Larry Hill v. Burlington Northern ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-2053
___________
In re: Derailment Cases *
_____________________ *
*
Larry Hill; Ruth Heil; Ernest Heil; *
Charlotte Zephier, Individually and as *
natural guardian and next friend of *
Freeman Zephier; Freeman Zephier, *
By and through his natural guardian and *
best friend; Connie Colton-Graves, *
Individually and as natural guardian *
and next friend of Kyle Graves; Kyle * Appeal from the United States
Graves, By and through his natural * District Court for the
guardian and next friend Connie * District of Nebraska.
Colton-Graves; Theresa Wallace, *
Individually and as natural guardian and *
next friend of Derek Wallace, Kyle *
Wallace and Brady Wallace; Derek *
Wallace, By and through his natural *
guardian and next friend; Kyle Wallace, *
By and through his natural guardian *
and next friend; Brady Wallace, By and *
through his natural guardian and next *
friend; Laurinda Stauffer, Individually *
and as natural guardian and next friend; *
Frank Gonzales, Individually and as *
next friend; Brandon Gonzales, By and *
through his next friend; Andrew *
Stauffer-Gonzales, By and through his *
natural guardian and next friend; Janet *
Craven, Individually and as natural *
guardian and next friend; Adrianna *
Packard, by and through her natural *
guardian and next friend; Serena *
Packard; Joni Olsen, Individually and *
as natural guardian and next friend; *
Kristen Olsen, By and through her *
natural guardian and next friend; Amy *
Olsen; Rebecca Olsen, By and through *
her natural guardian and next friend; *
Yolanda Garcia; Doris Young; *
Lawrence Kessler, Individually and as *
natural guardian and next friend of *
Chelsea Kessler and Logan Kessler; *
Marian Kessler, Individually and as *
natural guardian and next friend of *
Chelsea Kessler and Logan Kessler; *
Chelsea Kessler, By and through her *
natural guardians Lawrence Kessler and *
Marian Kessler; Logan Kessler, By and *
through his natural guardians Lawrence *
Kessler and Marian Kessler; Jami Olsen,*
Individually and as natural guardian and *
next friend of Aubbrianna Olsen; *
Aubbrianna Olsen, By and through her *
natural guardian and best friend; Judy *
Schnell, Individually and as natural *
guardian and next friend of Thorne *
Schnell and Alyssa Schnell Voorhees; *
Warren Voorhees, Individually; Thorn *
Schnell, By and through his natural *
guardian, Judy Schnell; Alyssa Schnell- *
Voorhees, By and through her natural *
guardian, Judy Schnell; Mary St. Onge; *
Jeff Wallace, Individually; Cleta *
Gable-Nuss, *
*
Plaintiffs/Appellants, *
*
v. *
*
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Burlington Northern and Santa Fe *
Railway Company, a Delaware *
Corporation; Montana Rail Link, Inc., *
A Montana Corporation, *
*
Defendants/Appellees. *
_____________________ *
*
Anna Stachon; Roger McCarville; *
McCarville-Stachon, Inc., also known *
as Capri Motel, *
*
Plaintiffs, *
*
v. *
*
Burlington Northern and Santa Fe *
Railway Company, a Delaware *
Corporation; Montana Rail Link, Inc., *
*
Defendants. *
_____________________ *
*
Larry Hill, *
*
Plaintiff/Appellant, *
*
v. *
*
Burlington Northern and Santa Fe *
Railway Company, a Delaware *
Corporation; Montana Rail Link, Inc., *
a Montana Corporation, *
*
Defendants/Appellees. *
_____________________ *
*
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Ruth Heil; Ernest Heil, *
*
Plaintiffs/Appellants, *
*
v. *
*
Burlington Northern and Santa Fe *
Railway Company; Montana Rail Link, *
Inc., *
*
Defendants/Appellees. *
_____________________ *
Charlotte Zephier, Individually and as *
natural guardian and next friend of *
Freeman Zephier; Freeman Zephier, *
By and through his natural guardian *
and best friend, *
*
Plaintiffs/Appellants, *
*
v. *
*
Burlington Northern and Santa Fe *
Railway Company, A Delaware *
Corporation; Montana Rail Link, *
A Montana Corporation, *
*
Defendants/Appellees. *
_____________________ *
*
Connie Colton-Graves Individually and *
as Natural Guardian and Next Friend of *
Kyle Graves; Kyle Graves, By and *
Through His Natural Guardian and *
Next Friend Connie Colton-Graves, *
*
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Plaintiffs/Appellants, *
*
v. *
*
Burlington Northern and Santa Fe *
Railway Company, A Delaware *
Corporation; Montana Rail Link, *
A Montana Corporation, *
*
Defendants/Appellees. *
_____________________ *
*
Theresa Wallace, Individually and as *
natural guardian and next friend of *
Derek Wallace, Kyle Wallace and Brady *
Wallace; Derek Wallace, by and through*
his natural guardian and next friend; *
Kyle Wallace, by and through his *
natural guardian and next friend; Brady *
Wallace by and through his natural *
guardian and next friend, *
*
Plaintiffs/Appellants, *
*
v. *
*
Burlington Northern and Santa Fe *
Railway Company, A Delaware *
Corporation; Montana Rail Link, *
A Montana Corporation, *
*
Defendants/Appellees. *
_____________________ *
*
Laurinda Stauffer, Individually, and as *
Natural Guardian and Next Friend; *
Frank Gonzales, Individually and as *
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Next Friend; Brandon Gonzales, by and *
through his Next Friend; Andrew *
Stauffer-Gonzales, by and through his *
Natural Guardian and Next Friend, *
*
Plaintiffs/Appellants, *
*
v. *
*
Burlington Northern and Santa Fe *
Railway Company; Montana Rail Link, *
Inc., a Montana Corporation, *
*
Defendants/Appellees. *
_____________________ *
*
Janet Craven, Individually and as *
Natural Guardian and Next Friend; *
Adrianna Packard, by and through her *
Natural Guardian and Next Friend; *
Serena Packard, by and through her *
Natural Guardian and Next Friend, *
*
Plaintiffs/Appellants, *
*
v. *
*
Burlington Northern and Santa Fe *
Railway Company, a Delaware *
Corporation; Montana Rail Link, Inc., *
a Montana Corporation, *
*
Defendants /Appellees. *
_____________________ *
*
Joni Olsen, Individually and as Natural *
Guardian and Next Friend; Kristen *
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Olsen, by and through her Natural *
Guardian and Next Friend; Amy Olsen, *
by and through her Natural Guardian *
and Next Friend; Rebecca Olsen, by *
and through her Natural Guardian and *
Next Friend, *
*
Plaintiffs/Appellants, *
*
v. *
*
Burlington Northern and Santa Fe *
Railway Company; Montana Rail Link, *
Inc., a Montana Corporation, *
*
Defendants/Appellees. *
_____________________ *
*
Yolanda Garcia, *
*
Plaintiff/Appellant, *
*
Burlington Northern and Santa Fe *
Railway Company, a Delaware *
Corporation; Montana Rail Link, Inc., *
a Montana Corporation, *
*
*
Defendants/Appellees. *
_____________________ *
*
Doris Young, *
*
Plaintiff/Appellant, *
v. *
*
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Burlington Northern and Santa Fe *
Railway Company, a Delaware *
Corporation; Montana Rail Link, Inc., *
a Montana Corporation, *
*
Defendants/Appellees. *
_____________________ *
*
Lawrence Kessler, Individually, and as *
natural guardian and next of friend of *
Chelsea Kessler and Logan Kessler; *
Marian Kessler, Individually and as *
natural guardian and next of friend of *
Chelsea Kessler and Logan Kessler; *
Chelsea Kessler, by and through her *
natural guardians Lawrence Kessler and *
Marian Kessler; Logan Kessler, by and *
through his natural guardians Lawrence *
Kessler and Marian Kessler, *
*
Plaintiffs/Appellants, *
*
v. *
*
Burlington Northern and Santa Fe *
Railway Company, a Delaware *
Corporation; Montana Rail Link, *
a Montana Corporation, *
*
Defendants/Appellees. *
_____________________ *
*
Jami Olsen, Individually and as natural *
guardian and next friend of Aubbrianna *
Olsen; Aubbrianna Olsen, By and *
through her natural guardian and best *
friend, *
-8-
*
Plaintiffs/Appellants, *
*
v. *
*
Burlington Northern and Santa Fe *
Railway Company, A Delaware *
Corporation; Montana Rail Link, *
A Montana Corporation, *
*
Defendants/Appellees. *
_____________________ *
*
Judy Schnell, Individually and as *
natural guardian and next friend of *
Thorn Schnell and Alyssa Schnell- *
Voorhees; Warren Voorhees, *
Individually; Thorn Schnell, by and *
through his natural guardian, Judy *
Schnell; Alyssa Schnell-Voorhees, by *
and through her natural guardian, *
Judy Schnell, *
*
Plaintiffs/Appellants, *
*
v. *
*
Burlington Northern and Santa Fe *
Railway Company, a Delaware *
Corporation; Montana Rail Link, *
*
Defendants/Appellees. *
_____________________ *
*
Mary St. Onge, *
*
Plaintiff/Appellant, *
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*
v. *
*
Burlington Northern and Santa Fe *
Railway Company, A Delaware *
Corporation; Montana Rail Link, Inc., *
a Montana Corporation, *
*
Defendants/Appellees. *
_____________________ *
*
Jeff Wallace, individually, *
*
Plaintiff/Appellant, *
*
v. *
*
Burlington Northern and Santa Fe *
Railway Company, a Delaware *
Corporation; Montana Rail Link, *
a Montana Corporation, *
*
Defendants/Appellee. *
_____________________ *
*
Cleta Gable-Nuss, *
*
Plaintiff/Appellant, *
*
v. *
*
Burlington Northern and Santa Fe *
Railway Company, a Delaware *
Corporation; Montana Rail Link, Inc., *
a Montana Corporation, *
*
Defendants/Appellees. *
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___________
Submitted: May 11, 2005
Filed: August 2, 2005
___________
Before WOLLMAN, BYE, and COLLOTON, Circuit Judges.
___________
WOLLMAN, Circuit Judge.
Various residents of Scottsbluff, Nebraska (Plaintiffs) appeal from rulings by
the district court1 adverse to their tort claims against the Burlington Northern and
Santa Fe Railroad (BNSF) and Montana Rail Link (MRL). We affirm.
I.
On November 4, 2000, 18 cars from an 84-car freight train operated by BNSF
derailed in Scottsbluff. Benzene and other hazardous chemicals from some of the
derailed cars leaked to the air and ground. Approximately 1,100 Scottsbluff residents
were evacuated.
An investigation into the derailment concluded that the accident originated
with the coupler that connected car 33 to car 34.2 The coupler attached to a slot
affixed to the back of car 33, and a metal slab called a draft key (secured by a retainer
assembly) ran crosswise through the coupler and the fixed slot. For unknown
reasons, the draft key fell out of the coupler. As a result, the coupler detached, struck
the undercarriage of car 34, and lodged in the switchpoint of the rails. Car 35
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
2
We refer to individual cars of the freight train by the numbering system used
by the district court.
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derailed when it traveled over the coupler embedded in the tracks. Cars 36 through
52 also derailed.
Two days prior to the derailment, MRL employees had performed a federally
mandated inspection of the freight cars at a rail yard in Laurel, Montana.3 MRL
assigned two-man crews to inspect the cars while riding alongside them on four-
wheel all terrain vehicles (ATVs). From the ATVs, the inspectors visually inspected
various aspects of the cars, including the couplers. The crew assigned to examine the
segment of freight cars that included car 33 found no defects. The overall inspection
covered 84 cars and took approximately thirty minutes. See Inspection Record
(Appellants’ App. Vol. 18 at 3266).
Plaintiffs filed various suits against BNSF and MRL in Nebraska state court.
As relevant to this appeal, they alleged negligence (contending that MRL’s
inspectors, as agents of BNSF, negligently inspected the train in Laurel), negligence
per se (based on purported violations of federal environmental statutes), and strict
liability (asserting that BNSF engaged in an ultrahazardous activity by transporting
benzene through populated areas). BNSF and MRL removed the suits to federal
court, and the district court consolidated the cases. After the district court dismissed
the negligence per se and strict liability claims, Plaintiffs moved to amend their
complaints to assert claims based upon a theory of res ipsa loquitur. The district
court denied that motion. It then granted summary judgment in favor of BNSF and
MRL on the negligence claims, concluding that those claims were preempted by
federal regulations adopted pursuant to the Federal Railroad Safety Act (FRSA), 49
U.S.C. § 20101 et seq. Plaintiffs appeal from the dismissal of their negligence per se
3
BNSF has leased the Laurel Rail Yard to MRL since 1987. The lease requires
MRL to perform inspections on BNSF trains at the Laurel yard.
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and strict liability claims, from the denial of their motion to amend their complaints,
and from the grant of summary judgment on their negligent inspection claims.4
II.
We review de novo the district court’s determination that a common law cause
of action has been preempted by federal law. Chapman v. Lab One, 390 F.3d 620,
623 (8th Cir. 2004). We also review de novo the district court’s grant of summary
judgment. Tolen v. Ashcroft, 377 F.3d 879, 882 (8th Cir. 2004). Summary judgment
is proper if there are no disputed issues of material fact and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Employers Mut. Cas.
Co. v. Wendland, 351 F.3d 890, 893 (8th Cir. 2003). We view the evidence and the
inferences that may reasonably be drawn therefrom in the light most favorable to the
nonmoving party. Enter. Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir. 1996).
State law is preempted when it conflicts with or frustrates federal law. U.S.
Const. art. VI, cl. 2; CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 663 (1993).
Because the FRSA contains an express preemption clause, we begin by focusing on
the plain wording of the clause to ascertain Congress’ preemptive intent. Easterwood,
507 U.S. at 664. The FRSA’s preemption clause provides that:
Laws, regulations, and orders related to railroad safety and laws,
regulations, and orders related to railroad security shall be nationally
uniform to the extent practicable. A State may adopt or continue in
force a law, regulation, or order related to railroad safety or security
until the Secretary of Transportation (with respect to railroad safety
matters), or the Secretary of Homeland Security (with respect to railroad
security matters), prescribes a regulation or issues an order covering the
4
Plaintiffs also appeal the district court’s denial of their motion for leave to
supplement the disclosure of one of their experts, Karl Wolff. Because Plaintiffs
concede that this aspect of their appeal is moot if we affirm the district court’s other
rulings, see Plaintiffs’ Reply Br. at 27, we need not address it.
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subject matter of the State requirement. A State may adopt or continue
in force an additional or more stringent law, regulation, or order related
to railroad safety or security when the law, regulation, or order—
(1) is necessary to eliminate or reduce an essentially local
safety or security hazard;
(2) is not incompatible with a law, regulation, or order of
the United States Government; and
(3) does not unreasonably burden interstate commerce.
49 U.S.C. § 20106 (2005).
In Easterwood, the Supreme Court concluded that legal duties imposed on
railroads by the common law fell within the scope of the “broad phrases” of the
FRSA’s preemption clause. 507 U.S. at 664.5 Nonetheless, regulations adopted
pursuant to the FRSA will preempt a particular state law tort claim only if they
“substantially subsume” the subject matter of the relevant state law. Id. Because
Plaintiffs assert that MRL (as BNSF’s agent) negligently inspected the freight cars,
we look to the extent to which the regulations adopted pursuant to the FRSA address
freight car inspections.
The Federal Railroad Administration (FRA) is authorized to “prescribe
regulations and issue orders for every area of railroad safety.”6 The FRA has adopted
5
Although the current version of the FRSA’s preemption clause is “worded
slightly differently” than the version that the Supreme Court examined in Easterwood,
we have noted that the two versions are “identical in substance.” Cearley v. Gen. Am.
Trans. Corp., 186 F.3d 887, 890 n.5 (8th Cir. 1999). Cf. Chapman, 390 F.3d at 625-
26. See also Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344, 352-53 (2000) (applying
Easterwood’s holding to a later version of the FRSA’s preemption clause).
6
The authority originates in the FRSA, which authorizes the Secretary of
Transportation to “prescribe regulations and issue orders for every area of railroad
safety.” 49 U.S.C. § 20103. The Secretary has delegated to the FRA the authority
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regulations that require inspections of freight cars at each location where they are
placed in a train. 49 C.F.R. § 215.13. Railroads must designate inspectors who “have
demonstrated to the railroad a knowledge and ability to inspect railroad freight cars
for compliance with the [FRA regulations].” Id. at § 215.11. The FRA’s regulations
specify that a railroad may not place or continue in service a car that, inter alia, has
a defective coupler, id. at § 215.123, or a defective draft key retainer assembly, id. at
§ 215.127.
The regulations also establish a “national railroad safety program” intended “to
promote safety in all areas of railroad operations in order to reduce deaths, injuries
and damage to property resulting from railroad accidents.” Id. at § 212.101(a).
Federal and state inspectors “determine the extent to which the railroads, shippers,
and manufacturers have fulfilled their obligations with respect to inspection,
maintenance, training, and supervision.” Id. at § 212.101(b)(1). Inspectors visit rail
yards to ensure compliance with the regulations, id. at § 212.213, and railroads face
civil penalties for violations. Id. at §§ 215.7 and 215, App. B. To assist federal and
state inspectors who monitor the railroads’ compliance with the FRA regulations, the
FRA has issued a manual that includes “enforcement and inspection strategies” and
“interpretations of the codified regulations.” See Motive Power and Equipment
Enforcement Manual (Appellants’ App. Vol. 18 at 3283).
Plaintiffs contend that the FRA’s regulations do not substantially subsume the
subject matter of their negligent inspection claims because the regulations do not
specify the manner in which freight car inspections must be accomplished. But a
regulatory framework need not impose bureaucratic micromanagement in order to
substantially subsume a particular subject matter. Cf. CSX Trans., Inc. v. Williams,
406 F.3d 667, 672 (D.C. Cir. 2005) (“The FRSA preemption provision . . . authorizes
to “[c]arry out all functions vested in the Secretary by the [FRSA],” with certain
exceptions not applicable here. 49 C.F.R. § 1.49(m).
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the court only to determine whether the regulation covers the subject matter, leaving
it to [the federal agency] to gauge the efficacy of the . . . measures based on the
agency’s expertise.”).7 It is clear that the FRA’s regulations are intended to prevent
negligent inspection by setting forth minimum qualifications for inspectors,
specifying certain aspects of freight cars that must be inspected, providing agency
monitoring of the inspectors, and establishing a civil enforcement regime. These
intentions are buttressed by the FRA’s inspection manual for federal and state
inspectors. Further, there is no indication that the FRA meant to leave open a state
tort cause of action to deter negligent inspection. Cf. Chapman, 390 F.3d at 627
(finding no preemption when the regulations at issue “specifically contemplate the
existence of a common-law cause of action for negligence”). Accordingly, we
conclude that Plaintiffs’ negligent inspection claims are preempted by the FRA’s
regulations.8
III.
Plaintiffs contend that the district court erroneously applied Nebraska law
rather than Montana law to their negligence per se and strict liability claims, resulting
in an improper dismissal of those claims.
7
For this reason, we deny Plaintiffs’ motion to supplement the record with a
1996 audit report by the Department of Transportation’s Inspector General, tendered
as evidence of the efficacy of the FRA’s regulations. See Appellant’s Motion for
Judicial Notice at 2.
8
Our holding obviates the need to review the district court’s denial of Plaintiffs’
motion to amend their complaint to assert res ipsa loquitur because the res ipsa claim
also rests on a theory of inadequate inspection and is therefore preempted. See
Proposed Amended Complaint (Appellants’ App. Vol. 19 at 3607) (alleging in claims
I and II that “in the normal course of events, the failure of the coupler system which
caused the derailment would not have occurred unless the defendant conducting the
inspection and responsible for maintenance was negligent”).
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A.
A federal district court sitting in Nebraska must follow Nebraska’s conflict of
law rules. Modern Computer Sys., Inc. v. Modern Banking Sys., Inc., 858 F.2d 1339,
1342 (8th Cir. 1988) (citation omitted). We review de novo the district court’s
application of those rules. FDIC v. Nordbrock, 102 F.3d 335, 337 (8th Cir. 1996).
Nebraska has adopted the Restatement (Second) of Conflict of Laws § 146 to
determine which state’s law applies to a personal injury claim. Malena v. Marriott
Int’l, Inc., 651 N.W.2d 850, 853 (Neb. 2002). Section 146 applies to “personal
injuries that are caused either intentionally or negligently and to injuries for which the
actor is responsible on the basis of strict liability.” Rest. (2d) Confl. of Laws § 146,
cmt. a. It presumes that the law of the state where the injury occurred determines the
rights and liabilities of the parties “unless, with respect to the particular issue, some
other state has a more significant relationship under the principles stated in § 6 to the
occurrence and the parties.” Id. at § 146.
Section 145 of the Restatement lists four “contacts” that should be considered
in determining which state has the more significant relationship: (1) “the place where
the injury occurred”; (2) “the place where the conduct causing the injury occurred”;
(3) “the domicil, residence, nationality, place of incorporation and place of business
of the parties”; and (4) “the place where the relationship, if any, between the parties
is centered.” Id. at § 145(2). Contrary to Plaintiffs’ contentions, it is clear that the
section 145 contacts favor applying Nebraska law to the state law claims. The
injuries occurred in Nebraska. Both the strict liability claims (that the transport of
benzene through Scottsbluff was an ultrahazardous activity) and the negligence per
se claims (that the release of chemicals after the derailment violated federal
environmental statutes) assert that the conduct causing the injury occurred in
Nebraska. Most (if not all) of the plaintiffs are Nebraska residents. And the only
relationship between the parties derives from the derailment, which occurred in
Nebraska.
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The section 145 contacts “must be balanced in accordance with their
significance to the general principles under § 6(2)” of the Restatement. Malena, 651
N.W.2d at 857. Those principles include: (1) the needs of the interstate and
international systems; (2) the relevant policies of the forum; (3) the relevant policies
of other interested states and the relative interests of those states in the determination
of the particular issue; (4) the protection of justified expectations; (5) the basic
policies underlying the particular field of law; (6) certainty, predictability and
uniformity of result; and (7) ease in the determination and application of the law to
be applied. Rest. (2d) Confl. of Laws § 6. None of these principles raises concerns
sufficient to overcome the section 146 presumption, buttressed by the application of
the section 145 contacts, that Nebraska law applies to the state tort claims at issue
here.
B.
Having concluded that the district court correctly determined that Nebraska law
applies to Plaintiffs’ strict liability and negligence per se claims, we turn to the
district court’s dismissal of those claims, which we review de novo. Knouse v. Gen.
Amer. Life Ins. Co., 391 F.3d 907, 911 (8th Cir. 2004). We also review de novo the
district court’s interpretation of state law. Boerner v. Brown & Williamson Tobacco
Corp., 260 F.3d 837, 841 (8th Cir. 2001) (citation omitted).
We agree with the district court’s conclusion that the violation of a regulation
or statute is generally not recognized as negligence per se under Nebraska law. See
Fuhrman v. State, 655 N.W.2d 866, 874 (Neb. 2003); Goodenow v. Dept. of Corr.
Serv., 610 N.W.2d 19, 22 (Neb. 2000) (“a violation of a statute or regulation
ordinarily is not negligence per se, but is only evidence of negligence” (citing Maresh
v. State, 489 N.W.2d 298 (Neb. 1992)); Tank v. Peterson, 363 N.W.2d 530, 537 (Neb.
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1985) (violations of Federal Aviation Administration regulations did not constitute
negligence per se).9
We also agree with the district court that Nebraska has not yet decided whether
to adopt a cause of action of strict liability for ultrahazardous or abnormally
dangerous activities. See, e.g., Anderson v. Nashua Corp., 519 N.W.2d 275, 281
(Neb. 1994) (“the doctrine of strict liability for ultrahazardous activities has not been
adopted in Nebraska, but neither has it been repudiated”). Accordingly, we must
attempt to predict what the Supreme Court of Nebraska would decide if it were to
address the issue in this case. Jurrens v. Hartford Life Ins. Co., 190 F.3d 919, 922
(8th Cir. 1999) (citation omitted). In so doing, we may consider “relevant state
precedent, analogous decisions, considered dicta, scholarly works, and any other
reliable data.” Ventura v. Titan Sports, Inc., 65 F.3d 725, 729 (8th Cir. 1995).
The Supreme Court of Nebraska has consistently declined to reach the question
of strict liability when an insufficient evidentiary basis exists for concluding that a
particular activity is ultrahazardous. See, e.g, Bargmann v. Soll Oil Co., 574 N.W.2d
478, 486 (Neb. 1998) (“There is no evidence or claim that the storing of petroleum
products in tanks is an abnormally dangerous activity; thus we need not decide
whether we would impose strict liability . . . .”); Anderson, 519 N.W.2d at 281.
9
The only modern Nebraska case to the contrary is Oddo v. Speedway Scaffold
Co., which held that a “[b]reach of the duty imposed by [a state statute governing
scaffolding safety] constitutes negligence per se, not merely evidence of negligence.”
443 N.W.2d 596, 603 (Neb. 1989). Oddo cited Johnson v. Weborg, another case
involving scaffolding safety, in which the court observed that “[i]n construing
legislation of the class herein considered, this court has long followed the rule that
a failure to perform a mandatory duty enjoined by statute is negligence per se.” 7
N.W.2d 65 (Neb. 1942) (emphasis added). Whatever recognition of the concept of
negligence per se that Oddo and Johnson have extended to actions brought under
state statutes addressing workplace safety does not encompass the federal
environmental statutes at issue here.
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Plaintiffs’ bare allegation that the transport of benzene by rail through populated
areas is ultrahazardous is similarly bereft of evidentiary support. We predict that the
Supreme Court of Nebraska would decline to reach the issue of strict liability based
upon the evidence set forth in this case. Accordingly, the district court properly
dismissed those claims.
The judgment is affirmed.
______________________________
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