Dresser v. Union Pacific RR. Co.

defense to that charge. Although the evidence was sufficient to
support the guilty verdict, the erroneous evidentiary ruling was
not harmless. We reverse this conviction and remand for a new
trial only on that charge.
We reverse the judgments of conviction for DUI, refusing
to submit to a chemical test, and possessing an open container.
We remand the cause with directions to vacate these convic-
tions and sentences and to dismiss the charges.
R eveRsed and Remanded with diRections.
Dresser v. UnIon pAcIfIc rr. co. 	537
cite as 282 neb. 537
R ebecca L. dResseR and KRista a. RosencRans ,
appeLLants , v. Union pacific R aiLRoad
company, a coRpoRation, appeLLee .
809 n.W.2d 713
filed october 14, 2011. 	no. s-10-645.
1. Summary Judgment: Appeal and Error. In reviewing a summary judgment, the
court views the evidence in the light most favorable to the party against whom
the judgment was granted and gives such party the benefit of all reasonable infer-
ences deducible from the evidence.
2. Railroads: Motor Vehicles: Negligence. A traveler on a highway, when approach-
ing a railroad crossing, has a duty to look and listen for the approach of trains,
and failure to do so without a reasonable excuse constitutes negligence.
3. Railroads: Motor Vehicles: Right-of-Way. Although railroad trains do not have
an absolute right-of-way at grade crossings under all conditions, an engineer
operating a train has no duty to yield the right-of-way until it appears to a reason-
ably prudent person that to proceed would probably result in a collision. At that
time, it becomes the duty of the engineer to exercise ordinary care to avoid an
accident, even to the extent of yielding the right-of-way.
4. Summary Judgment: Proof. The party moving for summary judgment has the
burden to show that no genuine issue of material fact exists and must produce
sufficient evidence to demonstrate that the moving party is entitled to judgment
as a matter of law.
5. Summary Judgment: Evidence: Proof. After the movant for summary judgment
makes a prima facie case by producing enough evidence to demonstrate that the
movant is entitled to judgment if the evidence was uncontroverted at trial, the
burden to produce evidence showing the existence of a material issue of fact that
prevents judgment as a matter of law shifts to the party opposing the motion.
6. Summary Judgment. conclusions based upon guess, speculation, conjecture, or
a choice of possibilities do not create material issues of fact for purposes of sum-
mary judgment.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:43 AM CST

7. Railroads: Claims. A state law claim based upon a railroad’s duty to avoid a
specific, individual hazard at a grade crossing is not preempted by 49 U.s.c.
§ 20106 (2006).
8. Summary Judgment: Affidavits. The purpose of neb. rev. stat. § 25-1335
(reissue 2008) is to provide an additional safeguard against an improvident or
premature grant of summary judgment.
9. ____: ____. A neb. rev. stat. § 25-1335 (reissue 2008) affidavit that a party
submits in support of a continuance need not contain evidence going to the mer-
its of the case; rather, a § 25-1335 affidavit must contain a reasonable excuse or
good cause, explaining why a party is presently unable to offer evidence essential
to justify opposition to the motion for summary judgment.
Appeal from the District court for Lancaster county: paUL
d. meRRitt, JR., Judge. Affirmed in part, and in part reversed
and remanded for further proceedings.
Derek A. Aldridge and corey L. stull, of perry, Guthery,
Haase & Gessford, p.c., L.L.o., for appellants.
William M. Lamson, Jr., Anne Marie o’Brien, and Angela
J. Miller, of Lamson, Dugan & Murray, L.L.p., for appellee.
heavican, c.J., connoLLy, G eRRaRd, stephan, mccoRmacK,
and miLLeR-L eRman, JJ.
stephan, J.
Krista A. rosencrans was severely injured when a train col-
lided with a motor vehicle in which she was a passenger. she
and her mother, rebecca L. Dresser (collectively appellants),
brought this negligence action against Union pacific railroad
company (Union pacific) and the operator of the motor vehicle
and her mother. Appellants appeal from an order of the district
court for Lancaster county granting summary judgment in
favor of Union pacific.
I. fAcTs
on March 19, 2005, 18-year-old rosencrans was a passenger
in a motor vehicle driven by 17-year-old chanda McDonald.
The vehicle was traveling north on Thayer county road 26
near Belvidere, nebraska, and the teenagers were talking and
listening to music. About 11:40 a.m., the vehicle approached a
two-track railroad grade crossing that had no automatic gate or
flashing lights, but was protected by a stop sign and crossbucks
538 	282 neBrAsKA reporTs

on each side of the tracks. The stop sign and crossbucks were
respectively located approximately 30 feet and 15 feet south of
the tracks.
McDonald came to a complete stop at the stop sign. It was
a clear day, and when rosencrans looked in both directions at
the stop sign, she saw a train coming down the tracks from her
left. During her deposition, rosencrans indicated on a photo-
graphic exhibit that the train was quite close to the crossing
when she first saw it, but in a subsequent affidavit, she stated
she could not quantify how far away the train was. rosencrans
testified she listened for but did not hear a train horn or bell.
rosencrans did not know whether McDonald looked in both
directions at the stop sign. After stopping at the stop sign,
McDonald drove the vehicle into the railroad crossing and
onto the tracks. When rosencrans began screaming, McDonald
tried to back the vehicle off the tracks, but was unable to get
off the tracks in time, and the vehicle was struck by the train.
rosencrans suffered severe injuries in the accident.
The locomotive engineer testified that he sounded the loco-
motive horn as the train approached the crossing. He observed
the McDonald vehicle slowing as it approached the stop sign
south of the crossing. The engineer testified he could see the
occupants of the vehicle and noted they were not paying atten-
tion to him. The engineer testified that when he saw the vehicle
pulling onto the tracks, he immediately applied the emergency
brake and took cover on the floor of the locomotive. Before
taking cover, the engineer noticed the nose of the vehicle was
roughly in the center of the railroad tracks.
The conductor testified that he saw the McDonald vehicle
approaching the railroad crossing and thought it was slowing
down to stop at the stop sign. He then looked away to check
for traffic from the other direction. When he looked back, the
vehicle was coming into the crossing and the engineer was
yelling “no, no, no.” The conductor testified that at this time,
he could see the occupants of the vehicle. He heard the engi-
neer apply the emergency brake and then took cover on the
floor prior to impact.
In compliance with federal railroad Administration require-
ments, each of the three locomotives powering the train was
Dresser v. UnIon pAcIfIc rr. co. 	539
cite as 282 neb. 537

equipped with an event recorder, similar to an airplane’s “black
box,” which captures information as to the speed of the train,
braking applications, throttle position, and other locomotive
and train functions. Data from these devices showed the train
was traveling at 45 m.p.h. at the time of the accident, well
within the 80-m.p.h. federally mandated speed limit for this
type of train and track. event recorder data also established
the train was 189 feet past the center of the railroad crossing
before the emergency brake was activated. After the brake was
applied, the train traveled between 2,732 feet (.517 miles) and
2,798 feet (.530 miles) before coming to a stop.
The event recorder data also disclosed when the locomo-
tive horn was activated. Union pacific’s expert averred that
the horn was activated 4,902 feet (.928 miles) before the train
came to a stop, for a period of 35 seconds. An expert retained
by appellants opined that the locomotive horn was activated as
one uninterrupted blast 577 feet from the center of the cross-
ing, for a period of 10 seconds before impact. This expert also
explained that the event recorder shows only that an electrical
impulse was sent to the horn, and does not record whether the
horn in fact sounded when the impulse was sent.
Appellants brought this negligence action against Union
pacific, McDonald, and McDonald’s mother, seeking to recover
medical expenses incurred by Dresser on rosencrans’ behalf
and general damages sustained by rosencrans. The operative
second amended complaint alleges Union pacific was negli-
gent in part because the train crew failed to maintain a proper
lookout, failed to slow or stop the train to avoid the collision,
and failed to properly sound the locomotive horn. In its answer,
Union pacific denied that it was negligent and alleged that any
injuries or damages sustained by rosencrans were proximately
caused by the negligence of McDonald. It also alleged the
negligence claims were preempted by local, state, and fed-
eral laws.
Approximately 17 months after the action was commenced,
Union pacific filed a motion for summary judgment and a
motion to stay discovery while that motion was pending. After
conducting a hearing on the motion to stay, the district court
ordered that “[a]ll discovery not related to issues raised by the
540 	282 neBrAsKA reporTs

pending motion for summary judgment of the defendant Union
pacific is stayed until resolution of that motion or further order
of the court.” The district court later entered summary judg-
ment in favor of Union pacific. It determined that the claims
that the train crew failed to maintain a proper lookout and
failed to slow or stop the train to avoid a specific, individual
hazard were preempted by the federal railroad safety Act of
1970 (frsA).1 It also determined there was no genuine issue
of material fact on whether the train crew properly sounded
the locomotive horn prior to the collision. After the court
sustained a motion to dismiss the claims against McDonald
and her mother without prejudice, appellants perfected this
timely appeal.
II. AssIGnMenTs of error
Appellants assign, restated and renumbered, that the district
court erred in (1) finding no genuine issue of material fact
existed as to whether the Union pacific locomotive horn was
sounded at the crossing; (2) dismissing the claims of negli-
gence identified in paragraphs 8(c), (j), (l), (q), (r), and (t) of
the second amended complaint; (3) finding no genuine issue of
material fact existed as to whether the locomotive horn signal-
ization was a proximate cause of the accident; (4) finding fed-
eral law preempted their claim that Union pacific was negligent
in failing to maintain a proper lookout and to slow or stop its
train; and (5) limiting the scope of their discovery.
III. sTAnDArD of reVIeW
[1] In reviewing a summary judgment, the court views the
evidence in the light most favorable to the party against whom
the judgment was granted and gives such party the benefit of
all reasonable inferences deducible from the evidence.2
IV. AnALYsIs
1. sUmmaRy JUdGment
[2,3] Union pacific’s general defense is that McDonald’s
negligent operation of the vehicle in which rosencrans was a
1 see 49 U.s.c. § 20101 et seq. (2006 & supp. III 2009).
2 Radiology Servs. v. Hall, 279 neb. 553, 780 n.W.2d 17 (2010).
Dresser v. UnIon pAcIfIc rr. co. 	541
cite as 282 neb. 537

passenger was the sole proximate cause of the accident. The
respective duties of motorists and train engineers approaching a
grade crossing are well settled. A traveler on a highway, when
approaching a railroad crossing, has a duty to look and listen
for the approach of trains, and failure to do so without a rea-
sonable excuse constitutes negligence.3 Although railroad trains
do not have an absolute right-of-way at grade crossings under
all conditions, an engineer operating a train has no duty to
yield the right-of-way until it appears to a reasonably prudent
person that to proceed would probably result in a collision.4 At
that time, it becomes the duty of the engineer to exercise ordi-
nary care to avoid an accident, even to the extent of yielding
the right-of-way.5
[4,5] The respective duties of parties in a summary judgment
proceeding are also well settled. The party moving for sum-
mary judgment has the burden to show that no genuine issue
of material fact exists and must produce sufficient evidence
to demonstrate that the moving party is entitled to judgment
as a matter of law.6 After the movant for summary judgment
makes a prima facie case by producing enough evidence to
demonstrate that the movant is entitled to judgment if the
evidence was uncontroverted at trial, the burden to produce
evidence showing the existence of a material issue of fact that
prevents judgment as a matter of law shifts to the party oppos-
ing the motion.7
for Union pacific to be successful on its motion for sum-
mary judgment, the record must show as a matter of law either
3 Whitaker v. Burlington Northern, Inc., 218 neb. 90, 352 n.W.2d 589
(1984); Wyatt v. Burlington Northern, Inc., 209 neb. 212, 306 n.W.2d
902 (1981); Thomas v. Burlington Northern R.R., Inc., 203 neb. 507, 279
n.W.2d 369 (1979). see, also, neb. rev. stat. § 60-6,170 (reissue 2010).
4 Whitaker v. Burlington Northern, Inc., supra note 3; Wyatt v. Burlington
Northern, Inc., supra note 3.
5 Id.
6 Tolbert v. Jamison, 281 neb. 206, 794 n.W.2d 877 (2011); Kline v.
Farmers Ins. Exch., 277 neb. 874, 766 n.W.2d 118 (2009).
7 Village of Hallam v. L.G. Barcus & Sons, 281 neb. 516, 798 n.W.2d 109
(2011); Tolbert v. Jamison, supra note 6.
542 	282 neBrAsKA reporTs

that it owed appellants no duty, that any duty owed was not
breached, or that any breach was not the proximate cause of the
accident.8 Appellants argue there are genuine issues of material
fact related to their claim that Union pacific was negligent in
failing to sound the locomotive horn and their claim that Union
pacific was negligent for failing to slow or stop the train once
it became apparent to the engineer that to proceed would prob-
ably result in a collision. We turn to these arguments.
(a) claims pertaining to sounding Horn
(i) Activation
The operative complaint alleged Union pacific was negli-
gent because it “fail[ed] to properly sound the locomotive’s
horn and bells.” evidence presented to the district court on
this issue primarily focused on when and how the horn was
sounded and whether such sounding complied with federal
regulations and Union pacific’s internal protocol. relying on
this evidence, the district court initially found that “any causal
connection between when the locomotive horn began sound-
ing and whether the horn was sounding in one uninterrupted
blast or in a succession of short blasts and the occurrence of
the accident” was a jury question. on Union pacific’s motion
for reconsideration, the court concluded that because the horn
actually sounded, “reasonable minds could only conclude that
the accident . . . was not proximately caused by any negligence
on the part of Union pacific relating to the sounding of the
locomotive’s horn and bells.”
In this appeal, appellants no longer focus on when and how
the horn sounded. Instead, they argue there is a genuine issue
of material fact as to whether the horn was sounded at all.
Although Union pacific contends that this is a new theory of
the case, we consider a claim that the horn was not sounded at
all to be encompassed within the allegation in the complaint
that Union pacific failed to “properly” sound the horn. We
further note that appellants argued to the district court that the
horn was not sounded at all.
8 see, Riggs v. Nickel, 281 neb. 249, 796 n.W.2d 181 (2011); Tolbert v.
Jamison, supra note 6.
Dresser v. UnIon pAcIfIc rr. co. 	543
cite as 282 neb. 537

The evidence on whether the horn was sounded consists of
data from the train’s event recorder, which shows the horn was
activated, and testimony from both the train engineer and the
train conductor that the horn was activated. Appellants con-
tend this evidence is not sufficient to entitle Union pacific to
summary judgment, because their expert testified that activat-
ing the horn does not necessarily make the horn sound. They
also contend the evidence supports an inference that the horn
did not sound, because rosencrans testified she did not hear
the horn and McDonald indicated the same in an interroga-
tory answer.
[6] We, of course, view the evidence in the light most
favorable to the party against whom the summary judgment
was granted and give such party the benefit of all reasonable
inferences deducible from the evidence.9 But we are mindful
that conclusions based upon guess, speculation, conjecture, or
a choice of possibilities do not create material issues of fact
for purposes of summary judgment.10 on this specification of
negligence, the focus of the inquiry is whether the engineer
activated a working horn and not whether the occupants of the
vehicle heard the horn. Here, the testimony from the engineer
and the conductor and the event record data show that the horn
was activated. And no evidence supports a reasonable infer-
ence that there was some defect which prevented the horn from
sounding when activated. To the contrary, the record shows
the horn was working properly when it was tested 2 days after
the accident. Thus, despite rosencrans’ and McDonald’s state-
ments that they did not hear the horn, there are no facts upon
which a finder of fact could reasonably conclude that the horn
did not sound when it was activated. Because we conclude
there is no genuine issue of material fact on this issue, we do
not reach appellants’ argument that the alleged failure to sound
the horn was a proximate cause of the accident.
9 Radiology Servs. v. Hall, supra note 2.
10 Mefferd v. Sieler & Co., 267 neb. 532, 676 n.W.2d 22 (2004); Darrah v.
Bryan Memorial Hosp., 253 neb. 710, 571 n.W.2d 783 (1998); Stones v.
Sears, Roebuck & Co., 251 neb. 560, 558 n.W.2d 540 (1997).
544 	282 neBrAsKA reporTs

(ii) Other Claims Pertaining to Horn
The operative complaint alleged Union pacific failed to
operate the train in a safe and prudent manner, failed to prop-
erly train the crew, failed to adequately supervise the crew,
failed to follow its internal rules, failed to follow the General
code of operating rules, and failed to follow proper train-
handling methods. In its initial summary judgment order, the
district court denied Union pacific’s motion for summary judg-
ment with respect to any of these alleged acts of negligence
that “relat[ed] to” the horn signalization issue. It specifically
noted, however, that the motion for summary judgment was
“granted in all other respects, regardless of whether specifically
discussed in this order.” In ruling on Union pacific’s motion
for reconsideration, the district court determined that summary
judgment was also appropriate as to “any alleged acts of negli-
gence encompassed” in the above-stated allegations that related
to the horn signalization issue.
Appellants argue this was error because (1) there remains
a genuine issue of material fact as to whether the horn was
sounded at all and (2) the district court “made no specific find-
ings with respect to these claims.”11 As noted, we agree with
the district court that no genuine issue of material fact exists
as to whether the horn was sounded. And if there is no request
for specificity, a district court may enter summary judgment
without articulating its reasons.12 We affirm the district court’s
grant of summary judgment on these allegations.
(b) claim pertaining to Avoiding Accident
Appellants contend genuine issues of material fact exist
as to whether Union pacific negligently failed to avoid the
accident once it became apparent that to proceed would prob-
ably result in a collision.13 specifically, they claim that issues
of fact exist as to whether Union pacific breached its duty to
11 Brief for appellants at 18.
12 see Wells Fargo Ag Credit Corp. v. Batterman, 229 neb. 15, 424 n.W.2d
870 (1988).
13 see, Whitaker v. Burlington Northern, Inc., supra note 3; Wyatt v.
Burlington Northern, Inc., supra note 3.
Dresser v. UnIon pAcIfIc rr. co. 	545
cite as 282 neb. 537

exercise ordinary care to avoid the accident by failing to take
timely action to slow or stop the train. The district court did not
address this claim because it concluded it was “speed-related”
and preempted by federal law.14 Before engaging in a preemp-
tion analysis, we address whether genuine issues of material
fact exist on this claim.
(i) Duty
pursuant to long-established nebraska law, Union pacific’s
engineer had the right-of-way at the grade crossing.15 He had
a duty to exercise ordinary care to avoid an accident, includ-
ing yielding the right-of-way, when it appeared to a reason-
ably prudent person that to proceed “‘would probably result in
a collision.’”16
It is undisputed that McDonald stopped the vehicle at the
stop sign south of the railroad crossing and then proceeded into
the crossing. precisely when the engineer’s duty to exercise
ordinary care to avoid the accident arose in this case may be
subject to dispute, but it is clear that it arose. for purposes of
this summary judgment motion and giving appellants all rea-
sonable inferences, we assume that the duty arose at the time
McDonald’s vehicle left the stop sign.
(ii) Breach
Union pacific is entitled to summary judgment if the record
shows as a matter of law that the engineer’s duty to exercise
ordinary care to avoid the accident was not breached. In argu-
ing that it does, Union pacific relies on the engineer’s testi-
mony that he activated the emergency brake after he saw the
vehicle begin to pull onto the train tracks, which he stated was
sometime before the train entered the crossing. If this evidence
were uncontroverted, we would agree with Union pacific. But
14 see CSX Transp., Inc. v. Easterwood, 507 U.s. 658, 113 s. ct. 1732, 123
L. ed. 2d 387 (1993).
15 see, Whitaker v. Burlington Northern, Inc., supra note 3; Wyatt v.
Burlington Northern, supra note 3.
16 Whitaker v. Burlington Northern, Inc., supra note 3, 218 neb. at 95, 352
n.W.2d at 593.
546 	282 neBrAsKA reporTs

it is not. contrary to the engineer’s testimony, the train event
recorder shows the emergency brake was not activated until
the train had traveled 189 feet past the center of the railroad
crossing. There is thus a genuine issue of material fact as to
when the engineer activated the emergency brake, an issue that
relates to whether he breached his duty to exercise ordinary
care to avoid the accident.
(iii) Proximate Cause
Any factual dispute about whether a duty was breached
is immaterial if the record shows as a matter of law that
any breach by Union pacific was not the proximate cause of
the accident. Without specific citation to the record, Union
pacific continually asserts that even if the engineer had
reacted by activating the emergency brake immediately after
McDonald’s vehicle left the stop sign, the accident could not
have been avoided.
We agree that on this record, no reasonable fact finder could
conclude that even immediate action by the engineer could
have stopped the train before it reached the crossing. After
the engineer applied the emergency brake, the train traveled
between 2,732 and 2,798 feet before it came to a stop, a dis-
tance of approximately one-half mile. There is no evidence in
this record that could support a reasonable inference that the
train was at least 2,731 feet away from the crossing at the time
the McDonald vehicle left the stop sign. Both the engineer and
the conductor testified that at the time the vehicle pulled onto
the tracks, they were so close they could see the faces of the
vehicle’s occupants. And during her deposition, rosencrans
marked an exhibit with her approximation of where the train
was when she first saw it; her mark is quite close to the cross-
ing. Based on this evidence, no reasonable fact finder could
conclude that the engineer could have stopped the train before
it reached the crossing if he had activated the emergency break
the instant the vehicle left the stop sign, which is the first
possible moment that his duty to take evasive action could
have arisen. The record therefore shows as a matter of law
that the train’s failure to stop was not a proximate cause of
the accident.
Dresser v. UnIon pAcIfIc rr. co. 	547
cite as 282 neb. 537

But the record does not show as a matter of law that the
train’s failure to slow was not a proximate cause of the acci-
dent. As noted, in reviewing a summary judgment, we give all
inferences to the nonmoving party, and we thus assume that
the duty to exercise ordinary care arose the instant McDonald’s
vehicle left the stop sign and that slowing or stopping the
train was encompassed in the duty to exercise ordinary care.
Although the record shows as a matter of law that the train
could not have been stopped before it reached the crossing, it is
silent on what effect activation of the emergency brake would
have had on the speed of the train. It is thus impossible to con-
clude on this record that the train’s speed could not have been
reduced had the engineer pulled the emergency brake immedi-
ately after the vehicle left the stop sign. Union pacific did not
meet its burden to show it is entitled to summary judgment on
this issue.17
While this deficiency may not be relevant in every case, it is
here. The engineer testified that the nose of McDonald’s vehi-
cle was in approximately the center of the track just prior to
impact. rosencrans testified that McDonald was attempting to
back off the tracks when the collision occurred, and an exhibit
shows the train’s impact with the McDonald vehicle was quite
near the front of the driver’s side of the vehicle. on this record,
the amount of time McDonald would have had to get off
the tracks and avoid the accident is a critical factor which is
dependent in part upon the engineer’s reaction when it became
evident that a collision could occur. The record does not permit
us to conclude as a matter of law that earlier application of
the emergency brake would not have prevented the collision.
Therefore, unless preemption principles apply, Union pacific
was not entitled to summary judgment on the claim that the
engineer failed to exercise ordinary care to avoid the accident,
because there are genuine issues of material fact as to whether
he breached his duty and whether that breach was a proximate
cause of the accident. We therefore address whether the claim
is preempted by federal law.
17 see Stone v. CSX Transp., Inc., 37 f. supp. 2d 789 (s.D. W. Va. 1999).
548 	282 neBrAsKA reporTs

(c) claim Is not preempted
The district court found the claim that the engineer failed
to exercise ordinary care to avoid the accident by failing
to slow or stop the train was an excessive speed claim and
was preempted by 49 U.s.c. § 20106, a provision of the
frsA. congress enacted the frsA in 1970 with the purpose
of promoting “safety in every area of railroad operations
and reduc[ing] railroad-related accidents and incidents.”18 The
frsA grants the secretary of Transportation broad authority to
prescribe regulations and issue orders for every area of railroad
safety.19 section 20106 is entitled “preemption” and displaces a
state’s authority to regulate railroad safety when the secretary
of Transportation “prescribes a regulation or issues an order
covering the subject matter of the state requirement.” section
20106(a)(2) further provides that a state may adopt or continue
in force an additional or more stringent law as long as it “(A)
is necessary to eliminate or reduce an essentially local safety or
security hazard; (B) is not incompatible with a law, regulation,
or order of the United states Government; and (c) does not
unreasonably burden interstate commerce.”
The 	U.s. 	supreme 	court 	addressed 	federal 	preemption
under the previous version of § 20106 in CSX Transp., Inc.
v. Easterwood.20 In Easterwood, the court reasoned the issue
before a court in a frsA preemption analysis is “whether the
secretary of Transportation has issued regulations covering the
same subject matter as [state] negligence law pertaining to the
maintenance of, and the operation of trains at, grade cross-
ings.”21 It stated that to prevail on the claim that the regulations
have preemptive effect, the proponent must establish more than
that they “‘touch upon’” or “‘relate to’” the subject matter,
“for ‘covering’ is a more restrictive term which indicates that
pre-emption will lie only if the federal regulations substantially
18 49 U.s.c. § 20101.
19 49 U.s.c. § 20103(a).
20 CSX Transp., Inc. v. Easterwood, supra note 14.
21 Id., 507 U.s. at 664.
Dresser v. UnIon pAcIfIc rr. co. 	549
cite as 282 neb. 537

subsume the subject matter of the relevant state law.”22 The
Easterwood court held that legal duties imposed on railroads
by state common law fall within the scope of state laws that are
subject to federal preemption.
The precise issue addressed in Easterwood was whether a
state law wrongful death claim based on excessive train speed
was preempted by federal regulations that set maximum allow-
able operating speeds for all freight and passenger trains for
each class of track. The court reasoned that these limits were
adopted only after the hazards posed by track conditions were
taken into account and that thus, all state law claims for exces-
sive speed were subsumed by the regulations. A footnote in
Easterwood noted that although the railroad in that case was
“prepared to concede” that the “pre-emption of [the] excessive
speed claim [did] not bar suit for [its] breach of related tort law
duties, such as the duty to slow or stop a train to avoid a spe-
cific, individual hazard,” that issue was not presented and thus
would not be decided by the court.23
We do not agree with the district court that appellants’ state
law negligence claim based on Union pacific’s alleged fail-
ure to exercise ordinary care once it appeared that a collision
would probably occur is speed based and thus preempted. state
tort law is not preempted “until” a federal regulation “cover[s]”
the same subject matter,24 and we are not presented with any
federal regulations that cover a railroad’s duty to exercise ordi-
nary care in situations where collisions are imminent. The mere
fact that the speed the train is traveling is tangentially related
to how quickly it can be stopped does not transform the claim
into an excessive speed claim. nebraska tort law duties to exer-
cise reasonable care could be violated even if the federal train
speed limits are being followed.25
[7] Instead, we find that the state law claim against a railroad
at issue here is akin to a duty to avoid a “specific, individual
22 Id.
23 Id., 507 U.s. at 675-76 n.15.
24 49 U.s.c. § 20106(a)(2).
25 see Murrell v. Union Pacific R. Co., 544 f. supp. 2d 1138 (D. or. 2008).
550 	282 neBrAsKA reporTs

hazard” at a grade crossing, and we agree with the various
federal and state courts that have concluded that such claims
are not preempted by § 20106.26 Appellants’ claim relates to an
event which is not a fixed condition or feature of the railroad
crossing and was not capable of being taken into account by
the secretary of Transportation in the promulgation of uniform,
national speed regulations.27 Appellants’ claim is based on a
unique occurrence which was likely to result in a collision,
specifically the vehicle’s forward advance from the stop sign
into the path of the oncoming train.28 We note that a “specific,
individual hazard” in this context is not to be confused with
the preemption exception in § 20106(a)(2)(A) for an “essen-
tially local safety or security hazard,”29 and to that extent, we
disagree with the analysis employed in Van Buren v. Burlington
Northern Santa Fe Ry. Co.30
2. discoveRy oRdeR
Union pacific filed its motion for summary judgment on
December 11, 2006. The motion was generic in nature and
stated only that it sought summary judgment because there
were no genuine issues of material fact and it was entitled to
judgment as a matter of law. on January 5, 2007, Union pacific
moved to stay discovery while the summary judgment was
pending. A hearing was held on January 12, and on June 4, the
court ordered that “[a]ll discovery not related to issues raised
by the pending motion for summary judgment of the defendant
26 see, e.g., Peters v. Union Pacific R. Co., 455 f. supp. 2d 998 (W.D. Mo.
2006); Liboy ex rel. Liboy v. Rogero ex rel. Rogero, 363 f. supp. 2d 1332
(M.D. fla. 2005); Stevenson v. Union Pacific R. Co., 110 f. supp. 2d 1086
(e.D. Ark. 2000); Bashir v. National R.R. Passenger Corp. (Amtrack),
929 f. supp. 404 (s.D. fla. 1996); Myers v. Missouri Pacific R. Co., 52
p.3d 1014 (okla. 2002); Alcorn v. Union Pacific R.R. Co., 50 s.W.3d 226
(Mo. 2001).
27 Myers v. Missouri Pacific R. Co., supra note 26.
28 see id.
29 see Stevenson v. Union Pacific R. Co., supra note 26. see, also, Myers v.
Missouri Pacific R. Co., supra note 26.
30 Van Buren v. Burlington Northern Santa Fe Ry. Co., 544 f. supp. 2d 867
(D. neb. 2008).
Dresser v. UnIon pAcIfIc rr. co. 	551
cite as 282 neb. 537

Union pacific is stayed until resolution of that motion or fur-
ther order of the court.”
The parties agree that in its initial brief in support of its
summary judgment motion, Union pacific asserted that several
of appellants’ claims were preempted, but did not specifically
refer to the claim regarding lookout and failure to stop or slow
the train. Union pacific first specifically asserted this claim was
preempted in its reply brief on the motion for summary judg-
ment. Appellants argue that because they did not know Union
pacific was seeking summary judgment on this claim until
the reply brief was filed, they were unaware this claim was
included in the summary judgment proceeding and therefore
had not engaged in discovery on the claim.
At the final hearing on the summary judgment motion,
appellants’ counsel argued to the district court that the effect
of its stay was to deny them the opportunity to conduct dis-
covery on this claim. But they did not request a continuance,
and instead argued to the court that the evidence before it was
insufficient to prove as a matter of law that Union pacific did
not proximately cause the accident.
[8,9] According to neb. rev. stat. § 25-1335 (reissue
2008):
should it appear from the affidavits of a party oppos-
ing the motion [for summary judgment] that he cannot for
reasons stated present by affidavit facts essential to justify
his opposition, the court may refuse the application for
judgment or may order a continuance to permit affidavits
to be obtained or depositions to be taken or discovery to
be had or may make such other order as is just.
The language of this statute is a counterpart to fed. r. civ. p.
56(f), and we have interpreted it in accordance with the federal
rule.31 The purpose of § 25-1335 is to provide an additional
safeguard against an improvident or premature grant of sum-
mary judgment.32 The affidavit that a party submits in sup-
port of a continuance need not contain evidence going to the
merits of the case; rather, a § 25-1335 affidavit must contain
31 see Wachtel v. Beer, 229 neb. 392, 427 n.W.2d 56 (1988).
32 Id.
552 	282 neBrAsKA reporTs

a reasonable excuse or good cause, explaining why a party is
presently unable to offer evidence essential to justify opposi-
tion to the motion for summary judgment.33
If appellants believed they could not present evidence on the
failure to keep a lookout and/or failure to slow or stop the train
claim because they had not conducted discovery in that area,
they could have requested a continuance under § 25-1335 at
the time of the summary judgment final hearing. They did not.
Under these circumstances, the issuance of the discovery order
was not an abuse of discretion and did not result in revers-
ible error.
V. concLUsIon
The district court erred in finding that appellants’ claim
based on failure to slow the train was preempted and in find-
ing that no genuine issue of material fact existed on that claim.
We therefore reverse, and remand for further proceedings on
that claim, but affirm the judgment of the district court in all
other respects.
affiRmed in paRt, and in paRt ReveRsed and
Remanded foR fURtheR pRoceedinGs.
wRiGht, J., not participating.
33 Id.
BeDore v. rAncH oIL co. 	553
cite as 282 neb. 553
maRLene bedoRe , peRsonaL R epResentative of the estate
of G eoRGe John vLasin, deceased, et aL., appeLLees and
cRoss -appeLLants , v. R anch oiL company, a coLoRado
coRpoRation, and beLLaiRe oiL company, a coLoRado
coRpoRation, appeLLants and cRoss -appeLLees.
805 n.W.2d 68
filed october 14, 2011. 	no. s-10-912.
1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower
court’s grant of summary judgment if the pleadings and admitted evidence show
that there is no genuine issue as to any material facts or as to the ultimate infer-
ences that may be drawn from the facts and that the moving party is entitled to
judgment as a matter of law.