Today, CCL filed a brief on behalf of Juanita Nye, opposing the petition for certiorari filed by BNSF Railway Co., which seeks to avoid its liability in the death of Ms. Nye's husband at a railway crossing in Oklahoma.

     Jeffrey Nye, a 51-year-old eighth-grade science teacher and sports coach, was killed when a BNSF train hit his car. Vegetation overgrowth hid the approaching train, which also failed to sound its horn to warn motorists at the crossing. The vegetation also obscured the railroad crossing sign. A passenger in the vehicle who was injured but survived reported that Mr. Nye yelled "train" just as his car began to cross the tracks and the train first became visible.

     BNSF asserted that it cannot be sued for inadequate signage, known as crossbucks, because the signs were funded as part of a federal program that preempts state causes of action on those grounds. However, it failed to produce evidence that the particular crossbucks at issue were part of the federal funding project. Instead, evidence established that, at the time the federal project was completed, only one crossbuck had been erected and that the current crossbucks were different on each side of the track, both facts are inconsistent with any claim of federal funding and compliance with the specifications of the program, which require two crossbucks that would be identical. The trial court found the evidence sufficiently in dispute that it denied BNSF summary judgment and held that the issue was ripe for the jury's decision.

     The jury found liability and implicitly decided the factual issue of funding against BNSF. It appealed to the Oklahoma Supreme Court, which upheld the verdict. That court determined that BNSF's appeal was little more than an attempt to re-try the case in the supreme court by arguing all facts were matters of law for the court's, rather than the jury's determination.

     Before the U.S. Supreme Court, BNSF argues that Oklahoma imposed a more stringent standard of proof to support preemption than federal courts do and that intervention is necessary to permit railroads to claim preemption on the basis of unrebutted circumstantial evidence because records from 30 years ago are too scattered and fragmented. CCL's brief demonstrates that the Oklahoma Supreme Court's decision is consistent with both prior U.S. Supreme Court decisions and with other federal courts. BNSF's claimed circuit split simply does not exist. Moreover, the facts overwhelmingly support Ms. Nye's claim that federal funding was not involved with these particular crossbucks and that liability exists even without the sign issue because of the overgrown vegetation and the failure of the train to sound its horn.

     BNSF will have an opportunity to write a reply brief, and the Supreme Court is likely to take the matter up at its April 5 conference.