Davis, Bethune & Jones, LLC Announces: Oklahoma Supreme Court Affirms Award of $9.6 Million Against BNSF For Wrongful Death at Railroad Crossing

OKLAHOMA CITY, June 28, 2018 /PRNewswire/ -- The Oklahoma Supreme Court affirmed a $9.6 million wrongful death verdict against BNSF Railway Company. The unanimous decision was handed down June 19, 2018. The family of Jeffrey Nye brought the wrongful death lawsuit as a result of a collision at a rural BNSF railroad crossing in Pontotoc County, Oklahoma in 2008. An Ada Oklahoma jury originally awarded $14,813,000.00 for the wrongful death with BNSF receiving 65% of fault and the decedent Mr. Nye receiving 35% fault leaving a net verdict of $9,628,450.00. BNSF appealed the jury verdict to the Oklahoma Supreme Court. Grant L. Davis, attorney for the family stated, "The Nye family is very thankful for the thoughtful Opinion of the Oklahoma Supreme Court. The family originally filed this case to hold BNSF accountable for its negligence and to hopefully prevent future tragedies at dangerous railroad crossings."

Jeff Nye, 46, was a football coach and science teacher at Sulphur High School in Sulphur, Oklahoma. The issues for the jury to determine included whether the horn on the train was functioning, whether or not BNSF had controlled the vegetation to create clear sight lines and whether or not there should have been lights and gates at this crossing. The crossing did not have lights and gates at the time of the collision.

BNSF blamed Mr. Nye for causing the collision and contended that, as a matter of law, Mr. Nye should be deemed 100% at fault. The Oklahoma Supreme Court ruled that Mr. Nye was not guilty of "negligence per se" that would absolve BNSF of liability because there was evidence that "the train was not plainly visible, that overgrown vegetation concealed the train … and that BNSF never sounded its horn to warn of its impending approach." The Court ruled that there was sufficient evidence presented on all of Plaintiff's theories of recovery. 

BNSF manipulated or misplaced its event Data Recorder (Black Box)

BNSF also complained that Nye's attorney accused BNSF of tampering with the train's event data recorder and that BNSF manipulated evidence. The event data recorder is like a "black box" for the train that indicates, among other things, the speed of the train and whether the horn was blown. The Oklahoma Supreme Court indicated in reviewing the record that "at the accident scene, BNSF's witness first claimed to State Trooper McKee that the train did not have an event data recorder. BNSF later recanted and testified that the event data recorder (which did exist) was working properly. Yet BNSF testified that the event data recorder was sent out for repair because it was not recording the horn. Upon examination, a subsequent report indicated the event data recorder [was working properly]". BNSF employees came to the scene of the train wreck and attempted to download the information on the "black box" but did not maintain the information it downloaded. The very next day information downloaded from the "black box" indicated the horn was not blown. BNSF produced the wrong event data recorder for inspection and after several miscues finally produced the correct event data recorder on the very last day of a three week trial. The Oklahoma Supreme Court wrote that these facts were "definitely sufficient" for Nye's lead lawyer, Grant L. Davis, to comment to the jury "there were a lot of things that went on that were strange" regarding the railroad's conduct.

Federal Preemption Defense

BNSF argued that federal funds were used at the crossing and therefore, the doctrine of "Federal preemption" should prevent the plaintiff from making a claim against BNSF. The Court found "there was an evidentiary gap linking . . . funding of the federal project to the specific crossing at issue here. So, before BNSF could successfully avail itself of a preemption defense, BNSF had the burden to demonstrate, as a matter of law, that the warning signs erected at County Rd. 1660 were federally funded." The Oklahoma Supreme Court found that "the trial court concluded that material facts existed as to whether federal funds participated in the installation of the warning devices; and, thus, properly submitted this matter to the jury." The Court described the evidence in detail which indicated BNSF did not prove federal funds were spent at this crossing.

Co-lead attorney for the Nye family, Thomas C Jones from the firm of Davis, Bethune & Jones in Kansas City Missouri, stated, "It has been a long battle to hold BNSF accountable for its negligent acts. We hope BNSF and other railroads learn from this case and abide by their legal duties for public safety at railroad crossings."

The case name and cite is Nye v. BNSF (2018 WL 3031937). If you have any questions please contact Grant L Davis of Davis, Bethune & Jones, LLC, Kansas City, Missouri at (816) 421-1600 or email [email protected].

SOURCE Davis, Bethune & Jones LLC

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