Hans Harris v. BNSF Railway Company

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
HANS HARRIS, §
No. 08-11-00018-CV
Appellant, §
Appeal from the
v. §
342nd District Court
§
BNSF RAILWAY COMPANY, of Tarrant County, Texas
§
Appellee. (TC# 342-235434-09)
§
OPINION
Appellant Hans Harris (“Appellant”) appeals the trial court’s grant of Appellee BSNF
Railway Company’s (“Appellee”) motion for summary judgment as to Appellant’s cause of action
for violation of the Locomotive Inspection Act.1 Appellant’s sole issue is that the trial court erred
in granting Appellee’s summary judgment motion, as a matter of law, by finding that a defective
fuel gauge and in-cab display did not create an unnecessary risk of personal injury. We affirm.
PROCEDURAL BACKGROUND
Appellant filed suit on January 12, 2009, against Appellee, his employer, asserting causes
of action under the Locomotive Inspection Act2 (“LIA”) and the Federal Employer’s Liability
Act3 (“FELA”). Appellee filed a traditional motion for summary judgment (“MSJ”) as to both
causes of action, asserting that: (i) the defective fuel gauge on the locomotive did not create an
1
This case was transferred from the Second Court of Appeals to this Court pursuant to a docket equalization order
entered by the Texas Supreme Court. See TEX.GOV’T CODE ANN. § 73.001 (West 2005). We have applied
precedent of the Fort Worth Court of Appeals. See TEX.R.APP.P. 41.3.
2
Formerly known as the Boiler Inspection Act (“BIA”) 49 U.S.C. § 20701 et seq. (West 2012)
3
45 U.S.C.A. § 51 et seq.
unnecessary peril to life or limb as required to impose strict liability under the LIA; and (ii) it had
conclusively negated the common causation element of the two causes of action based on
contributory negligence. Appellant filed a response. The trial court heard arguments and orally
announced that the court was granting the MSJ as to the LIA claim, but denying as to the FELA
claim. As it was the trial judge’s last day on the bench, no written order was signed.
Appellant filed a motion for reconsideration of the oral ruling. The trial court granted
Appellant’s motion and signed a written order denying Appellee’s MSJ in its entirety. Appellee
subsequently filed a no-evidence motion for partial summary judgment on the FELA cause of
action and a motion re-urging its original MSJ, to which Appellant responded. The trial court
heard arguments and took the motions under advisement. Appellee then filed a motion for leave
to file supplemental evidence in support of its motion re-urging the MSJ. The trial court denied
the no-evidence motion and the motion for leave to file supplemental evidence, and granted the
motion re-urging the MSJ as to the LIA cause of action, finding that “there is legally insufficient
evidence to support a finding that the defective fuel gauge and/or fuel gauge display created an
unnecessary danger of personal injury.” The order denied the MSJ as to the “legally insufficient
evidence of causation” argument asserted by Appellee. The same day the court signed an order
on Appellant’s motion to sever and abate the FELA claim, rendering the MSJ as a final, appealable
judgment on the LIA cause of action. Appellant timely appealed.
FACTUAL BACKGROUND
Appellant was serving as a conductor on a coal train operated by Appellee which was
leaving the Saginaw, Texas rail yard (“Saginaw”) near Fort Worth on January 1, 2008. The train
engineer was Rocky Rhodes (“Rhodes”). In his deposition, Rhodes testified that he had not
2
performed an inspection of the train on the ground prior to departing the yard due to the presence
of a signed daily inspection card in the locomotive which indicated that it had been inspected in
Amarillo the previous night. He stated that the inspection was valid until 12 a.m. on January 1,
2008. The locomotive’s fuel tank, which holds approximately 5,000 gallons of fuel, had been
filled in Amarillo the previous night. The locomotive had at least 2,000 gallons of fuel when it
left Saginaw. There were three fuel gauges in the locomotive: one was a sight glass on the fuel
tank itself, where the fuel level is gauged by looking at the fuel level in the tank; the second is an
analog dial gauge on the tank itself, operating on a float and registering the fuel amount with a
needle; and the third is a digital electronic gauge which displays the fuel amount on a computer
screen on the console in the locomotive’s cab. Rhodes testified that on previous trips he has had
conductors check the tank fuel gauges while the train was in “operating mode.”4 The only way to
do this is to lean over or under the railing and look down, as that is where the fuel gauges are
located. According to the deposition testimony of Dana Maryott (“Maryott”), Appellee’s director
of locomotives, the digital gauges are the least reliable, though the analog gauges also fail with
some regularity.
This specific locomotive is serviced through the Electromotive Division of General
Motors. The locomotive is directed there every ninety-two days for scheduled maintenance. If a
locomotive requires unscheduled maintenance, Appellee’s manager of equipment operation
questions the locomotive’s crew to determine if there are any defects, which the manager then
classifies on a scale ranging from level one (very major) to level nine (very minor). According to
Maryott’s deposition testimony, level nine defects are not addressed in regulations promulgated by
either the Federal Railroad Administration (“FRA”) or the Association of American Railroads.
4
That is, while the train is in motion and running at less 20 M.P.H.
3
Maryott stated that level nine defects have no impact on a locomotive’s ability to operate “safely
and suitably,” and need only be addressed when convenient for the Electromotive Division. In an
“exception report” dated December 5, 2007, the locomotive was noted to have defective fuel
gauges and display, which were listed as level nine defects. Maryott testified that in cases where
there is a high demand for trains, “you will see locomotives released with minor defects back into
service simply because we don’t have the time for a minor defect that doesn’t impact
operation . . . .” Maryott testified that the gauges were not important enough to be tagged
out-of-service. Appellant noted that Appellee places such tags on defective water coolers and
toilets. Rhodes testified that the failure to place such a tag on the gauges is a violation of
Appellee’s policies, but also noted that he would not have immediately taken a locomotive out of
service for such a problem.
Shortly after leaving the Saginaw yard, as the train was approaching the Trinity River
bridge, the train went over an interlocker passage which was described as “rough.” The yellow
fuel pump light warning indicator on the computer display then indicated that there were zero
gallons of fuel in the tank. Rhodes “made an exclamation,” informed Appellant that “that
couldn’t be right,” and after Appellant inquired, showed Appellant the gauges. Appellant and
Rhodes discussed possible causes and the concern that the locomotive could be losing fuel and that
they could not have used that much fuel (the fuel it had taken on in Amarillo). Rhodes
commented “there’s no way. Either we ripped the bottom out of the fuel tank, or it’s just not
reading right.” Rhodes testified that there were two possibilities of what happened, one being a
mechanical problem with the gauge, the other being that the fuel tank was ripped off or ripped
open, which he felt “wasn’t very likely,” as he “could see back, and I didn’t see fuel all over the
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place.” Rhodes asked Appellant whether he had checked the fuel gauges in Saginaw, but
Appellant did not respond. At this point, Appellant left the cab on the engineer’s side. Rhodes
noticed this and assumed Appellant was leaving to check the gauges. Rhodes continued to
operate the train, changing radio channels to inform a dispatcher that the train was approaching a
tower. When Appellant did not return to the cab, Rhodes looked back in his mirror and did not
see Appellant on the locomotive platform. A few minutes passed and when Appellant did not
return, Rhodes stopped the train and went outside to look for him. As he exited through the same
door Appellant had used, Rhodes noticed blood on the walkway. Rhodes radioed a dispatcher,
advised that he did not know where Appellant was, told him that there was blood on the walkway
and that he was in need of emergency assistance. Rhodes began searching for Appellant and
eventually found him on the Trinity River Bridge, initially seeing him sitting up, then lying with
his head next to the rail and his legs hanging off the bridge. Rhodes noticed Appellant had a
severe injury to his head and rendered first aid until the paramedics arrived. There remains some
dispute over the exact manner Appellant was injured. Following Appellant’s injury, the gauges in
the locomotive were repaired. As a result of his fall from the locomotive, Appellant suffered a
broken neck, a closed-head injury, paralysis, memory loss, and severe pain and discomfort.
Appellant commenced his lawsuit on January 12, 2009.
DISCUSSION
Appellant presents one issue on appeal, specifically that the trial court erred in granting
Appellee’s traditional motion for summary judgment as to Appellant’s LIA cause of action, when
the trial court held that as a matter of law, the defective fuel gauge and in-cab display did not create
an unnecessary risk of personal injury.
5
We review a grant of a traditional summary judgment de novo. Travelers Ins. Co. v.
Joachim, 315 S.W.3d 860, 862 (Tex. 2010). We review the evidence presented in the motion and
response in the light most favorable to the party against whom the summary judgment was
rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding
contrary evidence unless reasonable jurors could not. See City of Keller v. Wilson, 168 S.W.3d
802, 827 (Tex. 2005); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844,
848 (Tex. 2009); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 208 (Tex. 2002). We
indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. 20801, Inc.
v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant who conclusively negates at least one
essential element of a cause of action is entitled to summary judgment on that claim. Frost Nat’l
Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010), cert. denied, --U.S. --, 131 S. Ct. 1017, 178
L. Ed. 2d 829 (2011); TEX.R.CIV.P. 166a(b), (c).
The LIA and FELA are interrelated federal statutory schemes. When FELA cases are
brought in state courts, federal law governs the substantive rights of the parties, while state rules
govern procedural matters. See St. Louis Southwestern Ry. Co. v. Dickerson, 470 U.S. 409, 411,
105 S. Ct. 1347, 1348, 84 L. Ed. 2d 303 (1985); Mitchell v. Missouri–Kansas–Texas R. Co., 786
S.W.2d 659, 661 (Tex. 1990); Houghton v. Port Terminal R.R. Ass’n, 999 S.W.2d 39, 43
(Tex.App.--Houston [14th Dist.] 1999, no pet.)(noting same). Under FELA, railroad carriers are
liable for damage to employees who suffer an injury “in whole or in part from the negligence of
any of the officers, agents, or employees of such carrier, or by reason of any defect or
insufficiency, due to its negligence, in its cars, engines, appliances . . . or other equipment.” 45
U.S.C.A. § 51 (West 2012).
6
In comparison, the LIA provides that:
A railroad carrier may use or allow to be used a locomotive or tender on its railroad
line only when the locomotive or tender and its parts and appurtenances--
(1) are in proper condition and safe to operate without unnecessary
danger of personal injury;
(2) have been inspected as required under this chapter and
regulations prescribed by the Secretary of Transportation under
this chapter; and
(3) can withstand every test prescribed by the Secretary under this
chapter.
49 U.S.C.A. § 20701 (West 2012).
FELA liability is premised on negligence by the railroad, however small, and allows for
broader causes of action than the LIA. 45 U.S.C.A. § 51; Rogers v. Missouri Pacific R. Co., 352
U.S. 500, 508-9, 77 S. Ct. 443, 449-50, 1 L. Ed. 2d 493 (1957); CSX Transp., Inc. v. McBride, --
U.S. --, 131 S. Ct. 2630, 2636, 180 L. Ed. 2d 637 (2011). In comparison, the LIA imposes on the
railroad the absolute duty to maintain the locomotive, its parts and appurtenances, in proper
condition and without defects such that it is safe to operate without unnecessary peril to life or
limb. Lilly v. Grand Trunk Western Railroad Co., 317 U.S. 481, 485-86, 63 S. Ct. 347, 351, 87
L. Ed. 411 (1943).
A violation of the LIA may be shown in one of two ways. The carrier may breach its duty
to keep all parts and appurtenances in proper condition and safe to operate without unnecessary
peril, or, alternatively, the carrier may breach a more specific duty by failing to comply with
regulations issued by the Federal Railroad Administration (“FRA”). See McGinn v. Burlington
N. R.R. Co., 102 F.3d 295, 299 (7th Cir.1996). The LIA (and its predecessor statute the BIA), are
to be liberally construed to afford protection to railroad employees and others by using safe
7
equipment. See Gregory v. Missouri Pacific R. Co., 32 F.3d 160, 161 (5th Cir. 1994). The LIA
imposes an absolute and continuing duty on a railroad carrier to provide safe equipment. 49
U.S.C.A. § 20701; Gregory, 32 F.3d at 161. Under the LIA, it is not necessary to prove that
violations of safety statutes constitute negligence. Proof that an employer violated the LIA is
effective to show negligence as a matter of law. Houghton, 999 S.W.2d at 44, citing Urie v.
Thompson, 337 U.S. 163, 189, 69 S. Ct. 1018, 1034, 93 L. Ed. 1282 (1949). Strict liability under
FELA results when a rail carrier violates one of the Safety Appliance Acts,5 which include the
LIA. Thus, a railroad whose employees are injured as a result of the LIA will incur strict liability
under FELA. McGinn, 103 F.3d at 298-99. If a railroad chooses to install a piece of equipment
that is not required-because the equipment is not mandated by a federal regulation and does not
constitute an integral or essential part of a locomotive-then the railroad must properly maintain
that piece of equipment. If it fails to do so, and injury results, the railroad can be held liable for
violating the LIA. Giebel v. Union Pacific R. Co., No. 08-CV-6294 (PJS/FLN), 2010 WL
1904921, *3 (D.Minn. May 11, 2010)(slip op.). In order to show a violation under the LIA, a
plaintiff must show that the complained-of-condition created a safety hazard. Glow v. Union
Pacific R. Co., 652 F. Supp. 2d 1135, 1143 (E.D. Ca. 2009), citing Oglesby v. S. Pac. Transp. Co., 6
F.3d 603, 610 (9th Cir. 1993).
Appellant argues that the failure to keep the digital electronic fuel gauge and in-cab display
in proper repair violated Appellee’s general duty to keep all the appurtenances in a safe condition
and its specific duty imposed by 49 C.F.R. § 229.45. This provision of the Code of Federal
Regulations addresses the general condition of locomotive safety standards, requiring that:
All systems and components on a locomotive shall be free of conditions that
5
45 U.S.C.A. §§ 1-43 (West 2012).
8
endanger the safety of the crew, locomotive or train. These conditions include:
insecure attachment of components, including third rail shoes or beams, traction
motors and motor gear cases, and fuel tanks; fuel, oil, water, steam, and other leaks
and accumulations of oil on electrical equipment that create a personal injury
hazard; improper functioning of components, including slack adjusters, pantograph
operating cylinders, circuit breakers, contactors, relays, switches, and fuses; and
cracks, breaks, excessive wear and other structural infirmities of components,
including quill drives, axles, gears, pinions, pantograph shoes and horns, third rail
beams, traction motor gear cases, and fuel tanks.
49 C.F.R. § 229.45 (2012).
While this regulation lists a number of conditions, it is not intended to be exhaustive. See
Diede v. Burlington Northern R.R. Co., 772 F.2d 593, 595 (9th Cir. 1985). The railroad safety
regulations, in a section on prohibited acts, provides that the LIA makes it unlawful for any carrier
to use or permit any locomotive on its lines unless the “entire locomotive and its appurtenances”
are: (1) in proper condition and safe to operate in the service to which they are put, without
unnecessary peril to life and limb; and (2) have been inspected and tested as required by the
regulations. 49 C.F.R. § 229.7 (2012).
The LIA does not define “parts and appurtenances,” leaving what is included in the
definition to be determined on a case-by-case basis. We have been unable to find any cases which
address defective or malfunctioning fuel gauges or in-cab displays in relation to either the LIA or
FELA. Appellant argues that the fuel gauge and in-cab display are “appurtenances” of the
locomotive. Appellee agrees, stating this is “a fact BNSF has never disputed” and “does not
dispute that a digital fuel gauge constitutes an appurtenance.” We agree.6
6
See Herold v. Burlington Northern, Inc., 761 F.2d 1241, 1246-47 (8th Cir. 1985)(holding that amber rotating beacon
was a “part or appurtenance” in spite of the fact that no regulation required its installation); Urie, 337 U.S. at 179, 69
S.Ct. at 1029 (track sanders are within BIA); Tiller v. Atlantic Coast Line Railroad Co., 323 U.S. 574, 577-78, 65 S. Ct.
421, 423, 89 L. Ed. 465 (1945)(headlight included under BIA); Lilly, 317 U.S. at 486-87, 63 S.Ct. at 351 (boiler spout
is appurtenance under BIA); Chicago, Rock Island & Pacific Railroad Co. v. Speth, 404 F.2d 291, 293 (8th Cir.
1968)(explosive warning torpedoes, improperly placed on rack inside cab, are appurtenances under BIA); Southern
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Appellant contends that Appellee breached both its specific duty under 49 C.F.R. § 229.45,
and its general duty to maintain the parts and appurtenances of the locomotive.
The FRA provides guidance regarding railroad safety regulations. Chapter 8 of the
Motive Power and Equipment Compliance Manual (“Manual”) concerns “Railroad Locomotive
Safety Standards” under 49 C.F.R. 229.7 The Manual, in discussing 49 C.F.R. 229.45, states:
Conditions described as fuel, oil, water, steam, and other leaks must be qualified by
stating that they constitute a personal injury hazard. Insecure attachments of those
items such as third rail shoes or beams, traction motors and motor gear cases and
fuel tanks should have some relevancy to safety, or have deteriorated to the point
that it is immediately unsafe and could cause an accident. A locomotive should
not be cited for conditions described above if they do not constitute a hazard of any
type, but are merely technical in nature. However, the railroad should be required
to correct the condition and bring the locomotive into compliance. Any safety
appliances not covered in Part 231, such as steps and handholds that aid in sanding
locomotives, safety railings, and ladder treads affording access to the roof of the
locomotive are covered by this section. Similarly, if the sander hose or pipe has a
hole in it that discharges sand at eye level, the Inspector must establish the personal
injury hazard under 229.45. The Inspector must explain how the blowing would
cause the injury (e.g. sand blowing at eye level on locomotive walkway, etc.).
[I]nspectors should use this code if or when they find a handle missing or the
locking feature defective on locomotive air brake MU end-cocks, since these
conditions may affect the operation of the locomotive’s brakes.
Manual at Ch. 8 at 33-4.
This section of the Manual specifically provides that the “FRA also believes that,
‘conditions that endanger the safety of the crew, locomotive, or train’ provides the proper and
Railway Co. v. Bryan, 375 F.2d 155, 157 (5th Cir.), cert. denied, 389 U.S. 827, 88 S. Ct. 82, 19 L. Ed. 2d 83
(1967)(metal lifting eye designed to assist locomotive getting back on track in event of derailment included under
BIA); Holfester v. Long Island Railroad Co., 360 F.2d 369, 372 (2d Cir. 1966)(fuse, fuse box, its contents, cover, latch
and attachments included as appurtenances under BIA); Fritts v. Toledo Terminal Railroad Co., 293 F.2d 361, 363-64
(6th Cir. 1961)(fireman’s seat is an appurtenance under BIA); Bolan v. Lehigh Valley Railroad, 167 F.2d 934, 936-37
(2d Cir. 1948)(pilot step); Hines v. Smith, 275 F. 766, 767-68 (7th Cir. 1921)(automatic bell ringer is an
appurtenance); Green v. River Terminal Railway Co., 585 F. Supp. 1019, 1028 (N.D.Ohio 1984)(radio); Zollinger v.
Pittsburgh & Lake Erie Railroad Co., 337 F. Supp. 913, 913-14 (D.C.Pa. 1972)(push-pole is an appurtenance);
compare King v. S. Pac. Transp. Co., 855 F.2d 1485, 1488 (10th Cir. 1988)(armrests are not integral or essential);
McGinn, 102 F.3d at 299 (luggage racks are neither integral nor essential).
7
Found at http://www.fra.dot.gov/rrs/downloads/safety/Compliance%20Manuals/Chapter8Aug2012.pdf
10
lawful limit to the application of this section.” Id. at 33. The Manual also gives guidance
regarding 49 C.F.R. §§ 229.95 and 229.97, regulations concerning venting and grounding fuel
tanks, which is instructive:
There is no requirement for any type of fuel level gauge at the fuel oil reservoirs.
Generally, all locomotives have fuel sight glasses of some type, but they are for the
railroad’s convenience, as is the automatic fuel shut-off equipment that is used
when fueling locomotives.
Manual at Ch. 8 at 48.8
A review of the pertinent sections of the Code of Federal Regulations indicates that a
defective fuel gauge, absent some malfunction or defect that would cause a condition in the gauge
itself that could endanger the safety of the crew, would not violate the strict liability provision of
49 C.F.R. § 229.45. The guidance in the Manual notes that there is no violation of the statute if
the conditions described in the regulation “do not constitute a hazard of any type, but are merely
technical in nature. However, the railroad should be required to correct the condition and bring
the locomotive into compliance.” Manual at Ch. 8 at 34. Maryott testified that the worst
consequence that could happen relating to a malfunctioning fuel gauge is that the train could run
out of fuel and stop moving. In his deposition Appellant conceded this possible result.
Appellant testified that Rhodes could have stopped the train and performed a physical inspection
of the fuel tanks, and that such a process would take about fifteen minutes. Neither the Code of
Federal Regulations nor the Manual provide specific mention of fuel gauges, or their maintenance.
No evidence was presented that the malfunctioning fuel gauge itself presented a danger or was
unreasonably dangerous or created an unnecessary risk of personal injury. We find that the trial
8
We also note that the regulations are specific regarding certain gauges, including air pressure gauges (used as part of
the brake system) and steam pressure gauges (when used on steam trains). However, there is no specific safety
regulation relating to fuel gauges.
11
court did not err in holding that as a matter of law, a defective fuel gauge in and of itself, without
evidence that the gauge defect itself is dangerous, does not violate the provisions of 49 C.F.R.
§ 229.45.
Appellant also contends that Appellee breached its general duty to maintain the parts and
appurtenances in the locomotive. He argues that the fuel gauge indicated zero fuel in the tank
shortly after traveling over a “rough” piece of track (or interlocker) despite sufficient fuel in the
tank prior to departing the yard, and that an immediate investigation was required. Appellant
argues that he left the cab in the course and scope of his duties, and was injured while leaning over
the side to investigate the fuel gauge on the side of the tank. He also argues that the defective fuel
gauge placed him in unnecessary danger because he had to go outside of the cab to check the fuel
gauges on the tank to determine whether the train was actually out of fuel. An expert opinion
prepared on behalf of Appellant concluded that the defective fuel gauge exposed Appellant to a
risk of personal injury because: (1) the locomotive was not actually out of fuel; (2) the in-cab fuel
display indicated a sudden loss of fuel because the fuel gauge was defective; (3) a properly
functioning fuel gauge would not have caused the in-cab fuel gauge display to indicate a sudden
loss of fuel; and (4) therefore, Appellant would not have exited the cab to investigate.
However, as Appellant acknowledges, a plaintiff attempting to prove a specific violation of
a duty must prove more than that the part or appurtenance failed to work properly, but that the
defect in the part or appurtenance presented “an unnecessary danger of personal injury.” See
Glow, 652 F. Supp. 2d at 1143. As the Fifth Circuit noted in Gregory, the operation of a
locomotive, no matter how equipped, involves some danger to life and limb and accordingly the
LIA does not address all perils associated with operating locomotives, only the “unnecessary”
12
perils. Gregory, 32 F.3d at 165. Appellee cites Varney v. Norfolk and Western Ry. Co., 899
F. Supp. 280 (S.D.W.Va. 1995) in support of its argument that it did not breach its general duty
under the LIA. The Varney court was concerned with an injury caused by a broken handle on a
removable radio. In that case, the court noted that conditions other than mechanical issues can
render a locomotive or appurtenance unsafe to operate. However the court found that the broken
strap on the radio handle did not render either the locomotive or the radio itself “unsafe to operate.”
Varney, 899 F. Supp. at 281-82.
Here, there is no evidence that the digital fuel gauge rendered the locomotive unsafe to
operate “without unnecessary danger of personal injury.” See 49 U.S.C.A. § 20701. Rhodes
testified that a properly functioning fuel gauge, though necessary for the seamless operation of a
locomotive, does not affect the safety of the crew. There is no evidence supporting Appellant’s
claim that the defective fuel-gauge and in-cab display created an unnecessary danger of personal
injury as a matter of law and we hold the trial court did not err so finding.
Having reviewed the evidence presented in the Motion for Summary Judgment in the light
most favorable to Appellant, we find no error in the trial court’s granting of summary judgment as
to the LIA cause of action. Appellant’s sole issue is overruled.
CONCLUSION
Having overruled Appellant’s sole issue, we affirm the trial court’s grant of summary
judgment.
October 3, 2012
CHRISTOPHER ANTCLIFF, Justice
Before McClure, C.J., Rivera, and Antcliff, JJ.
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