Successfully defended BNSF Railway Company in a case involving removal of a private railroad crossing

Successfully defended BNSF Railway Company in a case involving its removal of a private railroad crossing that provided the only viable access to the plaintiffs’ rock quarry business. Following two fatal grade crossing accidents and many unsuccessful attempts to persuade the plaintiffs to install lights and gates at the crossing, BNSF removed the crossing in August 2011. The plaintiffs filed suit in Andrew County, Missouri, alleging numerous theories of liability. The plaintiffs also sought quiet title, injunctive relief for the establishment of a private road under Missouri’s private road statute, and punitive damages. The case was removed to federal court. Mediation was unsuccessful and the plaintiffs’ last demand was $14 million. The U.S. District Court for the Western District of Missouri granted BNSF’s motion for summary judgment, which dismissed all of the plaintiffs’ claims with the exception of the establishment of a private road. The Court issued a ruling which virtually verbatim adopted BNSF’s proposed findings of fact and conclusions of law on the plaintiffs’ claim for the establishment of a private road. The ruling allows the plaintiffs to establish a private road but requires them to compensate BNSF for one-half the cost of lights and gates for the crossing. The ruling also requires plaintiffs to compensate BNSF for the yearly maintenance cost of the crossing, carry insurance and indemnify BNSF in the event of another accident. The ruling also allows BNSF to remove a second private crossing that provides access to a portion of plaintiffs’ property.