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Leslie v. BNSF Railway Co.

United States District Court, D. New Mexico

September 10, 2019



         This 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.


         When 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).

         This 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.

         At all 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.

         On 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.


         On 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. Plaintiffs allege:

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. ¶¶ 27-30.

         BNSF 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.


         A 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).


         At 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 neighbor.

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 P.3d 482.

         In 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.

         In 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 case.

         V. ...

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