NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

JOSEPH WINCKLER, Plaintiff/Appellee,

v.

BNSF RAILWAY COMPANY, a Delaware corporation, 

Defendant/Appellant.

No. 1 CA-CV 13-0516

Appeal from the Superior Court in Maricopa County

No. CV 2009-020785

The Honorable Dean M. Fink, Judge

VACATED AND REMANDED

COUNSEL

Thorpe Shwer, P.C., Phoenix

By William L. Thorpe, Bradley D. Shwer, Kristin Paiva

Counsel for Defendant/Appellant

Osborn Maledon, P.A., Phoenix

By Mark I. Harrison, Brandon A. Hale, Thomas L. Hudson

Co-Counsel for Plaintiff/Appellee

St. John & Romero, P.L.L.C., Mesa

By Jason J. Romero

Co-Counsel for Plaintiff/Appellee
WINCKLER v. BNSF

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court, 

in which Judge Patricia K. Norris and Judge Randall M. Howe joined.

D O W N I E, Judge:

¶1 Defendant/Appellant BNSF Railway Company (“BNSF”)

appeals from a judgment entered in favor of Plaintiff/Appellee Joseph 

Winckler after a jury trial. For the following reasons, we vacate the 

judgment and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

¶2 Winckler worked as a conductor for BNSF. During a fueling

stop in Winslow, Arizona on May 29, 2007, Winckler dismounted from a

locomotive, stepping down with his right foot, which landed partially on 

a wooden crosstie and partially on ballast — the crushed rocks that form 

the foundation for the railroad tracks. The ballast was not flush with the 

top of the tie, creating a depression into which Winckler’s foot and ankle 

rolled. 

¶3 Winckler filed a two-count complaint against BNSF under 

the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. §§ 51-60,

alleging: (1) count one: negligence based on the failure “to properly 

maintain and provide a reasonably safe, uniform and regular walkway”

(“negligence claim”); and (2) count two: violation of a safety regulation —

Arizona Administrative Code (“Code”) R14-5-110 (“Rule 110”)

(“regulatory claim”). 

¶4 BNSF moved for summary judgment on the regulatory 

claim, arguing: (1) Winckler’s injury occurred on the track, not a 

walkway, making Rule 110 inapplicable; (2) Rule 110 is not actionable 

under FELA; and (3) federal law preempts Rule 110. After briefing and 

oral argument, the superior court denied BNSF’s motion. BNSF moved 

for reconsideration and, for the first time, asserted that the Rule 110 

standards applied only to construction, reconstruction, or modifications

occurring after May 1992 — a limitation BNSF claimed Winckler “has so 

far ignored.” The superior court denied the motion for reconsideration. 
WINCKLER v. BNSF

Decision of the Court

3

¶5 A 12-day jury trial ensued. At the close of Winckler’s casein-chief, BNSF moved for judgment as a matter of law (“JMOL”) on both 

counts of the complaint. The trial court denied the motion. At the close of 

evidence, BNSF moved for JMOL on the regulatory claim. BNSF argued 

Winckler had failed to establish that the premises were constructed, 

reconstructed, or modified after May 28, 1992 — the operative date for

Rule 110’s standards. The court granted BNSF’s motion, leaving only the 

negligence claim for the jury to consider.

¶6 The jury found in favor of Winckler, setting his damages at

$3,852,256, but finding him to be 20% at fault. BNSF unsuccessfully 

moved for a new trial. It thereafter filed a timely notice of appeal. 

¶7 While its appeal was pending, BNSF learned of allegations 

that Winckler had intentionally inflicted injury on his knee in order to 

increase his claim against BNSF. BNSF moved to suspend its appeal and 

revest jurisdiction in the superior court so that it could rule on a request 

for relief under Arizona Rule of Civil Procedure 60(c). This Court granted 

BNSF’s motion. After briefing and argument, the superior court denied 

BNSF’s Rule 60(c) motion; BNSF filed an amended notice of appeal. We 

have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections

12-120.21(A), -2101(A)(1), (2), (5)(a).

DISCUSSION

I. The Regulatory Claim

¶8 BNSF contends the superior court erred by denying its 

motion for summary judgment on the regulatory claim. Although the 

denial of summary judgment is generally not reviewable on appeal from a 

final judgment entered after a trial on the merits, a party may preserve a 

summary judgment issue for appellate review “by reasserting it in a Rule 

50 motion for judgment as a matter of law or other post-trial motion.” 

John C. Lincoln Hosp. & Health Corp. v. Maricopa Cnty., 208 Ariz. 532, 539, 

¶ 19, 96 P.3d 530, 537 (App. 2004); see also Ryan v. S.F. Peaks Trucking Co., 

Inc., 228 Ariz. 42, 48, ¶ 20, 262 P.3d 863, 869 (App. 2011) (“[I]n cases that 

have proceeded to trial, a party that wishes to preserve a summary 

judgment issue for appeal must reassert it during or after trial in a Rule 50 

motion for judgment as a matter of law or other motion.”). BNSF 

reasserted its summary judgment arguments in a Rule 50 motion,

thereby preserving those issues for our review. 

¶9 We disagree with Winckler’s assertion that the denial of 

summary judgment is “irrelevant because the court granted BNSF a 
WINCKLER v. BNSF

Decision of the Court

4

directed verdict” on the regulatory claim at the close of the trial evidence. 

As we discuss infra, allowing the regulatory claim to proceed to trial led to 

improper evidence and arguments being presented to the jury that 

affected BNSF’s right to a fair trial. 

¶10 In assessing whether the court erroneously denied summary 

judgment on the regulatory claim, we confine our review to the record

that was before the court at the time of its ruling. See Brookover v. Roberts 

Enters., Inc., 215 Ariz. 52, 55, ¶ 8, 156 P.3d 1157, 1160 (App. 2007). A court 

may grant summary judgment when “there is no genuine dispute as to 

any material fact and the moving party is entitled to judgment as a matter 

of law.” Ariz. R. Civ. P. 56(a). We review the denial of a motion for 

summary judgment for an abuse of discretion. Sonoran Desert 

Investigations, Inc. v. Miller, 213 Ariz. 274, 276, ¶ 5, 141 P.3d 754, 756 (App. 

2006). “A court abuses its discretion if it commits an error of law in 

reaching a discretionary conclusion.” Flying Diamond Airpark, L.L.C. v. 

Meienberg, 215 Ariz. 44, 50, ¶ 27, 156 P.3d 1149, 1155 (App. 2007). We 

review legal conclusions de novo. Midtown Med. Grp., Inc. v. State Farm 

Mut. Auto. Ins. Co., 220 Ariz. 341, 343, ¶ 7, 206 P.3d 790, 792 (App. 2008).

 

¶11 In seeking summary judgment on the regulatory claim, 

BNSF argued Winckler’s injury “occurred while he was on the track 

structure – the ties and ballast supporting the rails – not on a walkway 

addressed by [Rule 110], which is separate and distinct from the track 

structure.” As the superior court correctly noted, the parties did not 

dispute the location of or circumstances surrounding Winckler’s injury.

Excerpts from Winckler’s deposition testimony established:

 When Winckler stepped off the locomotive ladder he knew he was 

“stepping down onto ballast or ties.” 

 After twisting his ankle, Winckler saw there was a depression where 

the ballast was not “hard up against the top of the tie.” 

Winckler further acknowledged that his right foot “landed partially on top 

of an exposed railroad tie.”1 

¶12 Rule 110, entitled “Walkway and Clearance Standards,” sets 

state standards “for all walkways.” A.A.C. R14-5-110(A). The rule 

requires walkways “adjacent to tracks in all areas where railroad . . . 

 

1 Winckler’s trial testimony was consistent with his deposition 

testimony. 
WINCKLER v. BNSF

Decision of the Court

5

employees are required to perform trackside duties.” A.A.C. R14-5-

110(A)(1). Walkways must consist of “a uniform regular surface with a 

gradual slope not to exceed 1 inch rise in 8 inches.” A.A.C. R14-5-

110(A)(2)(a). Measurement and clearance standards for walkways are 

included in Code appendices. A.A.C. R14-5-110(A)(4). 

¶13 The Code does not define “walkway.” We therefore employ 

tools of statutory construction in ascertaining its meaning. See Stapert v. 

Ariz. Bd. of Psychologist Exam’rs, 210 Ariz. 177, 179, ¶ 7, 108 P.3d 956, 958

(App. 2005) (principles of statutory interpretation apply equally to 

administrative regulations). Ambiguity arises not only from the meaning 

of particular words, but “may arise in respect to the general scope and 

meaning of a statute when all its provisions are examined.” State v. Sweet, 

143 Ariz. 266, 269, 693 P.2d 921, 924 (1985). 

¶14 By mandating walkways “adjacent to tracks,” A.A.C. 

R14-5-110(A)(1) (emphasis added), the plain language of Rule 110 

suggests that a walkway is separate and distinct from the track. 

“Adjacent” is defined as “[l]ying near or close to, but not necessarily 

touching.” Black’s Law Dictionary (10th ed. 2014); see W. Corr. Grp., Inc. v. 

Tierney, 208 Ariz. 583, 587, ¶ 17, 96 P.3d 1070, 1074 (App. 2004) (In 

determining the plain meaning of statutory terms, courts “refer to 

established and widely used dictionaries.”). But assuming the language of 

Rule 110 does not clearly resolve the issue, we look to the regulation’s 

context, subject matter, historical background, effects and consequences, 

and spirit and purpose. See Hayes v. Cont’l Ins. Co., 178 Ariz. 264, 268, 872 

P.2d 668, 672 (1994). We also construe related regulations together. Ariz. 

Dep’t of Revenue v. Action Marine, Inc., 218 Ariz. 141, 143, ¶ 10, 181 P.3d 

188, 190 (2008); see also State v. Seyrafi, 201 Ariz. 147, 150, ¶ 13, 32 P.3d 430, 

433 (App. 2001) (statutory provisions are construed in context with related 

provisions and in light of their place in the statutory scheme). 

¶15 The Code clearly distinguishes between walkways and 

tracks. There are separate and, to some extent, mutually exclusive

requirements for walkways, listed in Rule 110, and tracks, listed in A.A.C 

R14-5-109 (“Rule 109”). Compare A.A.C. R14-5-110 (“Walkway and 

Clearance Standards”) with A.A.C. R14-5-109 (“Industrial Track 

Standards”). Rule 110, as discussed supra ¶ 12, requires walkways to have 

a “uniform regular surface with a gradual slope not to exceed 1 inch rise 

in 8 inches.” A.A.C. R14-5-110(A)(2)(a). Rule 109, on the other hand, 

dictates a maximum grade of 2% for track structures and identifies 

components and surfaces that, by their very nature, cannot comprise a 

“uniform regular surface.” See A.A.C. R14-5-109(B) (setting standards for 
WINCKLER v. BNSF

Decision of the Court

6

items such as ballast, wood crossties, steel rails, metal tie plates, metal 

anchors, and spikes). Rule 109 addresses ties and ballast in depth, 

whereas Rule 110 does not mention such track components. Compare

A.A.C. R14-5-109(B)(4)-(6) with A.A.C. R14-5-110. 

¶16 Winckler suggests he was injured on a walkway because he 

stepped partially onto a crosstie and partially onto ballast. We disagree. 

The railroad tie he stepped on was part of the track, as Winckler’s own 

expert conceded. And Rule 109, which governs tracks, mandates that 

“track ballast” extend 6 inches beyond the ends of the ties. A.A.C. 

R14-5-109(B)(4)(e). Winckler does not claim he stepped more than six 

inches beyond the end of a crosstie. Cf. Davis v. Union Pac. R.R. Co., 598 F. 

Supp. 2d 955 (E.D. Ark. 2009) (plaintiff who rolled ankle walking on loose 

ballast was injured in area that did not “support any track or track bed,”

so FELA claim was not preempted). Furthermore, the Code dictates 

different standards for track ballast and walkway ballast. See A.A.C. 

R14-5-109(B)(4)(a) (“Ballast material used in industrial tracks shall be not 

less than 3⁄4 of an inch to 11⁄2 inches.”); A.A.C. R14-5-110(A)(3) (“In areas 

where heavy foot traffic exists, such as train yards[,] . . . the uniform 

surface material used shall be no larger than 3/8 inch fines.”). 

¶17 Winckler emphasizes that some crossties in the area 

extended farther from the rail center line than others, including the one he 

stepped on. However, the Code specifies only a minimum length for ties, 

not a maximum length. See A.A.C. R14-5-109(B)(5)(d). Winckler has cited 

no legal authority suggesting that extended ties are not part of the track, 

and we are aware of none. The length of the crosstie may be relevant to 

the negligence claim, which alleges BNSF failed to provide a reasonably 

safe workplace, but it does not support Winckler’s contention that his 

injury occurred on a walkway. 

¶18 Winckler’s reliance on A.A.C. R14-5-116 app. 5 (“Appendix

5”) is similarly unavailing. Rule 110 incorporates the measurement and 

clearance standards shown in Appendix 5, which includes a diagram for 

“Walkways in [Train] Yards.” See A.A.C. R14-5-110(A)(4), -116 app. 5. 

Appendix 5, though, does not establish what areas constitute a walkway.

It also dictates no endpoint for the track structure. At most, Appendix 5 

reflects the track shoulder should measure 8’6” from the center of the 

track and 6’ from the rail. Such dimensions are designed to ensure safe 

clearance from passing trains. See A.A.C. R14-5-110(A)(4), (B)(3), -116 app. 

5. Holding that walkways may extend onto crossties is not only 

unsupported by the Code, but would run afoul of clearance standards 

designed to prevent injuries from moving trains. Cf. Norfolk & W. Ry. Co. 
WINCKLER v. BNSF

Decision of the Court

7

v. Burns, 587 F. Supp. 161, 170 (E.D. Mich. 1984) (“[A] walkway really is 

that clear area between parallel rails which is not occupied by the cars 

which overhang the track themselves, and is really the area in which one 

could safely walk without getting hit by a railroad car or an appurtenance 

thereto.”). 

¶19 Winckler’s position at trial that a walkway exists anywhere 

an employee dismounts from a train is unsupported by any legal 

authority. Moreover, such an interpretation would implicitly modify the 

language of Rule 110 requiring walkways “adjacent to tracks” to read 

“adjacent to rails.”2 Courts “are not at liberty to rewrite [statutes] under 

the guise of judicial interpretation.” New Sun Bus. Park, LLC v. Yuma 

Cnty., 221 Ariz. 43, 47, ¶ 16, 209 P.3d 179, 183 (App. 2009).

¶20 We agree with the superior court that “whether the location 

of [Winckler’s] accident was a walkway under [Rule 110] is a question of 

law and statutory construction, not an issue of fact.” But based on our de 

novo review, we conclude Winckler was injured on the track and not on a 

walkway subject to Rule 110. As such, BNSF was entitled to summary 

judgment on the regulatory claim. 

II. New Trial Request 

¶21 A new trial may be granted for “[i]rregularity in the 

proceedings of the court . . . whereby the moving party was deprived of a 

fair trial” and for error in the admission of evidence. Ariz. R. Civ. P. 

59(a)(1). A new trial should be granted when “there has been some error 

in the conduct of the original trial which, in all probability, has affected 

the verdict.” S. Ariz. Freight Lines v. Jackson, 48 Ariz. 509, 512, 63 P.2d 193, 

195 (1936). Appellate courts give greater deference to an order granting a 

new trial than to an order denying one. Sadler v. Ariz. Flour Mills Co., 58 

 

2 Although we do not reach BNSF’s preemption argument, defining a 

walkway to include track components appears problematic. See FRA 

Track Safety Standards, 49 C.F.R. § 213; Norfolk & W. Ry. Co., 587 F. Supp. 

at 169 (“Insofar as rails and track surface, including cross ties and ballast 

and all adjacent switches and appurtenances are concerned, this court has 

no trouble in concluding that the federal regulations do treat this subject 

matter, that they treat it comprehensively, and that there has been a clear 

indication of an attempt to regulate in these areas in a manner which 

would preempt state regulation.”). 
WINCKLER v. BNSF

Decision of the Court

8

Ariz. 486, 490, 121 P.2d 412, 413 (1942) (order granting a new trial more 

liberally sustained because it does not finally dispose of the rights of the 

parties). We review the denial of a motion for new trial for abuse of 

discretion. Boatman v. Samaritan Health Servs., 168 Ariz. 207, 212, 812 P.2d 

1025, 1030 (App. 1990). As noted supra, ¶ 10, a court abuses its discretion 

if it commits an error of law in making a discretionary ruling. Flying 

Diamond Airpark, LLC, 215 Ariz. at 50, ¶ 27, 156 P.3d at 1155.

¶22 Because BNSF was entitled to summary judgment on the 

regulatory claim, evidence about Rule 110 should not have been admitted

at trial unless Winckler could demonstrate its relevance to the negligence 

claim. Ariz. R. Evid. 401. And once the court entered JMOL against 

Winckler on the regulatory claim, the jury could only consider evidence 

that was relevant to the negligence claim. 

¶23 BNSF contends Winckler made Rule 110 “the central claim, 

argument, and evidence of his case at trial,” such that it “permeated every 

aspect of his claim” and was “unduly prejudicial.” We agree that 

Winckler relied on Rule 110 early and often at trial. Immediately after 

greeting jurors in his opening statement, Winckler’s counsel stated:

An employer, property [owner] has a duty and a 

responsibility to make sure that their employees are not 

exposed to an unreasonable risk of harm in the walkways 

and the areas where their employees are expected to work. 

In this case, the evidence goes beyond that. Specifically, 

there’s evidence that the State of Arizona has specific 

standards for railroads requiring that railroads provide 

reasonably regular walkways in areas where their 

employees are expected to work alongside their trains, their 

engines and their equipment. The purpose for that is to 

make sure that the employees are not exposed to 

unnecessary harm.

Later portions of Winckler’s opening statement echoed this theme:

The regulations which you’ll hear about in this evidence 

were designed specifically to make sure those employees can 

get off railroad equipment onto the ground to perform their 

tasks for the railroad without the exposure to unreasonable 

risk of harm. . . . 
WINCKLER v. BNSF

Decision of the Court

9

[Mr. Winckler] turned his ankle because the railroad failed 

to provide ballast – the rock – up to the level of the tie which 

was in the walkway causing the walkway to be, to not be 

reasonably regular, which the Arizona statute requires and 

causing the ankle to turn. . . . 

You’ll hear testimony of managers who didn’t know about 

the Arizona walkway standards; managers who didn’t know 

how to check to make sure that the ballast was sufficient so 

that the employees didn’t get hurt so the employees 

wouldn’t unnecessarily be exposed to hazards which would 

cause slips, trips or falls. . . . 

And we believe that we will provide you with sufficient 

evidence to be able to support Mr. Winckler’s burden in this 

case that it’s more likely true than not that he was injured as 

a result of the railroad’s negligence, violating walkway 

standards and the nature and scope of his harm.

¶24 Winckler repeatedly questioned witnesses about Rule 110. 

Over BNSF’s foundation and relevance objections, a copy of Rule 110 was

admitted into evidence, and Winckler’s expert witness, Ray Duffany, 

discussed it in some depth. Duffany told jurors that Winckler was injured 

on a walkway and that the site of his injury was out of compliance with 

“Arizona Walkway Standards.”

¶25 After the JMOL on the regulatory claim, the only possible 

relevance of Rule 110 was to serve as evidence regarding BNSF’s duty to 

provide a reasonably safe workplace. There was, however, insufficient 

foundation (or a showing of relevance) establishing that Rule 110’s

walkway standards are co-extensive with the duty of ordinary care for 

non-walkway areas.3 Indeed, as discussed supra, ¶ 15, by their very nature, 

 

3 We express no opinion about whether evidence regarding Rule 110 

will be admissible at the new trial. Winckler will obviously need to 

establish the foundation for and relevance of such evidence if he wishes to 

introduce it. See, e.g., Peterson v. Salt River Project Agric. Improvement & 

Power Dist., 96 Ariz. 1, 8, 391 P.2d 567, 571 (1964) (“Evidence of noncompliance is generally admissible where the statute is a relevant safety 

statute.”); Wendland v. Adobeair, Inc., 223 Ariz. 199, 205, 221 P.3d 390, 396 

(App. 2009) (OSHA rule “may be considered as some evidence of the 

standard of care,” even though not binding on the defendant, if “sufficient 
WINCKLER v. BNSF

Decision of the Court

10

tracks cannot satisfy certain Rule 110 standards. Moreover, BNSF was 

prevented from questioning its witnesses about application of the 

walkway standards to the area in question. For example, when BNSF’s 

counsel asked John Bosshart, director of track standards and procedures, 

whether the walkway standards applied to the location of Winckler’s 

injury, Winckler’s counsel objected, and the court sustained his objections. 

¶26 We have also considered the closing arguments of counsel in

assessing whether BNSF was deprived of a fair trial. Cf. State v. 

Bruggeman, 161 Ariz. 508, 510, 779 P.2d 823, 825 (App. 1989) (closing 

arguments may be taken into account when assessing adequacy of jury 

instructions). Consistent with his heavy reliance on Rule 110 throughout 

trial, Winckler’s counsel mentioned the rule repeatedly in closing 

arguments and directed jurors’ attention to the state requirements for 

walkways. He also told the jury it would not be asked to determine 

whether BNSF “violated the walkway standard, because they – it’s 

basically a technicality.” (Emphasis added.) Referring to Rule 110, and 

notwithstanding the dismissal of the regulatory claim, Winckler argued 

BNSF had violated the law, stating:

[T]he railroads not only have their own walkway 

responsibilities, but there [are] many different states that 

have walkway standards as well. They’ve got to be familiar 

with them. They’ve got to know them. . . . Interestingly 

enough, just about every other [BNSF] manager out there we 

talked to really wasn’t familiar with law that applies to the 

railroad. And I submit to you, ladies and gentlemen, 

nobody here is above the law.

With regard to the Arizona walkway standard . . . just about 

everybody [from BNSF] didn’t know much about it, hadn’t 

even heard of it.

¶27 Faced with a significant last-minute change in the 

substantive claims the jury could consider, the superior court obviously 

did its best to address the altered legal landscape and to salvage the trial. 

 

foundation” establishes the standard “is directly related to the exercise of 

reasonable care” and “a reasonable nexus exists between the proffered 

standard and the circumstances of the injury.”). 
WINCKLER v. BNSF

Decision of the Court

11

The reality, though, is that jurors had participated in a lengthy trial that 

focused repeatedly on Rule 110 and its requirements for walkways. The 

court noted this reality after granting JMOL, observing that Rule 110 was 

“in evidence” and had “been talked about a lot.” And the potential for 

confusion and/or misuse of evidence is not merely theoretical. Before 

Winckler’s rebuttal closing argument, a juror submitted the following 

written question to the court:

If the Arizona track law [Rule 110] is not to be considered, 

why is it in evidence but not to be used? Has it been 

removed from the evidence? 

The court responded, “The Arizona regulation is in evidence, and it can be 

considered in connection with your negligence determination. However, 

it is not a law that governs this case.” 

¶28 We decline Winckler’s invitation to conclude that BNSF 

waived any objection to jurors considering Rule 110 evidence on the 

negligence claim. The tenet that arguments not made in the trial court 

may not be asserted on appeal is procedural, not jurisdictional, and we 

have discretion about whether to apply the doctrine. City of Tempe v. 

Fleming, 168 Ariz. 454, 456, 815 P.2d 1, 3 (App. 1991). This is not a 

situation where an objection by BNSF would have offered Winckler an 

opportunity to cure the claimed deficiency through presentation of 

additional evidence. The evidentiary phase of trial was closed. More 

fundamentally, by the time the superior court entered JMOL on the 

regulatory claim, BNSF had repeatedly lost on the issue of whether 

Winckler’s injury occurred on a walkway. Asking the court to preclude 

Rule 110 as evidence of negligence because the injury did not occur on a 

walkway would have been a futile act.4 Cf. Coronado Co., Inc. v. Jacome’s 

 

4 On numerous occasions during trial, the court reiterated its ruling that 

the area at issue was a walkway, including the following statements:

 “I’m not going to change the underlying ruling. So we’re still stuck 

with the walkway standards apply.” 

 “I believe that that area is a walkway, and I’ve already indicated 

that.” 

 “[A]s you know, I’ve already found that the area adjacent to the 

track was a walkway and that the standards, at least as to that, that 

the standards are applicable.” 
WINCKLER v. BNSF

Decision of the Court

12

Dep’t Store, Inc., 129 Ariz. 137, 140, 629 P.2d 553, 556 (App. 1981) (“The law 

does not require a futile act.”). For all of these reasons, we decline to 

apply the doctrine of waiver so as to foreclose BNSF’s challenges to the 

admission of Rule 110 evidence on the negligence claim.

CONCLUSION5

¶29 The existence of the regulatory claim at trial, the extensive 

evidence and argument about Rule 110 and walkways, the juror confusion 

over the role of the regulation, the lack of foundation for or demonstrated 

relevance of Rule 110 vis-à-vis the negligence claim, and Winckler’s 

closing arguments, considered together, deprived BNSF of a fair trial. We 

therefore vacate the judgment in favor of Winckler and remand for a new 

trial on the negligence claim. We award BNSF its taxable costs on appeal 

upon compliance with ARCAP 21.

 

 “[I]n terms of whether this area is one that the walkway standards 

applies to, that part, that horse has ridden or the ship has sailed.” 

5 Based on our analysis, we need not reach the additional grounds 

for reversal urged by BNSF.