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Deason v. BNSF Railway Co.

United States District Court, D. Montana, Great Falls Division

July 27, 2018

CONSUELA DEASON, as Personal Representative for the Estate of JAMES E. DEASON, deceased, Plaintiff,
v.
BNSF RAILWAY COMPANY, a Delaware Corporation; ROBINSON INSULATION COMPANY, a Montana Corporation for Profit; and DOES A-Z, Defendants.

          ORDER

          Brian Morris United States District Court Judge

         Plaintiff Consuela Deason ("Deason"), as Personal Representative for the Estate of James Deason, filed a Complaint against Defendant BNSF Railway Company ("BNSF") in the Eighth Judicial District, Cascade County, Montana, (Doc. 12.) BNSF removed the matter to this Court on August 16, 2017. (Doc. 1.) Judge Johnston entered Findings and Recommendations regarding BNSF's motion to dismiss for failure to state a claim (Doc. 5) and Deason's motion for partial summary judgment on the issue of federal preemption (Doc. 38) on February 14, 2018. (Doc. 72.) Judge Johnston recommended that the Court deny BNSF's motion to dismiss for failure to state a claim. Id., at 18. Judge Johnston further recommended that the Court grant Deason's motion for partial summary judgment regarding federal preemption. Id. BNSF timely objected on February 28, 2018. (Doc. 75.)

         The Court reviews de novo findings and recommendations to which objections are made. 28 U.S.C. § 636(b)(1)(C). Portions of findings and recommendations to which no party specifically objects are reviewed for clear error. McDonnell Douglas Corp. v. Commodore Bus. Much., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981).

         DISCUSSION

         A. Negligence

         BNSF argued in its motion to dismiss for failure to state a claim that Deason has failed to allege that BNSF owed Deason a duty of care. (Doc. 5-1.) As a result, Deason cannot establish the first element of a negligence claim. Id. Judge Johnston determined that whether BNSF actually knew or should have known of the danger of asbestos and vermiculite proves irrelevant at this point. Judge Johnston further determined that it remains irrelevant at this point whether Deason will ultimately be able to prove the elements of the negligence claim. Judge Johnston determined that in evaluating the motion to dismiss, the Court must accept the allegations in the Complaint as true. Judge Johnston cited to several paragraphs of Deason's Complaint that, if true, give BNSF "fair notice of what the claim is and the grounds upon which it rests." Bell Atlantic Corp v. Twombly, 550 U.S. 544, 545 (1995).

         BNSF in its objection argues that Plaintiffs Complaint acknowledges that BNSF did not have notice until 1959 that the Libby vermiculite "was inextricably contaminated with asbestos." (Doc. 75 at 18.) BNSF further argues that even if BNSF had notice of asbestos contamination, there are no allegations contained in the Complaint that BNSF could foresee that the asbestos could lead to the claims that Plaintiff advances. BNSF contends that no legal duty exists. Id.

         The Court agrees with Judge Johnston's analysis in the Findings and Recommendations. Whether BNSF actually knew or should have known of the danger of asbestos and vermiculite proves irrelevant. Whether Deason will ultimately succeed in her negligence claim does not matter at this juncture. Deason has sufficiently pled a claim of negligence against BNSF to give BNSF "fair notice of what [Deason's] claim is and the grounds upon which it rests." Twombly, 550 U.S. at 555.

         B. Common Law Strict Liability

         BNSF argued in its motion to dismiss for failure to state a claim that it remains a "common carrier" of freight. (Doc. 5-1.) A common carrier proves exempt from the general rules regarding strict liability under § 521 of the Restatement (Second) of Torts. Section 521 provides "the rules as to strict liability for abnormally dangerous activities do not apply if the activity is carried on in pursuance of a public duty as imposed upon the actor as a public officer or employee or as a common carrier." BNSF argued that it cannot be held strictly liable for storing and transporting vermiculite when state and federal law required it. Section 521 of the Restatement has not been expressly adopted in Montana.

         Judge Johnston determined that the issue of whether Montana would adopt § 521 proves premature. Judge Johnston determined that the question of what constitutes an abnormally dangerous activity remains a question of law for the Court to decide. Judge Johnston further determined that sufficient facts have not been established for the Court to make this determination as a matter of law. Deason has alleged, however, enough facts to state a claim for relief as to strict liability in tort.

         BNSF argues in its objection that there exists no possible way for Plaintiff to succeed on the merits in her strict liability claims premised on Restatement §§519 and 520. (Doc. 75 at 10.) BNSF argues that § 519 applies only to a party that "carries on an abnormally dangerous activity" and the Court cannot reconcile this language with its finding that BNSF did not carry hazardous material pursuant to the Hazardous Materials Transportation Act ("HMTA"). Id.

         The Court agrees with Judge Johnston that Deason has alleged sufficient facts to survive a motion to dismiss. Even though vermiculite is not considered a hazardous material under the HMTA as enacted by Congress, it could still be considered an abnormally dangerous activity. Deason, at this juncture, has alleged sufficient facts to survive the motion to dismiss. Section 519 and the HMTA are not one and the same.

         The Court further agrees with Judge Johnston that the issue of whether Montana would adopt § 521 proves premature. BNSF in its objection points to two Montana state district court cases, Walsh v. Montana Rail Link, 2001 ML 1418, and Anderson v. BNSF Railway Company, 2010 Mont. Dist. LEXIS 73, to support its argument. The Court disagrees. Walsh and Anderson both involved the summary judgment standard. The Court agrees with Judge Johnston's determination that at ...


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