                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


 SARAH DEL SERONDE; CAROLINE SERONDE; SANORA ISSAC and
JORDAN ISSAC, as Co-Statutory Plaintiffs, and the surviving children of
    Ella W. Seronde, decedent; and TSINIJINNI JEAN SERONDE,
                         Plaintiffs/Appellants,

                                         v.

                  BNSF RAILWAY COMPANY; DONALD
                           ZANE MORRIS,
                          Defendants/Appellees.

                              No. 1 CA-CV 14-0166
                                 FILED 4-2-2015


            Appeal from the Superior Court in Maricopa County
                           Nos. CV2011-010945
                             CV2011-010947
                             (Consolidated)
                The Honorable Arthur T. Anderson, Judge

    AFFIRMED IN PART; REVERSED IN PART AND REMANDED


                                    COUNSEL

Schneider & Onofry, PC, Phoenix
By Luane Rosen

Pottroff Law Office, Manhattan, KS, Pro Hac Vice
By Robert Pottroff
Co-Counsel for Plaintiffs/Appellants
Thorpe Shwer, PC, Phoenix
By William L. Thorpe, Bradley D. Shwer, Adam T. Reich
Counsel for Defendants/Appellees



                      MEMORANDUM DECISION

Chief Judge Diane M. Johnsen delivered the decision of the Court, in
which Presiding Judge Samuel A. Thumma and Judge Patricia A. Orozco
joined.


J O H N S E N, Judge:

¶1            The driver and other family members of a woman killed in a
car-train collision (collectively, "the Serondes") sued BNSF Railway
Company for damages, alleging BNSF acted negligently in several
respects. BNSF moved for summary judgment, arguing federal law
preempted several of the Serondes' allegations. The superior court
granted the motion, then dismissed the complaint with prejudice. For the
following reasons, we affirm the dismissal of the Serondes' allegations
based on the train's failure to slow, but reverse the dismissal of their
negligence claim insofar as it alleges inadequate markings and warning
devices.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Attempting to bypass a backup on I-40 in Northern Arizona,
Tsinijinni Jean Seronde ("Jean") drove down an unpaved private right-of-
way owned by BNSF. His mother, Ella Seronde, was a passenger in the
car. The right-of-way ran parallel to two railroad tracks and led to a
BNSF-owned railroad crossing. Several other vehicles followed the same
route from the interstate.

¶3            As Jean led the line of cars toward the crossing, a BNSF train
approached from behind. The train crew saw the convoy of cars about a
mile before the crossing and began sounding its horn, but did not slow the
train. Occupants of every vehicle in the line, except for Jean, testified they
heard the horn and saw the train approaching while it was still behind
them.

¶4          Video taken from the train showed that Jean slowed his car
as he neared the crossing, but he did not stop or look to see whether a


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                   SERONDE et al. v. BNSF/MORRIS
                        Decision of the Court

train was approaching before he turned to cross the tracks. As Jean drove
onto the tracks, the train slammed into his car. Jean was injured and his
mother was killed.

¶5            Ella's children brought a wrongful-death claim against BNSF
and its conductor. Jean also sued for his personal injuries, and the cases
were consolidated.1 In due course, BNSF filed five motions for summary
judgment.2 One of the motions argued that federal law preempted several
of the Serondes' allegations, including the contention that the train
negligently failed to slow as it approached the crossing. Another argued
the Serondes could not prove BNSF breached a duty owed to the car's
occupants. The superior court granted the preemption motion, then
dismissed the complaint with prejudice, concluding that its ruling on
preemption mooted the duty motion.

¶6            The Serondes timely appealed from the resulting judgment.
We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.")
section 12-2101(A)(1) (2015).3

                              DISCUSSION

¶7           This court reviews entry of summary judgment de novo,
viewing the facts in the light most favorable to the party against whom
summary judgment was entered. Williamson v. PVOrbit, Inc., 228 Ariz. 69,
71, ¶ 11 (App. 2011). "We will affirm summary judgment only if there is


1     The superior court dismissed the Serondes' allegations against the
BNSF conductor; they do not challenge that dismissal on appeal.

2     BNSF's five summary judgment motions were: (1) Motion for
Summary Judgment Number One: Regarding Judgment in Favor of
Defendant Morris; (2) Motion for Summary Judgment Number Two:
Regarding All of Plaintiffs' Liability Claims; (3) Motion for Summary
Judgment Number Three:         Regarding Plaintiffs' Claims That Are
Preempted By Federal Law; (4) Motion for Summary Judgment Number
Four: Regarding Plaintiffs' Punitive Damages Claim; and (5) Motion for
Summary Judgment Number Five: Regarding Tsinijinni Jean Seronde's
Negligence Per Se.

3       Absent material revisions after the date of the events at issue, we
cite a statute's current version.




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                    SERONDE et al. v. BNSF/MORRIS
                         Decision of the Court

no genuine issue as to any material fact and the party seeking judgment is
entitled to judgment as a matter of law." Id.

A.     Dismissal of the Failure-to-Slow Allegations.

¶8             Federal railroad safety law generally preempts a state-law
negligence claim against a railroad based on a failure to slow if the train
was traveling within the federally prescribed speed limit. See CSX Transp.,
Inc. v. Easterwood, 507 U.S. 658, 674 (1993); see also 49 U.S.C. § 20106(a)(1)-
(2) (2015); 49 C.F.R. § 217.2 (2015). The Serondes do not dispute that the
BNSF train was traveling within the federally prescribed speed limit.
They argue, however, that their claim falls within an exception to
preemption that applies when a "specific, individual hazard" requires the
train to stop or slow down.

¶9             In applying principles of preemption to state-law claims in
Easterwood, the Supreme Court declined to decide whether federal law
would preempt a "suit for breach of related tort law duties, such as the
duty to slow or stop a train to avoid a specific, individual hazard." 507
U.S. at 675, n.15. Courts have relied on that language in applying a
"specific, individual hazard" exception to federal preemption. See, e.g.,
Seyler v. Burlington N. Santa Fe Corp., 102 F. Supp. 2d 1226, 1236 (D. Kan.
2000) ("[A] state law claim based on failure to slow or stop a train under
certain circumstances is preempted."); Earwood v. Norfolk S. Ry. Co., 845 F.
Supp. 880, 885 (N.D. Ga. 1993) ("[A] negligence action based on a duty to
slow or stop a train to avoid a specific, individual hazard is not pre-
empted."); Hightower v. Kan. City S. Pac. Ry. Co., 70 P.3d 835, 846, ¶ 23
(Okla. 2003) ("[W]here it is determined that a 'specific, individual hazard'
exists, a state tort law action survives for breach of the duty to slow or
stop the train to avoid such a hazard.").

¶10           "A specific, individual hazard refers to a unique occurrence
which could lead to a specific and imminent collision . . . ." Hightower, 70
P.3d. at 848, ¶ 24 (quotation omitted). It "must be a discrete and truly
local hazard, such as a child standing on the railway," O'Bannon v. Union
Pac. R.R. Co., 960 F. Supp. 1411, 1420 (W.D. Mo. 1997), or a motorist
stranded on a crossing, see Herriman v. Conrail Inc., 883 F. Supp. 303, 307
(N.D. Ind. 1995). Courts generally have held that ordinary visibility
restrictions and adverse weather do not constitute "specific, individual
hazards" that may create an exception to preemption. See, e.g., Sec. First
Bank v. Burlington N., 213 F. Supp. 2d 1087, 1091-92 (D. Neb. 2002) (poor
visibility due to snow); Seyler, 102 F. Supp. 2d at 1236-37 (heavy rainfall
and flash-flood warnings); Cox v. Norfolk & W. Ry. Co., 998 F. Supp. 679,


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                    SERONDE et al. v. BNSF/MORRIS
                         Decision of the Court

685 (S.D. W. Va. 1998) (snow-covered railroad crossing); Herriman, 883 F.
Supp. at 307 (hazardous lighting at crossing); Earwood, 845 F. Supp. at 887
(rail cars obstructing view of intersection). But see Bakhuyzen v. Nat'l Rail
Passenger Corp., 20 F. Supp. 2d 1113, 1118 (W.D. Mich. 1996) (question of
whether defendant "had a duty to slow the train due to snowy weather
conditions" was not preempted). This is because such conditions are
common, see O'Bannon, 960 F. Supp. at 1420-21 ("[Specific, individual
hazards] must be aberrations which the Secretary [of Transportation]
could not have practically considered when determining train speed limits
under the FRSA."), and would not lead a train operator to conclude that a
risk of collision is imminent, see Van Buren v. Burlington N. Santa Fe Corp.,
544 F. Supp. 2d 867, 880 (D. Neb. 2008) (no "'specific, individual hazard'
unless and until there is imminent danger" of a collision); Hightower, 70
P.3d at 848, ¶ 24 (specific, individual hazard is "a unique occurrence
which could lead to a specific and imminent collision") (quotation
omitted).

¶11            The Serondes argue the convoy of cars proceeding along the
right-of-way and the dust the cars created constituted specific, individual
hazards that required the BNSF train to stop or slow down. The Serondes
do not contend that the vehicles on the roadway parallel to the tracks
were an aberration (indeed, elsewhere they argue BNSF knew that non-
railroad vehicles frequently used the road). And, like rain, snow and fog,
dust is present near many railroad tracks. Moreover, the undisputed
evidence (including the video taken from the train) established that any
dust the convoy had kicked up was not present in the area of the crossing
when the Serondes reached it. See Van Buren, 544 F. Supp. 2d at 881
("[T]he train crew had no reason to believe that a collision was imminent
until Plaintiff's front tires reached the outermost rail."). The conditions
also did not present an imminent risk of collision for purposes of this
analysis because train operators may assume that a driver will obey the
law and stop before entering a crossing. See Marks v. Goodding, 96 Ariz.
253, 256 (1964) ("[A] driver may assume that another motorist will proceed
in a lawful manner and obey the law of the road, and may act on that
assumption.").4


4       Although Marks involved the duty of a motorist, the same legal
principle has been applied to trains approaching railroad crossings. See,
e.g., Bryan v. Norfolk & W. Ry. Co., 21 F. Supp. 2d 1030, 1035 (E.D. Mo. 1997)
(train need not stop "merely because a vehicle was seen slowly
approaching a train crossing"); Bashir v. Nat'l R.R. Passenger Corp.



                                      5
                    SERONDE et al. v. BNSF/MORRIS
                         Decision of the Court

¶12           Accordingly, because the BNSF train was traveling within
the federally prescribed speed limit and the facts did not present a
specific, individual hazard, the superior court did not err in ruling on
summary judgment that federal law preempted the Serondes' allegations
based on a failure to slow.

B.     Dismissal of the Remaining Allegations.

¶13            The superior court ruled that its entry of summary judgment
on preemption mooted BNSF's other motions and dismissed the
complaint in its entirety with prejudice. The Serondes argue the superior
court erred because federal law does not preempt their allegations that
BNSF acted negligently by failing to install adequate markings and
warning devices at the crossing, including automatic gates with flashing
light signals.

¶14            BNSF's preemption motion did not address the Serondes'
allegations about warning devices, and on appeal, BNSF does not argue
those allegations are preempted. Instead, BNSF argues the Serondes
waived any objection to the dismissal of those allegations by failing to
raise the issue in the superior court. The authorities BNSF cites, however,
involve purported trial error or procedural error in a court's findings. See,
e.g., Trantor v. Frederikson, 179 Ariz. 299, 300-01 (1994) (lack of findings of
fact and conclusions of law in awarding attorney's fees); Montano v.
Scottsdale Baptist Hosp. Inc., 119 Ariz. 448, 453-54 (1978) (jury instruction);


(Amtrak), 929 F. Supp. 414, 415 (S.D. Fla. 1996) ("Engineers are entitled to
presume that such persons will stop or cross safely."); Baldwin v. Chicago &
Nw. R.R. Co., 171 N.W.2d 89, 93 (Minn. 1969) (train crew may assume
motorist will exercise due care and stop); Clark v. Atchison, Topeka & Santa
Fe Ry. Co., 6 S.W.2d 954, 961 (Mo. 1928) ("[I]f the engineer of a train sees
an adult person approaching the track, unless there is something in his
actions or manner to indicate the contrary, the engineer has the right to
assume that such person will stop before going on the track . . . .");
Lawrence v. Bamberger R.R. Co., 282 P.2d 335, 338 (Utah 1955) ("The
motorman or engineer operating a train may assume, and act in reliance
on the assumption, that a person on or approaching a crossing is in
possession of his natural faculties and aware of the situation, including the
fact that a train is a large and cumbersome instrumentality which is
difficult to stop, and that the person will exercise ordinary care and take
reasonable precautions for his own safety.").




                                      6
                    SERONDE et al. v. BNSF/MORRIS
                         Decision of the Court

United States v. Globe Corp., 113 Ariz. 44, 51 (1976) (award of costs and
attorney's fees to party not named on appeal); Harris v. Cochise Health Sys.,
215 Ariz. 344, 349-51, ¶¶ 16-23 (App. 2007) (waiver of argument not raised
in response to motion to dismiss); Nat'l Broker Assocs., Inc. v. Marlyn
Nutraceuticals, Inc., 211 Ariz. 210, 216, ¶¶ 27-28 (App. 2005) (court order
requiring out-of-state witness to be deposed in Arizona); Hamm v. Y & M
Enters., Inc., 157 Ariz. 336, 338 (App. 1988) (lack of findings supporting
award of costs and attorney's fees); Bayless Inv. & Trading Co. v. Bekins
Moving & Storage Co., 26 Ariz. App. 265, 270-71 (App. 1976) (lack of
required findings in granting preliminary injunction). BNSF contends the
Serondes should have sought reconsideration of the court’s dismissal of
the complaint or objected to the form of judgment. While it may have
been more efficient if the Serondes had raised the matter with the superior
court on either of those occasions, no rule or case authority required them
to do so.

¶15           Finally, BNSF argues that this court should affirm because
BNSF breached no duty to the Serondes with respect to warning devices.
It recounts argument and evidence presented in its motion for summary
judgment on duty, and urges this court to affirm the dismissal of the
complaint even though the superior court did not reach the merits of that
motion. See Parkinson v. Guadalupe Pub. Safety Ret. Local Bd., 214 Ariz. 274,
277, ¶ 12 (App. 2007) ("We will affirm the superior court if its ruling was
correct for any reason, even if that reason was not considered by the
court.") (quotation omitted). This court, however, generally will not rule
on arguments not considered by the superior court, and declines to do so
here. See In re MH 2008-002659, 224 Ariz. 25, 27, ¶ 9 (App. 2010).




                                     7
                   SERONDE et al. v. BNSF/MORRIS
                        Decision of the Court

                            CONCLUSION

¶16          For the foregoing reasons, we affirm the dismissal of the
Serondes' negligence allegations based on the train's failure to slow but
reverse the dismissal of their negligence claim insofar as it is based on
alleged inadequate markings and warning devices, and remand for
further proceedings. As the successful party on appeal, the Serondes are
entitled to costs pursuant to A.R.S. § 12-342(A) (2015), upon their
compliance with Arizona Rule of Civil Appellate Procedure 21.




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