RULING

ROBERT G. JAMES, District Judge.

Pending before the Court is a Motion for Summary Judgment on Liability [Doc. No. 209] filed by Union Pacific Railroad Co. ("Union Pacific"). For the following reasons, the Motion for Summary Judgment on Liability is DENIED.

I. FACTS AND PROCEDURAL HISTORY

On October 5, 2014, Daniel Shackleford ("Shackleford") was operating a 2013 Kenworth tractor with trailer and dolly (hereinafter "tractor-trailer") loaded with a Freuhoff Terex RT-780 crane. Shackleford had picked up the crane in Iowa and was en route to deliver it to a construction company in Mississippi. The tractor-trailer driven by Shackleford was owned by College City Leasing, LLC ("College City"), but leased to Taylor Truck Lines, Inc. ("Taylor Truck"). Taylor Logistics, Inc. ("Taylor Logistics") was the shipment broker.1

The trailer's clearance could be adjusted. It had five "teeth" and was set at the second tooth prior to loading. Shackleford decided to leave the trailer at the same setting after the crane was loaded.

Because the load was oversized, Shackleford was traveling through Louisiana with a Louisiana Department of Transportation ("LDOT") Overweight Permit. However, he did not have an escort vehicle, as required by the permit.

At approximately 1:00 p.m., Shackleford was driving the tractor-trailer south on U.S. Highway 165 in Mer Rouge, Louisiana. At the time, he was talking on his cell phone with another driver, Frank Murphy ("Murphy"), using the hands-free mode.

At the intersection of 165 and U.S. Highway 425/La. Highway 2, Shackleford stopped at the stop sign and then turned left onto U.S. Highway 425/La. Highway 2, also known as Davenport Avenue. He then proceeded to the Highway 2/Davenport Avenue highway/railway grade crossing ("the Crossing") over a Union Pacific main line railroad track (identified as DOT crossing number 441-531N at railroad milepost 473.60). There are pavement markings, crossbuck signs, flashing lights, gates, and bells at the Crossing. This was the first time Shackleford had traversed this Crossing, which is somewhat elevated and humped. Shackleford had not contacted Union Pacific to notify it of his intent to traverse the Crossing.

Shackleford did not adjust the ground clearance on the trailer prior to attempting to traverse the Crossing. The trailer became lodged and was "high centered," straddling the tracks. Shackleford told Murphy what had happened, but remained on the call with him while he engaged the parking brake, put the tractor in neutral, and exited. Shackleford then attempted to dislodge the trailer by raising the trailer up one "tooth," and then going backwards and forwards. The trailer was still stuck, so he exited again, and raised the trailer another tooth. During the time he was attempting to dislodge the trailer, Shackleford did not notify law enforcement or Union Pacific.2

Approximately two minutes after the trailer became lodged on the tracks3 and before he could try again to dislodge it, a Union Pacific train traveling north on the track, which runs parallel to U.S. Highway 165/La. Highway 138, began to approach the Crossing. The train activated its flashing lights, bells, and crossing gate. When he saw the approaching train, Shackleford exited the truck and ran.

At the time of the accident, Union Pacific engineer, Russell Rowe, was operating the lead locomotive, and Union Pacific conductor, James Kovalyshyn, was in the cab as well. Once they saw the tractor-trailer at the Crossing, crew members applied the emergency brakes in an effort to avoid the collision. The crew members were unsuccessful, and the train collided with the trailer and attached crane. As a result of the collision, approximately 17 railroad cars and 2 locomotives left the railroad tracks, cargo spilled, and a tank car leaked Argon onto surrounding property, including land owned by R & L Properties of Oak Grove, LLC.

Following the collision, the tractor-trailer was too damaged to measure the exact ground clearance of trailer. Prior to this incident, vehicles had been "stuck" or "hung up" on the track on three occasions: March 18, 2011; October 25, 2011; and May 15, 2014.4

On January 14, 2015, Plaintiff Union Pacific brought the instant suit against the Taylor Entities seeking to recover the property damage caused by the accident and derailment.

R & L Properties of Oak Grove, LLC ("Properties") and R & L Builders Supply, Inc. ("Builders Supply") had filed a separate lawsuit against the Taylor Entities, Union Pacific, and Union Pacific's contractors, Prewett Enterprises, Inc., and Hulcher Services, Inc., seeking to recover their damages. On November 4, 2015, the Properties and Builders Supply lawsuit was consolidated with the Union Pacific lawsuit.

Although they have not made a claim against Union Pacific, the Taylor Entities contend that Union Pacific was comparatively negligent in causing the accident for several reasons.

After discovery was complete, Union Pacific filed the instant motion, arguing that there is no genuine issue of material fact for trial that the Taylor Entities are liable for the collision. The Taylor Entities filed an opposition memorandum [Doc. No. 234] to Union Pacific's motion. Union Pacific filed a reply [Doc. No. 251], and the Taylor Entities filed a sur-reply. [Doc. No. 260]. Finally, Union Pacific filed a supplemental reply. [Doc. No. 271].

The Court is now prepared to rule.

II. LAW AND ANALYSIS

A. Standard of Review

Under Federal Rule of Civil Procedure 56(a), "[a] party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The moving party bears the initial burden of informing the court of the basis for its motion by identifying portions of the record which highlight the absence of genuine issues of material fact. Topalian v. Ehrmann, 954 F.2d 1125, 1132 (5th Cir. 1992); see also Fed. R. Civ. P. 56(c)(1) ("A party asserting that a fact cannot be . . . disputed must support the assertion by . . . citing to particular parts of materials in the record. . . ). A fact is "material" if proof of its existence or nonexistence would affect the outcome of the lawsuit under applicable law in the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is "genuine" if the evidence is such that a reasonable fact finder could render a verdict for the nonmoving party. Id.

B. Claims and Issues Resolved by the Court's Prior Rulings

Since the instant motion was originally filed, the Court has ruled on numerous motions in this case, and some of the Court's previous rulings resolved issues raised in the briefing on this motion. First, the Court granted Union Pacific's Motion for Partial Summary Judgment Regarding Allegations of Inadequate Training of the Train Crew, and opposing parties are precluded from presenting testimony or arguing to the jury that the Union Pacific train crew were not properly trained or instructed or were not qualified to operate the locomotive and train. [Doc. No. 290]. Second, the Court granted Union Pacific's Motion for Partial Summary Judgment on the Issue of Preemption of Liability for Additional Signs or Signalization at the Crossing, and the Taylor Entities and other opposing parties are precluded from presenting testimony or arguing that Union Pacific was negligent or at fault for failing to post a low clearance warning sign because such a claim or defense is preempted by the Federal Railroad Safety Act ("FRSA"). [Doc. No. 344]. Third, the Court granted Union Pacific's Motion for Partial Summary Judgment Regarding Speed, and the Taylor Entities and other opposing parties are precluded from presenting testimony or arguing to the jury in support of a claim or defense that Union Pacific was negligent based on the speed of the train at the time of the collision. [Doc. No. 359]. Finally, the Court denied the Taylor Entities' Motion for Summary Judgment, finding that LA. REV. STAT. § 32:174 is not preempted by the FRSA. [Doc. No. 362]. Thus, there are no genuine issues of material fact for trial that Union Pacific was negligent for failing to adequately train or instruct its crew, for failing to post a low clearance warning sign, or based on the speed of its train at the time of the collision. As these arguments have been resolved as indicated, the Court will not address them again. With respect to arguments about the application of LA. REV. STAT. § 32:174, the Court has resolved the issue of preemption, but the Court will address remaining arguments in this Ruling.

C. Duty-Risk Analysis

Under Louisiana law, negligence claims are subject to a duty risk analysis containing five elements: "(1) whether the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) whether the defendant's conduct failed to conform to the appropriate standard (the breach element); (3) whether the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries (the cause-in-fact element); (4) whether the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of liability or scope of protection element; and (5) whether the plaintiff was damaged (the damages element)." Hanks v. Entergy Corp., 944 So.2d 564, 579 (La. 2006)

Union Pacific moves for summary judgment on the bases that the Taylor Entities held several duties which they, through Shackleford, breached, and the breach of these duties was the factual and legal causes of Union Pacific's damages.

1. Duty to Have Escort Driver

First, Union Pacific contends that Shackleford had a duty to travel with a civilian escort based on the type of load being hauled. It is undisputed that Shackleford obtained a LDOT Overweight Permit required for lawful use of Louisiana highways. It is further undisputed that the permit required Shackleford to have a civilian escort. [Doc. No. 209, Exh. B., Overnight Permit].

However, in their opposition memorandum, the Taylor Entities point out that escorts are not necessarily local or even from the state in which they provide the escort and do not always have local knowledge of the route which they are traveling. Therefore, the Taylor Entities argue that Shackleford's failure to obtain an escort would not have prevented the accident.

Union Pacific argues that the Taylor Entities' own representative, Adam Severin ("Severin"), Shackleford's direct supervisor, admitted that Shackleford's failure to obtain an escort driver was a "factor" in the accident and that an escort driver, among other things, could have contacted the railroad for the driver if there was any concern that he could not safely traverse the Crossing. [Doc. No. 209, Exh. J, Severin Depo., pp. 26, 60, 72, 100-101].

The Court finds that it is clear as a matter of law that Shackleford had a duty to travel with a civilian escort and that he breached that duty. However, the Court finds that there are genuine issues of material fact for trial whether the failure to travel with an escort caused the accident. It is possible that the escort may have been familiar with the Crossing if he had traveled the route before. It is also possible that the escort might have called Union Pacific before Shackleford attempted to traverse the Crossing. It is further possible that the escort might have called 911 or Union Pacific once Shackleford became lodged on the tracks, but, at most, two minutes elapsed between the time the trailer became stuck, and the time the train began to approach. Thus, it is unclear whether a call by anyone would have prevented the accident at that point. While the jury can consider Severin's admission the lack of an escort was a "factor" in the accident, his lay opinion is not dispositive on the element of causation, even if it is unfavorable for his employer. Viewing the facts in the light most favorable to the Taylor Entities, Union Pacific has failed to establish causation based on all of these possibilities, and, therefore, it is not entitled to summary judgment on this claim.5

Union Pacific may still prevail on its Motion for Summary Judgment on Liability if it can establish all the elements of negligence as to one or more of Shackleford's other legal duties, and there are no genuine issues of material fact on Union Pacific's alleged comparative negligence. Therefore, the Court must consider the Taylor Entities' other alleged duties and Union Pacific's alleged comparative negligence.

2. Duty of Professional Drivers

Next, Union Pacific contends that, as a matter of law, Shackleford had duties as a professional truck driver under Louisiana law. Professional truck drivers are recognized as superior actors and are held to a high standard of care. See Theriot v. Bergeron, 939 S.2d 379, 383 (La. App. 1st Cir. 2006); Davis v. Witt, 851 So.2d 1119 (La. 2003). A professional driver's duties include an understanding of the truck he is operating and the specifications of the load he is pulling. See Theriot, 939 So.2d at 383. Among the general duties of a professional truck driver, Union Pacific points to two particular duties. First, Shackleford was aware of the low clearance of the load he was hauling, but failed to raise the clearance of the trailer to a higher setting (which could have been done) before attempting to traverse the Crossing. Second, once the trailer became "high centered" on the track, Shackleford failed to call 911 or the emergency number posted at the Crossing. If Shackleford had taken either of the actions, Union Pacific argues that the collision could have been prevented.

The Taylor Entities respond that even if the tractor-trailer had nine inches of ground clearance, their expert, Kelley Adamson ("Adamson"), who has a master's degree in civil engineering, opines that the tractor-trailer would still have become lodged on the tracks. See [Doc. No. 234, Exh. 2, Adamson Aff.]. Prior to issuing his opinion, among other actions, Adamson (1) visited the Crossing, (2) inspected an exemplar tractor-trailer with the same make, model, and dimensions as the one driven by Shackleford loaded with a crane of the same make, model, dimensions, and weight, (3) reviewed the accident report, (4) looked at the LDOT highway plans, (5) reviewed multiple depositions of witnesses, (6) viewed 3 videos of the accident, as well as photographs, and (7) reviewed a number of publications.

Union Pacific responds that Adamson's affidavit should be stricken as containing inadmissible legal opinions on causation and the application of certain publications. However, with regard to the opinion on clearance, the Court finds no basis to strike Adamson's affidavit. At the least, this opinion raises a genuine issue of material fact for trial as to whether Shackleford's failure to raise the clearance of the trailer was a cause of the accident.

Additionally, the Court finds genuine issues of material fact for trial as to whether Shackleford's failure to call 911 or Union Pacific's emergency number when he became lodged on the tracks was a cause of the accident. Given the fact that no more than 2 minutes passed between the time he became lodged, and the time the train approached the Crossing,6 it is not clear as a matter of law that such a call would have prevented the collision. Accordingly, even if Shackleford breached his professional duties, there is a genuine issue of material fact for trial as to whether his breach was the factual and legal cause of Union Pacific's damages.

3. Duty to Notify of Intent to Traverse Crossing

Finally, Union Pacific contends that Shackleford had a duty to notify Union Pacific of his intent to traverse the Crossing under the plain language of LA. REV. STAT. § 32:174, that he breached this duty, and that his breach was the factual and legal cause of the collision. The Taylor Entities deny that the cited Louisiana statute applies to tractor-trailers generally; that even if the statute applies to tractor-trailers, there is no evidence that Shackleford's loaded trailer had less than nine inches of clearance; and, even if the statute applied, Shackleford's technical violation is excused because it was impossible to comply with the notification requirement.

a. Application to Tractor-Trailer Transporting a Crane

Louisiana Revised Statute § 32:174, which addresses the moving of heavy equipment across railroad grade crossings, provides in pertinent part:

(emphasis added). Union Pacific contends that Shackleford was operating equipment with a load that weighed in excess of 90,000 pounds and that had a ground clearance of less than nine inches. Thus, Union Pacific argues that Shackleford had a duty to contact the railroad prior to attempting to traverse the Crossing.

The Taylor Entities respond that tractor-trailer is not "equipment" or a "structure," and the statute is inapplicable.

Because jurisdiction is premised on diversity of citizenship in this case, Louisiana rules of statutory interpretation apply. Under Louisiana law, the ultimate goal of statutory interpretation is to discern the Legislature's intent. The Louisiana Supreme Court has consistently described the proper technique for interpreting Louisiana statutes:

M.J. Farms, Ltd. v. Exxon Mobil Corp., 2007-2371, (La. 7/1/08); 998 So.2d 16, 26-27 (citations omitted).

Applying these principles, the Court must consider, first, the language of the statute. The applicable portion provides: "[n]o person shall operate or move . . . any equipment or structure having a vertical body or load clearance . . . of less than nine inches, measured above the level surface of the road."7 LA. REV. STAT. § 32:174(A). Neither the statute nor subpart F of Title 32, which addresses the specific subject of "Railroad Grade Crossings," defines "operate," "move," "equipment," or "structure." However, the Court finds that language to be clear. It was the intent of the Louisiana Legislature in enacting LA. REV. STAT. § 32:174 to regulate "Moving heavy equipment at railroad crossings." In this case, Shackleford was indeed operating a tractor with a lowboy trailer, but he was using the tractor-trailer to move heavy equipment-a crane. See St. Louis S.W. Ry. v. Pierce, 68 F.3d 276 (8th Cir. 1995) (finding that the plain and unambiguous language of the Arkansas Heavy Equipment Statute requiring notification when a person operated or moved "any equipment" across a railroad grade crossing properly applied to a legally licensed tractor-trailer transporting a bulldozer);8 see generally Kansas City So. Ry. Co. v. Stoddard, Civil Action No. 11-724, 2013 WL 55920 at * (W.D. La. Jan. 3, 2013) (Although not presented with the precise issue, another judge of this District did not question the application of La. Rev. Stat. § 32:174 to a tractor-trailer hauling a compressor; instead he declined to hold a state trooper liable for the failure to comply when, among other reasons, the trooper had not been provided with the load clearance).9 Therefore, contrary to the Taylor Entities' contention, the Court need not apply other tenets of statutory construction to determine legislative intent. The Court finds that the statute applied to Shackleford if the clearance of the lowboy trailer loaded with the crane was less than nine inches.

b. Evidence of Load Clearance

The Taylor Entities argue, however, that Union Pacific has failed to establish the load clearance of less than nine inches. The Court disagrees. The collision caused such damage as to prevent a measurement of the clearance of the trailer after the fact. However, Union Pacific properly relies on the deposition testimony of Shackleford, who supervised the loading of the crane, drove the tractor-trailer, and physically adjusted the clearance immediately prior to the collision. While Shackleford refused to give an estimate in inches, he demonstrated the clearance level on two occasions during his videotaped deposition, and both demonstrations clearly indicate fewer than nine inches of clearance to any reasonable viewer. [Doc. No. 209, Exh. F].10 be a separate vehicle."). Union Pacific does not contend (and the Court has not found) that the statute applies to every vehicle, but only to a tractor with a low-boy trailer hauling extremely heavy equipment. The Davis decision does not appear to make this distinction, but simply finds that a tractor-trailer is a "vehicle" and thus could not be "equipment," regardless of its load. The Court respectfully disagrees. Shackleford did not attempt to traverse the Crossing with an empty trailer, and the Court offers no opinion as to whether the statute would apply if he had.

The Taylor Entities also argue that Shackleford was unsure whether the clearance setting at tooth 2 was one level from the highest setting or one level from the lowest setting. That argument ignores Shackleford's detailed account of his actions immediately prior to the collision. He stated that he left the tractor and adjusted the clearance level once and returned to the tractor to try to move the tractor-trailer off the tracks. When that effort was unsuccessful, he testified that he again adjusted the clearance level. [Doc. No. 209, Exh. A, Shackleford Depo., pp. 179-80]. While, unfortunately, the train began approaching before he could make a second attempt to extricate the tractor-trailer, Shackleford could not have adjusted the clearance level more than once if it had originally been set at the second to highest level.

Further, Shackleford's testimony is supported by the Taylor Entities' own company witness, Gerald Anderson ("Anderson"). [Doc. No. 209, Exh. E, Anderson Depo.].11 Anderson testified that Shackleford was using a Fontaine trailer which, at its highest setting, had approximately twelve transporting the crane was his usual setting for oversized loads, indicating that he had more than a one-time familiarity with the clearance he demonstrated. See [Doc. No. 209, Exh. A, Shackleford Depo., p. 70 ("I couldn't give you how many inches off the ground it would be where I would set the trailer at. I always set them on No. 2 teeth.")]. inches of clearance in the front, and "maybe as much as eight or nine in the rear."12 Id. at p. 49. It is undisputed that Shackleford was not using the highest setting on the trailer, so Anderson's testimony makes clear that the trailer loaded with the crane had less than nine inches of clearance in the rear. See also id. at p. 69 (testifying that the 2013 Fontaine trailer used for heavy hauls was typically set to a "ride position" with "five to six inches" of clearance).13

Therefore, Shackleford had a duty to give "[n]otice of any such intended crossing . . . to a station agent of such railroad and a reasonable time be given to such railroad to provide proper protection at such crossing." LA. REV. STAT. § 32:174 (B).

c. Ability to Give the Required Notice

The Taylor Entities raise a final argument to the application of LA. REV. STAT. § 32:174. They contend that it was impossible for Shackleford to comply with the statute because Union Pacific does not have a "station agent," to whom notice could be given. Relying on their expert, Alan Blackwell ("Blackwell"), a former employee of Union Pacific, they point out that there is no listed position with the company known as "station agent."14 [Doc. No. 234, Exh. 7, Blackwell Aff., at ¶ 4]. Union Pacific has a "depot agent," but no such agent was employed at the Crossing. Id. at ¶ 6.

Union Pacific responds that the unequivocal evidence demonstrates that compliance was not impossible. If Shackleford had called Union Pacific at the number listed at the Crossing, steps would have been taken to prevent the collision in the event that, as it did, the tractor-trailer became lodged on the tracks. Union Pacific's Response Management Communication Center ("RMCC") Coordinator, Brian Jarrett ("Jarrett"), testified that the railroad is contacted on a daily basis by trucking companies about making a safe crossing. Those are generally made as immediate requests, and Jarrett explained the procedure once such a request is made:

[Doc. No. 209, Exh. H, Jarrett Depo., p. 64]. When presented with the hypothetical situation that Shackleford had called before attempting to traverse the Crossing, Jarrett explained further:

Id. at pp. 64-65.

In an older case, the Second Circuit Court of Appeals placed the emphasis on determining the reasonableness of the defendant's failure to comply with the statute:

Stephens v. State Through Dep't of Transp. & Dev., Nos. 15724-CA to 15726-CA (La. App. 2d Cir. 10/24/83); 440 So.2d 920, 928, writ denied sub nom., 443 So.2d 1119 (La. 1984).15 In another decision, the First Circuit Court of Appeals characterized the proper analysis differently:

Snyder v. Bergeron (La. App. 1 Cir. 12/23/86); 501 So.2d 291, 294-95 (quoting Boyer v. Johnson, No. 61095 (La. 6/19/78); 360 So.2d 1164, 1167). On the other hand, an "excused" violation may not constitute negligence. See generally Jackson v. Beechwood, Inc., 180 So.2d 732, 733 (La. App. 1st Cir. 11/16/65).

Under either standard, the Taylor Entities have failed to raise a genuine issue of material fact for trial that Shackleford's compliance was impossible. While Union Pacific did not have an employee designated as the "station agent," the telephone number was available at the Crossing, and Union Pacific has presented evidence that a call to the railroad would have initiated a safe crossing process. The very purpose of La. Rev. Stat. § 32:174 is to prevent collisions between trains and persons moving heavy equipment across the tracks. Shackleford took no action whatsoever before he began traversing the Crossing, so the Taylor Entities have not raised a genuine issue of material fact for trial that he exercised "reasonable diligence or care to comply" with the statute. [Doc. No. 234, p. 16 (citing Jackson, 180 So. 2d at 733)]. Thus, it appears that Union Pacific has presented evidence to support a finding of some liability against the Taylor Entities. However, before determining whether Union Pacific is entitled to summary judgment on complete liability, the Court must consider all possible causes.

4. Taylor Entities' Defenses/Comparative Negligence of Union Pacific

Even if Shackleford's breach of duties was at least one of the causes of the collision, the Court cannot grant summary judgment on liability unless there are no genuine issues of material fact for trial on the Taylor Entities' defenses. Under Louisiana Civil Code article 2323, in any action for damages where a person suffered injury,

"Ordinarily, the determination of whether negligence exists in a particular case is a question of fact; therefore, cases involving a question of negligence ordinarily are not appropriate for summary judgment . . . This principle extends to a question of comparative fault as well." Pruitt v. Nale, 45,483 (La. App. 2 Cir. 8/11/10), 46 So.3d 780, 783 (citing Freeman v. Teague, 37, 932 (La. App. 2d Cir.12/10/03), 862 So.2d 371; Powers v. Tony's Auto Repair, Inc. 98-1626 (La.App. 4th Cir.4/28/99), 733 So.2d 1215, writ denied, 99-1552 (La.7/2/99), 747 So.2d 28.). "However, where reasonable minds cannot differ, a question of comparative fault is a question of law that may be resolved by summary judgment." Id. (citing Rance v. Harrison Co., 31,503 (La.App.2d Cir.1/20/99), 737 So.2d 806, writ denied, 99-0778 (La.4/30/99), 743 So.2d 206.).

As discussed previously, the Court has already ruled on and rejected some of the Taylor Entities' defenses as a matter of law with regard to the comparative negligence of Union Pacific. The Court granted summary judgment to Union Pacific on the issues of the crew's training, the speed of the train, and the failure to post a low clearance warning sign. The Court now considers the remaining defenses.

First, the Taylor Entities argue that Union Pacific generally failed to exercise reasonable care. To the extent that they rely on the action or inaction of the train crew, the Taylor Entities have not produced evidence raising a genuine issue of material fact for trial. The evidence shows that as soon as the train crew saw Shackleford's tractor-trailer, the crew engaged the emergency brakes.

Second, the Taylor Entities raise a defense based on Union Pacific's alleged failure to properly construct, repair, and/or maintain the Crossing and approaching road. With regard to the road, pursuant to LA. REV. STAT. § 45:323, Union Pacific's duty was limited to the maintenance of "the portion of the street lying between the rails of the tracks of such railroad and railways, and for a distance of two feet on the outside of each rail." Thus, to the extent that the Taylor Entities argue that Union Pacific is liable for the condition of the approaching highway, the highway not within its control, and there is no basis for a comparative negligence claim against Union Pacific.

On the other hand, Union Pacific does have the responsibility for properly constructing, repairing, and maintaining its Crossing and the limited portion of the street or roadway detailed in the state statute, as well as under federal law. See C.F.R. Part 213. The Taylor Entities contend that Union Pacific failed to comply with the American Association of State Highway and Transportation Officials' ("AASHTO") Policy on Geometric Design of Highways and Streets and the Railroad-Highway Design Handbook issued by the Department of Transportation and Federal Highway Administration and that this failure, along with the height of the Crossing and the slope of the approaching roadway were all causes of the accident. They contend further that Union Pacific was aware of the need for repair and maintenance of the Crossing because of at least three prior incidents when vehicles became stuck on the tracks at the Crossing. Finally, the Taylor Entities present evidence of gouge marks on the tracks, which Adamson avers is indicative of other low clearance vehicles struggling to clear the Crossing.

Union Pacific responds that it had no legal duty to ensure that railroad tracks are the same level as the approaching highway, the Crossing was in adequate repair, and it was not a legal cause of the accident. Union Pacific argues further that professional guidelines, such as AASHTO, are not standards with which it must comply.

The parties have argued strenuously about the importance of the professional guidelines and whether the State's adopting of AASHTO guidelines transforms the guidelines into required standards. However, the Court not reach the "guidelines versus standards" arguments for purposes of resolving the instant motion. Further, the Court need not consider Union Pacific's objections to the affidavits from Adamson, Blackwell, Bill Shrewsberry, Gretchen Ferguson, and Melvin Hicks based on the limited briefing provided.16 The Court finds that the Taylor Entities have presented sufficient evidence to raise a genuine issue of material fact for trial on Union Pacific's comparative negligence in constructing, repairing, or maintaining the Crossing, so that it did not present an obvious danger to Shackleford, who had not traversed this Crossing before. Accordingly, the Court finds that Union Pacific is not entitled to summary judgment on liability.

III. CONCLUSION

For the foregoing reasons, Union Pacific's Motion for Summary Judgment on Liability [Doc. No. 209] is DENIED.