, however, said slowing was encompassed in the company's duty to exercise ordinary care.

"Although the record shows as a matter of law that the train could not have been stopped before it reached the crossing, it is silent on what effect activation of the emergency brake would have had on the speed of the train. It is thus impossible to conclude on this record that the train's speed could not have been reduced had the engineer pulled the emergency brake immediately after the vehicle left the stop sign," Stephan wrote.

"Union Pacific did not meet its burden to show it is entitled to summary judgment on this issue."

In this case, the Court said the amount of time the driver would have had to get off the tracks and avoid the accident is a "critical" factor that is dependent, in part, on the engineer's reaction.

As to whether the claim is preempted by federal law -- as the district court ruled -- the Court said it is not.

"State tort law is not preempted 'until' a federal regulation 'cover(s)' the same subject matter, and we are not presented with any federal regulations that cover a railroad's duty to exercise ordinary care in situations where collisions are imminent," Stephan explained.

"The mere fact that the speed the train is traveling is tangentially related to how quickly it can be stopped does not transform the claim into an excessive speed claim."

From Legal Newsline: Reach Jessica Karmasek by email at

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