Otten v. BNSF Railway Company ( 2023 )

Appellate Case: 22-8025 Document: 010110811865 Date Filed: 02/13/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 13, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
TIM OTTEN,
Plaintiff - Appellant,
No. 22-8025
v. (D.C. No. 2:20-CV-00103-ABJ)
(D. Wyo.)
BNSF RAILWAY COMPANY; UNION
PACIFIC RAILROAD COMPANY,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before McHUGH, KELLY, and EID, Circuit Judges.
_________________________________
Thermo Fluids, Inc. dispatched Tim Otten to retrieve oil from a railyard in
Wyoming. After finding the oil barrel empty, Mr. Otten, driving a tanker truck, sought to
exit the railyard. As Mr. Otten approached a track crossing, so too did a Burlington
Northern Santa Fe (“BNSF”) train. Mr. Otten attempted to cross the tracks without first
stopping, looking, or listening for a train. A collision ensued.
Mr. Otten filed suit, alleging negligence against BNSF and Union Pacific, an
owner of the railyard. Mr. Otten contended poor design of the rail crossing prevented him
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
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from squaring his truck to the crossing to look for a train. BNSF and Union Pacific
moved for summary judgment, arguing Mr. Otten violated 49 C.F.R. § 392.10(a)’s
requirement that a truck stop, look, and listen before crossing a rail track and that this
violation was (1) negligence per se and (2) the proximate cause of the accident.
The district court granted summary judgment in accord with BNSF’s and Union
Pacific’s arguments. Mr. Otten appeals. Procedurally, Mr. Otten argues the district court
abused its discretion by relying on arguments raised for the first time by BNSF and
Union Pacific in their reply brief on summary judgment. As to the substance of the
district court’s reasoning, Mr. Otten contends § 392.10(a) did not apply to him, it was
impossible for him to comply with § 392.10(a) based on the configuration of the rail
crossing, and a Wyoming court would not treat any violation of § 392.10(a) as negligence
per se or the only proximate cause of the collision.
For five reasons, we affirm the district court’s grant of summary judgment. First,
BNSF’s and Union Pacific’s reply brief on summary judgment permissibly expanded
upon opening brief arguments and addressed arguments advanced by Mr. Otten in his
response brief. Second, Mr. Otten waived his argument that 49 C.F.R. § 392.10(a) did not
apply. Third, although the rail crossing was not ideally designed, the crossing
configuration did not prevent Mr. Otten from complying with the regulation. Fourth, the
district court did not abuse its discretion when it concluded a violation of § 392.10(a)
would amount to negligence per se under Wyoming law. Fifth, Mr. Otten’s failure to
stop, look, and listen was an intervening and unforeseeable cause of the accident,
relieving BNSF and Union Pacific of any liability.
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I. BACKGROUND
A. Factual History
In 2017, Thermo Fluids, Inc. employed Mr. Otten as a truck driver. At that time,
Thermo Fluids, Inc. held a contract with BNSF to remove oil from railyards in Wyoming.
On the date of the accident, Thermo Fluids, Inc. dispatched Mr. Otten to remove oil from
a BNSF railyard in Wright, Wyoming.
To access the barrel where BNSF stored the oil, a vehicle needed to enter the
railyard from Hilight Road, cross three main-line tracks, and make a left turn to the
north onto a dirt road that ran parallel to main-line track 1 (“M1”). From the crossing,
it was just under a quarter mile to the oil barrel. Of additional note, a pair of curved
BNSF “Wye” tracks ran just to the east of the dirt road that provided access to the oil
barrel. An expert report offered by Mr. Otten identified the distance between the M1
track and the closest Wye track as twenty-six feet.
Prior to the date of the accident, Mr. Otten visited the Wright, Wyoming,
railyard on only one prior occasion. On that first occasion, BNSF provided Mr. Otten
an escort to lead him through the railyard, to the oil barrel, and back out of the
railyard. On the day of the accident, BNSF did not provide Mr. Otten an escort to
guide him through the railyard. Without an escort, Mr. Otten followed the previous
route to the oil barrel, entering the yard from the west off of Hilight Road, crossing
the three main tracks, making a left onto the dirt road, and traveling northward to the
oil barrel. Upon arriving at the oil barrel, Mr. Otten discovered it was empty. He
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called BNSF and was informed BNSF had not yet loaded the barrel and that he would
need to return another day to retrieve the oil.
Mr. Otten turned his truck around, looking to the north to see if a train was coming
before retracing his steps to exit the railyard. Mr. Otten drove south on the dirt road for
twenty to thirty seconds before reaching the crossing point for the main-line tracks.
During those twenty to thirty seconds, Mr. Otten did not look or listen for any oncoming
trains.1 As Mr. Otten approached the crossing, a BNSF train traveling southbound on the
M1 track also approached the crossing. The BNSF train was traveling well under the
speed limit for the section of track and blew its horn several times as it approached the
crossing.2 Mr. Otten did not come to a stop or markedly slow his truck as he reached the
crossing point. Rather, Mr. Otten turned directly onto the crossing, driving into the path
of the BNSF train. The front left corner of the train struck the front right side of
Mr. Otten’s truck. In his operative complaint, Mr. Otten alleges that, as a result of the
collision, he suffers from “debilitating, progressive and permanent bodily injuries to his
head, body and limbs, including facial laceration, traumatic brain injury, spinal, shoulder,
hip, leg, lung, [and] ribs” and that his injuries may necessitate a permanent caretaker.
App. at 68.
1
Mr. Otten had the windows up and the radio on in his truck, and there was a
strong wind such that he could not hear an approaching train.
2
The speed limit for the section of the track in the railyard was fifty miles per
hour. The BNSF train was traveling between thirty-seven and thirty-eight miles per
hour.
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B. Procedural History
Mr. Otten filed a complaint against BNSF in state court, raising a claim of
negligence.3 BNSF removed the case to federal court. Mr. Otten filed an amended
complaint, raising a claim of negligence against BNSF and a claim of negligence against
Union Pacific. BNSF and Union Pacific filed answers to the amended complaint, and the
case proceeded to discovery.
BNSF and Union Pacific filed a joint motion for summary judgment. They argued
that Mr. Otten violated 49 C.F.R. § 392.10(a) by not stopping, looking, and listening
before crossing the track and that said violation was negligent per se.4 BNSF and Union
Pacific further argued Mr. Otten’s negligence per se was the proximate cause of the
accident. In support of these arguments, BNSF and Union Pacific cited a mix of
Wyoming case law regarding negligence, proximate cause, and the impact of regulatory
violations, as well as non-Wyoming cases involving vehicle/train collisions.
3
The state court complaint also identified Mr. Otten’s wife, Noella Otten, as a
plaintiff and identified Western Railroad Properties, Incorporated as a defendant. The
parties stipulated to the dismissal of Ms. Otten’s claims. As part of an amended
complaint, Mr. Otten replaced Western Railroad Properties, Incorporated with Union
Pacific.
4
In pertinent part, 49 C.F.R. § 392.10(a) states,
the driver of a commercial motor vehicle . . . shall not cross a railroad
track . . . unless he/she first: Stops the commercial motor vehicle within
50 feet of, and not closer than 15 feet to, the tracks; thereafter listens
and looks in each direction . . . for an approaching train; and ascertains
that no train is approaching.
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In opposing summary judgment, Mr. Otten scantly cited 49 C.F.R. § 392.10,
identifying it only in response to a few statements of undisputed facts by BNSF and
Union Pacific. Mr. Otten never suggested § 392.10(a) did not apply or that he had not
violated the regulation. Rather, Mr. Otten raised several arguments for why any violation
of § 392.10(a) did not compel granting summary judgment in BNSF’s and Union
Pacific’s favor. First, Mr. Otten contended that, under Wyoming law, when a court finds
that a plaintiff advancing a negligence claim violated a regulation, it has discretion to
conclude the violation is evidence of negligence rather than negligence per se and that
Wyoming courts favor submitting the issue of negligence to a jury. Second, Mr. Otten
argued any regulatory violation he committed was one of two proximate causes of the
accident—the design of the rail crossing being the other—such that the issue of
comparative negligence should be submitted to a jury. Third, Mr. Otten contended that if
he violated § 392.10(a), the violation should be excused because, given the spacing
between and configuration of the M1 and Wye tracks, it was impossible for him to
comply with the regulation and square up his truck to the track to look for an approaching
train.
In reply, BNSF and Union Pacific argued a Wyoming court would find this
regulatory violation negligence per se because 49 C.F.R. § 392.10(a) provided a “positive
and definite standard of care.” Id. at 212 (quoting Pinnacle Bank v. Villa, 100 P.3d 1287,
1291 (Wyo. 2004)). Next, BNSF and Union Pacific argued the temporal proximity
between Mr. Otten’s failure to stop, look, and listen, and the collision, made his violation
of § 392.10(a) the proximate cause of the accident. Finally, BNSF and Union Pacific
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countered Mr. Otten’s impossibility argument by noting Mr. Otten had the burden on the
issue, his evidence of impossibility was speculative and indefinite, and there was
evidence Mr. Otten could have complied with the regulation.
The district court granted the motion for summary judgment. The district court
concluded Mr. Otten violated 49 C.F.R. § 392.10(a) by not stopping, looking, and
listening before attempting to cross the M1 track. The district court further concluded
§ 392.10(a) set forth a “positive and definite standard of care” and a Wyoming court
would apply negligence per se to Mr. Otten’s violation of the regulation rather than
treating it as mere evidence of negligence. From this, the district court held that
Mr. Otten’s violation of the regulation was an intervening proximate cause, was not
foreseeable, and thus discharged any liability on the part of BNSF or Union Pacific.
Finally, the district court rejected Mr. Otten’s impossibility argument on the basis that
nothing prevented him from at least stopping and listening, which would have alerted him
to the approaching train.
On appeal, Mr. Otten raises five arguments, one procedural and four substantive,
for reversing the district court’s grant of summary judgment. On the procedural front,
Mr. Otten contends the district court abused its discretion because its grant of summary
judgment rests on several arguments and cases raised for the first time by BNSF and
Union Pacific in their reply brief. On the substantive front, Mr. Otten argues (1) he never
admitted 49 C.F.R. § 392.10(a), applied and BNSF and Union Pacific failed to advance
evidence proving such; (2) the district court should have excused any regulatory violation
because it was impossible for Mr. Otten to fully comply with § 392.10(a) given the
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geometry of the rail crossing; (3) the district court abused its discretion by concluding a
Wyoming court would treat any violation of § 392.10(a) as negligence per se rather than
evidence of negligence; and (4) even if the regulatory violation were treated as
negligence per se, the rail crossing design contributed to the accident such that a jury
should have been permitted to assess comparative negligence.
II. DISCUSSION
We start by addressing Mr. Otten’s procedural challenge, concluding the district
court did not abuse its discretion in considering arguments and case law discussed by
BNSF and Union Pacific in their reply brief on summary judgment. Then we address
Mr. Otten’s four substantive arguments and determine none of them warrants reversal of
the district court’s grant of summary judgment.
A. Procedural Challenge: Arguments Relied Upon by District Court
Mr. Otten contends BNSF and Union Pacific raised arguments for the first time in
their reply brief to the district court about (1) his regulatory violation qualifying as
negligence per se; and (2) his negligence being the proximate, intervening cause of the
accident, relieving them of liability. Mr. Otten further asserts the district court relied upon
these two arguments in granting summary judgment, as evident by its citations to
Pinnacle Bank and Estate of Coleman v. Casper Concrete Co., 939 P.2d 233 (Wyo.
1997). BNSF and Union Pacific counter that they raised the issues identified by
Mr. Otten in their opening brief to the district court and that their citation to additional
authority in their reply brief addressed arguments raised by Mr. Otten in his response
brief.
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We begin by stating the law governing reply brief argumentation on summary
judgment. Then we consider whether BNSF and Union Pacific waited until their reply
brief to raise either of the two arguments identified by Mr. Otten.
1. Law Governing Reply Brief Argumentation
“Federal Rule of Civil Procedure 56 implicitly requires the district court to allow
the nonmoving party an opportunity to respond before summary judgment is entered
against it.” Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1163 (10th Cir. 1998).5 “Thus,
when a moving party advances in a reply new reasons and evidence in support of its
motion for summary judgment, the nonmoving party should be granted an opportunity to
respond.” Id. at 1164; cf. D. Wyo. Local Civ. Rule 7.1(b)(2)(C) (“Reply briefs shall not
be used to . . . address issues not previously raised in the motion or response.”). A
moving party, however, does not introduce new arguments for summary judgment in its
reply merely by responding to arguments in the nonmoving party’s brief and “point[ing]
out the defects” in those arguments. Green v. New Mexico, 420 F.3d 1189, 1196 (10th
Cir. 2005); see also In re Gold Res. Sec. Litig., 776 F.3d 1103, 1119 (10th Cir. 2015)
(“While it is true that we generally do not review issues raised for the first time in a reply
brief, we make an exception when the new issue argued in the reply brief is offered in
5
Although Federal Rule of Civil Procedure 56 has been modified since Beaird
v. Seagate Technology, Inc., 145 F.3d 1159 (10th Cir. 1998), such that the precise
language relied upon in Beaird is no longer in Rule 56, the Rule still includes
language generally supporting the implication identified by Beaird. Cf. Fed. R. Civ.
P. 56(b)(2) (permitting party to object to alleged fact); 56(f) (permitting district court
to grant summary judgment on own motion but only “[a]fter giving notice and a
reasonable time to respond”).
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response to an argument raised in the plaintiff’s brief.” (internal quotation marks and
brackets omitted)).
We review whether a district court violated the implicit guarantee of Rule 56 by
relying on an argument raised by the moving party for the first time in its reply brief for
an abuse of discretion. Beaird, 145 F.3d at 1164. “Under the abuse of discretion standard,
a trial court’s decision will not be disturbed unless we have a definite and firm conviction
that the lower court has made a clear error of judgment or exceeded the bounds of
permissible choice in the circumstances.” Id. (internal quotation marks and brackets
omitted). A district court relying on new evidentiary materials or new arguments
presented in a reply brief without permitting the nonmoving party an opportunity to
respond amounts to an abuse of discretion. Doebele v. Sprint/United Mgmt. Co., 342 F.3d
1117, 1139 n.13 (10th Cir. 2003).
2. Argument that Violation of 49 C.F.R. § 392.10 Qualified as Negligence Per Se
First, Mr. Otten argues BNSF and Union Pacific failed to timely argue his
violation of 49 C.F.R. § 392.10(a) amounted to negligence per se. In addressing whether
Mr. Otten was negligent per se, the district court specifically identified BNSF and Union
Pacific as raising the issue on page thirteen of their opening brief. On that page of their
brief, BNSF and Union Pacific (1) quoted § 392.10(a), (2) asserted Mr. Otten “failed to
slow down or stop prior to going over the crossing as required by th[e] regulation,”
(3) asserted Mr. Otten failed to “look and listen prior to going over the crossing,” and
(4) contended Mr. Otten “exhibited negligence.” App. at 109. BNSF and Union Pacific
then discussed Distad v. Cubin, 633 P.2d 167 (Wyo. 1981), a Wyoming case that adopted
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a provision of the Restatement (Second) of Torts that advanced four elements for
determining when a regulatory violation qualifies as negligence per se. BNSF and Union
Pacific proceeded to discuss why § 392.10(a) and Mr. Otten’s conduct satisfied these four
elements. Thus, it is apparent BNSF and Union Pacific argued, in their opening brief on
summary judgment, that a Wyoming court would treat a violation of § 392.10(a) as
negligence per se.
Mr. Otten contends BNSF and Union Pacific presented an incomplete argument on
the issue because they did not inform the district court that, even if all four elements from
Distad and the Restatement (Second) of Torts were met, a Wyoming court would not
exercise its discretion to apply negligence per se unless the regulation also imposed a
“positive and definite standard of care.” Appellant’s Br. at 16 (quoting Pinnacle Bank,
100 P.3d at 1291). It is true that, under Wyoming law, a trial court has such discretion
even where the moving party presents evidence showing the regulatory violation satisfies
all four elements. Short v. Spring Creek Ranch, Inc., 731 P.2d 1195, 1198 (Wyo. 1987).
But nothing required BNSF and Union Pacific, in their opening brief on summary
judgment, to identify and then attempt to defeat arguments Mr. Otten might raise for why
a violation of § 392.10(a) was not negligence per se. Rather, once Mr. Otten contended
application of negligence per se was discretionary, BNSF and Union Pacific were free to
amplify their argument in their reply by contending a Wyoming court would exercise
such discretion where a regulation stated a “positive and definite standard of care.” App.
at 212; see Green, 420 F.3d at 1196–97; see also In re Gold Res. Sec. Litig., 776 F.3d at
1119. Furthermore, Mr. Otten raised the issue of a court’s discretion to find evidence of
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negligence rather than negligence per se in his response brief. Therefore, we conclude the
district court did not contravene the implied purpose of Federal Rule of Civil Procedure
56 or abuse its discretion by considering the issue of whether Mr. Otten’s violation of
§ 392.10(a) qualified as negligence per se under Distad and the “positive and definite
standard of care” threshold.
3. Argument that Mr. Otten’s Negligence was the Proximate, Intervening Cause
The district court also concluded Mr. Otten’s violation of 49 C.F.R. § 392.10(a)
was a proximate and intervening cause of the accident, was not foreseeable, and therefore
discharged BNSF and Union Pacific of any liability for the accident. In addressing the
issue, the district court specifically identified BNSF and Union Pacific as raising the
argument on pages fourteen and fifteen of their opening brief. There, BNSF and Union
Pacific contended that Mr. Otten’s violation of § 392.10(a) was “the proximate cause of
any injury” given the “temporality between the violation of 49 C.F.R. § 392.10[(a)] and
the accident itself” and that the violation was “the sole cause of the collision, representing
a superseding or intervening cause, and cutting off any claims of negligence against the
Defendants.” App. at 110–11. Thus, we conclude BNSF and Union Pacific did raise this
issue in their opening brief on summary judgment, and the district court did not abuse its
discretion by reaching the issue.6
6
In so concluding, we acknowledge BNSF’s and Union Pacific’s briefing of
this issue was on the cursory side and it was not until their reply brief that they
identified a Wyoming case for the proposition that an “intervening cause which was
not reasonably foreseeable,” could relieve them of liability and permit for summary
judgment. App. at 213 (quoting Est. of Coleman v. Casper Concrete Co., 939 P.2d
233, 237 (Wyo. 1997)). However, imperfect briefing does not equate to inadequate
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B. Substantive Challenges
Mr. Otten raises four substantive challenges to the district court’s grant of
summary judgment, one of which involves the interpretation of federal law while the
other three advance issues governed by state law. We start by stating the standard of
review applicable to appeals from grants of summary judgment. Then we address
Mr. Otten’s argument involving federal law. Finally, we address Mr. Otten’s three
arguments governed by state law.
1. Standard of Review
We review the district court’s rulings on summary judgment de novo, applying the
same standard as the district court. See Universal Underwriters Ins. Co. v. Winton, 818
F.3d 1103, 1105 (10th Cir. 2016). Summary judgment is appropriate if “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); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). On appeal, we “examine the
record and all reasonable inferences that might be drawn from it in the light most
favorable to the non-moving party.” Merrifield v. Bd. of Cnty. Comm’rs, 654 F.3d 1073,
briefing. And Mr. Otten, based on his response to summary judgment, certainly
understood the nature of BNSF’s and Union Pacific’s argument. See id. at 163–65
(arguing that any violation of § 392.10(a) was a proximate cause rather than the only
proximate cause of the collision such that the case should be submitted to a jury for a
comparative negligence analysis). Thus, the concern implicitly protected against by
Federal Rule of Civil Procedure 56—that a non-moving party is deprived the
opportunity to address an issue central to the district court’s ruling—is not in play in
this case.
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1077 (10th Cir. 2011). “In so doing, we ‘need not defer to factual findings rendered by
the district court.’” Amparan v. Lake Powell Car Rental Cos., 882 F.3d 943, 947 (10th
Cir. 2018) (quoting CareFirst of Md., Inc. v. First Care, P.C., 434 F.3d 263, 267 (4th Cir.
2006)). Finally, this court “can affirm on any ground supported by the record, so long as
the appellant has had a fair opportunity to address that ground.” Alpine Bank v. Hubbell,
555 F.3d 1097, 1108 (10th Cir. 2009).
2. Federal Law Argument: Applicability of 49 C.F.R. § 392.10(a) and Waiver
Mr. Otten contends the district court erred in concluding 49 C.F.R. § 392.10(a)
applied. Specifically, Mr. Otten argues BNSF and Union Pacific did not demonstrate the
oil BNSF tasked him with removing from the railyard was a “hazardous material” for
purposes of § 392.10(a)(4) or that any other provision in § 392.10(a)(1)-(a)(6) triggered
applicability of the regulation. In advancing this argument, Mr. Otten contends he “was
not called upon to admit or deny” that the regulation applied and did not so admit, as
evident by his repeated use of “‘alleged violations’ of the regulations” in his response to
summary judgment. Appellant’s Br. at 19 (quoting App. at 147, 158, 163–64, 166). In
response, BNSF and Union Pacific argue that Mr. Otten waived this issue by not raising
it in the district court and not presenting it through the lens of plain error in his opening
brief on appeal. We agree with BNSF’s and Union Pacific’s waiver argument and,
therefore, do not reach the issue of whether § 392.10(a) applied to Mr. Otten.
“If a claimant fails to present an issue to the district court, the issue is forfeited
unless compelling reasons dictate that the forfeiture be excused.” Kilcrease v. Domenico
Transp. Co., 828 F.3d 1214, 1224 n.9 (10th Cir. 2016) (quotation marks omitted).
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Further, where a litigant fails to raise an issue in district court, the issue is subject to plain
error review and the litigant’s “failure to argue for plain error and its application on
appeal . . . surely marks the end of the road for an argument for reversal not first
presented to the district court.” Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th
Cir. 2011). Finally, a litigant seeking this court’s review of a forfeited issue must present
his plain error argument in his opening brief, not his reply brief; otherwise the issue is
waived. See Platt v. Winnebago Indus., Inc., 960 F.3d 1264, 1273 (10th Cir. 2020)
(“Where counsel fails to raise a theory in the district court out of neglect . . . we consider
it forfeited and we review forfeited theories for plain error. In order to avoid a waiver on
appeal, a party is required to identify plain error as the standard of review in their
opening brief and to provide a defense of that standard’s application.” (emphasis added)
(citations omitted)).
In their brief in support of summary judgment, BNSF and Union Pacific cited 49
C.F.R. § 392.10 nineteen times and quoted the provision. See App. at 101–18. In so
doing, BNSF and Union Pacific stated, in multiple places, that Mr. Otten “violated”
§ 392.10(a). Id. at 101, 106, 110. And BNSF and Union Pacific cited case law involving
violations of § 392.10(a) for the proposition that a violation of the regulation amounted to
negligence per se and thus compelled a grant of summary judgment. Id. at 113–14 (citing
Dietz v. Atchinson, Topeka & Santa Fe Ry., 823 P.2d 810, 816 (Kan. Ct. App. 1991);
Gasich v. Chesapeake & Ohio R.R. Co., 453 N.E.2d 371, 376 (Ind. Ct. App. 1983)).
Thus, although Mr. Otten attempts to fault BNSF and Union Pacific for not specifically
alleging in a statement of fact that § 392.10(a) applied to him and that he had violated the
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provision, it is entirely clear from the summary judgment brief of BNSF and Union
Pacific that they contended § 392.10(a) applied to Mr. Otten and that a violation of it was
essential to their motion.
In his response to the summary judgment motion, although Mr. Otten never
conceded 49 C.F.R. § 392.10(a) applied or that he violated the provision, he also never
argued the provision did not apply. Rather, he remained silent on the matter, hardly citing
§ 392.10, and presenting several arguments for why any violation of the regulation did
not require the district court to grant summary judgment in favor of BNSF and Union
Pacific. Accordingly, we conclude Mr. Otten failed to contest the applicability of
§ 392.10(a) before the district court.
As a result of his failure to present the argument to the district court, Mr. Otten
needed to present his appellate argument about the inapplicability of 49 C.F.R.
§ 392.10(a) through the lens of plain error. However, Mr. Otten’s opening brief makes no
mention of plain error. Instead, Mr. Otten did not raise plain error review until his reply
brief. But, by then, it was too late, as Mr. Otten had already waived appellate review of
whether § 392.10(a) was applicable. See Platt, 960 F.3d at 1273. Accordingly, we
proceed under the assumption that § 392.10(a) applied and that Mr. Otten violated the
regulation.
3. State Law Arguments
Mr. Otten raises three arguments under Wyoming law for why his violation of 49
C.F.R. § 392.10(a) did not warrant summary judgment against him: (1) it was impossible
for him to comply with § 392.10(a); (2) a Wyoming court would have treated the
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violation as evidence of negligence rather than negligence per se; and (3) it was not the
only proximate cause of the accident, such that a jury should have performed a
comparative negligence analysis. Before addressing each of these issues in turn, we
briefly discuss how federal courts apply state law in actions based in diversity
jurisdiction.
a. Federal court application of state law
Under Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), “federal courts sitting in
diversity apply state substantive law and federal procedural law.” Gasperini v. Ctr.
for Humanities, Inc., 518 U.S. 415, 427 (1996). The Rules of Decision Act, 28 U.S.C.
§ 1652, prohibits federal courts from “generating substantive law in diversity
actions.” Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393,
438 (2010) (Ginsburg, J., dissenting). Instead, when faced with an issue of state
substantive law, a federal court “has a duty to apply state law as announced by the
state’s highest court” that otherwise would have jurisdiction over the claim at issue.
Koch v. Koch Indus., Inc., 203 F.3d 1202, 1230 (10th Cir. 2000). If the state’s highest
court has not directly addressed the issue, a federal court “must endeavor to predict
how that high court would rule.” Stickley v. State Farm Mut. Auto. Ins. Co., 505 F.3d
1070, 1077 (10th Cir. 2007). This process of determining how the highest court of a
state would rule is sometimes referred to as making an “Erie-guess.” Pehle v. Farm
Bureau Life Ins. Co., 397 F.3d 897, 901 (10th Cir. 2005).
In this case, neither Mr. Otten nor BNSF and Union Pacific identifies a
Wyoming Supreme Court case applying 49 C.F.R. § 392.10(a). Thus, although the
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parties identify Wyoming Supreme Court cases involving the impossibility of
compliance with a regulation, negligence per se, and proximate and intervening
causes, we must ultimately make an Erie-guess as to how a Wyoming court would
address those concepts in the context of a violation of § 392.10(a). A federal court
tasked with making an Erie-guess should start its analysis by considering relevant
rulings by courts of the state. Stickley, 505 F.3d at 1077. A federal court may also
look to “appellate decisions in other states with similar legal principles, district court
decisions interpreting the law of the state in question, and the general weight and
trend of authority in the relevant area of law.” Wade v. EMCASCO Ins. Co., 483 F.3d
657, 666 (10th Cir. 2007) (internal quotation marks and citations omitted). In
conducting an Erie-guess analysis, federal courts should be “generally reticent to
expand state law without clear guidance from [the state’s] highest court.” Belnap v.
Iasis Healthcare, 844 F.3d 1272, 1295 (10th Cir. 2017); see also id. (stating that it is
not a federal court’s place to “expand . . . state law beyond the bounds set by the
[highest court of the state]”).
b. Impossibility of compliance with 49 C.F.R. § 392.10(a)
The pertinent provision of 49 C.F.R. § 392.10 reads:
Except as provided in paragraph (b) of this section, the driver of a
commercial motor vehicle specified in paragraphs (a)(1) through (6) of
this section shall not cross a railroad track or tracks at grade unless
he/she first: Stops the commercial motor vehicle within 50 feet of, and
not closer than 15 feet to, the tracks; thereafter listens and looks in each
direction along the tracks for an approaching train; and ascertains that
no train is approaching. When it is safe to do so, the driver may drive
the commercial motor vehicle across the tracks in a gear that permits the
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commercial motor vehicle to complete the crossing without a change of
gears. The driver must not shift gears while crossing the tracks.
49 C.F.R. § 392.10(a) (emphasis added). It is undisputed that Mr. Otten did not stop his
truck, listen for a train, or look in both directions before attempting to cross the M1 track.
Mr. Otten, however, argues any violation of the regulation should be excused because it
was impossible for him to comply with the regulation. More specifically, Mr. Otten
contends that given the configuration of the tracks and that only twenty-six feet separated
the M1 track from the Wye track, it was not possible for him to comply with the
regulation because he could not “square[] up” his truck and stop it at least fifteen feet
from the M1 track without crossing into, or fouling, the Wye track. Appellant’s Br. at 48.
While Wyoming law recognizes that a violation of a regulation may be
excused, it does so in limited circumstances. Distad, 633 P.2d at 175–76.
Specifically, Distad adopted Restatement (Second) of Torts § 288A, which excuses a
regulatory violation in five specific circumstances:
(a) the violation is reasonable because of the actor’s incapacity;
(b) he neither knows nor should know of the occasion for compliance;
(c) he is unable after reasonable diligence or care to comply;
(d) he is confronted by an emergency not due to his own misconduct;
(e) compliance would involve a greater risk of harm to the actor or to others.
Id. (quoting Restatement (Second) of Torts § 288A(2)) (emphasis added). Mr. Otten’s
argument falls under the third circumstance. However, for two reasons, Mr. Otten is
unable to satisfy this circumstance.
First, Mr. Otten misreads the regulation. While Mr. Otten contends the track
geometry prevented him from squaring up his truck to the track, nothing in 49 C.F.R.
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§ 392.10(a) required Mr. Otten to place his truck at an angle perpendicular to the track.
Rather, it required him to stop his truck “not closer than 15 feet to[] the tracks” and
“listen[] and look[] in each direction along the tracks for an approaching train” to
determine that “no train [was] approaching” before crossing the tracks. 49 C.F.R.
§ 392.10(a). Thus, Mr. Otten could have complied with the regulation if he had brought
his truck to a stop at an angle of less than ninety degrees to the M1 track, looked to his
right and left, and listened for a train before attempting to cross the track. And
Mr. Otten’s supervisor testified that, without performing a three-point turn or
encroaching on the opposing Wye track, one could bring a truck to a stop at a sixty-
degree angle to the track—a position from which a driver could look up and down the M1
track. App. at 182–83. Thus, even if Mr. Otten could not square up with the track, this
does not show he was “unable” to comply with the regulation.
Second, even if Mr. Otten had advanced evidence demonstrating he was “unable”
to comply with the regulation, Wyoming law requires more for excusal of a regulatory
violation. Specifically, inability to comply with a regulation is excusable under Wyoming
law only after the violator exercises “reasonable diligence or care to comply.” Distad,
633 P.2d at 76 (quoting Restatement (Second) of Torts § 288A(2)(c)). Here, as
demonstrated by the video of the crash, Mr. Otten made no meaningful attempt to
exercise care when crossing the track. He did not stop at an angle to the track and look up
and down the track, as sight lines might have permitted. He did not lower a window and
listen for a train. He did not even slow down and make a meaningful effort to look in his
side view mirror before turning onto the track. And, given the very close proximity of the
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train to the crossing when Mr. Otten attempted to cross and that the train was blowing its
horn, any one of these exercises in reasonable diligence and care would have alerted
Mr. Otten to the train’s presence. As a result, even if it had been impossible for Mr. Otten
to comply with 49 C.F.R. § 392.10(a), his violation is not excusable under Wyoming law.
c. Negligence per se versus evidence of negligence
Next, Mr. Otten argues the district court “abused its discretion” by concluding his
violation of 49 C.F.R. § 392.10(a) was negligence per se rather than evidence of
negligence.7 Appellant’s Br. at 1, 13, 22. Although we acknowledge that Wyoming
disfavors negligence per se, we cannot say the district court abused its discretion given
the basic and definite standard announced by § 392.10(a).
Under Wyoming law, “[t]he thrust of the negligence per se rule is that a legislative
or administrative rule fixes a standard for all members of the community which does not
require a specific interpretation by the jury, and thus certainty is promoted.” Short, 731
P.2d at 1198. Therefore, a court may rely upon a legislative enactment or an
7
Mr. Otten argues that Wyoming’s abuse of discretion standard, rather than
the de novo standard federal appellate courts apply to a grant of summary judgment,
controls this issue. Without passing on this potential issue, we apply the abuse of
discretion standard under which Mr. Otten has argued his case. See BLB Aviation
S.C., LLC v. Jet Linx Aviation, LLC, 748 F.3d 829, 835 (8th Cir. 2014) (“Because
both parties cite state law for the standard of review, we look to state law for the
standard of review.”); see also Access Telecomms. v. Sw. Bell Tel. Co., 137 F.3d 605,
608 (8th Cir. 1998) (“In their briefs, both parties argue based on the assumption that
we review de novo the issue of whether the doctrine of primary jurisdiction was
properly applied by the District Court. Without deciding the standard-of-review
question, which is best left to be resolved in a case in which it is contested, we accept
the parties’ invitation to review the . . . issue de novo (footnote omitted)).
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administrative regulation to establish a standard of care. Distad, 633 P.2d at 172.
However, in considering whether a regulation may serve as the basis for negligence per
se, a court must be cognizant that “it is seldom that [a regulation] provides specifically a
standard of conduct which, if violated shall entail civil liability in tort.” Id.
To help a trial court determine whether a regulatory violation is negligence per
se rather than evidence of negligence, the Wyoming Supreme Court has adopted the
approach of the Restatement (Second) of Torts and directs a trial court to engage in a
three-step process:
(1) the standard defined by legislation or administrative rule should only
be adopted when the four criteria of § 286, Restatement 2d, are met;
(2) the excused violation of the legislative enactment or administrative
rule is not negligence (a non-exclusive list of excused violations is
encompassed in § 288A, Restatement 2d); and (3) even if the court finds
that the criteria of § 286 are met, it is not required to adopt the
legislative enactment as the standard of conduct because of the
permissive language of the Restatement 2d.
Short, 731 P.2d at 1198–99. We have already concluded Mr. Otten’s regulatory
violation is not excusable for purposes of the second step of the process, so we focus
our analysis in this section on the first and third steps.
Regarding the first step, under the Restatement (Second) of Torts, a regulation
establishes a “standard of conduct of a reasonable man” if a court concludes the
regulation is designed:
(a) to protect a class of persons which includes the one whose interest is
invaded, and
(b) to protect the particular interest which is invaded, and
(c) to protect that interest against the kind of harm which has resulted,
and
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(d) to protect that interest against the particular hazard from which the
harm results.
Distad, 633 P.2d at 175 (quoting Restatement (Second) of Torts § 286). Mr. Otten does
not seriously contend that these four elements are not satisfied, nor could he. The stop,
look, and listen regulation advanced by 49 C.F.R. § 392.10(a) is designed to protect truck
operators and railroads from train/truck collisions by requiring truck operators to take
precautions before crossing a train track. Here, Mr. Otten did not stop, look, and listen,
and the harm sought to be avoided by § 392.10(a)—a collision—ensued. Accordingly, we
turn to the third step in the process for determining when a regulatory violation may give
rise to negligence per se.
On the third step, although the Wyoming Supreme Court has expressed reluctance
to rely on regulatory violations to apply negligence per se, it has allowed the trial court
the discretion to apply the doctrine when appropriate. To be sure, the Wyoming Supreme
Court has recognized systemic “benefits” to treating a regulatory violation as mere
evidence of negligence and submitting the matter to a jury, rather than concluding the
violation is negligence per se. Frost v. Allred, 148 P.3d 17, 21 (Wyo. 2006). And BNSF
and Union Pacific have not identified, and we have not found, a single case where a
Wyoming court has applied negligence per se, much less a case where the Wyoming
Supreme Court held that a trial court did not abuse its discretion by applying negligence
per se. While this lack of authority causes us to carefully consider whether to uphold the
application of negligence per se, we are also cognizant that the Wyoming Supreme Court
has not foreclosed application of the doctrine. See Belnap, 844 F.3d at 1295 (stating
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federal courts should be “generally reticent to expand state law without clear guidance
from [Wyoming’s] highest court”).
The Wyoming Supreme Court has adopted the Restatement, which permits for
negligence per se. In Distad, the Wyoming Supreme Court quoted the following language
from the Restatement:
(1) The unexcused violation of a legislative enactment or an
administrative regulation which is adopted by the court as defining the
standard of conduct of a reasonable man, is negligence in itself.
(2) The unexcused violation of an enactment or regulation which is not
so adopted may be relevant evidence bearing on the issue of negligent
conduct.
633 P.2d at 176 (quoting Restatement (Second) of Torts § 288B). The commentary to
§ 288B of the Restatement expresses a similar sentiment, permitting negligence per se but
cautioning against its use:
More frequently than in the case of statutes or ordinances, the
requirements of administrative regulations are not adopted by the court
as defining a definite standard of conduct in negligence actions, but are
accepted as affording relevant evidence. The courts have tended to look,
more often than in the case of a statute, to the nature of the regulation,
the circumstances of the case, and particularly to the character and
importance of the administrative body which has issued the regulation.
Thus a rule of the Interstate Commerce Commission may be adopted as
defining a definite standard, a departure from which is negligence in
itself, where an order of a city fire department commission would at
most be accepted as relevant evidence.
Id. (quoting Restatement (Second) of Torts § 288B cmt. d).
From its reading of the Restatement, the Wyoming Supreme Court has
concluded that a trial court “may adopt” a standard of conduct from a regulation and
apply negligence per se but that “application of negligence per se is not always
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appropriate.” Id. at 176–77 (citing McLinn v. Kodiak Elec. Assoc., Inc., 546 P.2d
1305 (Alaska 1976), and Restatement (Second) of Torts § 288B cmt. d). Wyoming
cases have identified at least five situations where negligence per se should not be
applied to the violation of a regulation: (1) the regulation, while still legally valid, is
inconsistent with modern practices, id. at 178; (2) the regulation is “overbroad and
inflexible,” id.; (3) the regulation is “obscure, oblique, or irrational,” such that
members of the public would not be aware of the regulation, Short, 731 P.2d at 1199;
(4) the violation of the regulation was “insubstantial” and not “unreasonably
dangerous,” Pullman v. Outzen, 924 P.2d 416, 418 (Wyo. 1996); and (5) the facts of
the specific case “represent a conglomeration of circumstances” such that a jury
would have to make multiple findings to assess the applicability of the regulation,
Short, 731 P.2d at 1199; Distad, 633 P.2d at 179; see also Pinnacle Bank, 100 P.3d at
1291 (“[W]hen a conglomeration of circumstances are relied on in order to find the
statutory or regulatory violation, use of the negligence per se doctrine is not
desirable.”). Mr. Otten focuses his arguments on the fifth of these situations, arguing
the configuration and geometry of the rail crossing and Wye track make this an
inappropriate case for negligence per se.8
8
For the sake of completeness, we concluded the first four situations where
negligence per se is improper do not apply because (1) it is common and current
practice for commercial vehicles to stop, look, and listen before crossing railroad
tracks; (2) the regulation is specific rather than overbroad; (3) the regulation is well-
known to the public and to members of the trucking community, as evident by the
training Mr. Otten received regarding the regulation; and (4) Mr. Otten completely
disregarded the regulation, creating a significant danger to materialize.
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Regarding the fifth situation, the Wyoming Supreme Court has concluded that
a regulation must announce a “positive and definite standard of care” for a court to
exercise its discretion and apply negligence per se:
if a positive and definite standard of care has been established by
legislative enactment (administrative regulation) whereby a jury may
determine whether there has been a violation thereof by finding a single
issue of fact, a violation is negligence per se; but where the jury must
determine the negligence or lack of negligence of a party charged with
the violation of a rule of conduct fixed by legislative enactment from a
consideration and evaluation of multiple facts and circumstances by the
process of applying, as the standard of care, the conduct of a reasonably
prudent person, negligence per se is not involved.
Distad, 633 P.2d at 179 (quoting Eisenhuth v. Moneyhon, 119 N.E.2d 440, 444 (Ohio
1954)). Here, the district court did not abuse its discretion by concluding 49 C.F.R.
§ 392.10(a) sets just such a standard. The regulation required Mr. Otten to take the
affirmative actions of stopping, looking, and listening before crossing the M1 track.
It established the rule in clear and definite terms. And a jury would have an easy task
if asked to determine whether Mr. Otten stopped, looked, and listened before crossing
the M1 track. Simply put, as he admits and can be seen from watching the video of
the collision, he did not. Finally, although the design of the track crossing may not
have been ideal, Mr. Otten had every ability to stop at an angle to the track and look
up and down the M1 line before crossing. Accordingly, while we recognize that
Wyoming courts are cautious about applying negligence per se, we conclude the
district court did not abuse its discretion by applying it in this case. This leads us to
the final question, whether Mr. Otten’s negligence per se in violating § 392.10(a)
relieves BNSF and Union Pacific of any liability.
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d. Proximate and intervening cause and comparative negligence
Mr. Otten argues that, even if his violation of 49 C.F.R. § 392.10(a) was
negligence per se, it was one of two proximate causes of the accident, the design of the
rail crossing being the other. From this, Mr. Otten contends the district court, rather than
granting summary judgment, should have permitted a jury to assess his negligence
compared to the negligence of BNSF and Union Pacific in designing the crossing. In
response, BNSF and Union Pacific contend Mr. Otten’s violation of § 392.10(a) was an
intervening and unforeseeable cause that relieves them of any liability for the collision.
Wyoming has adopted the traditional definition of proximate cause, in that
“[p]roximate cause means that the accident or injury must be the natural and probable
consequence of the act of negligence.” McClellan v. Tottenhoff, 666 P.2d 408, 414
(Wyo. 1983). “In determining what constitutes proximate cause, the same principles
apply whether the negligence is a violation of a statutory duty or a nonstatutory
duty.” Id. Wyoming also recognizes the concept that the “acts of negligence of two or
more people . . . , although not working in concert, [can] combine to produce a single
injury.” Nat. Gas Processing Co. v. Hull, 886 P.2d 1181, 1186 (Wyo. 1994). As a
result, “[m]ore than one proximate cause can exist for an accident or injury” because
“[e]ach concurrent cause that contributes directly to the accident or injury is a
‘proximate cause.’” Id. Thus, “[w]here injury results from two separate and distinct
acts of negligence by different persons operating and concurring simultaneously and
concurrently, both are the proximate cause.” Id. (quoting Hester v. Coliseum Motor
Co., 285 P. 781, 783 (Wyo. 1930)).
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Applying this to a situation where both the plaintiff and the defendant are
negligent, the basics of comparative negligence are governed by statute. Wyo. Stat.
Ann. § 1-1-109(b). Under the statute, a plaintiff who bears some fault for his injury
may recover proportional damages so long as his fault “is not more than fifty percent
(50%) of the total fault of all actors.” Id. Furthermore, under Wyoming law,
comparative negligence is not the only limitation on a plaintiff’s ability to recover
where his negligence contributes to his injury. Specifically, where the plaintiff’s
negligence is an “intervening cause” it may “discharge[] the defendant’s liability for
[its] negligence . . . and entitle[s] such a defendant to summary judgment on the
issue.” Est. of Coleman, 939 P.2d at 237. An intervening cause that discharges
liability “is one which occurs subsequent to the defendant’s negligent act or
omission” and is “unforeseeable.” Stephenson v. Pac. Power & Light Co., 779 P.2d
1169, 1178 (Wyo. 1989). Conversely, an intervening cause is “reasonably
foreseeable” where “it is a probable consequence of the defendant’s wrongful act or
is a normal response to the stimulus of the situation created thereby,” and such an
intervening cause will not automatically relieve the defendant of liability because a
comparative negligence assessment is necessary in such situations. Id. at 1179(quoting Buckley v. Bell, 703 P.2d 1089, 1092 (Wyo. 1985)).
For two reasons, application of this body of law supports the district court’s
grant of summary judgment. First, Mr. Otten’s violation of 49 C.F.R. § 392.10(a)
qualifies as an intervening and unforeseeable cause. The violation was intervening
because it occurred seconds before the collision, long after BNSF and/or Union
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Pacific designed and oversaw construction of the rail crossing. And Mr. Otten’s
complete disregard of § 392.10(a) was not foreseeable, for motorists, particularly
truck drivers at a rail crossing without a signal, are expected to make some effort to
stop, look, and listen for a train. Thus, Mr. Otten’s violation of § 392.10(a) relieved
BNSF and Union Pacific of any liability for the accident. Second, even if we were to
conclude Mr. Otten’s violation of § 392.10(a) was foreseeable and there were
multiple proximate causes for the collision, we alternatively conclude that no
reasonable jury could determine the design of the crossing was an equal or greater
contributor to the accident than Mr. Otten’s failure to stop, look, and listen.
Accordingly, summary judgement was also appropriate under Wyoming’s
comparative negligence statute. Cf. Foote v. Simek, 139 P.3d 455, 464 (Wyo. 2006)
(permitting summary judgment on issues of proximate cause where “the evidence is
such that reasonable minds could not disagree” (quoting Turcq v. Shanahan, 950 P.2d
47, 52 (Wyo. 1997))).
III. CONCLUSION
Concluding that the district court did not abuse its discretion in considering
BNSF’s and Union Pacific’s reply-brief arguments, that Mr. Otten waived his challenge
to the applicability of 49 C.F.R. § 392.10(a), that the district court did not abuse its
discretion in concluding his violation of § 392.10(a) was negligence per se, and that the
violation of § 392.10(a) was an intervening and unforeseeable cause of the collision, we
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AFFIRM the grant of summary judgment.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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