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Owen v. Burlington Northern and Santa Fe Railroad Company3/24/2005
Oral Argument Date: 01/15/2004
Concurring: Faith Ireland, Charles W. Johnson, Richard B. Sanders, Susan Owens
Dissenting: Barbara A. Madsen, Bobbe J Bridge, Gerry L Alexander, Mary Fairhurst
En Banc
Glenn and Margie Nelson were killed in a car-train collision at a railroad grade crossing in Tukwila, Washington. Their daughter, Jean Owen, brought a wrongful death action against the State of Washington, Burlington Northern and Santa Fe Railroad Company, and the city of Tukwila on behalf of her parents. Burlington Northern settled and on summary judgment, the action against both the city and the State was dismissed by the King County Superior Court. Division One of the Court of Appeals affirmed the dismissal of the suit against the State but reversed the order dismissing the city of Tukwila. Owen petitioned this court for discretionary review of the dismissal of the suit against the State, and the city of Tukwila cross-petitioned for review of the Court of Appeals' reinstatement of Owen's claim against it. We denied Owen's petition for review and accepted the city of Tukwila's cross-petition for review on September 5, 2003. We conclude that there are genuine and material facts as to whether the roadway was maintained in a reasonably safe condition for ordinary travel. Therefore, we affirm the Court of Appeals, and remand for further proceedings consistent with this opinion.
FACTS
The fatal accident occurred at the intersection of South 180th Street and a set of Burlington Northern and Santa Fe Railroad Company (BNSF) railroad tracks in Tukwila, Washington. Three sets of railroad tracks intersect South 180th Street near the site of the accident. The eastern and middle sets of tracks are owned by BNSF, and the western set of tracks is owned by Union Pacific. West of the railroad tracks, South 180th Street intersects with 72nd Avenue South and the West Valley Highway. Both intersections are controlled by traffic signals. There is a crown in the road as it intersects with the railroad tracks, which allegedly limits westbound drivers' view of the traffic signals and any approaching trains. South 180th Street is a heavily traveled four lane road, and the three railroad tracks that intersect it are also heavily used by high-speed trains.
Glenn and Margie Nelson, ages 75 and 76, were traveling west on South 180th Street during Friday rush hour traffic. When the flow of traffic came to a halt due to the Tukwila traffic signals west of the railroad crossings, several vehicles, including the Nelsons', were stopped in the railroads' right of way. The truck in front of the Nelsons' vehicle was stopped on the eastern set of tracks when the truck's driver was alerted by a passenger that a train was approaching. The truck moved forward off the tracks and into safety. Unfortunately, as the truck pulled forward, so did the Nelsons' vehicle. After the Nelsons' vehicle pulled forward, the railroad light and bell signals activated and an automatic gate came down behind the Nelsons' vehicle, indicating a train was approaching within 20 seconds. The Nelsons tried to move forward and off the tracks, striking the truck in front of them. The truck, however, was already touching the vehicle in front of it and could not move any farther forward. The train struck the Nelsons' vehicle, instantly killing Margie in the passenger seat. Glenn, who was in the driver's seat, died later at the hospital.
In her second amended complaint, Owen makes several allegations of negligence by the city of Tukwila, ranging from failing to maintain South 180th Street in a safe condition, to failing to provid
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