NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 6 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIM NAY, as personal representative of the No. 22-35722
estate of Maria Gonzalez Torres,
D.C. No. 3:19-cv-05425-BHS
Plaintiff-Appellant,
and MEMORANDUM*
ISAI GONZALEZ-TORRES,
Plaintiff,
v.
BNSF RAILWAY COMPANY; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted August 16, 2023
Anchorage, Alaska
Before: MURGUIA, Chief Judge, and PAEZ and NGUYEN, Circuit Judges.
In May 2017, an Amtrak passenger train crashed into Maria Gonzalez-
Torres’s car when she drove onto a private railroad crossing in Camas, Washington.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Gonzalez-Torres was killed, and her son, a passenger in the car, was injured.
Gonzalez-Torres’s estate and son (“Plaintiffs”) sued Amtrak, two Amtrak
employees, and BNSF Railway Company, the operator of the railroad (collectively,
“Defendants”). Plaintiffs alleged that Defendants were negligent in failing to: (1)
timely sound a horn before the train reached the crossing, (2) install adequate signage
and warning devices, and (3) clear the foliage that obstructed motorists’ sightlines.
The district court granted summary judgment to Defendants, concluding that the
claims were preempted by the Federal Railroad Safety Act (“FRSA”); that
Defendants did not breach any duty to Plaintiffs as a matter of law; and that
Gonzalez-Torres’s motorist behavior was the sole proximate cause of the collision.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district
court’s grant of summary judgment. Branch Banking & Tr. Co. v. D.M.S.I., LLC,
871 F.3d 751, 759 (9th Cir. 2017). Viewing the evidence in the light most favorable
to the nonmoving party, we determine “whether there are any genuine issues of
material fact and whether the district court correctly applied the relevant substantive
law.” Jones v. Royal Admin. Servs., Inc., 887 F.3d 443, 447 (9th Cir. 2018) (internal
quotation marks omitted). We affirm in part, reverse in part, and remand.
1. For the FRSA to preempt a plaintiff’s state-law claim, the federal law
or a regulation promulgated under it must “cover” the same subject matter as the
state law and “not merely touch upon or relate to that subject matter.” Norfolk S. Ry.
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Co. v. Shanklin, 529 U.S. 344, 353 (2000) (cleaned up). “Normal State negligence
standards apply when there is no Federal action covering the subject matter.” 49
C.F.R. § 217.2.
The FRSA does not preempt Plaintiffs’ claim that Defendants acted
negligently by failing to sound a horn. Federal regulations expressly allow states to
require the use of a horn at a private crossing. See 49 C.F.R. § 222.25 (stating that
where state law requires the sounding of a horn at a private crossing, the horn must
be sounded in a particular manner). The FRSA also does not preempt Plaintiffs’
claim that Defendants were negligent in failing to install adequate warning devices.
The FRSA only preempts warning-device claims if the warning system was paid for
in part with federal funding and is fully installed and working. See 23 C.F.R.
§ 646.214(b)(2)–(4). Here, it is uncontested that federal funds were not used in the
installation of any warning devices at the relevant crossing.
The FRSA does preempt Plaintiffs’ visual-obstruction claim to the extent it is
based on allegations about vegetation on railroad property that was “on or
immediately adjacent to [the] roadbed.” 49 C.F.R. § 213.37. But Plaintiffs’ claim
is not preempted insofar as it concerns vegetation that was not “on or immediately
adjacent to [the] roadbed.” Id.
2. Washington common law imposes a duty on railroads at private railroad
crossings to provide warnings that are “adequate for the circumstances.” See Mulkey
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v. Spokane, Portland & Seattle Ry. Co., 396 P.2d 158, 161–63 (Wash. 1964); see
also Goodner v. Chi., Milwaukee, St. Paul & Pac. R.R. Co., 377 P.2d 231, 234
(Wash. 1962) (explaining that it is for a jury to decide whether the railroad’s
warnings “were adequate under the circumstances”).
Viewing the evidence in the light most favorable to Plaintiffs, Plaintiffs have
presented evidence that could support a reasonable jury’s finding that the warnings
here were inadequate for the circumstances. See Owen v. Burlington N. & Santa Fe
R.R. Co., 108 P.3d 1220, 1223 (Wash. 2005) (observing that “issues of negligence
. . . are generally not susceptible to summary judgment” (internal quotation marks
omitted)). The Amtrak engineer did not sound the horn until he saw Gonzalez-
Torres’s car, between one and three seconds before the collision. And the crossing
only had passive warnings: an unofficial stop sign on the left side of the road and an
official stop sign and railroad crossbuck sign on the right side of the road. There are
triable issues of fact about whether the allegedly dangerous circumstances warranted
the earlier sounding of a horn or installation of additional warning devices.
Washington is a pure comparative fault state. Wash. Rev. Code § 4.22.070.
Under that framework, a negligent defendant is liable for their share of fault, even if
the plaintiff’s fault is greater than that of the defendant’s. Washburn v. Beatt Equip.
Co., 840 P.2d 860, 885 (Wash. 1992); see Wash. Rev. Code § 4.22.005. Here,
Gonzalez-Torres’s failure to stop at the posted stop sign was not, as a matter of law,
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the sole proximate cause of the accident. Plaintiffs submitted sufficient evidence
that would support a reasonable jury’s finding that an earlier sounding of the horn
and/or additional warning devices would have prevented the accident.
We therefore reverse the district court’s grant of summary judgment to
Defendants on Plaintiffs’ failure-to-sound-the-horn and inadequate-warning-device
claims, and remand for further proceedings.
3. Plaintiffs have not shown that Defendants have a duty to clear
vegetation that is not on the railroad’s property. Nor have Plaintiffs shown that
Defendants have a duty to work with adjoining landowners or the local road
authority to remove vegetation. And as to any non-preempted allegations of
vegetation on the railroad’s property, Defendants presented evidence that a driver’s
sightline would not be obstructed by any such vegetation, and Plaintiffs failed to
submit compelling competing evidence. Plaintiffs thus have not established a
genuine dispute of material fact to defeat summary judgment on this claim.
We therefore affirm the district court’s grant of summary judgment to
Defendants on Plaintiffs’ visual-obstruction claim.
Defendants will bear the costs of this appeal. Fed. R. App. P. 39(a)(4).
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.1
1
Plaintiffs’ pending Motion to Certify (ECF No. 10) is DENIED as moot.
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