Carter v. National Railroad Passenger (63 F. Supp. 3d 1118, 2014)

Re: Dkt. No. 118

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

JOSEPH C. SPERO, United States Magistrate Judge

1. INTRODUCTION

This case involves the tragic death of Gary Carter, who was struck and killed by a passenger train on December 3, 2011. In this action, his wife and minor child assert wrongful death and survivor claims against National Railroad Passenger Corp. (“Amtrak”) and Union Pacific . Railroad Company (“Union Pacific”) arising out of the death of their husband/father. Amtrak and Union Pacific now bring a Motion for Summary Judgment, or, in the Alternative, Partial Summary Judgment (“Motion”). A hearing on the Motion was held on August 1, 2014. For the reasons stated below, the Motion is GRANTED in part and DENIED in part.

II. BACKGROUND

A. Facts

1. Events of December 3, 2011

On the morning of December 3, 2011, Gary Carter drove himself and his three dogs to the Silliman Sports Complex, in Newark California, near Mowry Avenue and Stevenson Boulevard. Declaration of Kimberly Carter in Opposition to Defendants’ Motion for Summary Judgment (“Carter Decl.”), ¶¶ 2, 9. He and his wife Kimberly, along with their son Grant, frequently walked in a nearby nature area, often with their three dogs. Id., ¶ 2; Declaration of Scott O. LaFranchi in Support of Defendant Union Pacific Railroad Company and National Railroad Passenger Corporation’s Motion for Summary Judgment (“LaFranchi Deck”), Ex. A (K. Carter Dep.) at 25-26 (testimony by Kimberly Carter that she and her husband had gone to this area to walk the dogs approximately 300 times and that Grant had come along about 150 to 200 of those times). According to Kimberly Carter, when they went to the nature area they always parked at the Silliman Sports Complex parking lot, by two palm trees at the end of a long gravel section of the lot that runs along a baseball and soccer field on the east and the railroad track on the west. Carter Deck, ¶ 3 & Ex. 1(A).

It is undisputed that Mr. Carter walked from his car to the area of impact, which occurred approximately 508 feet south of the Stevenson Boulevard private grade crossing. Joint Statement of Undisputed Material Facts (“JSUMF”), No. 2. According to Kimberly Carter, her husband would have walked the way they had always walked, heading south on a trail that began near their regular parking spot, walking for a short distance alongside the track on that trail and then turning right onto a “worn, beaten path” across the railroad tracks. Carter Deck, ¶¶ 5-7 & Ex. 1 (B-E); see also Declaration of Jennifer L. Fiore in Support of Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment (“Fiore Deck”), Ex. 1 (K. Carter Dep.) at 30. After crossing to the west side of the railroad tracks, Mr. Carter likely would have walked on a dirt road that ran parallel to the tracks, crossing a wooden bridge that was the only bridge across a channel. Carter Deck, ¶ 8 & Ex. 1 (G-H).

The raw data from the Amtrak train that struck and killed Mr. Carter was recorded on the train’s event recorder (“Event Recorder”). See Declaration of Leo Caniezo in Support of Union Pacific Railroad Company and National Railroad Passenger Corporation’s Motion for Summary Judgment (“Caniezo Deck”), ¶ 2-3; see also Declaration of Foster J. Peterson in Support of Union Pacific Railroad Company and National Railroad Passenger Corporation’s Motion for Summary Judgment (“Peterson Deck”), ¶¶ 2-4 & Ex. A (Data Table created using Wabtec Railway Electronics Data Analysis Software (“DAS”), translating raw data from event recorder). Amtrak also installs video cameras on the front of its trains and thus, there is video footage that shows some of what occurred that day. Caniezo Decl., ¶ 4 (establishing chain of custody for video); Declaration of Clyde Moore, II in Support of Defendants National Railroad Passenger Corporation and Union Pacific Railroad Company’s Motion for Summary Judgment (“Moore Decl.”), Ex. A (copy of video downloaded from Amtrak locomotive involved in incident for December 3, 2011 (“Locomotive Video”)). Nonetheless, many of the basic facts about the events that occurred in the last moments before; impact, particularly with respect to timing, are in dispute. For example, the parties’ experts do not agree on whether the train operator applied the brakes before or after striking Mr. Carter.' See Motion at 4 (stating that Lobato applied the brakes approximately 3 seconds before impact (citing Declaration of Brian P. Heikkila in Support of Defendant Union Pacific Railroad Company and National Railroad Passenger Corporation’s Motion for Summary Judgment (“Heikkila Decl.”), Ex. A (Heikkila preliminary expert witness report (“Heikkila Report”)) §§ 3.5, 3.9)); but see Opposition at 5 (stating that “Loba-to and Battles did not apply any braking mechanism until after striking Mr. Carter and his dog” (citing Declaration of Paul Byrnes Submitted in Opposition to Defendants’ Motion for Summary Judgment (“Byrnes Decl.”), ¶¶8, 20)).

The general outline of the relevant events is as follows: the Amtrak train that struck Mr. Carter was travelling southbound, having already passed the Mowry Crossing; it was approaching the Mowry Control Point and switch (which were south of the Mowry crossing) and beyond that, the Stevenson Crossing. See Byrnes Decl., ¶ 6; FioreDecl., Ex. 3 (Lobato Dep.) at 34-35; Fiore Decl., Ex. 7 (Battles Dep.) at 32-33. The train passed a whistle board (which tells the crew of a train travelling over 45 mph to begin sounding the horn for a train crossing, see .Byrnes Deck, ¶ 6) that was approximately a quarter mile north of the Stevenson Crossing, and at that point the crew began to sound the horn. Id. The train proceeded through the Stevenson Crossing and continued to travel southbound. Id.

Mr. Carter, in the meantime, had already crossed the tracks from the east side of the tracks (where he was parked, near the Silliman Sports Complex) to the west side of the tracks (where the open-space nature area was located) and was walking with his three dogs along the dirt road that ran parallel to the tracks. See Carter Deck, ¶¶ 3-8. Engineer Lobato testified that he first saw Mr. Carter and a large dog “walking between the gauge of the tracks” “sometime between the whistle board and the [Stevenson] crossing.” LaFranchi Deck, Ex. B (Lobato Dep.) at 34. He further testified that as he was approaching the crossing he saw “the gentleman and the dog walk off to my left, off the ... tracks, clear of the tracks, and then as [the train] passed the crossing, [he] saw the gentleman start walking back up on to the tracks and—bending over to ... pick up a smaller dog.” Id.; see also Fiore Deck, Ex. 7 (Battles Dep.) at 56-58 (testifying that before passing through the Stevenson crossing Battles saw Mr. Carter between the gauge of the track and then, within 5 to 10 seconds Mr. Carter moved off the tracks). The parties disagree as to how many seconds before impact Mr. Carter returned to the tracks to save the dog that was still on the tracks. See Motion at 4 (stating that Mr. Carter returned to the tracks 3 seconds before impact (citing Heikkila Deck, Ex. A (Heikkila Report), §§ 3.2, 3.7, Locomotive Video and Event Recorder); Opposition at 4 (stating that Mr. Carter returned to the tracks “at least five seconds before impact” (citing Byrnes Deck, ¶ 20)).

At some point before impact (how many seconds before impact is disputed) Lobato sounded an emergency horn to warn Mr. Carter of the oncoming train. Byrnes Deck, ¶ 15 (stating that emergency horn was sounded 1-2 seconds before impact); Reply at 16 n. 12 (citing Event Recorder Data Table) in support of assertion that emergency horn was sounded “at least 6 seconds before impact”.

Both Mr. Carter and his dog were struck and killed.

2. Area Where the Events Occurred

The area at issue in this case runs from the Mowry Avenue Crossing, at approximately Mile Post (“MP”) 33.23 to approximately MP 34, which is “a moderate distance compass point south of the Stevenson Boulevard crossing.” Declaration of Dale Bray in Support of Defendants National Railroad Passenger Corporation and Union Pacific Railroad Company’s Motion for Summary Judgment (“Bray Deck”), ¶ 22 (describing this area as the “Subject Area”). It is undisputed that the incident occurred on Union Pacific’s Coast Subdivision on tracks owned by Union Pacific. JSUMF, No. 3. It is also undisputed that Amtrak does not own any of the tracks or right of way in this area. Id.

Defendants have presented evidence that this area is “a relatively remote and industrial location with almost no residential and only limited commercial activity in the surrounding properties.” Bray Deck, ¶ 5. Further, according to Union Pacific patrolman Dale Bray, Union Pacific has taken an “aggressive approach to the issue of trespassing” and “does not allow people on its right of way in the Subject Area without express permission and authorization.” Id., ¶ 3. Bray' states that prior to the incident, Union Pacific’s Police Department employed special agents to remove trespassers from its rights of way and also engaged in public outreach “dealing with the issue of trespassing on railroad property.” Id., ¶4. He further states that he reviewed the records of the Union Pacific Police Department for the period between January 1, 2009 and December 31, 2011, and that based on his review, he could attest that there “was minimal reporting of trespasser activity in the Subject Area and no instances of a trespasser vs. train incident.” Id., ¶ 5. Finally, he states that Union Pacific “managed the Subject Area in a manner consistent with its historical approach to aggressively and proactively addressing the issue of trespassing on its property.” Id., ¶ 16.

In contrast, Kimberly Carter testified that she and her husband saw people (some with dogs off leash) walking in this area—and crossing the tracks—“all the time.” Fiore Deck, Ex.l (K. Carter Dep.) at 60. She testified that there was trash and debris along the tracks in this area, and that the weeds and other vegetation were worn down from people walking over them. Id. at 59-60, 62. She also states that there was no gate at the trailhead adjacent to their regular parking spot and that there was no fence or warning signs (including “no trespassing” signs) at the trailhead or along the path. Carter Deck, ¶¶ 2, 5. When the Carters went hiking in the nature area, they frequently saw freight and passenger trains running along the tracks. LaFranchi Deck, Ex. A (Carter Dep.) at 65-66. However, Mrs. Carter testified that she and her husband had never been told they were trespassing when they walked along the paths near the railroad track and that because “everyone else was out there walking and using the area” they had no understanding that they were trespassing. Id. at 64.

The Amtrak engineer who operated the train that struck Gary Carter, Michael Lo-bato, testified that it was not unusual to see people walking in this general area and that he had seen people walking in the area at least 50 times. Fiore Deck, Ex. 3 (Lobato Dep.) at 55-58. However, he also testified that he had not seen people walking dogs in the area just beyond the Stevenson crossing, where Mr. Carter was struck. Declaration of Scott O. LaFranchi in Support of Defendant Union Pacific Railroad Company and National Railroad Passenger Corporation’s Reply Brief on their Motion for Full or Partial Summary Judgment (“LaFranchi Reply Deck”), Ex. A (Lobato Dep.) at 55-56. He further testified that he had never reported to Union Pacific that he had seen people walking near the tracks in the “general area past Mowry crossing.” Id. at 57.

3. Amtrak Crew’s Alleged Failure to Adhere to Rules and Standards . Governing Horn Operation

Plaintiffs present evidence they contend shows that the train crew did not properly sound the horn in the moments before impact. The sequence of horn blasts preceding impact is described by Plaintiffs’ expert as follows:

the horn was sounded at the whistle board in a one second blast followed with five seconds of silence before it was sounded again in a blast that lasted less than one second. The second blast was followed by another five seconds of silence before two short blasts were sounded in one second, as the train reached the Stevenson Crossing. After accelerating through the crossing, the train sounded two short blasts before striking Gary Carter.

Byrnes Deck, ¶ 7. According to Byrnes, “[h]orn blasts that only last one second or less may not reach the required decibel level and fail to adequately alert vehicle operators and pedestrians at or near the right-of-way of the presence of an approaching train.” Id., ¶ 9.

Defendants’ expert opines that the “duration of the warning horn sequence prior to impact was approximately 18 seconds” but does not describe the sequence of blasts that was sounded. Heikkila Deck, Ex. A (Heikkila Report), § 3.5. According to Lobato, the sequence he used was as follows: two seconds for the first long blast, one second for the gap, two seconds for the second long blast, one second for the gap, one second for the short, one second for the gap and two seconds for the final long. Opposition at 6 (citing Fiore Deck, Ex. 3 (Lobato Dep.) at 47-48. Plaintiffs assert that the testimony of engineer Lobato establishes that the crew did not adhere to the horn requirements for approaching a crossing to the extent he testified that he sounded the horn in a series of bursts that lasted a total of only 10 seconds rather than the required 15-20. Opposition at 6 (citing Fiore Deck, Ex. 3 (Lobato Dep.) at 47-48. Further, at oral argument Defendants conceded that all of the horn blasts sounded between the whistle board and the point of impact were, in fact, short blasts.

In support of their assertion that the Amtrak crew did not sound the proper horn sequence, Plaintiffs cite various rules and regulations. First, Plaintiffs cite Section 5.8.2 of the General Code of Operating Rules (“GCOR”), which is entitled “Sounding Whistle.” That provision provides that the “whistle may be used as a warning regardless of any whistle prohibitions.” Byrnes Decl., Ex. 2, Section 5.8.2. It also specifies that “when persons or animals are on the track at other than road crossings” a “Succession of short sounds” should be used. Id. Section 5.8.2 further provides that when a train is approaching a crossing at a speed in excess of 45 mph, it should sound the horn in a long, long, short, long sequence; the horn sequence should be initiated no more than a quarter mile before the crossing and should be prolonged or repeated until the engine completely occupies the crossing. Id. The cover page of GCOR states that “[t]he rules herein govern the operations of the railroads listed and must be complied with by all employees.... ” Id. According to Plaintiffs, both Amtrak and Union Pacific have adopted GCOR. Byrnes Decl., ¶ 10.

Plaintiffs also cite a Federal Railroad Administration (“FRA”) regulation entitled “When must a locomotive horn be used?” Fiore Decl., Ex. 6 (49 C.F.R. § 222.21). That provision, like GCOR Section 5.8.2, requires that a locomotive must sound its horn when it is approaching a public crossing in a long, long, short, long sequence. Id. Under Section 222.21, the horn sequence used as a train approaches a public crossing should begin to be sounded between 15 and 20 seconds before .the engine reaches the crossing, except that it is not a violation for an engineer to wait to sound the horn until the train is within a quarter mile of the crossing when the train is travelling at speeds in excess of 60 mph, even if waiting to sound the horn until the' quarter mile mark will result in less than 15 seconds advance warning. Id. A further regulation cited by Plaintiffs is entitled, “How does this regulation affect sounding of a horn during an emergency or other situations?” Opposition at 7 (citing 49 C.F.R. § 222.23). This regulation provides, inter alia, that “[njotwithstand-ing any other provision of this part, a locomotive engineer may sound the locomotive horn to provide a warning to animals, vehicle operators, pedestrians, trespassers or crews on other trains in an emergency situation if, in the locomotive engineer’s sole judgment, such action is appropriate in order to prevent imminent injury, death, or property damage.” Finally, Plaintiffs cite 49 C.F.R. § 214.339, which requires that “[e]ach railroad shall require that the locomotive whistle be sounded, and the locomotive bell be rung, by trains approaching roadway workers on or about the track.” Id.

With respect to the sequence that should be used as a train approaches a crossing, Plaintiffs also cite testimony of William Bryant and David Engman that Amtrak and Union Pacific engineers are required under the operating rules to sound the horn in a long, long, short, long sequence when approaching a crossing. See Opposition at 5 (citing Fiore Decl., Ex. 9 (Eng-man Dep.) at 66-67 & Ex. 15 (Bryant Dep.) at 19-20). Bryant further testified that the duration of the sequence that is initiated in advance of public crossings should be approximately fifteen to twenty seconds, “depending on the speed.” Fiore Decl., Ex. 15 (Bryant Dep.) at 19. Bryant testified that the sequence used by the automatic horn sequencer that is installed on many Amtrak trains (including the one at issue in this case) and can- be activated by pushing a pedal, would be an “appropriate” horn sequence under the railroad standards cited above. Id. at 20; see also Fiore Decl., Ex. 7 (Battles Dep.) at 101 (stating that locomotive had an automatic sequencer and that the pedal to activate it was located by the engineer’s right foot). The automatic horn sequencer sounds the long, long, short, long sequence with the long bursts lasting 4 to 5 seconds and the short burst lasting about 2 seconds. Fiore Dec!., Ex. 15 (Bryant Dep.) at 20.

Plaintiffs also contend the crew did not sound an emergency horn'—the succession of short bursts described in GCOR Section 5.5.2-—'Until one or two seconds before the train struck Mr. Carter. Opposition at 7 (citing Byrnes Deck, ¶ 15). According to Byrnes, the succession of short sounds used for emergencies is “a very effective means for a locomotive engineer to alert people and animals.” Byrnes Deck, ¶ 15. Mr. Byrnes further opines that “[i]f the emergency horn pattern had been continuously sounded from the time Mr. Carter and/or the dogs on or about the track first became visible on the morning of the incident, it is more likely than not Mr. Carter and his dogs would have received the required warning with sufficient time to react to it.” Id.

Plaintiffs also offer the opinions of Brad Mathison, a forensic visualization expert, on the importance of using the proper horn sequence. See Declaration of Brad Mathison Submitted in Opposition to Defendants’ Motion for Summary Judgment (“Mathison Deck”). Mr. Mathison explains that it is difficult for a person to determine the speed of an approaching train when it is moving directly toward him on the tracks because depth perception is diminished due to “the lack of angle to the eye.” Mathison Deck, ¶ 8. Conversely, he states, the “sound level of a train’s horn, if sounded properly, will increase dramatically as it approaches a pedestrian.” Id., ¶ 9. Mathison tested the horn on the train that hit Mr. Carter and found that while the horn did comply with the “FRA horn output requirements,” the “reduced output caused by short- blasts was sufficient to drop the horn output below the FRA minimum requirements.” Id., ¶ 14.

4. Amtrak Crew’s Alleged Failure to Properly Apply Emergency Brake

Plaintiffs present evidence they contend shows that the train crew did not properly apply the emergency brakes in the moments before impact, instead accelerating until the moment of impact or just seconds before. With respect to the speed of the train during the relevant period, Mr. Byrnes (Plaintiffs expert) opines, based on the Event Recorder data and the Locomotive Video, that the train was travelling at 56 mph when it passed the whistle board and that it continued to accelerate until the point when it struck Mr. Carter, reaching a speed of 63 mph. Byrnes Deck, ¶ 22. Although Defendants contend the brakes were applied a few seconds before impact, they do not dispute that up until that point the train was accelerating; according to Defendants, the train was travelling at 62 mph when the emergency brake was applied. See Motion at 4 (citing Heikkila Deck, Ex. A (Heikkila Report) § 3.7).

In support of their contention that Defendants acted improperly as to the use of the emergency brake, Plaintiffs cite what they contend is the “railroad industry standard of care” as well as GCOR Section 1.47(3). According to Plaintiffs’ expert, “[t]he railroad industry standard of care (including Union Pacific’s Air Brake and Handling Rules), is that train crew members are instructed and required to initiate an emergency brake application without hesitation if life or property is in danger.” Byrnes Deck, ¶ 16 & Ex. 3 (excerpts of Air Brake and Train Handling Rules for various railroad companies, including Union Pacific). According to Byrnes, “[t]he reason that the railroad industry standard of care requires train crew members to initiate an emergency brake application any time that life is in danger—such as when a collision with a pedestrian is imminent—is because doing so is the fastest way to stop the train and may slow it enough to provide the threatened person(s) enough time to reach a place of safety.” Id., ¶ 18. Plaintiffs also cite GCOR Section 1.47(c)(3). That section provides that “[w]hen the engineer and/or conductor fail to comply with a signal indication or take proper action to comply with a restriction or rule, crew members must immediately take action to ensure safety, using the emergency brake valve to stop the train, if necessary.” Byrnes Decl., Ex. 2 (GCOR), Section 1.47(c)(3).

Plaintiffs’ expert opines that when Loba-to and Battles first saw Mr. Carter—Battles testified he saw Carter somewhere between the Mowry Control Point and the Stevenson Crossing, while Lobato said he saw Mr. Carter between the whistle board and the Stevenson Crossing—'“a collision was imminent and the train crew could have and should have initiated an emergency brake application without hesitation.” Byrnes Deck, ¶ 18; see also Fiore Deck, Ex. 3 (Lobato Dep.) at 51-52 & Ex. 7 (Battles Dep.) at 58. Byrnes further opines that Lobato “fell below industry standards by failing to place the train in emergency until after impact.” Id. Byrnes’ opinion that the -brakes w;ere not applied until after impact is based on his observation that in the video, “the sound of the air exhausting from the air brake reservoirs can be hear after impact.” Id., ¶ 19. Byrnes further states that “the event data recorder download is consistent with the video in showing the train was not placed in emergency until after impact.” Id. In Byrnes’ opinion, the video shows that Mr. Carter went back to get his dog off the tracks about five seconds before impact and at that time, both Lobato and Battles had an obligation to apply the emergency brake. Id., ¶ 20. Instead, according to Plaintiffs, Battles testified that he did not believe he had an obligation to stop to avoid hitting the dog, even though he also testified that it was not surprising that Mr. Carter went back to get his dog because some dogs are like family members. Opposition at 8 (citing Fiore Deck, Ex. 7 (Battles Dep.) at 64-65, 70). Plaintiffs also cite Battles’ testimony that when he saw Mr. Carter go back for his dog, he considered hitting the brake but did not do so. Id. (citing Fiore Deck, Ex. 7 (Battles Dep.) at 60). Battles also testified, “I vividly remember saying ‘do not go back for that dog’ just as he went back for the dog.’ ” Id. at 63. And Plaintiffs cite testimony by Battles suggesting he believed that because Mr. Carter was a trespasser there were no specific requirements other than sounding the horn. Id. (citing Fiore Deck, Ex. 7 (Battles Dep.) at 65-66).

In support of their .assertion that the crew should! have applied the emergency brake, Plaintiffs also cite evidence of what they contend was “commonly known to the Defendant railroads” before this incident.” Opposition at 9. First, Plaintiffs cites Operation Lifesaver, an industry education program created in 1972 by the railroad industry. Opposition at 9-10 (citing Byrnes Deck, ¶ 21; Declaration of William Hughes Submitted in Opposition to Defendants’ Motion for Summary Judgment (“Hughes Deck), ¶¶ 15-19 & Exs. 2-3), According to Plaintiffs, statements made in Operation. Lifesaver brochures constitute admissions that Defendants were aware that the safe distance from the nearest rail of a railroad track is 25 feet and that an approaching train is always closer and moving faster than it appears. Id. at 9-10. Plaintiffs also cite Union Pacific rules that require workers to stay at least 25 feet from the tracks. Opposition at 10 (citing Hughes Deck, ¶¶ 20-21 & Ex. 4 (Maintenance-of-Way Rule 42.10, State of Nebraska Department of Roads Addendum No. 1 and Union Pacific Railroad Company Fiber Optic Engineering, Construction and Maintenance Standards 3.4.2); Byrnes Decl., ¶ 21). Because the crew knew or should have known Mr. Carter was within 25 feet of the tracks and because they did not know if Mr. Carter was going to get out of the way, Plaintiffs contend, they should have sounded the emergency horn and applied the emergency brake. Opposition at 10 (citing Byrnes Deck, ¶ 21).

Plaintiffs also cite testimony of Battles and Lobato that they did not see Mr. Carter’s third dog. Opposition at 9 (citing Fiore Deck, Ex. 7 (Battles Dep.) at 95 & Ex. 3 (Lobato Dep.) at 36). According to Plaintiffs, this is evidence that the crew was not keeping a proper lookout. Id. More generally, Plaintiffs’ expert opines that to the extent that there was an unobstructed view of a pedestrian standing on or near the tracks from ovér a quarter of a mile away, the fact that the train continued to accelerate and was not put into emergency until impact indicates that Lobato and Battles failed to provide a proper lookout. Byrnes Deck, ¶ 23.

5. Amtrak’s Alleged Failure to Adequately Train and Supervise Employees

Plaintiffs contend Amtrak did not promote and require compliance with the federal safety regulations discussed above. Opposition at 10-13; Byrnes Deck, ¶¶ 24-25. According to Plaintiffs, under 49 CFR §§ 217.1 and 217.11 Amtrak must instruct, test, and promote/require compliance with its operating rules. Byrnes Deck, ¶ 24. Plaintiffs also contend federal regulations require that Amtrak: 1) have procedures for testing its engineers’ knowledge of its rules and practices for safe train operation (49 C.F.R. § 240.127(b); 2) monitor the conduct and performance of its engineers (49 C.F.R. § 240.129(b)); and 3) have a program for responding to instances of poor safety conduct by engineers (49 C.F.R. § 240.309(a)). Id.

In support of their contention that Amtrak did not meets its training and supervision obligations, Plaintiffs point to the following deposition testimony by Lobato and Battles:

Lobato

• Although prior to his employment with Amtrak (commencing in 1998 or 1999) Lobato had worked for seven years at Union Pacific, he did not remember a Union Pacific rule that required Union Pacific engineers to initiate emergency brake application life or property was in danger. Fiore Deck, Ex. 3 at 8-9, 92.

• Although prior to his -employment with Amtrak (commencing in 1998 or 1999) Lobato had worked for seven years at Union Pacific, he did not remember a Union Pacific rule that required Union Pacific engineers to initiate emergency brake application life or property was in danger. Fiore Deck, Ex. 3 at 8-9, 92.

• While Lobato was employed by Union Pacific he struck and killed 10-15 pedestrians. Id. at 66. Plaintiffs contend there is no evidence Lobato was ever disciplined or retrained after these incidents. Opposition at 11. Plaintiffs further point to Loba-to’s testimony that he had been an Amtrak trainer for a number of years, including on the day of the accident. Id. at 16.

• Lobato was never trained by Amtrak in how to handle a situation where someone is walking dogs along the tracks and was unaware of an incident in which the mayor of Del Mar had been killed by a train after running after his dog. Id. at 72-74.

• No one had ever told Lobato that the long blasts should be 4-5 seconds each and the short blasts should be 1-2 seconds. Id. at 29.

• Lobato did not know that there was a federal regulation that required that the horn begin to be sounded at least 15 seconds before a crossing. Id. at 126-127.

• Lobato was never taught as to what the succession of short sounds referred to in GCOR Section 5.8.2(1) was supposed to be. Id. at 50.

• Amtrak did not test Lobato for drugs or alcohol after Mr. Carter was killed. Id. at 67-68.

Battles

• Battles had only been in the field in a train engine for a week and had only trained with Engineer Lobato. Fiore Deck, Ex. 7 (Battles Dep.) at 7.

• Amtrak did not provide training on how to handle a situation involving a pedestrian or animals on the tracks, including whether to stop for a pedestrian. Id. at 17,19."

• Battles has hit one pedestrian since becoming an engineer in 2012 but he was not disciplined for the incident and has never heard of an engineer being disciplined for hitting a pedestrian. Id. at 29.

• Amtrak trained Battles to use the long, long, short, long sequence when approaching crossings but did not train him as to the required duration of the short and long blasts. Id. at 32, 83-85.

• Battles believed he did not have the authority to place the train in “emergency” even though (according to Plaintiffs) GCOR Sections 1.4, 1.47(c)(3) and 5.8.3 required that he do so if he saw that Lobato was doing something wrong. Byrnes Deck, ¶ 25(e).

Plaintiffs also cite as evidence of inadequate training and supervision the following evidence:

• Although Amtrak has a “Confidential Close Call Reporting Program” requiring that employees report close calls in the train yards where employees are almost hit, it does not have a policy on what distance from the tracks a trespasser must be before an engineer is supposed to report the trespasser. Fiore Deck, Ex. 16 (Andrews Dep.) at 49, 55-56.

• Amtrak’s training of engineers does not include teaching them to report trespassers and Amtrak does not know if Lobato was trained to report trespassers. Id. at 33-34, 39. Further, after Mr. Carter’s death, Amtrak did not make sure Lobato and Battles were told to report trespassers on the right-of-way. Id. at 39.

• Amtrak does not require engineers to report trespassers unless they are putting themselves in harm’s way. Id. at 49-50.

• Amtrak leaves it to the engineer’s discretion when trespassers should be reported and has not told Union Pacific that it leaves reporting to the discretion of engineers. Id. at 52-15. Plaintiffs also cite the testimony of Amtrak’s Rule 30(b)(6) witness that he had not researched Union Pacific’s requirements for reporting trespassers. Id. at 53-54.

6. Union Pacific and Amtrak’s Alleged Failure to Enforce Zero Tolerance Policy as to Trespassers

Plaintiffs have presented evidence that Union Pacific has a “zero tolerance policy” for allowing trespassers on its right-of-way. See Opposition at 13 (citing Fiore Deck, Ex. 28 (Bray Dep.) at 78-80, 89-90; Ex. 9 (Engman Dep.) at 32, 35-38, 55; Ex. 18 (June 11, 2014 Slaats Dep.) at 11-14, 24-25, 45-46, 51, 52, 57; Ex. 25 (August 27, 2013 Slaats Dep.) at 17-19; Ex. 19 (July 20, 2001 News article); Ex. 20 (July 11, 2001 News article); Ex. 21 (Union Pacific Zero Tolerance Policy); Ex. 22 (Union Pacific Mandatory Duties); Ex. 23 (Union Pacific Monthly Police Report); Ex. 27 (Union Pacific SAIBRS database printout)). According to William Hughes, an expert retained by Plaintiff, Union Pacific Safety Rule 70.10 provides that “Railroad Police must be advised of all unauthorized persons or trespassers on company property.” Hughes Deck, ¶ 7. Hugh further states that Amtrak has zero tolerance for trespassers on the railroad right of way. Id.', see also Fiore Deck, Ex. 9 (Engman testimony that if there is a “trespasser who is known to be on the right-of-way, it is mandatory that the Amtrak crews report them”).

When Union Pacific receives a report of a trespasser on the right-of-way, it sends one of its own officers to the site or, if none is available, it alerts law enforcement in that jurisdiction. Fiore Deck, Ex. 25 (August 27, 2013 Slaats Dep.) at 19-21. Union Pacific also maintains data regarding reports of trespassing. Id., Ex. 26 (Slaats Dec. 11, 2007 Dep.) at 111; Ex. 27 (Union Pacific trespasser statistics for 2000 through 2007); Ex. 32 (Federal Railroad Administration trespasser casualty statistics for 2004-2013). ■ According to Plaintiffs, the statistics attached as Exhibits 27 and 32 to the Fiore Declaration show that there have 'been over 53 reported incidents of trespassers “in and about the area.” Opposition at 14. Hughes suggests this number may not accurately reflect the number of trespassers in the area, however because “[i]n reality, which has been shown by the railroad employees in this case, the train crews, local managers, and track inspectors have all failed to comply with the railroad’s policy of reporting unauthorized persons on its property; particularly in the area where this incident occurred.” Hughes Deck, ¶ 8. Hughes cites the testimony of engineer Lobato that he saw trespassers in the area of the incident on numerous occasions but never reported them. Id. Plaintiffs also cite testimony by Union Pacific’s Manager of Operating Practices, David Engman, that he had “coached” Union Pacific employees approximately twice for failure to report trespassers but had never disciplined anyone. Fiore Deck, Ex. 9 (Engman Dep.) at 41^3. Engman also testified that he had never had any conversations with Amtrak managers to determine whether its train crews were properly reporting trespassers and he was not aware of any testing to determine whether the policy was being followed by Amtrak crews. Id. at 63-65.

7. Union Pacific and Amtrak’s Alleged Failure to Prevent Pedestrians from Walking Along and Crossing the Railroad Tracks

According to Plaintiffs’ expert, Defendants’ public safety program should have focused on prevention, using “signs, placement of fencing or other barricades, strict reporting, consistent horn warning, appropriate law enforcement and public education.” Hughes Deck, ¶ 10- Hughes further opines that “there are clear indications that none of these well-accepted prevention methods were properly utilized” by Defendants. Id. In particular, Hughes cites the absence of “No Trespassing” signs at the outer limits of the right-of-way and points to Union Pacific’s Engineering Track Maintenance Field Manual, Rule 6.5.2, which instructs that “[w]here access to right of way roads is not controlled, post ‘No Trespassing’ signs_” Id., ¶ 11. He also opines that Defendants did not make “any effort to work with local law enforcement officers to solicit their cooperation in a concerted effort to stop people from frequenting this location.” Id., ¶ 13. Finally, he opines that in “areas where a trespassing problem has been identified, [Union Pacific] has the ability to erect and maintain fencing and has done so many times.” Id., ¶ 13. According to Hughes, because the area where the incident occurred “has a long history of being treated like a park,” Union Pacific could have fenced its right-of-way to prevent access to the tracks or installed a gate or other barrier • at the end of the Silliman Sports Complex parking lot. Id., 14.

Plaintiffs also offer evidence that Union Pacific has used fencing to prevent trespassing in other locations. In particular, George Slaats testified that Union Pacific has installed fencing at a location in Salinas where trespassers and dumping were reported near the California State San Luis Obispo football stadium. Fiore Decl., Ex. 26 (Slaats Dep.) at 31, 61. Slaats further testified that, depending on the location, fencing can be an effective method of reducing trespassing on railroad right-of-ways. Id. at 131-132. Thomas Andrews testified that Amtrak and Union Pacific have jointly installed fencing in areas where people were frequently seen on or near the railroad tracks, including areas in Sacramento, Hayward and Davis, California. Fiore Deck, Ex. 16 (Andrews Dep.) at 80-83, 86. Slaats testified that wrought iron fencing that has been used by Union Pacific for this purpose costs between $70.00 and $100.00 per linear square foot. Id. at 56. Plaintiffs’ expert opined that in the area where the incident occurred “the railroad could have easily fenced its right-of-way to prevent access to the tracks by people who were using this area” and further, that “access to the area could have been prevented with the installation of a gate or other barrier at the end of the sports and recreation complex parking lot restricting access to the path that leads to the railroad tracks.” Hughes Deck, ¶ 14.

B. First Amended Complaint

The First Amended Complaint (“FAC”) is the operative complaint in this action. In it, Plaintiffs assert wrongful death and survival claims based on negligence (Claims One and Two) (hereinafter, “Negligence Claims”) and premises liability (Claims Three and Four) (hereinafter, “Premises Liability Claims”). Both Amtrak and Union Pacific are named as defendants on the Negligence Claims and the Premises Liability Claims.

The negligence claims are based on a variety of theories, including alleged failure to comply with safety requirements, failure to sound the horn properly, failure to operate the train at a safe speed, failure to keep a proper lookout, failure to respond appropriately to a specific, individualized hazard , by slowing or stopping the train, negligent training of the. engineer and crew, failure to instruct the engineer and crew on the appropriate circumstances under which they should be prepared to slow or stop a train in response to safety hazards, and failure to recognize local safety hazards or take any reasonable steps to reduce local safety hazards. See FAC ¶¶ 42-77 (Claim One) ¶¶ 78-84 (Claim Two). The Premises Liability Claims are based on allegations that the site where the accident occurred was in an unsafe and defective condition due to Defendants’ alleged failure to post proper signs or other warnings and failure to erect a fence or barrier to keep pedestrians from accessing the site even though Defendants allegedly knew that pedestrians frequently crossed and walked along the tracks in this area. Id. ¶¶ 85-97 (Claim Three) ¶¶ 98-104 (Claim Four).

At oral argument, Plaintiffs stipulated that they are asserting the following claims: 1) premises liability based on failure to warn (Union Pacific); 2) premises liability based on failure to install fencing or gates of some kind (Union Pacific); 3) negligence based on failure to slow in response to a specific hazard (Amtrak); 4) negligence based on failure to sound proper horn sequence (Amtrak); 5) negligence based on failure to monitor, train and supervise as to responding to emergency situations, including when and how to sound the horn and when to slow down when there is a person on the tracks (Amtrak and Union Pacific); and 6) negligence based on failure to post a proper lookout (Amtrak). Plaintiffs noted that the claim based on failure to post a proper lookout is the “flip side” of the failure to slow claim: either the crew saw Mr. Carter and did nothing (the negligent failure to slow claim) or they did not see him because they were not posting an adequate lookout (the negligent lookout claim).

C. The Motion

Defendants contend they are entitled to summary judgment on Plaintiffs’ claims against both Union Pacific and Amtrak. First, they assert that the Negligence and Premises Liability Claims are defective to the extent that Plaintiffs did not differentiate between Amtrak and Union Pacific based on “what the defendants actually controlled and owned.” Motion at 6. Because Amtrak does not own or control the property where the incident occurred, Defendants assert, it cannot be liable on Plaintiffs’ Premises Liability Claims. Id. (citing Preston v. Goldman, 42 Cal.3d 108, 114, 227 Cal.Rptr. 817, 720 P.2d 476 (1986)). Conversely, Defendants argue that because Union Pacific does not own, operate or maintain the train involved in the incident, and does not employ the crew responsible for hitting Mr. Carter, it cannot be liable on Plaintiffs’ negligent maintenance and operation claims. Id. (citing Preston, 42 Cal.3d at 108, 114, 227 Cal.Rptr. 817, 720 P.2d 476; Mark v. Pac. Gas & Elec. Co., 7 Cal.3d 170, 179, 101 Cal.Rptr. 908, 496 P.2d 1276 (1972)).

Second, Defendants argue that Union Pacific cannot be liable on the Premises Liability Claims because it breached no duty owed to Plaintiffs. Id. at 6. According to Defendants, the existence and scope of a duty is a question of public policy and is typically a question of law to be decided by the court. Id. Defendants rely on the factors set forth in Rowland v. Christian, 69 Cal.2d 108, 113, 70 Cal.Rptr. 97, 443 P.2d 561 (1968) (“Rowland factors”) to support their position that Union Pacific did not owe a duty of care to Plaintiffs. Id. at 7 (citing Parsons v. Crown Disposal Co. 15 Cal.4th 456, 465, 63 Cal.Rptr.2d 291, 936 P.2d 70 (1997) (reciting Rowland factors: 1) foreseeability of harm to plaintiff; 2) degree of certainty that plaintiff suffered injury; 3) closeness of connection between defendant’s conduct and injury suffered; 4) moral blame attached to defendant’s conduct; 5) policy of preventing future harm; 6) extent of burden on defendant and consequences to community of imposing a duty to exercise care; and 7) the availability, cost and prevalence of insurance for the risks involved)).

With respect to foreseeability, Defendants assert that the mere fact that there may have been a “worn path” in the area does not equate with high foreseeability in light of evidence that the site of the accident was an industrial location with almost no residential and limited commercial activity. Id. (citing Bray Deck, ¶ 5; Reddick Deck, ¶¶ 2-3 & Ex. A; Locomotive Video). Defendants also cite the data provided by the Union Pacific Police Department and Response Management Communication Center’s reporting in the area. Id. at 8-9 (citing Bray Deck, ¶ 5 (stating that there was “minimal reporting of trespasser activity” in the area and “no instances of trespasser vs. train” incidents); Reddick Deck, ¶¶ 2-3). Even if there were “worn dirt roads and pedestrian paths,” Defendants contend, this would not establish foreseeability of harm to “adult members of the public who willfully and knowingly choose to avail themselves of these routes.” Id. at 9. This is because courts consider whether injury would be foreseeable “if members of the public exercise a very modest degree of care for their own safety.” Id. (citing Pineda v. Ennabe, 61 Cal.App.4th 1403, 1408-1409, 72 Cal.Rptr.2d 206 (1998)). Finally, Defendants contend the question of whether there is a duty does not turn entirely on foreseeability but also requires consideration of the other factors listed in Rowland. Id. at 9. In a footnote, Defendants reject Plaintiffs’ anticipated reliance on Silva v. Union Pacific R.R. Co., 85 Cal.App.4th 1024, 102 Cal.Rptr.2d 668 (2000) for the proposition that railroads have a duty to fence their rights of way if harm to trespassers is foreseeable. Id. at 7 n. 5. Rather, Defendants assert, that case merely held that where the facts about foreseeability were uncertain, the court could not decide the duty issue as a matter of law. Id.

The second factor—the connection between harm and conduct—does not support the existence of a duty, Defendants argue. Id. at 9-10. This is because Mr. Carter would not have been killed, Defendants assert, if he “exercised the slightest care for his own safety.” Id. at 9. In particular, Defendants argue that Mr. Carter: 1) “willfully and knowingly chose to trespass on Union Pacific’s property for recreational purposes;” 2) “chose to have his dogs off leash in violation of multiple local ordinances despite knowledge that freight and passenger trains frequently used the tracks at issue;” and 3) left a position of safety only seconds before impact in order to retrieve his dog even though the engineer began sounding the train horn about 18 seconds before impact. Id. at 9-10.

Defendants further contend that Union Pacific’s conduct was not morally blameworthy, the third Rowland factor. Id. at 10-11. Defendants argue that the level of blameworthiness required to support the imposition of a duty is not the level required to establish ordinary negligence; rather, “a higher degree of moral culpability is required, such as where the defendant intended the harm or acted recklessly or in bad faith.” Id. at 10 (citing Adams v. City of Fremont, 68 Cal.App.4th 243, 270, 80 Cal.Rptr.2d 196 (1998); McCollum v. CBS, Inc., 202 Cal.App.3d 989, 1005-006, 249 Cal.Rptr. 187 (1988); Scott v. Chevron U.S.A., 5 Cal.App.4th 510, 517, 6 Cal.Rptr.2d 810 (1992); Dutton v. City of Pacifica, 35 Cal.App.4th 1171, 1176, 41 Cal. Rptr.2d 816 (1995)). Union Pacific’s conduct does not meet this standard, Defendants assert, because operating a railroad is a lawful activity and Union Pacific takes an aggressive approach toward trespassing, including the utilization of special agents to remove or cite trespassers found on its property and community outreach efforts to deal with the problem. Id. (citing Bray Deck, ¶¶ 3^1).

Defendants argue that the fourth Rowland factor also supports their position. Id. at 11-12. That factor involves consideration of the burden on Union Pacific and the public if the Court were to impose a duty with respect to Mr. Carter’s death. Id. Union Pacific asserts that the burden would be significant because it would be difficult to prevent trespassing through the use of officer patrols and extremely expensive to install fences along its thousands of miles of tracks. Id. Union Pacific argues that if such a duty were imposed, it would have to pass the additional costs on to its customers, something courts are reluctant to do. Id. at 11 (citing Parsons, 15 Cal.4th at 474-475, 68 Cal.Rptr.2d 291, 936 P.2d 70; Moore v. Regents of the Univ. of California, 51 Cal.3d 120, 144-147, 271 Cal.Rptr. 146, 793 P.2d 479 (1990); Brown v. Superior Court, 44 Cal.3d 1049, 1063-1065, 245 Cal.Rptr. 412, 751 P.2d 470 (1988); Nola M. v. University of So. Cal, 16 Cal.App.4th 421, 436-437, 20 Cal.Rptr.2d 97 (1993)). Defendants note that in a case involving similar facts, a court refused to impose on Union Pacific a duty to fence off the right of way because of the burden such a duty would have imposed. Id. at 12 (citing Abboud v. Union Pac. R.R. Co., No. C-02^140 VRW, slip. op. 26, ¶. 7-18 (N.D. Cal. June 10, 2004)).

Defendants also contend the Rowland factor that focuses on the availability of insurance does not support the imposition of a duty. Id. According to Defendants, “[e]ven if Union Pacific could obtain insurance, plaintiffs can present no proof that the price would be reasonable.” Id.

Defendants further assert that the case law is “well settled” that Union Pacific “has no duty to post warning signs, as the tracks themselves were a warning of danger.” Id. at 12. This is because the danger is obvious, Defendants assert. Id. (citing 6 Witkin Summary 10th (2005) Torts § 1126, p. 460) (citing cases)). Defendants concede that in some situations there may be a duty to warn about or correct even an obvious danger. Id. at 13 (citing Reyes v. Kosha, 65 Cal.App.4th 451, 76 Cal.Rptr.2d 457 (1998); Krongos v. Pac. Gas & Elec. Co., 7 Cal.App.4th 387, 393-394, 9 Cal.Rptr.2d 124 (1992)). Defendants argue that these cases are distinguishable, however, because they involved situations in which the plaintiff had a legitimate reason to be on the property and there was a “practical necessity” for the plaintiff to encounter the danger. Id. That is not the ease here, Defendants assert, because Mr. Carter was a trespasser and Union Pacific did not derive any benefit from Mr. Carter being on its property. Id. According to Defendants, similar reasoning has been applied outside of the railroad context, where courts have held that “there is a limit as to how far society should go by way of direct government regulation ... or indirect regulation thereof through the tort system, in order to protect individuals from their own stupidity, carelessness, daring, or self-destructive impulses.” Id. (quoting Edwards v. California Sports, Inc., 206 Cal.App.3d 1284, 1288, 254 Cal.Rptr. 170 (1988)).

Defendants also challenge Plaintiffs’ claims against Amtrak, arguing that: 1) the bulk of Plaintiffs’ claims are preempted by federal law; and 2) as to the claims that are not preempted, Plaintiffs’ evidence is not sufficient to make a prima facie case of negligence. Id. at 15-25. In support of their preemption arguments, Defendants rely on the Federal Rail Safety Act of 1970 (“FRSA”) and the regulations promulgated thereunder. Id. at 15.

With respect to Plaintiffs’ claims based on excessive speed, Defendants contend there are two theories, both of which are preempted. Id. at 16-20. First, according to Defendants, Plaintiffs’ claim is based on the theory that Union Pacific was aware of trespassers in the area of impact and therefore should have been travelling at a slower speed because the trespassers constituted a local safety hazard. Id. at 16. Plaintiffs’ second theory, according to Defendants, is that the train should have slowed down in response to a “specific, individual hazard.” Id.

As to the first theory, Defendants argue that this claim is preempted because the FRA regulations set maximum train speeds for different classes of tracks and those rules establish the duty of care. Id. at 17 (citing CSX Transportation, Inc. v. Easterwood (“Easterwood ”), 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993); 49 C.F.R. § 213.9). Further, Defendants assert, any state law claims, including claims asserted under state tort law, based on a theory of excessive speed are barred if the train was operating within the federal limits established under 49 C.F.R. Part 213. Id. (citing Nippon Yusen Kaisha v. Burlington and N. Santa Fe Ry. Co., 367 F.Supp.2d 1292, 1303 (C.D.. Cal. 2005)). Here, Defendants argue, it is undisputed that the stretch of track at issue in this case was Class 4 track. Id. at 18 (citing JSUMF No. 6). Because 49 C.F.R. § 213.9 sets a maximum speed of 80 mph and it is undisputed the train in this case was travelling at a speed of no more than 63 mph, Defendants contend, Plaintiffs’ claim is preempted. Id.

With respect to the second unsafe speed theory, Defendants concede that there is a duty to slow down when a “specific, individual hazard” is present and that preemption is no longer applicable under these circumstances. Id. at 18 (citing Easterwood, 507 U.S. at 664, 676 n. 15, 113 S.Ct. 1732; Federal Ins. Co. v. Burlington Northern and Santa Fe Ry. Co., 270 F.Supp.2d 1183, 1187 n. 5 (C.D. Cal. 2003)). Defendants contend the exception does not apply, however, until the collision is imminent. Id. at 18-19 (citing Baker v. Canadian Nat’l/Illinois Cent. Ry. Co., 397 F.Supp.2d 803, 812-814 (S.D. Miss. 2005); Liboy v. Rogero, 363 F.Supp.2d 1332, 1340 (M.D. Fla. 2005); Myers v. Missouri Pac. R. Co., 52 P.3d 1014, 1028 (Okla. 2002)). Further, Defendants assert, the “specific, individual hazard” must be “seen or otherwise known to the operator of a train to be on the tracks.” Id. at 19 (citing Beausoleil v. Nat’l R.R. Passenger Corp., 145 F.Supp.2d 119, 121 (D. Mass. 2001)). According to Defendants, an engineer also has a legal right to assume that the person will take reasonable precautions to avoid an approaching train. Id. Therefore, Defendants assert, there was no “specific, individual hazard” until Mr. Carter went back to the tracks to rescue his dog, which Defendants contend occurred only three seconds before impact. Id. at 20. On that basis, Defendants conclude “all claims by plaintiffs that the crew had a duty to Mr. Carter to brake or slow the train beyond the approximate 3 seconds before impact are preempted and must fail.” Id.

Defendants also contend the negligent training and supervision claims are preempted. Id. at 20-21. According to Defendants, the certifications and qualifications of locomotive engineers are covered by 49 C.F.R. § 20135. Thus, they assert, under Easterwood, state law claims based on the alleged inadequate training of engineers are preempted. -Id. (citing Bur lington N. Santa Fe Ry. Co. v. Doyle, 186 F.3d 790 (7th Cir. 1999); Union P. R.R. Co. v. California Public Utils. Comm’n, 346 F.3d 851, 868-869 (9th Cir. 2003)). Further, Defendants cite evidence that: 1) at the time of the incident, Amtrak maintained a locomotive engineer training and certification program that fully complied with “all applicable FRA requirements”; and 2) “Michael Lobato, pursuant to that training and certification program, was fully qualified to act as a locomotive engineer on the day of the Incident.” Id. (citing Andrews Deel., ¶¶ 5-8).

Defendants also challenge Plaintiffs’ negligent horn operation claims, both on the grounds of preemption and on the merits. Id. at 21-23. First, Defendants reject Plaintiffs’ reliance on 49 C.F.R. § 229.129, which sets a minimal decibel level for locomotive horns at 96dB(A) at 100 feet forward of the locomotive in the direction of travel. Id. at 22 (citing FAC at 10-11). According to Defendants, “Amtrak performed an inspection on the subject locomotive on the day of the Incident, at which time horn audibility was documented at 115dB(A) 100 feet forward of the locomotive.” Id. (citing Caniezo Deck, ¶ 4 & Ex. B). Thus, Defendants assert, Plaintiffs’ claim lacks merit (to the extent it is based on the standard set forth in the regulation) and is preempted (to the extent Plaintiffs assert that the audibility of the horn was insufficient even though it exceeded the level required under the federal regulation). Id. at 22.

Second, Defendants assert that Plaintiffs’ claim fails to the extent it is based on the train crew’s alleged failure to comply with the requirements of 49 C.F.R. § 221.21)(a)-(b)(2) for sounding the horn when approaching a public crossing. Id. According to Defendants, the evidence shows that the requirements of 49 C.F.R. § 221.21(a) (requiring that the horn sequence must be initiated between 15 and 20 seconds before entering the crossing) were met because the video shows that the crew did initiate a horn sequence “on its approach to the Stevenson Boulevard crossing.” Id. (citing Locomotive Video and Event Recorder (starting at 10:18:58)). Further, as to the long, long, short, long pattern, Defendants contend there is no Federal requirement regarding the precise duration of each phase of that horn sequence. Id. In addition, Defendants cite the testimony of engineer Loba-to that the sequence for entering the crossing was “cut short and turned into an emergency horn pattern due to Mr. Carter’s presence near the tracks.” Id.

Third, Defendants argue that the horn sequence required for public crossings is not relevant in any event because the impact occurred 508 feet south of the Stevenson crossing. Id. at 22-23. The requirements for sounding the horn when a train is not at a public crossing, Defendants assert, are set forth in 49 C.F.R. § 222.23(a), which provides that engineers may, but are not required, to sound a locomotive horn for the purposes of warning trespassers. Id. at 23. Because the regulation is “unequivocal” on this point, Defendants contend, all of Plaintiffs’ claims regarding horn audibility, sequencing and duration are preempted under 49 C.F.R. § 222.23. Id. Defendants also argue that the savings clause contained in 49 C.F.R. § 20106 (providing that state laws aimed at “an essentially local safety or security hazard” are not preempted and that state law claims may be asserted based on a party’s failure to comply with its own plan, rule, or standard that it created pursuant to a regulation or order issued by the Secretary of Transportation or the Secretary of Homeland Security) does not apply here because “there is no essentially local safety hazard in the area that would necessitate a more stringent state law requirement for horn application, and Amtrak did not fail to comply with its own plan, rule or standard created pursuant to a regulation or order issued by the federal government.” Id. Defendants also assert that “the only conclusions a reasonable trier of fact can draw is that the train crew’s horn application was neither negligent nor a substantial factor in causing the impact.” Id. (citing Gray v. Brinkerhoff, 41 Cal.2d 180, 183, 258 P.2d 834 (1953)).

Finally, Defendants contend Plaintiffs’ evidence is not sufficient to make a prima facie case of negligence based on alleged failure to maintain a proper lookout and failure to respond appropriately to a specific, individual hazard. Id. at 24. With respect to the lookout claim, Defendants cite evidence that the crew saw Mr. Carter before they reached the Stevenson crossing and that Lobato “transitioned from a crossing horn pattern to an emergency horn pattern at least 6 seconds before impact.” Id. (citing LaFranchi Deck, Ex. B (Lobato Dep.) at 34; Ex. D (Battles Dep.) at 32-33, 55-56; Locomotive Video, Event Recorder & Heikkila Deck, ¶ 2 & Ex. A (Heikkila Report), §§ 3.5, 3.9). As to the alleged failure to respond appropriately to the specific, individual hazard, Defendants assert this claim did not arise until 3 seconds before impact (for the reasons discussed above) and that the evidence shows that by that time, Lobato was unable to avoid hitting Mr. Carter even though he reasonably and appropriately responded to the situation. Id. (citing Heikkila Deck, Ex. A (Heikkila Report), §§ 3.2, 3.7; Event Recorder; Locomotive Video).

D. Opposition

In their Opposition brief, Plaintiffs argue that their Negligence Claims against Amtrak are not preempted and that there are material issues of fact that preclude summary judgment on these claims. Opposition at 16-27. With respect to Union Pacific, Plaintiffs reject Defendants’ argument that Union Pacific owed no duty of care, arguing that it had a general duty as a landowner to protect against foreseeable harms and that railroads are not exempt from this duty. Id. at 28. Plaintiffs further contend there are material disputes of fact regarding whether Union Pacific breached this duty. Id. at 29.

On the question of preemption, Plaintiffs argue that there is a strong presumption against federal preemption, especially where preemption would displace the historic power of the states to protect the health and safety of their citizens. Id. at 16-17 (citing Cipollone v. Ligget Groups, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992); California v. ARC America Corp., 490 U.S. 93, 109 S.Ct. 1661, 104 L.Ed.2d 86 (1989); Rogers v. Consol. Rail Corp., 948 F.2d 858 (2d Cir. 1991); Florida Lime & Avocado Growers Inc. v. Paul, 373 U.S. 132, 144, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)). According to Plaintiffs, it is well-settled that preemption under the FRSA, the scope of which is set forth in 49 U.S-.C. § 20106(a)(1), is not complete. Id. at 17. In particular, Plaintiffs assert states can, and always could: 1) “adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation ... prescribes a regulation or issues an order