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                                                       New Mexico Compilation
                                                     Commission, Santa Fe, NM
                                                    '00'05- 09:00:45 2015.12.09

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2015-NMCA-112

Filing Date: August 13, 2015

Docket No. 32,105

ROSEMARY PAEZ and REY PAEZ,

       Plaintiffs-Appellants,

v.

BURLINGTON NORTHERN SANTA FE RAILWAY,
MIKE A. ORTEGA, HECTOR L. DURAN, COUNTY
OF SOCORRO, by and through its COMMISSIONERS,
ROSALIND TRIPP, JAY SANTILLANES, LAUREL
ARMIJO, CHARLES GALLEGOS, and
STANLEY HERRERA,

       Defendants-Appellees.

APPEAL FROM THE DISTRICT COURT OF SOCORRO COUNTY
KEVIN R. SWEAZEA, District Judge

Law Office of Tibo Chavez, Jr.
Tibo J. Chavez, Jr.
Belen, NM

Branch Law Firm
Turner W. Branch
Albuquerque, NM

for Appellants

Atkinson, Thal & Baker, P.C.
Clifford K. Atkinson
John S. Thal
Elizabeth Losee
Albuquerque, NM

for Appellee Burlington Northern Santa Fe Railway


                                         1
Robles Rael & Anaya, P.C.
Marcus J. Rael, Jr.
Douglas E. Gardner
Albuquerque, NM

for Appellee County of Soccoro

                                          OPINION

HANISEE, Judge.

{1}     While driving her vehicle in Socorro County (the County), Rosemary Paez collided
with a train owned and operated by Burlington Northern Santa Fe Railway (BNSF). Mrs.
Paez and her husband, Rey Paez (Plaintiffs) filed a civil lawsuit against BNSF and the
County (Defendants), among others. Defendants filed numerous motions for partial summary
judgment. After multiple hearings, the district court granted summary judgment as to each
motion, ultimately disposing entirely of Plaintiffs’ negligence claims against Defendants.
Plaintiffs appeal, arguing that disputed issues of material fact precluded summary judgment.
We affirm.

BACKGROUND

{2}     This case arises from a 2008 collision in Socorro County between a train, owned and
operated by BNSF, and a vehicle driven by Mrs. Paez.1 The collision occurred at a railroad
crossing known as the Paizalas Road crossing (the crossing), located within walking distance
of Plaintiffs’ property. Mrs. Paez was badly injured in the collision, and she and her husband
sued Defendants, BNSF’s train operators, and others, on the basis of negligence, for personal
injury and damages.2 Plaintiffs’ amended complaint asserted BNSF’s negligent failure to:
(1) maintain a safe railroad crossing, (2) provide adequate warning devices, and (3) eliminate
visual obstructions to enable motorists’ “clear and unobstructed view of the crossing and
approaching trains.” Additionally, Plaintiffs contended that in conjunction with its train
operators, BNSF failed to sound the train horn, keep a proper lookout, and slow the train “as


       1
         Mrs. Paez died during the pendency of this case. Her husband is the remaining
Plaintiff in this matter. It is unclear on appeal whether the estate of Rosemary Paez has
formally been substituted to represent her preexisting personal interest in the underlying
litigation. In this Opinion, we refer to Plaintiffs as being either Rosemary Paez or her estate,
and Rey Paez.
       2
         Plaintiffs also named the Middle Rio Grande Conservancy District (MRGCD) as a
defendant in the complaint; however, the district court granted a motion by MRGCD to
dismiss the claims against it on the basis of improper venue. The propriety of this dismissal
is not before us on appeal; we therefore omit any discussion regarding MRGCD.

                                               2
required to protect the traveling public.”3 Similarly but not identically, Plaintiffs alleged that
the County failed to maintain the roadway itself in a safe condition, post adequate warning
signs, and to undertake on-site measures to clear visual obstructions. In addition to general
and punitive damages, Plaintiffs sought attorney fees and costs.

{3}     BNSF answered Plaintiffs’ amended complaint and subsequently filed nine motions
for partial summary judgment, asserting at the outset and in relevant part for purposes of this
appeal, that: (1) Mrs. Paez was negligent per se in failing to yield to the train and in failing
to keep a lookout; (2) Plaintiffs’ claim of failure to provide adequate warning devices was
preempted by federal law; (3) Plaintiffs’ claim regarding the unsafe condition of the crossing
was preempted by federal law and failed for lack of causation; and (4) undisputed
photographic evidence established the absence of visual obstructions. Initially, the district
court denied BNSF’s motion for partial summary judgment premised upon Mrs. Paez’s
negligence per se. It granted BNSF’s preemption-based motions regarding both the
crossing’s upkeep and the asserted inadequacy of its warning devices. The record does not
reflect an initial written order regarding BNSF’s challenge to Plaintiffs’ visual obstruction
claim. Later during the litigation, BNSF filed a renewed motion for partial summary
judgment on each basis that the district court initially rejected or withheld judgment.

{4}     Along with ultimately joining BNSF’s renewed motion for summary judgment, the
County filed three of its own summary judgment motions, asserting that: (1) it had no
statutory duty to maintain the railroad crossing area or the railroad crossing itself; (2) federal
law preempted Plaintiffs’ inadequate warning device claim; (3) it had no actual or
constructive notice of an alleged defect or dangerous condition associated with the crossing;
and (4) Plaintiffs lacked evidence that the asserted negligence against the County was the
proximate cause of any damages. The district court initially denied the County’s motions
with the exception of its request for summary judgment on Plaintiffs’ inadequate warning
device claim. Consequently, not only did the County join BNSF’s motion for
reconsideration, but it filed its own motion to reconsider alleging more specifically that
Plaintiffs were unable to prove that the County was negligent or that the alleged negligence
was a proximate cause of Mrs. Paez’s injuries.

{5}     The district court eventually granted the renewed motions, following lengthy
proceedings and by a written order that stated there to be “no genuine issue as to any
material fact.” In conjunction with its rulings on these and BNSF’s remaining motions for
summary judgment that are not before us on appeal, the district court resolved the entirety
of Plaintiffs’ case against Defendants. The reasoning employed by the district court is best
discerned from its statements during and at the conclusion of the two-day motion hearing it
held. Addressing Plaintiffs’ claims regarding both the condition of and visual obstructions
alongside the crossing, and considering photographic evidence provided by the parties, the


        3
       Plaintiffs no longer dispute that BNSF engineers in fact sounded the train’s horn.
Nor do Plaintiffs persist in contentions regarding the keeping of a lookout or train speed.

                                                3
district court stated:

        The train would have been visible. When you contrast that
        against . . . testimony that the vegetation somehow kept one from seeing it
        just is not—I mean, the photographs are impossible to refute. The experts
        that Plaintiffs have both indicate[d] . . . that they are not giving opinions on
        causation, that the conditions on the road caused the accident, or that
        . . . [the] conditions caused the accident.

First with particular focus on the County, the district court observed that, “very honestly it
looks [as though Plaintiffs] absolutely sorely lack[] . . . proof of causation.” It later generally
concluded that “Plaintiffs ha[d not] proven any proximate cause on any of their claims.”

{6}     The district court further found that “[f]ederal money was expended by [BNSF] in
connection with the installation of [the] crossbucks,” and therefore, Plaintiffs’ claim that the
crossing was extra-hazardous due to the inadequacy of warning devices was preempted by
federal law. Additionally, considering Mrs. Paez’s own negligence in light of the
photographs it reviewed, the district court was “convinced . . . that no reasonable jury would
find that [Mrs.] Paez had not violated [NMSA 1978, Section 66-7-341(A)(2) (2003),]”
requiring her to stop within a prescribed distance of the railroad crossing for a visibly
approaching train. Therefore, it concluded “as a matter of law, that [Mrs.] Paez was
negligent pursuant to the common law duty to stop, look, and listen, and negligent per se
pursuant to [Section 66-7-341].”

{7}     Plaintiffs appeal, contending that the district court erred in granting summary
judgment to Defendants. They argue that: (1) material facts conflict as to whether the
condition of the crossing was a proximate cause of the collision; (2) material facts conflict
as to whether visual obstructions alongside the crossing were a proximate cause of the
collision; (3) federal law does not preempt Plaintiffs’ claims regarding the adequacy of
warning devices or hazardous conditions at the crossing; and (4) the district court wrongly
concluded Mrs. Paez to have been negligent per se.4

STANDARD OF REVIEW

{8}     An appeal from an order granting summary judgment presents a question of law that
we review de novo. Farmington Police Officers Ass’n v. City of Farmington, 2006-NMCA-
077, ¶ 13, 139 N.M. 750, 137 P.3d 1204. “We affirm an order granting summary judgment


        4
        Although Plaintiffs assert that they are appealing the entirety of the district court’s
judgment, their brief in chief solely contains argument regarding the four issues listed above.
We address only those issues specifically raised on appeal as we do not consider
unsupported assertions excluded from a party’s brief in chief. See Headley v. Morgan Mgmt.
Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076.

                                                4
when there is no evidence raising a reasonable doubt about any genuine issue of material
fact, and the moving party is entitled to judgment as a matter of law.” Lujan v. N.M. Dep’t
of Transp., 2015-NMCA-005, ¶ 5, 341 P.3d 001, cert. denied, 2014-NMCERT-011, 339 P.3d
841. The moving party bears the burden to demonstrate the absence of any genuine issue of
material fact. Brown v. Taylor, 1995-NMSC-050, ¶ 8, 120 N.M. 302, 901 P.2d 720. “Once
this prima facie showing has been made, the burden shifts to the non-movant to demonstrate
the existence of specific evidentiary facts which would require trial on the merits.” Romero
v. Philip Morris Inc., 2010-NMSC-035, ¶ 10, 148 N.M. 713, 242 P.3d 280 (internal
quotation marks and citation omitted). In New Mexico, summary judgment is disfavored,
with trial on the merits being the preferred method by which litigation is concluded. Id. ¶ 8.
As such, in conducting a de novo review of the record “we resolve all reasonable inferences
in favor of the non-movant” and view the record in the light most favorable to a trial on the
merits. Lujan, 2015-NMCA-005, ¶ 5 (alteration, internal quotation marks, and citation
omitted).

DISCUSSION

{9}     Plaintiffs sued Defendants on the basis that both had been negligent in their
respective responsibilities attendant to the railroad crossing, the surrounding areas, and their
upkeep. Plaintiffs likewise asserted BNSF’s negligent operation of the train with which Mrs.
Paez collided.

        It is axiomatic that a negligence action requires that there be a duty owed
        from the defendant to the plaintiff; that based on a standard of reasonable
        care under the circumstances, the defendant breached that duty; and that the
        breach was a cause in fact and proximate cause of the plaintiff’s damages.

Romero v. Giant Stop-N-Go of N.M., Inc., 2009-NMCA-059, ¶ 5, 146 N.M. 520, 212 P.3d
408. Here, in conjunction with its general determination that material facts were not in
dispute, the district court specifically concluded that “Plaintiffs [had not] proven any
proximate cause [as to] any of their claims.” We commence our review by examining the
facts of this case in light of the element of proximate cause.

{10} Plaintiffs assert that evidence regarding the crossing’s condition, its deficient
warning devices, and the presence of visual obstructions that obscured Mrs. Paez’s view of
the approaching train establish disputed questions of material fact. In their supplemental
briefing,5 Plaintiffs reiterate their belief that “evidence submitted to the [district] court shows
that the County breached its duty to provide a safe and non-hazardous roadway at the []


        5
        Supplemental briefing was ordered by this Court on April 10, 2015, due to the
complexity of the underlying litigation and the nineteen-volume record proper. We
appreciate the parties’ effort in this regard and helpful presentations during the June 24, 2015
oral argument.

                                                5
crossing, and that the visual obstructions at the crossing created a dangerous condition that
was a proximate cause of the collision.” Regarding the crossing itself, Plaintiffs contend that
its elevation was excessively disproportionate to the roadway it traversed. As well, Plaintiffs
renew their contention that BNSF “failed to eliminate or remove the visual obstructions at
the [] crossing, which was a proximate cause of the collision[.]”

{11} BNSF answers that Plaintiffs altogether lacked proof that its negligence in
maintaining the crossing served as a legal cause of the collision. In defending itself from
Plaintiffs’ assertions of negligence regarding upkeep of the roadway and crossing, and the
presence of visual obstructions, the County similarly answers that Plaintiffs failed to “place
any causal connection between any act or omission by [the] County” and the collision.
Regarding the visual obstruction claim, BNSF maintains the district court bore the authority
to determine that, given clear photographic evidence to the contrary, no reasonable jury
could conclude that Mrs. Paez’s view of the train was obstructed from the road and direction
she drove prior to the collision. BNSF relies specifically on a series of photographs taken by
its expert accident reconstructionist, Brian Charles, contending that the images provide
irrefutable evidence that the approaching train would have been plainly apparent such that
the district court was “not required to accord weight to contradictory testimony.” BNSF also
points to photographs obtained from one of Plaintiffs’ own experts, located at pages 2650,
2651, and 2652 of the record proper, that appear to show no visual obstruction when
approaching the crossing from the roadway in the direction Mrs. Paez traveled. The County
agrees that given the photographic evidence, “it simply becomes impossible to argue that
[Mrs.] Paez could not have seen the approaching train[.]” As did the district court, we focus
initially upon whether evidence in the record bore the capacity to establish a material factual
dispute as to the element of proximate cause.

{12} We have defined the element of “proximate cause” to be “that which, in a natural or
continuous sequence, produces the injury and without which the injury would not have
occurred.” Lujan, 2015-NMCA-005, ¶ 35 (internal quotation marks and citation omitted).
Proximate cause encompasses “whether and to what extent the defendant’s conduct
foreseeably and substantially caused the specific injury that actually occurred.” Id. (internal
quotation marks and citation omitted). “An act or omission may be deemed a ‘proximate
cause’ of an injury if it contributes to bringing about the injury, if the injury would not have
occurred without it, and if it is reasonably connected as a significant link to the injury.”
Talbott v. Roswell Hosp. Corp., 2005-NMCA-109, ¶ 34, 138 N.M. 189, 118 P.3d 194. In the
majority of circumstances, proximate cause is a question of fact to be decided by the
factfinder; however, proximate cause becomes an issue of law “when the facts are
undisputed and the reasonable inferences from those facts are plain and consistent[.]” Lujan,
2015-NMCA-005, ¶ 35 (internal quotation marks and citation omitted). In order to determine
that a breach of duty did not legally cause the alleged damages, the district court must
conclude that no reasonable jury would find that the breach of duty by the defendant legally
caused the damages suffered by the plaintiff. Rodriguez v. Del Sol Shopping Ctr. Assocs.,
L.P., 2014-NMSC-014, ¶ 24, 326 P.3d 465; see Lujan, 2015-NMCA-005, ¶ 36. However,
our Supreme Court has also articulated that “[c]ourts are not powerless to dismiss cases as

                                               6
a matter of law,” and they “may still decide whether a defendant did or did not breach the
duty of ordinary care as a matter of law, or that the breach of duty did not legally cause the
damages alleged in the case.” Rodriguez, 2014-NMSC-014, ¶ 24. Absent the element of
proximate cause, a claim for negligence fails regardless of the presence of the remaining
elements of the cause of action. See Romero, 2009-NMCA-059, ¶ 5 (stating that the absence
of any element of a negligence claim is fatal to the claim).

Proximate Cause: Condition of the Crossing and Roadway

{13} To support the existence of a disputed issue of material fact regarding the condition
of the crossing being a proximate cause of the collision, Plaintiffs first direct us to the
deposition testimony of expert witness Alan Blackwell, a railway consultant with a
background in track inspection. Mr. Blackwell testified that drivers are forced to decrease
speed when approaching the crossing due to its “roughness[,] protruding spikes[,] and
everything else[.]” He opined that BNSF failed to maintain the crossing surface in
compliance with internal and industry standards such that “vehicular traffic can travel across
safely and a motorist’s attention is not distracted from observance of an approaching train.”
Additionally, Mr. Blackwell asserted that the roadway leading to and from the crossing was
to be maintained by the County; the County in fact performed road work at the crossing; yet
the crossing remained “extra[-]hazardous” due to its non-compliance with the appropriate
standard of care, related to its elevation from the roadway. However, and despite the
existence of this expert opinion that the crossing and the roadway were improperly
maintained, it remains necessary for Plaintiffs to show that these failures were a cause of the
collision. See N.M. State Highway Dep’t v. Van Dyke, 1977-NMSC-027, ¶ 9, 90 N.M. 357,
563 P.2d 1150 (“Despite the failure . . . to conform to the standard[,] . . . it is still necessary
for the plaintiff to show that the failure to meet those standards proximately caused the
accident.”).

{14} We have emphasized that in order to sustain a negligence action, along with a
showing the defendant owed a duty to the plaintiff and breached that duty, the plaintiff must
show that the breach was the cause in fact and proximate cause of any damages. Romero,
2009-NMCA-059, ¶ 5. In addition to recently addressing the topic in Lujan, Uniform Jury
Instruction 13-305 NMRA, crafted by our Supreme Court, defines “causation (proximate
cause)” to be an act, omission, or condition that contributes to bringing about an injury or
harm, such that the injury would not have occurred without it. Id.; Lujan, 2015-NMCA-005,
¶ 35. We find no record citation or support for Plaintiffs’ view that their experts opined that
the poor or defective conditions of the crossing or roadway were causally connected to the
collision. Similarly, we find no record citation or support for the position that Plaintiffs’
experts opined that the collision would not have occurred absent the poor or defective
conditions of the crossing or roadway. In fact, Mr. Blackwell directly stated that he was “not
providing an opinion that the condition of [the] crossing caused the accident[.]” Furthermore,
Plaintiffs’ second expert, Mr. Burnham, a “traffic engineering and railroad safety expert,”
who Plaintiffs assert establishes a question of fact regarding causation, expressly stated that
he had not “isolated a factor that would be directly attribut[able] to the County” that would

                                                7
have caused the collision. Nor did he maintain otherwise as to BNSF. Without a proper
evidentiary showing of causation, Plaintiffs’ negligence claim fails as to the condition of the
crossing and the roadway leading to it. See Lujan, 2015-NMCA-005, ¶ 7; Romero, 2009-
NMCA-059, ¶ 5. We hold that there is no disputed material fact as to proximate cause, and
the district court did not err in granting summary judgment regarding Plaintiffs’ claims that
Defendants were negligent in relation to the condition of the crossing and roadway. See
Philip Morris, 2010-NMSC-035, ¶ 20 (holding that if a material element is absent, “there
can be no issue of material fact”). We affirm the district court’s orders in this regard.

Proximate Cause: Visual Obstructions

{15} Plaintiffs maintain that disputed issues of material fact precluded summary judgment
as to both Defendants regarding claims that the presence of visual obstructions adjacent to
the crossing and railroad tracks interfered with Mrs. Paez’s line of sight to the oncoming
train. The County again asserts that Plaintiffs failed to show a causal connection between any
act or omission by the County and the collision. BNSF maintains that summary judgment
was appropriate because Plaintiffs’ claim in this regard was “blatantly contradicted by the
[photographic evidence], [such] that no reasonable jury could believe it[.]”

{16} In response to BNSF’s fifth motion for partial summary judgment, regarding
Plaintiffs’ visual obstruction claim, Plaintiffs submitted six photographs taken within a
month of the collision depicting the condition of the area surrounding the railroad tracks
from different angles and distances. Additionally, Plaintiffs provided a report completed by
Mr. Burnham detailing his findings regarding the collision. In it, but without direct reference
to a particular photograph, Mr. Burnham perceived there to be a “greenery obstruction [that]
is very significant to partially obscure approaching trains.” He ultimately opined that from
the direction Mrs. Paez traveled “[t]here was insufficient distance for a westbound motorist
to observe a plainly visible train as the vehicle approached the tracks at 10 mph or more.”
After additional photographs were entered into evidence and Defendants filed their joint
“renewed fifth motion,” the district court found that “[t]he train would have been visible . . .
[as] the photographs are impossible to refute.”

{17} Specifically, the district court stated in reference to a motorist’s position in relation
to the crossing that “you can look at a picture from 50 feet out and see a train that’s
sitting . . . back from the crossing, and you . . . see it pretty clearly.” The court noted that the
photographs depicted surrounding dirt but not vegetation “of any consequence at all.” It
explained that “it looks like the photographs just directly contradict what [Plaintiffs’] expert
is saying about . . . visibility[,]” and elaborated, stating that it did not think that the expert
testimony regarding visibility “is something that any reasonable jury would even consider
as factually accurate” given the photographs. The court ultimately found that “there is no
way that a jury could not say that [the] train [was] readily visible.” The district court granted
the motion, determining there was no genuine issue of material fact as Plaintiffs had again
failed to establish the element of proximate cause.


                                                 8
{18} Addressing causation in its supplemental briefing, Plaintiffs again point to the
testimony of their two experts, and emphasize the testimony of four lay witnesses to link the
failure of Defendants to remove or rectify visual obstructions at the area around the crossing
and the collision. Plaintiffs cite portions of the record they contend show that the County
failed to elevate the roadway in order to eliminate the disproportionate gradient that made
the crossing extra-hazardous, thereby creating an obstacle that drivers must overcome when
looking for a train. They also repeat that BNSF failed to remove visual obstructions at the
crossing in violation of its own engineering instructions. While these contentions may relate
directly to the elements of duty and/or breach, the facts on which they are based do not
establish that the roadway, the crossing, or the hump on which the crossing is located, or
even any visual obstructions only generally identified by Plaintiffs, caused the collision.
While Plaintiffs rely on the testimony of Mr. Paez to establish that Mrs. Paez could not see
down the tracks due to the crossing’s elevation or the surrounding vegetation, and that of
three other witnesses asserting that drivers cannot see, or encounter extreme difficulty when
attempting to see, whether a train is approaching on the tracks being crossed, photographs
taken by BNSF’s expert accident reconstructionist, Mr. Charles, along with Plaintiffs’ own
photographs, illustrate circumstances wholly contrary to those described by Plaintiffs’
witnesses.

{19} For clarity, Paizalas Road parallels the train tracks, then approximately 200 feet from
the crossing curves 90 degrees in order for the roadway to traverse the tracks. Following the
curve, and between 75 and 100 feet of the crossing, Paizalas Road becomes perpendicular
to the tracks such that a motorist can look to the left and right for the presence of
approaching trains. Mr. Charles took eight photographs that “show the view of the
approaching train that a motorist driving east on Paizalas Road toward the crossing would
have had.” While he recognized that his accident reconstruction was performed a little over
two years after the accident, Mr. Charles confirms that based on his “review of photographs
taken on the same day or shortly after the accident, as well as satellite images, [his] opinion
is that the environmental conditions and topography, including the road and track structure,
are substantially similar to the conditions existing at the time of the accident.” As stated
previously and noted by the district court, Plaintiffs’ own photographs, located at pages
2650-52 of the record proper, support this contention and are not markedly distinct from the
Charles photographs that show an unobstructed view of an approaching train that a motorist
would have as she or he approached the crossing. Mr. Charles’s photographs, located at
pages 2671, 2675 and 2677 of the record proper, show a BNSF train approaching the
crossing when a motorist’s vehicle would be 79 feet, 50 feet, and 15 feet from it. The
photographs and accompanying visibility study demonstrate that “from 79 feet east to the
crossing, a motorist’s view of an oncoming train 650 feet to the south was clear and
unobstructed, and the train would have been plainly visible the entire time.” Our review of
the photographs confirms the district court’s repeated statement that a motorist’s ability to
see an approaching train is indisputable at distances in excess of and within 50 feet from the
crossing.

{20}   We take a moment to speak with greater specificity as to the photographs on which

                                              9
the district court primarily relied. Of Mr. Charles’s, the first, located at page 2671 of the
record proper, was taken 79 feet from the crossing and depicted a clearly visible train
approaching from the southerly direction as had the train that collided with Mrs. Paez’s
vehicle. The second, located at page 2675 of the record proper, was taken 50 feet from the
crossing, and was noteworthy to the district court because that is the distance at which Mrs.
Paez was required to stop pursuant to Section 66-7-341(A)(2)(b) (requiring that a “person
driving a vehicle approaching a railroad-highway grade crossing shall . . . stop not more than
[50] feet and not less than [15] feet from the nearest rail of a crossing if . . . a train is plainly
visible and approaching the crossing within hazardous proximity to the crossing”). That
photograph shows not only the approaching train engine to be clearly visible, but also its
three illuminated headlights and many of its accompanying train cars. Lastly, page number
2677 of the record proper is a photograph that depicts a plainly visible train 15 feet from the
crossing, the point by which Mrs. Paez was required to stop for a plainly visible train
pursuant to the statute. Not relying exclusively on Mr. Charles’s photographs, the district
court was also presented with three photographs, located at pages 2650-52 of the record
proper, taken by counsel for Plaintiffs within a few weeks of the collision. At oral argument,
Plaintiffs did not dispute that these photographs were taken approximately 20 feet away from
the crossing. Each depicted a scene free from obstructions that might obscure a driver’s view
of a train approaching the crossing. Based on these six photographs, namely the three taken
by Mr. Charles and the three taken by Plaintiffs’ counsel, the district court concluded that
no visible obstruction impaired Mrs. Paez’s view of the oncoming train.

{21} When asked at oral argument to identify the photograph that best depicted visual
obstructions adjacent to the railroad tracks, Plaintiffs’ counsel identified an altogether
different photograph, located at page 1205 of the record proper. But that photograph, which
counsel conceded to have been taken “a long way away” from the crossing—in excess of 50
feet—is little different from the six photographs the district court primarily relied upon, and
fails to undermine its conclusion regarding the absence of visual obstructions.6 Despite the
photographic evidence, Plaintiffs reference a vague, stand-alone assertion by Mr. Burnham
that expressed his “confiden[ce] that if [Mrs. Paez] was traveling 10 [mph] or more, she
would not have seen [the train] until she got into a[] nonrecovery position[,]” such that she
would have been unable to stop even had she seen the train. However, this same expert
agreed that Mrs. Paez would have had a plain view of the train 35 feet from the track had she
looked.

{22} BNSF asserts that the photographic evidence presented to the district court mandated
the determination that summary judgment was proper, as the images irrefutably proved that
Mrs. Paez’s view was unobstructed prior to the collision. See Scott v. Harris, 550 U.S. 372,
380 (2007) (“When opposing parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could believe it, a court should not


        6
         The six photographs primarily relied on by the district court, and the seventh
identified by Plaintiffs’ counsel during oral argument, are appended to this Opinion.

                                                 10
adopt that version of the facts for purposes of ruling on a motion for summary judgment.”
(internal quotation marks and citation omitted)). Relying as well upon Perez v. City of
Albuquerque, 2012-NMCA-040, ¶ 9, 276 P.3d 973, which discusses Scott, BNSF contends
that as a matter of law, the district court is not required to accord weight to testimony
presented when it is blatantly at odds with the extensive and irrefutable photographic
evidence. By way of supplemental authority, BNSF additionally notifies us of Brown v.
Illinois Central Railroad Co., 705 F.3d 531, 538-39 (5th Cir. 2013), which affirmed
summary judgment in favor of a railroad where photographs showed that the motorist had
a clear view of an oncoming train.

{23} Regarding Scott, we first note that this Court has twice determined it to be
inapplicable when relied upon by a party in an effort to resolve a factual conflict on grounds
of dispositive imagery. Yet Perez, 2012-NMCA-040, ¶ 10, and Benavidez v. Shutiva, 2015-
NMCA-065, ¶ 26, 350 P.3d 1234, are both meaningfully dissimilar to Scott and are therefore
distinguishable. Moreover, neither repudiates the proposition set forth in Scott. At issue in
both Perez and Benavidez was videotape evidence that depicted an occurrence, but which
required a jury’s separate subjective interpretation of the actors’ body language or
movements. Perez, 2012-NMCA-040, ¶ 8; Benavidez, 2015-NMCA-065, ¶ 26. In Perez, a
civil rights claim in which a plaintiff had sought a directed verdict based on a video and in
reliance on Scott, we noted that the circumstance was different insofar as the video evidence
portrayed only a sequence of events and did not provide a “determinative or a definitive
account of the full circumstances.” Perez, 2012-NMCA-040, ¶¶ 3, 10. At issue was whether
the actions of law enforcement officers were unreasonable under the total circumstances. Id.
¶ 10. The plaintiff argued that there was only one interpretation of the videotape at issue, but
we concluded the question of reasonableness to be one of fact for the jury and did not disturb
the district court’s denial of a directed verdict. Id. ¶ 10.

{24} Benavidez also addressed a claimed violation of a plaintiff’s constitutional rights as
well as tort claims, where the district court granted summary judgment in favor of the
defendants. Benavidez, 2015-NMCA-065, ¶¶ 1, 21. The parties referred to a dashcam video
of a vehicle stop to support their versions of facts concerning the handcuffing of the plaintiff;
the defendants additionally relied upon Scott. Benavidez, 2015-NMCA-065, ¶ 26. We
distinguished Scott, explaining that “the video [in Scott] was used to establish a fact that did
not depend on interpretation of people’s body language or demeanor[,]” unlike the situation
presented where the actions of the parties were unclear from the videotape and were subject
to multiple interpretations. Benavidez, 2015-NMCA-065, ¶ 26. We ultimately determined
that the identity of the officer who handcuffed the plaintiff might be conclusive, but whether
the plaintiff was resisting arrest depended on one’s interpretation of various movements of
the plaintiff and the police officer. Therefore, we held that the district court erred in granting
summary judgment. Id. ¶ 27.

{25} Here, photographs depicting the southerly view Mrs. Paez would have had when
approaching the crossing require no subjective interpretation. They establish that an
approaching motorist’s capacity to see an oncoming train from that direction is plain and

                                               11
irrefutable. This case therefore squarely aligns with Scott, see 550 U.S. at 380, and the
district court properly relied on indisputably decisive photographic evidence to determine
that no reasonable jury could conclude that contrary testimony created a genuine issue of
material fact as to Defendants’ negligence. As well, no reasonable jury could conclude that
any obstruction obscured the oncoming train from Mrs. Paez’s view at some point between
50 and 15 feet before the crossing, the distances between which she was statutorily required
to stop. Id.; see § 66-7-341(A)(2)(b). Despite Plaintiffs’ effort to establish a factual dispute
regarding this issue, “[m]ere argument or contention of [the] existence of [a] material issue
of fact . . . does not make it so.” Spears v. Canon de Carnue Land Grant, 1969-NMSC-163,
¶ 12, 80 N.M. 766, 461 P.2d 415.

{26} The instrument of summary judgment, when sparingly and properly utilized, is
appropriate to resolve cases that do not present issues upon which reasonable jurors would
disagree. When proper, such conclusions of law do not impermissibly intrude into the realm
of the fact-finder, but serve the appropriate purpose of dispensing with claims that are
premised upon insufficient factual showings. “The purpose of summary judgment is to pierce
the boilerplate of the pleadings and assay the parties’ proof in order to determine whether
trial is actually required.” Sovie v. Town of N. Andover, 742 F. Supp. 2d 167, 171 (D. Mass.
2010) (internal quotation marks and citation omitted). We view this circumstance to be the
rare such occurrence that justifies the district court’s use of its summary judgment authority
regarding the element of proximate cause. We affirm the district court’s grant of summary
judgment in this case because we agree that no reasonable jury could find that vegetation
near or around the crossing created a visual obstruction that was the proximate cause of the
collision. See Scott, 550 U.S. at 380; Brown, 705 F.3d at 538 (“[W]here photographs and
undisputed measurements establish that a driver approaching the crossing would have had
an unobstructed view of an oncoming train, . . . trial courts [are instructed] to grant judgment
as a matter of law.”); Rodriguez, 2014-NMSC-014, ¶ 24 (holding that a “judge can enter
judgment as a matter of law only if the judge concludes that no reasonable jury could decide
the . . . legal cause question[] except one way”).

Preemption

{27} Plaintiffs additionally assert that the district court erred in granting BNSF’s third and
seventh motions for partial summary judgment, along with the County’s first such motion,
on the basis that Plaintiffs’ claims regarding inadequate warning devices and the hazardous
condition of the crossing were preempted by federal law. Plaintiffs claim that this ruling
constitutes error as both Defendants “failed to submit any evidence that federal monies were
spent on [these] warning devices” or to make any improvements to the crossing itself.
(Emphasis omitted.) We note at the outset that Plaintiffs’ preemption argument is, at best,
muddled. Plaintiffs appear to abandon or otherwise decline to develop their argument
regarding the inadequate warning devices on appeal, specifically notifying us that they “do
not claim that the warning devices at the crossing (i.e., the lights and crossbucks) were
inadequate[.]” However, Plaintiffs seem to argue that if their claim regarding the dangerous
condition of the crossing could be construed to be one of inadequate warning devices, federal

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preemption would not be triggered as neither BNSF nor the County submitted evidence that
federal funds were used to erect warning devices.

{28} We need not resolve this issue as federal preemption is an affirmative defense. See
Azar v. Prudential Ins. Co. of Am., 2003-NMCA-062, ¶ 24, 133 N.M. 669, 68 P.3d 909. We
have already determined that Plaintiffs failed to establish a prima facie case as to their
negligence claim regarding the condition of the crossing, and therefore the availability of a
preemption defense as to those claims cannot alter the outcome of the district court’s ruling.
See Lujan, 2015-NMCA-005, ¶ 7 (stating that the absence of any element of negligence is
fatal to a plaintiff’s claim).

Negligence Per Se

{29} Lastly, Plaintiffs assert that the district court erred in granting partial summary
judgment premised upon its determination that Mrs. Paez was negligent per se. Plaintiffs
maintain this ruling is contrary to the evidence that was presented to the district court and
is based on an impermissible factual determination of fault. Plaintiffs contend that a genuine
issue of material fact exists as to the presence or absence of negligence on the part of Mrs.
Paez and that the district court improperly adopted the role of fact-finder in lieu of allowing
the matter to proceed to a jury. BNSF contends that summary judgment was proper as it is
undisputed that all of the elements of negligence per se were satisfied. The County does not
directly address the negligence per se claim; however, it maintains that Mrs. Paez could see
the train, failed to perceive it in time, and, therefore, proximately caused the collision
herself. The County generally reminds us that in order to recover damages, Plaintiffs must
prove that an act or omission by the County was a proximate cause.

{30} In order to determine whether a party was negligent per se, New Mexico courts
employ the following four-part test: (1) a statute “prescribes certain actions or defines a
standard of conduct, either explicitly or implicitly,” (2) the plaintiff “violate[d] the statute,”
(3) the plaintiff is “in the class of persons sought to be protected by the statute,” and (4) the
plaintiff’s “harm or injury . . . must generally be of the type the [L]egislature through the
statute sought to prevent.” Apodaca v. AAA Gas Co., 2003-NMCA-085, ¶ 43, 134 N.M. 77,
73 P.3d 215 (alteration, internal quotation marks, and citation omitted). BNSF contends that
Mrs. Paez violated Section 66-7-341(A)(2)(b), requiring her to stop between 50 and 15 feet
before the crossing, that she is within the class of persons to be protected under this statute,
and suffered the type of harm sought to be prevented through promulgation of the statute.

{31} Section 66-7-341(A)(2)(b) requires that motorists “approaching a railroad-highway
grade crossing [to] stop not more than [50] feet and not less that [15] feet from the nearest
rail of a crossing if . . . a train is plainly visible and approaching the crossing with hazardous
proximity to the crossing[.]” Additionally, Section 66-7-341(A)(3) permits a motorist to
“proceed through the railroad-highway grade crossing only if it is safe to completely pass
through the entire” crossing without stopping. (Emphasis added.)


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{32} Because we have affirmed the district court’s conclusion that photographic evidence
established the plain visibility of the approaching train had Mrs. Paez looked for it, we can
determine that she violated Section 66-7-341(A)(3) when she drove into its path. Whom the
Legislature sought to protect is not explicitly stated in the statute; however, it is reasonable
to construe that it is drivers, their passengers, and railroad operation personnel. The harm
sought to be prevented was ostensibly collisions between motorists and traversing trains. It
appears that the collision between Mrs. Paez and the train is just that which the Legislature
sought to prevent in enacting this statute. See Archibeque v. Homrich, 1975-NMSC-066, ¶
16, 88 N.M. 527, 543 P.2d 820 (providing a negligence per se analysis). Given that all
elements of the negligence per se test have been satisfied, we hold that the district court
properly granted the summary judgment motion regarding negligence per se, and we affirm
it. See Hernandez v. Brooks, 1980-NMCA-056, ¶ 5, 95 N.M. 670, 625 P.2d 1187 (“In New
Mexico, one who violates a statute . . . is guilty of negligence per se, if the statute . . . was
enacted for the benefit of the class of persons to which the injured person belongs.”).

CONCLUSION

{33} For the foregoing reasons, we affirm the summary judgment rulings of the district
court.

{34}    IT IS SO ORDERED.

                                                ____________________________________
                                                J. MILES HANISEE, Judge

WE CONCUR:

____________________________________
JONATHAN B. SUTIN, Judge

____________________________________
M. MONICA ZAMORA, Judge




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