United States District Court, D. New Mexico
ARLINDA LESLIE, INDIVIDUALLY and as Next Friend of BLAIR KING AND SETH KING And BRANDON LESLIE, Plaintiffs,
BNSF RAILWAY COMPANY, Defendant.
MEMORANDUM OPINION AND ORDER
matter comes before the Court on the First Federal Rule
of Civil Procedure 12(c) Motion for Judgment on the
Pleadings (ECF No. 28) filed by Defendant BNSF Railway
Company (“Defendant” or “BNSF”). The
Court, having considered the motion, briefs, pleadings,
relevant law, and otherwise being fully advised, concludes
that Defendant's motion should be granted as to
Plaintiffs' negligence per se claim based on N.M. Stat.
Ann. § 77-66-16, but should otherwise be denied.
considering a motion for judgment on the pleadings, a court
should accept as true and construe in the light most
favorable to the non-moving party all facts pleaded in the
complaint. Aspenwood Investment Co. v. Martinez, 355
F.3d 1256, 1259 (10th Cir. 2004).
case arises out of a collision on November 1, 2013, at around
8:00 p.m., when an automobile in which Plaintiffs Arlinda
Leslie, Blair King, and Seth King were riding hit a cow that
was on New Mexico State Highway 6 (“Highway 6”)
after a cross country meet. See Compl. ¶¶
7, 14, 17, ECF No. 1-1. Brandon Leslie, a cross-country
coach, was traveling in a bus with members of the team and
came upon his wife in her severely injured condition
immediately after the crash. Id. ¶¶ 7, 22.
relevant locations, Highway 6 runs within a fenced right of
way. Id. ¶ 8. Near Highway 6, BNSF owns,
operates, and maintains railway property and equipment, and
at the relevant times, BNSF owned and operated a railroad
right of way across a portion of the ranch property owned and
operated by Huning Limited Partnership (“Huning”)
near Highway 6. Id. ¶¶ 9-10. BNSF owned
and maintained fences and gates to keep cattle and other
livestock from getting onto its railroad right of way.
Id. ¶ 11. BNSF had a contractual duty to
maintain its fences near Highway 6 and the Huning ranch.
Id. ¶ 12.
November 1, 2013, a cow owned by Huning entered and was
present in the right of way of Highway 6 near the
intersection of the highway with ATT road. Id.
¶ 14. Plaintiff Arlinda Leslie was driving the vehicle
in which Blair and Seth King were passengers when her vehicle
struck the cow in the roadway. Id. ¶ 17. The
bus in which Brandon Leslie was riding also subsequently
struck the cow in the road. Id. ¶ 18. Ms.
Leslie suffered severe and significant injuries. Id.
¶ 19. Blair and Seth King also suffered injuries from
the crash and immediately saw their mother in a severely
injured condition. Id. ¶¶ 20-21. After
Plaintiff filed a state court lawsuit against Huning and
others (“the Huning defendants”), the Huning
defendants “claimed that they believe that the cow
entered the highway by jumping over a gate owned and
maintained by BNSF.” Id. ¶¶ 15-16.
October 27, 2016, Plaintiffs filed a separate lawsuit against
BNSF in state court for negligence and negligence per se
arising from the November 1, 2013 collision. See
Compl, ECF No. 1-1. Plaintiffs assert that BNSF had a duty to
prevent cattle from entering the railroad right of way and
from there entering the highway. Id. ¶ 24.
25. Upon information and belief, the Huning defendants claim
that plaintiffs' injuries were caused by defendant
BNSF's negligent failure to take reasonable action to
prevent cattle or other livestock from leaving the BNSF right
of way and gaining access to the right of way for Highway 6.
26. If, as the Huning defendants claim, their cow got onto
the highway right of way because defendant BNSF negligently
failed to construct, monitor and maintain the gates and
fences between the BNSF right of way and the Huning Limited
Partnership ranch, then plaintiffs are entitled to recover
from BNSF that portion of their damages found by the jury to
be attributable to the fault of defendant BNSF.
Id. ¶¶ 25-26. Plaintiffs contend that if
BSNF violated N.M. Stat. Ann. § 77-16-16, requiring a
railway to construct and maintain livestock fences on the
sides of the railroads, and N.M. Stat. Ann. § 66-7-363,
making it unlawful to negligently permit livestock to wander
or graze upon any fenced highway, then such violations
constitute negligence per se. Id. ¶¶
removed the case to this Court based on diversity
jurisdiction. See Notice of Removal, ECF No. 1.
Subsequently, BNSF filed a motion for judgment on the
pleadings (ECF No. 28). BNSF contends that Plaintiffs did not
state a claim against it because their allegations are that
the Huning defendants claim that BNSF is liable, and their
pleaded theory of liability depends on BNSF first being found
negligent in the state court action against the Huning
defendants. See Def.'s Mot. 4-5, ECF No. 28.
BNSF also argues that the statutory causes of action do not
apply under the circumstances because BNSF did not own the
cow, and thus owed no duty to prevent it from wandering on
the highway. Id. at 1. BNSF claims it has no
statutory duty to maintain the fence along its railway
right-of-way for the benefit of the motoring public.
Id. According to BNSF, it has no common law duty to
fence or maintain fences along its railway, and therefore,
Plaintiff failed to allege facts that would support any
negligence claim against it. Id. at 1-2.
motion for judgment on the pleadings provides a mechanism by
which the court may dispose of a case or a claim as a matter
of law. See Fed. R. Civ. 12(c). The standards
governing a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6) also govern a party's motion for
judgment on the pleadings. Atl. Richfield Co. v. Farm
Credit Bank of Wichita, 226 F.3d 1138, 1160 (10th Cir.
2000). For a party to survive a motion to dismiss, and thus a
motion for judgment on the pleadings, “a complaint must
contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotations omitted). A complaint that offers
“labels and conclusions” or “a formulaic
recitation of the elements of a cause of action” is
insufficient to state a claim for relief. Id.
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)). A plaintiff must allege either direct or
inferential allegations on all the material elements of a
claim and provide enough factual allegations for a court to
infer the claim is plausible. See Bryson v.
Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008).
BACKGROUND REGARDING OPEN RANGE LAW
English common law “it was the duty of the owner of
livestock to fence them in, and no duty was placed upon the
adjoining landowner to fence them out.” Maguire v.
Yanke, 590 P.2d 85, 88 (Idaho 1978). New Mexico, like
many other western states, rejected the English common law
rule for livestock management. Id. & n.1 (and
cited cases). New Mexico historically applied the “open
range” rule, which relieved an owner of livestock from
a duty to keep his livestock off a public highway. Dean
v. Biesecker, 1975-NMSC-021, ¶ 5, 87 N.M. 389.
Outside of legislatively created “herd law districts,
” see N.M. Stat. Ann. §§ 77-12-1 to
-12, a livestock owner had no duty to fence to prevent his
cattle from trespassing and was not liable for damage caused
by trespassing animals so long as it was not willful. See
Grubb v. Wolfe, 1965-NMSC-153, ¶¶ 7-9, 75 N.M.
601. The New Mexico Supreme Court described the reason for
the “open range” rule:
New Mexico, as part of the western United States, has always
been principally a rural area where most of the land is
devoted to the raising of livestock. It is not surprising
therefore that at an early date, this court announced that in
this state, as in most of the other western states, the rule
requiring the owner of domestic animals to confine them on
his own grounds or be liable for their trespass on the
unenclosed lands of his neighbors, was not recognized.
Rather, it was held that the owner of livestock could permit
his animals, when not dangerous, to run at large without
responsibility for their getting on the property of his
Id. ¶ 8. Because western custom permitted
cattle to roam at will for pasture, when new waves of
immigrants arrived, policymakers decided that cattle owners
should not have to incur the large expense of fencing their
land. See Maguire, 590 P.2d at 88-89 (quoting
Lazarus v. Phelps, 152 U.S. 81, 85 (1894)). New
Mexico instead adopted the “fence-out” rule
requiring land owners to build a fence meeting
statutory-specifications to protect their property from
roaming livestock. See N.M. Stat. Ann. §
77-16-1 (1909); Board of County Com'rs of County of
Bernalillo v. Benavidez, 2013-NMCA-015 ¶ 6, 292
1965, the New Mexico Supreme Court had a case before it in
which an owner of a calf that was killed when a motorist hit
it sued the motorist for negligence. Grubb,
1965-NMSC-153, ¶¶ 1-2. The Supreme Court concluded
that, in a new age of highways and motor vehicle traffic,
considerations of public health and safety required a change
to impose a duty on cattle owners to use ordinary care in the
control of livestock or otherwise be liable for injuries to
motorists resulting from collisions with animals due to
negligence in permitting them to be in the highway.
Id. ¶¶ 10-11. It therefore concluded the
trial court did not err in instructing that the plaintiff
calf owner had a duty to use ordinary care for the safety of
his property. Id. ¶ 15.
direct response to the Grubb decision, the New
Mexico Legislature in 1966 passed Section 66-7-363(C)
providing that owners of livestock ranging in pastures
through which “unfenced roads or highways pass”
are not liable for damages by reason of injury or damage to
persons or property caused by collisions of vehicles and
livestock, unless the owner “is guilty of specific
negligence other than allowing his animals to range in said
pasture.” Benavidez, 2013-NMCA-015, ¶ 7
(quoting N.M. Stat. Ann. § 66-7-363(C)). The Legislature
also shifted the responsibility for building and maintaining
fences along state highways from cattle owners with property
adjacent to highways to the Highway Department. See
Fireman's Fund Ins. Co. v. Tucker, 1980-NMSC-082,
¶ 12, 95 N.M. 56 (construing N.M. Stat. Ann. §
30-8-13(B) (enacted by Laws 1966, ch. 44 s 1)). Section
30-8-13(B)(1) imposed a duty on the Highway Department to
“construct, inspect regularly and maintain fences along
all highways under its jurisdiction.” Lerma by
Lerma v. State Highway Department of New Mexico,
1994-NMSC-069, ¶ 5, 877 P.2d 1085 (quoting NMSA 1978,
Section 30-8-13(B)(1) (Repl. Pamp. 1984)). The purpose of
§ 30-8-13(B)(1) was to protect the motoring public by
constructing and maintaining fences to prohibit livestock
from entering the highway. Id. ¶ 6. With this
background in mind, the Court will turn to the issues in this