                                                                                FILED
                                                                    United States Court of Appeals
                         UNITED STATES COURT OF APPEALS                     Tenth Circuit

                               FOR THE TENTH CIRCUIT                       March 9, 2020
                           _________________________________
                                                                       Christopher M. Wolpert
                                                                           Clerk of Court
 TYLER D. MALINSKI,

           Plaintiff Counter Defendant -
           Appellant,

 and

 PAULA SMITH,

           Intervenor Plaintiff - Appellant,

 v.                                                         No. 19-5001
                                                (D.C. No. 4:15-CV-00502-JED-FHM)
 BNSF RAILWAY COMPANY,                                      (N.D. Okla.)

           Defendant Counterclaimant -
           Appellee.
                         _________________________________

                               ORDER AND JUDGMENT *
                           _________________________________

Before MATHESON, PHILLIPS, and MORITZ, Circuit Judges.
                  _________________________________

       Tyler Malinski and Paula Smith appeal the district court’s order granting

summary judgment to BNSF Railway Company (BNSF). For the reasons explained

below, we affirm.




       *
        This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. But it may be cited for its
persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
                                     Background

      On December 4, 2014, 1 a train owned and operated by BNSF struck Malinski’s

pickup truck as he drove through a railroad grade crossing near Afton, Oklahoma.

The crossing is passive: signs mark the crossing, but there is no physical barrier to

prevent a vehicle from driving across. It is undisputed that the train was traveling at

55 miles per hour at the time of the accident and that it sounded its horn for

approximately 15 seconds prior to the accident. A video captured by a recording

device on the locomotive at the front of the train shows that as the train approached

the crossing, a pickup truck driven by Malinski’s cousin crossed the tracks in front of

Malinski. Malinski, who was headed to the same destination as his cousin, followed

him through the crossing without stopping. As Malinski did so, the train struck his

truck. The collision injured Malinski and his passenger, Nathan Smith, who later died

from his injuries.

      Malinski sued BNSF, 2 claiming that it acted negligently in maintaining the

crossing and that this negligence proximately caused Malinski’s injuries. BNSF twice

moved for summary judgment, arguing in part that Malinski was negligent per se

because (1) he violated Okla. Stat. tit. 47 § 11-701(A)(3) by failing to stop at the

crossing after the train emitted a signal audible from approximately 1500 feet away


      1
        Although parts of the record indicate that the accident occurred on December
5, 2014, the district court order stated it occurred on December 4, 2014, and on
appeal the parties do not dispute this latter date.
      2
        Paula Smith, Nathan Smith’s mother, later intervened; she and Malinski
submitted joint briefing on appeal. Throughout this opinion, we refer to Paula Smith
as “Smith” and use Nathan Smith’s full name where necessary.
                                            2
from the crossing and (2) this statutory violation caused the collision. In support of

its second motion for summary judgment, BNSF provided evidence of the horn test

that it conducted ten days after the collision. The testing demonstrated that when

measured 100 feet in front of the locomotive, the horn’s volume was 100.5 decibels.

BNSF also noted that its signal was compliant with the decibel range required by the

Federal Railroad Administration’s (FRA) regulations for locomotive horns and

argued that the regulations were developed to ensure the horn’s audibility within a

quarter-mile, or 1320-foot, range. BNSF also provided testimony from a local

resident who can hear the train’s horn from his home, which is located more than

1500 feet from the crossing.

      The district court granted BNSF’s second motion for summary judgment. 3 It

found that BNSF’s horn test, the rationale for the FRA’s horn regulations, and the

local resident’s testimony all demonstrated that the signal was audible from

approximately 1500 feet away from the crossing. Based on this audibility finding, the

district court concluded that Malinski violated § 11-701(A)(3). The district court then

ruled that Malinski’s statutory violation proximately caused the collision.

Accordingly, it determined that Malinski was negligent per se and granted summary

judgment to BNSF. Malinski and Smith now appeal.


      3
         In its first motion for summary judgment, BNSF neither explained the
significance of the horn testing nor included the local resident’s testimony. The
district court denied the motion, concluding that “[w]hile BNSF may, at most, have
demonstrated that the train emitted an audible signal from one-hundred feet away,
there is no evidence to show that the signal was audible from approximately 1,500
feet away, as required by the statute.” App. vol. 1, 234.
                                           3
                                        Analysis

      We review de novo a ruling on summary judgment, “applying the same

standard as the district court.” Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1180 (10th

Cir. 2018). Summary judgment is appropriate if “there is no genuine dispute as to any

material fact.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ if, under the governing law,

it could have an effect on the outcome of the lawsuit. A dispute over a material fact is

‘genuine’ if a rational jury could find in favor of the nonmoving party on the

evidence presented.” Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013)

(quoting EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir.

2000)).

      Here, BNSF is the movant and thus bears the “initial burden of making a prima

facie demonstration of the absence of a genuine issue of material fact.” Savant

Homes, Inc. v. Collins, 809 F.3d 1133, 1137 (10th Cir. 2016) (quoting Libertarian

Party of N.M. v. Herrera, 506 F.3d 1303, 1309 (10th Cir. 2007)). If BNSF meets this

initial burden, the burden then shifts to nonmovants Malinski and Smith to “set forth

specific facts from which a rational trier of fact could find for” them. Id. (quoting

Libertarian Party of N.M., 506 F.3d at 1309). In evaluating the record, we make all

“reasonable inferences . . . in the light most favorable to” nonmovants Malinski and

Smith. Thomas v. IBM, 48 F.3d 478, 484 (10th Cir. 1995).

      The district court granted BNSF’s second motion for summary judgment

because it found Malinski negligent per se. Under Oklahoma law, a statutory

violation amounts to negligence per se when “(1) the violation of a statute . . . caused

                                            4
the injury, (2) the harm sustained [is] of the type intended to be prevented by the

statute[,] and (3) ‘the injured party [is] one of the class intended to be protected by

the statute.’” Nye v. BNSF Ry. Co., 428 P.3d 863, 873 (Okla. 2018) (quoting Ohio

Cas. Ins. Co. v. Todd, 813 P.2d 508, 510 (Okla. 1991)), cert denied, 139 S. Ct. 1600

(2019). Because the parties do not dispute that the second and third elements are

satisfied here, this case turns solely on the first element. The district court found this

first element satisfied, ruling both that Malinski violated the statute and that the

violation caused Malinski’s injuries and Nathan Smith’s death. Malinski and Smith

challenge both rulings on appeal.

       Thus, applying the summary-judgment standard and the negligence-per-se test,

we must determine if BNSF “ma[de] a prima facie demonstration of the absence of a

genuine” factual dispute regarding (1) whether Malinski violated the statute and, if he

did, (2) whether that statutory violation caused Malinski’s injuries and Nathan

Smith’s death. Savant Homes, Inc., 809 F.3d at 1137 (quoting Libertarian Party of

N.M., 506 F.3d at 1309); see also Nye, 428 P.3d at 873. If we find that BNSF has

made such a demonstration, we must then determine whether Malinski and Smith “set

forth specific facts from which a rational trier of fact could find” either that Malinski

did not violate the statute or that the violation did not cause Malinski’s injuries and




                                            5
Nathan Smith’s death. Id. at 1137 (quoting Libertarian Party of N.M., 506 F.3d

at 1309).

I.    Statutory Violation

      We first consider whether the evidence BNSF presented makes a prima facie

demonstration that Malinski violated § 11-701(A)(3) and, if so, whether Malinski and

Smith set forth sufficient evidence to place that demonstration in dispute. Section 11-

701(A)(3) requires a driver at a “railroad grade crossing” to stop in the presence of

certain visual or auditory signals indicating that a train is crossing or approaching. 4

When considering whether such a signal is present, Oklahoma courts apply an

“objective test” and ask whether a “reasonably prudent person, situated as was the


      4
          In full, § 11-701(A) provides:
                A. Whenever any person driving a vehicle approaches a
                railroad grade crossing under any of the circumstances
                stated in this section, the driver of such vehicle shall stop
                within fifty (50) feet but not less than fifteen (15) feet from
                the nearest rail of such railroad, and shall not proceed until
                he can do so safely. The foregoing requirements shall
                apply when:
                1. A clearly visible electric or mechanical signal device
                gives warning of the immediate approach of a railroad
                train;
                2. A crossing gate is lowered or when a human flagman
                gives or continues to give a signal of the approach or
                passage of a railroad train;
                3. A railroad train approaching within approximately one
                thousand five (1,500) hundred feet of the highway crossing
                emits a signal audible from such distance and such railroad
                train, by reason of its speed or nearness to such crossing, is
                an immediate hazard;
                4. An approaching railroad train is plainly visible and is in
                hazardous proximity to such crossing; or
                5. The tracks at the crossing are not clear.
                                              6
motorist and exercising ordinary care for his own safety, should have” perceived the

signal. Nye, 428 P.3d at 874–75 (second quoting Ross v. Burlington N. & Santa Fe

Ry. Co., 528 F. App’x 960, 963 (10th Cir. 2013) (unpublished)).

      As relevant here, § 11-701(A)(3) requires drivers to stop if “[a] railroad train

approaching within approximately [1500] feet of the highway crossing emits a signal

audible from such distance and such railroad train, by reason of its speed or nearness

to such crossing, is an immediate hazard.” Accordingly, when Malinski failed to stop

at the crossing, he violated the statute if a “reasonably prudent” driver in Malinski’s

position should have heard the signal from approximately 1500 feet. 5 Nye, 428 P.3d

at 874 (quoting Ross, 528 F. App’x at 963). Thus, to meet its prima facie burden of

demonstrating that Malinski violated the statute, BNSF must show two things:

(1) sufficient distance, i.e., that the train signal sounded approximately 1500 feet



      5
           Although the statute creates a duty to stop if a “train approaching within
approximately [1500] feet of the highway crossing emits a signal audible from such
distance,” § 11-701(A)(3) (emphasis added), the district court interpreted this to
mean that the statutory duty to stop is triggered if “the train’s horn was audible at
approximately 1,500 feet,” App. vol. 4, 893 (emphasis added); see also Turnbull v.
Mo. Pac. R.R. Co., No. CIV-90-1432-R, 1991 WL 544257, at *3 (W.D. Okla. Dec.
10, 1991) (unpublished) (noting that to establish violation of § 11-701(A)(3), “a
signal must be audible from 1,500 feet from the crossing”), aff’d sub nom. Robinson
v. Mo. Pac. R.R. Co., 16 F.3d 1083 (10th Cir. 1994). And the parties do not dispute
this interpretation on appeal. Further, this interpretation accords with jury
instructions based on § 11-701(A)(3) that the Oklahoma Supreme Court found
“adequate.” Myers v. Mo. Pac. R.R. Co., 52 P.3d 1014, 1031 (Okla. 2002) (approving
instruction providing that “a motorist is required to stop at a railroad crossing . . .
if . . . the train emits a signal audible from approximately 1,500 feet from the
crossing”). Thus, we assume that the signal must be audible at, and not merely
within, approximately 1500 feet from the crossing in order to trigger a driver’s duty
to stop under § 11-701(A)(3).
                                            7
away from the crossing, and (2) audibility, i.e., that the signal sounded loudly enough

that a reasonably prudent person at the crossing should have heard it.

       As to sufficient distance, the parties do not dispute that the video shows the

horn sounded for 15 seconds before the collision. Because the train was moving at 55

miles per hour, we can deduce that this signal began sounding approximately 1210

feet before the crossing. 6 And a signal audible from as close as only 1100 feet

triggers a driver’s duty to stop under § 11-701(A)(3). Henning v. Union Pac. R.R.

Co., 530 F.3d 1206, 1221 (10th Cir. 2008) (concluding it “flies in the face of the

plain language of the statute” to argue that driver did not violate § 11-701(A)(3)

because train emitted signal 1100 feet and not 1500 feet from crossing because

statute requires audibility from only “approximately” 1500 feet). Thus, BNSF has

established that the signal began sounding approximately 1500 feet from the

crossing.

      As to audibility, the horn test demonstrates that the signal was audible from

that distance. 7 Ten days after the collision, BNSF tested the horn and found that, as


      6
         The district court reached this same conclusion, and our calculations support
it. Converting 55 miles per hour to feet per second, a train traveling at this speed is
traveling at 4840 feet per minute and thus travels 1210 feet in 15 seconds.
       7
         In addition to the facts discussed here, BNSF presented testimony from a
nearby resident who could hear the train from his house, which is located more than
1500 feet from the crossing. The district court relied in part on this testimony in
determining that BNSF met its prima facie burden. Malinski and Smith argue that this
reliance subverts the reasonably-prudent-driver standard because the testimony
merely demonstrates that a local resident sometimes hears the signal from over 1500
feet away from the crossing—not that a reasonably prudent driver in Malinski’s
position should have heard the signal on the day of the accident. But unlike the
district court, we do not find the resident’s testimony useful or necessary and thus do
                                           8
measured at 100 feet in front of the locomotive, the horn’s volume was 100.5

decibels. This volume is within the 96- to 110-decibel range (as measured at 100 feet

in front of the locomotive) required by FRA regulations, which were designed to

provide for audibility from 1320 feet. See 49 C.F.R. § 229.129(a); Use of Locomotive

Horns at Highway-Rail Grade Crossings, 68 Fed. Reg. 70,586, 70,610, 70,627 (Dec.

18, 2003). Specifically, during the rulemaking process, the FRA sought to “establish

and quantify . . . the level of sound that needs to be delivered to be detectable.” Use

of Locomotive Horns, 68 Fed. Reg. at 70,610. In doing so, it determined that when a

horn sounds at a volume of 100 decibels (measured from 100 feet away), that volume

“will have diminished to roughly 75 [decibels] at one-quarter mile[, or 1320 feet,] in

front of the locomotive,” which is “near the outer margin of utility in terms of

alerting the motorist to oncoming trains at that crossing.” Id. at 70,627 (emphasis

added). But because such a horn signal sounding from 1320 feet away is near the

outer margin of utility for warning motorists at this distance, it is within the margin

of utility. And for a signal to be of any utility at all, it must be audible. See id. at

70,602 (determining that “[s]ounding the horn [within the required decibel range]

over a distance greater than one-quarter mile would add no value, since the loss of

volume . . . would almost certainly prevent any effective warning”). Thus, per the

rulemaking history, a 100.5-decibel signal (measured from 100 feet away) is audible




not rely on it. Because, as explained below, we find that BNSF meets its prima facie
burden even without the resident’s testimony, we need not determine whether the
district court erred in relying on this testimony.
                                              9
from at least a quarter mile away. And a signal audible from a quarter mile away

triggers a driver’s duty to stop under § 11-701(A)(3). See Henning, 530 F.3d at 1221.

      Malinski and Smith do not dispute the results of the horn test. But they do

dispute the relevance of the horn test in combination with the FRA decibel-range

regulations. They first argue that the regulations are not relevant because they

regulate trains rather than drivers. But the significance of the regulations is not

BNSF’s compliance with them; it is that the rulemaking history demonstrates that a

horn sounding at 100 decibels (measured from 100 feet away) is evidence of

audibility from approximately 1500 feet.

      Next, Malinski and Smith argue that a study underlying the decibel-range

regulations is unrepresentative. In particular, they fault the study because in

analyzing the safety of crossings, it did not consider whether “railway companies

failed to maintain the crossing in a reasonably safe manner,” as they alleged BNSF

did. Aplt. Br. 27. But the maintenance of the crossing is irrelevant to the conclusion

we draw from the FRA’s regulations and rulemaking history: that a 100.5-decibel

signal is audible from at least quarter mile, or 1320 feet. 68 Fed. Reg. 70,586, 70,627.

Thus, like the district court, we find that BNSF’s compliance with the FRA decibel-

range requirements provides evidence of audibility in this case. And Malinski and

Smith’s arguments to the contrary fail to undermine that conclusion. 8


      8
         Malinski and Smith also argue that the signal was tested “in a train yard,
while it was immobile, and during different weather conditions” than those on the
day of the collision. Aplt. Br. 29. They contend that these differences make the
testing unreliable evidence of what occurred on the day of the accident. But they
                                           10
       Taking the video and testing evidence together, then, the BNSF train signaled

at 100.5 decibels (as measured from 100 feet) when it was approximately 1500 feet

away from the crossing where it struck Malinski and Nathan Smith. See Henning, 530

F.3d at 1221. And because such a signal is audible from that distance, the BNSF

signal was audible from approximately 1500 feet at the crossing where the train

struck Malinski and Smith. See id.; Use of Locomotive Horns, 68 Fed. Reg.

at 70,627.

       We therefore conclude that BNSF meets its initial burden to make a prima

facie demonstration that a reasonably prudent driver in Malinski’s position should

have heard the signal when the train was approximately 1500 feet away from the

crossing. See Savant Homes, Inc., 809 F.3d at 1137. The burden now shifts to

Malinski and Smith, who must “identify specific facts that show the existence of a

genuine issue of material fact.” Thomas, 48 F.3d at 484.

       In attempting to do so, Malinski and Smith first argue that they raised a

genuine issue of material fact when Malinski testified that he could not hear the

signal. They contend that the district court misapplied the reasonably-prudent-driver

standard when finding otherwise. In doing so, they maintain that when a driver

“claims an inability to detect an approaching train—a jury, not the courts—must

decide” the issue of audibility. Aplt. Br. 16. But this is a subjective analysis: it asks




make this attack on BNSF’s testing for the first time on appeal and do not argue for
plain-error review. We therefore decline to consider this waived argument. See
Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127–28 (10th Cir. 2011).
                                            11
whether Malinski actually heard the signal, not whether a reasonably prudent driver

in Malinski’s situation should have heard it. See Nye, 428 P.3d at 875 (explaining

that “an objective test is consistent with [the Oklahoma Supreme Court’s] long-

standing jurisprudence”). Even Ross, which Malinski and Smith rely on for this point,

frames the inquiry as “whether the train emitted a signal that would have been

audible to a reasonably prudent driver in [the driver’s] position at the crossing.” 528

F. App’x at 966 (emphasis added).

      To be sure, Malinski and Smith cite cases that consider witness testimony as a

relevant factor when denying summary judgment in § 11-701(A) cases. In those

cases, however, either additional evidence corroborated the witness testimony or the

railroad had not made a prima facie demonstration that a § 11-703(A) visual or

audible signal was present. See, e.g., id. (denying summary judgment when multiple

witnesses, including crewmembers on train, did not recall hearing train’s signal and

expert opined that driver’s vehicle would have been “significant acoustical barrier” to

hearing signal (quoting App. 328)); Cornwell v. Union Pac. R.R., No. 08-CV-638-

JHP, 2010 WL 3521668, at *3 (N.D. Okla. Sept. 7, 2010) (unpublished) (denying

summary judgment because railroad had not established whether driver was “given

notice of the train’s approach by way of the sounding of the horn/whistle”). Thus,

Malinski’s testimony does not raise a factual dispute.

      Next, Malinski and Smith contend that the district court impermissibly drew an

inference in BNSF’s favor by determining that the music playing in Malinski’s truck

was loud. But Malinski and Smith do not explain how this alleged error affects our

                                          12
analysis here. So although we acknowledge the practical possibility that the volume

of music in a vehicle could theoretically impact the audibility analysis (for example,

if a reasonably prudent person would listen to music at a passive railroad crossing at

such a volume as to impact a signal’s audibility), such a possibility is not before us in

this case. See Wilburn v. Mid-S. Health Dev., Inc., 343 F.3d 1274, 1281 (10th Cir.

2003) (declining to consider inadequately briefed argument).

      Finally, Malinski and Smith argue that the district court ignored the facts that

Malinski was driving on a gravel road as he approached the crossing, that it was

raining at the time of the collision, that he approached the crossing at dusk, and that

the driver who crossed the tracks before Malinski testified that he could not hear the

signal. But as BNSF points out, Malinski and Smith did not argue in the district court

that any of these facts impacted the signal’s audibility, and they do not argue for

plain-error review on appeal. Therefore, any arguments based on these allegedly

ignored facts are waived. See Richison, 634 F.3d at 1127–28; Adler v. Wal-Mart

Stores, Inc., 144 F.3d 664, 675 (10th Cir. 1998) (upholding summary judgment in

part by determining that party waived argument it made on appeal because it did not

“raise and support [the] argument below”).

      Thus, we do not find that either Malinski’s testimony or any of Malinski and

Smith’s other arguments “show the existence of a genuine issue of material fact” as

to whether the signal was audible to a reasonably prudent driver. Thomas, 48 F.3d

at 484. Accordingly, Malinski and Smith have not rebutted BNSF’s prima facie

demonstration that a reasonably prudent driver in Malinski’s position should have

                                           13
heard the signal from approximately 1500 feet, triggering Malinski’s duty to stop

under § 11-701(A)(3). 9 And because Malinski did not stop, he violated § 11-

701(A)(3). Nye, 428 P.3d at 873.

II.   Causation

      Even though Malinski violated § 11-701(A)(3), this statutory violation gives

rise to negligence per se only if the violation proximately caused the collision that led

to his injuries and to Nathan Smith’s death. See id. Proximate cause is the “cause

[that] sets in motion the chain of circumstances leading to the injury.” Akin v. Mo.

Pac. R.R. Co., 977 P.2d 1040, 1054 (Okla. 1998). Here, BNSF can prevail on

summary judgment only if it makes a prima facie demonstration that Malinski’s

failure to stop in the presence of an audible signal “set[] in motion the chain of

circumstances leading to” his injuries and Nathan Smith’s death. Id.

      The video shows that the collision occurred immediately after Malinski failed

to stop, without any intervening events. The video therefore establishes a prima facie

demonstration that Malinski’s § 11-701(A)(3) violation proximately caused the




      9
         Malinski and Smith argue that a “driver does not solely bear the burden for
preventing accidents”; instead, they contend, a “driver’s duty to stop depends on
whether the railway company first satisfies its duty to maintain its crossing in a
reasonably safe manner.” Aplt. Br. 17, 20. But this argument misunderstands
negligence per se, where the statute defines the duty. Howard v. Zimmer, Inc., 299
P.3d 463, 467 (Okla. 2013) (“The negligence per se doctrine is employed to
substitute statutory standards for parallel common[-]law, reasonable[-]care duties.”).
Here, a driver has a duty to stop when a signal is audible from approximately 1500
feet. § 11-701(A)(3).
                                           14
collision, which in turn caused Malinski’s injuries and Nathan Smith’s death. The

burden now shifts to Malinski and Smith to rebut this prima facie demonstration.

      In attempting to meet their burden, Malinski and Smith argue that summary

judgment is not appropriate because (1) BNSF’s negligence in maintaining the

crossing proximately caused Malinski’s injuries and Nathan Smith’s death and

(2) there are genuine issues of material fact as to whether any negligence on

Malinski’s part, in violating § 11-701(A)(3), supervened that cause. A supervening

cause “is a new, independent[,] and efficient cause of the injury [that] was neither

anticipated nor reasonably foreseeable” and breaks the chain of causation between an

otherwise proximate cause and the injury. Id. at 1054–55. Malinski and Smith argue

that there are fact issues as to (1) whether Malinski’s “inability to hear the train was

independent from BNSF’s negligent maintenance, building, and construct[ion] of the

crossing” and (2) whether Malinski’s decision to cross the tracks without stopping

was “reasonably foreseeable considering BNSF’s negligent conduct.” Aplt. Br. 35

(emphases added). Thus, they reason, summary judgment is not appropriate because

of fact issues as to whether Malinski’s alleged negligence broke the chain of

proximate causation between BNSF’s alleged negligence and the injuries.

      This argument fails because, as a matter of law in Oklahoma, a driver’s

violation of § 11-701(A) proximately causes injuries from resulting train collisions.

Akin, 977 P.2d at 1055; Hamilton v. Allen, 852 P.2d 697, 701 (Okla. 1993). This

remains true “even if” the railroad “could have been shown to be [in] breach of its

common-law duty of care.” Akin, 977 P.2d at 1056. In Oklahoma, a driver’s violation

                                           15
of § 11-701(A) “constitutes a supervening act of negligence [that] insulates the

railroad from the legal consequences of its own lack of due care, if any.” Id.; see also

Hamilton, 852 P.2d at 700–01 (explaining that when “it is undisputed that warnings

were given,” the issue of proximate cause “becomes one of law”).

        Malinski and Smith argue that Hamilton and Akin are inapposite because the

collisions in those cases occurred at crossings with visual active-warning systems

such as crossing gates. However, they do not explain why or how the proximate-

cause analysis should differ based on whether the crossing was passive or active or

whether the signals were visual or audible. Indeed, § 11-701(A) creates a duty to stop

both in the presence of active visual signals, § 11-701(A)(1)–(2), and in the presence

of an audible signal, § 11-701(A)(3). They also attempt to distinguish these cases

because they involve instances where the driver obviously “broke the law” by, for

example, driving along the center line past two stopped cars and lowered crossing

gates in order to cross the tracks. Rep. Br. 13; see Hamilton, 985 P.2d at 698–99. But

even if Malinski’s failure to stop was not as egregious as that in Hamilton, he

nevertheless violated the statute. Accordingly, Hamilton and Akin’s conclusion that a

§ 11-701(A) violation is the proximate cause for any resulting injuries applies equally

here.

        The three cases Malinski and Smith rely on do not say otherwise. First, none

of the cases address the legal rule that a § 11-701(A) violation supervenes any

negligence on the part of a railroad. Next, two of these cases are not negligence-per-

se cases and instead involved situations where it was unclear whether any warning

                                          16
signal was present. See Kan., Okla. & Gulf Ry. Co. v. Collins, 251 P.2d 178, 180

(Okla. 1952) (finding proximate cause was jury question when “evidence as to

whether or not the whistle was blown or bell rung when the train approached the

crossing [was] in conflict”); Okla. Union Ry. Co. v. Lynch, 242 P. 176, 178 (Okla.

1925) (denying summary judgment when “the evidence was very conflicting . . . as to

whether or not any signal warning was given”). These two cases are not relevant here

because, as explained above, Malinski and Smith have failed to rebut or call into

question BNSF’s prima facie demonstration that the signal was audible. And thus—

unlike Collins and Lynch—this case must be analyzed as a per-se-negligence case,

where the statutory violation proximately causes the injury as a matter of law.

Finally, in the third case, the court found that a jury must determine whether a police

officer’s negligence in violating a law that required him to use an audible signal

before crossing a highway median proximately caused a multi-car collision. See

Jackson v. Jones, 907 P.2d 1067, 1072 (Okla. 1995). But in that case, multiple actors

intervened between when the officer crossed the median without an audible signal

and when the collision occurred. Id. at 1070. Here, there are no other actors who may

have supervened Malinski’s negligence, so Jackson, too, is inapposite.

      In sum, then, Malinski and Smith fail to rebut or call into question BNSF’s

prima facie demonstration that Malinski’s § 11-701(A)(3) violation proximately

caused the collision that led to his injuries and Nathan Smith’s death.




                                          17
                                     Conclusion

      Through the video and horn test, BNSF made a prima facie demonstration that

the train signal, when sounded approximately 1500 feet away from the crossing, was

audible to a reasonably prudent driver in Malinski’s position at the crossing. Because

we find that Malinski and Smith did not provide evidence sufficient to create a

genuine issue of material fact on this issue, we conclude that Malinski violated

§ 11-701(A). And because under Oklahoma law a driver’s violation of § 11-701(A)

acts as a supervening cause to any negligence on a railroad’s part, we find that

Malinski’s negligence proximately caused the collision that led to Malinski’s injuries

and Nathan Smith’s death. Thus, we affirm the district court’s order ruling that

Malinski was negligent per se and granting summary judgment to BNSF. 10


                                           Entered for the Court


                                           Nancy L. Moritz
                                           Circuit Judge




      10
         BNSF argues in the alternative that the Federal Railroad Safety Act
preempts Malinski and Smith’s state-law claims. Because we affirm the district
court’s grant of summary judgment on negligence per se, we do not reach this
argument.
                                          18
