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Owen v. Burlington Northern Santa Fe Railroad11/4/2002
Glenn and Margie Nelson were killed when a train collided with their vehicle at a railroad crossing in Tukwila. The City of Tukwila and the State of Washington, sued for wrongful death by the Nelsons' daughter, Jean Owen, were dismissed on summary judgment. Because Owen supplied sufficient evidence that Tukwila was negligent with respect to traffic control measures at the intersection, we reverse the order dismissing Tukwila. The order dismissing the State is affirmed in view of the lack of any argument or authority establishing a duty.
An appellate court reviews summary judgment de novo, performing the same inquiry as the trial court. Herron v. Tribune Publ'g Co., Inc, 108 Wn.2d 162, 169, 736 P.2d 249 (1987). A motion for summary judgment may be granted only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). All reasonable inferences from the facts must be considered in the light most favorable to the nonmoving party. Scott v. Pacific West Mt. Resort, 119 Wn.2d 484, 502, 834 P.2d 6 (1992). It is the responsibility of the moving party to raise in its summary judgment motion all of the issues on which it believes it is entitled to summary judgment. White v. Kent Medical Center, 61 Wn. App. 163, 168, 810 P.2d 4 (1991).
The railroad crossing where the accident occurred consists of two sets of Burlington Northern tracks running parallel to each other, just inside the city limits of Tukwila. The tracks cross South 180th Street, which is a four-lane arterial connecting the East Valley Highway with State Route 181, the West Valley Highway. Westbound drivers on the arterial see various warnings as they approach the crossing. The warnings include the large white letters 'X' and 'RR' on the pavement; yellow railroad crossing signs; a crossbuck sign that says 'RAILROAD CROSSING'; a sign that says ' TRACKS'; and another sign that says 'DO NOT STOP ON THE TRACKS'. The roadway rises for westbound travelers as they approach the crossing. Photographs suggest that it is difficult for drivers at that point to see the traffic lights and congestion west of the crossing.2
A short distance past the two sets of Burlington Northern tracks, westbound drivers encounter another north-south railroad track, this one belonging to Union Pacific. Another 530 feet west of the Union Pacific tracks is an intersection with 72nd Avenue South. An intersection with the West Valley Highway is 450 feet further west. There are traffic lights at both intersections. These traffic lights routinely cause westbound traffic to stop and back up. Due to the high volume of traffic destined for the West Valley Highway, backups sometimes extend as far as one-third of a mile east of the crossing, with vehicles stopped on the tracks.
The accident occurred shortly after 4 p.m. on a Friday afternoon in June, 1998. Glenn Nelson was driving his wife home from a doctor's appointment in Renton. Their route was west on South 180th Street. The rush hour traffic was heavy. As the Nelsons approached the Burlington Northern crossing, their line of traffic was moving across the tracks. However, as they drove on to the Burlington Northern tracks, traffic came to a stop. The Nelsons' car stopped on the first set of tracks with vehicles located directly in front of and behind it.
The pick-up truck ahead of the Nelsons was stopped on the second set of Burlington Northern tracks. The driver of the pick-up saw a train approaching on those tracks and heard its whistle, and pulled forward off the tracks. Within moments, flashing light signals activated and bells began to ring, signaling th
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