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Lopez v. BNSF Railway Co.

July 9, 2009

SALVADOR V. LOPEZ, AND AS SUCCESSOR-IN-INTEREST MARY G. LOPEZ, INDIVIDUALLY ON BEHALF OF DECEDENT, ET AL., PLAINTIFFS,
v.
BNSF RAILWAY COMPANY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

DECISION GRANTING DEFENDANT CORRECTED MEMORANDUM OF COUNTY OF KERN'S MOTION FOR SUMMARY JUDGMENT (Doc. 67)

I. INTRODUCTION

Before the court for decision is Defendant County of Kern's motion for summary judgment on Plaintiffs' first, second, and third causes of action. County of Kern served the motion on Plaintiffs on April 9, 2009. On May 28, 2009, Plaintiffs filed a statement of non-opposition to County of Kern's motion for summary judgment.

II. FACTUAL BACKGROUND

This case arises out of a collision between a truck driven by Salvador V. Lopez and an Amtrak train in an unincorporated area of Kern County. On August 7, 2006, Lopez was driving northbound on State Route 43, parallel with railroad tracks owned by Defendant Burlington Northern Santa Fe Railroad ("BNSF"). (Defendant's Statement of Undisputed Material Facts ("DSUMF") 1-2.) The railroad tracks were located west of Route 43, or to Lopez's left. (DSUMF 2.) From Route 43, Lopez turned west onto a fifty-foot stretch of Peterson Road. (DSUMF 5.) Peterson Road and the railroad tracks intersect approximately fifty-feet from the Route 43 and Peterson Road crossway. (DSUMF 3,5.) Kern County owns and controls the fifty-foot stretch of Peterson Road, but does not own the railroad crossing or the crossing's electronic devices. (DSUMF 4,6, 15.)

On August 7, 2006, the fifty-foot stretch of Peterson Road consisted of a single lane in each direction separated by double yellow lines. (DSUMF 14.) A railroad crossing sign was posted for westbound traffic on the north shoulder of Peterson Road and a limit line was painted on the pavement. (DSUMF 11.) The railroad crossing was equipped with flashing lights, an electronic warning bell, and a railroad crossing sign. (DSUMF 19.) The lights were operating when Mr. Lopez approached the crossing and there were no visual obstructions preventing Mr. Lopez from noticing a train approaching from the south. (DSUMF 19-20.)

At around 7:50 a.m., Mr. Lopez approached the railroad crossing, but did not stop for the train, which had been sounding its horn. (DSUMF 21-22.) Mr. Lopez drove in front of the train, was broad-sided and killed. (DSUMF 21.)

III. PROCEDURAL BACKGROUND

On August 24, 2007, Plaintiffs filed a complaint in the Superior Court, County of Kern, against BNSF Railway Company, Kern County, Amtrak, the State of California, California Department of Transportation, and the Cities of Delano, McFarland, and Wasco. Plaintiffs alleged defendants were liable under theories of wrongful death (Count I), negligence (Count II), and dangerous condition of public property (Count III).*fn1 On September 26, 2007, the case was removed to federal court. (Doc 2.)

Defendant Kern County filed its answer to Plaintiffs' complaint on January 11, 2008. (Doc. 25.)

On April 9, 2009, Kern County moved for summary judgment on Plaintiffs' first, second, and third causes of action. (Doc. 67.) Kern County argues they are entitled to summary judgment because:

1) Government Code § 815 prohibits Plaintiffs' wrongful death and negligence claims; and 2) there was no dangerous condition at the Peterson railroad crossing on August 7, 2006.

On May 29, 2009, Plaintiffs filed a statement of non-opposition to Kern ...


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