F I LED

United States Court of Appeals

Tenth Circuit

July 3, 2007

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DAVID BEUGLER and DIANA

BEUGLER,

Plaintiffs-Appellants,

v. No. 06-5093

BURLINGTON NORTHERN &

SANTA FE RAILWAY COMPANY,

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

(D.C. NO. 03-CV-0626-CVE-FHM)

Charles W. Armbruster III, Michael T. Blotevogel, Gail G. Renshsaw, Wood

River, Illinois, and Robert Mitchell, Oklahoma City, Oklahoma, for PlaintiffsAppellants.

Juliet N. Brennan, A. Camp Bonds, Jr., Muskogee, Oklahoma, for DefendantAppellee.

Before McCONNELL, McKAY, and TYMKOVICH, Circuit Judges.

McCONNELL, Circuit Judge.

While lifting a railroad crossing gate, appellant David Beugler, a railroad

conductor for Union Pacific, injured his neck and back by turning his body in
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response to a truck horn. He sued another railroad, appellee Burlington Northern

& Santa Fe Railway Company, for negligence, claiming that it was responsible

for his injuries because he had to lift the gates while a Burlington Northern crew

fixed a section of broken Union Pacific track. We hold that Burlington Northern

did not have a common law duty to protect Mr. Beugler from injury in these

circumstances. We therefore affirm the district court’s order granting summary

judgment to Burlington Northern.

I.

On December 9, 2002, Mr. Beugler was conducting a train from Kansas to

Arkansas when he encountered a problem at an interlocker—an intersection of a

north-south railroad track and an east-west track—in Vinita, Oklahoma. The

interlocker was shared by Union Pacific, his employer, and appellant Burlington

Northern. Earlier that morning, two Burlington Northern employees had noticed a

ten- to twelve-foot section of broken rail on Union Pacific’s side of the

interlocker. A Burlington Northern crew arrived to fix the track because appellee

had contractual responsibility for maintaining the interlocker. The damage was

such that the crew could not repair the existing piece of track; instead, they had to

remove and replace it.

Burlington Northern’s crew had already removed the damaged track before

Mr. Beugler’s train stopped at the interlocker, so Mr. Beugler could not continue

until the repairs were finished. Mr. Beugler asked the crew how long it would
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take to finish the repairs; they estimated it would take forty-five minutes to one

hour. 

During Mr. Beugler’s discussion with the crew, Burlington Northern’s

signal maintainer approached the group and told them that “[t]he signal gates are

down at Main Street.” App. 45. This crossing was located on the Union Pacific

line a short distance down the track from the interlocker. The Main Street gates

activated, or dropped, because the removal of the interlocker track caused a break

in the electric signal circuit that controls the gate. This false activation blocked

the crossing and caused a back-up of vehicles on both sides of the rail line even

though no train was approaching. 

Burlington Northern’s signal maintainer tried to fix the false activation by

“jumping the track,” which involves rerouting the electric signal around the

damaged track to close the circuit. His efforts failed to fix the problem. Mr.

Beugler, observing these events, decided to lift the signal arms manually at the

Main Street crossing so that vehicles could proceed. He testified in his deposition

that no one told him to do this. Appellant’s App. 45. Rather, he did so because,

“being the only [Union Pacific] authority connected with the road, at that

location,” he “felt like [it] was [his] responsibility to get traffic moving” along

Main Street. Id. After his deposition concluded, Mr. Beugler testified in an

affidavit that he also lifted the gates “in an effort to prevent Union Pacific, my

employer, from being issued a citation for the obstruction of the crossing, and to
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prevent myself, personally, from being issued a citation or arrested for the

obstruction.” Id. at 401.

Mr. Beugler testified that he had lifted gates manually his “whole life,” or

at least during the entire span of his thirty-four year career with Union Pacific. 

Id. at 117. He pegged the number of times he has manually lifted crossing gates

at “more than 100.” Id. at 399–400. He also has “witnessed other Union Pacific

employees lifting crossing gates to let traffic through on more than 100 occasions

when the gates where down due to a malfunction or other reason unrelated to

motorist safety.” Id. at 400.

Thanks to Mr. Beugler’s experience, he knew that the gates would be light

enough for him to lift with one hand, even though he had to hold the gates with

his arm fully extended above his head to allow traffic to proceed through the

crossing. He first lifted the gate blocking westbound traffic, then switched to the

eastbound gate before returning to the westbound gate. At that point, a Vinita

police officer arrived and asked if he could help Mr. Beugler lift the gates so that

traffic could flow simultaneously in both directions. The officer then lifted the

gate for eastbound traffic, while Mr. Beugler continued to lift the gate for

westbound traffic. 

After Mr. Beugler had been lifting the crossing gates manually for twenty

minutes, the Burlington Northern crew finished the repair, so the crossing gates

began functioning properly. But about one to two minutes before the repair was
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finished—while Mr. Beugler was still lifting the gate for westbound traffic—he

heard a truck horn. He thought the truck driver honked “to get [his] advice on

whether the truck would be able to get through the gates.” Appellant’s Br. 21. 

Mr. Beugler, who was standing with his back to traffic, turned his neck to look at

the tip of the gate to see if the truck could proceed without striking it. In doing

so, he sustained injuries to his neck and back. Those injuries form the basis for

this lawsuit. 

Mr. Beugler sued Union Pacific under the Federal Employers’ Liability

Act, and Burlington Northern for common law negligence under Oklahoma law. 

The district court granted summary judgment in favor of Burlington Northern in

February 2005, but did not certify the judgment as final under Rule 54(b). Mr.

Beugler continued to litigate his claims against Union Pacific until December

2005, when those parties settled.

Days before settling with Union Pacific, Mr. Beugler filed a motion asking

the district court to reconsider its summary judgment order in Burlington

Northern’s favor. He alleged he had obtained evidence since Burlington Northern

was dismissed that supported his theory that his response to the false activation

was foreseeable. The district court construed his motion as one for relief under

Rule 60(b) of the Federal Rules of Civil Procedure and denied it on March 28,

2006, holding that all of Mr. Beugler’s allegedly newly discovered evidence “was

either available to the Court prior to its February 3, 2005 judgment [dismissing
We reject Burlington Northern’s argument that Mr. Beugler’s appeal is 1

untimely. See Appellee’s Br. 9, 13. The thirty-day deadline in Federal Rule of

Appellate Procedure 4(a)(1)(A) must be read in concert with Federal Rule of Civil

Procedure 54(b) and 28 U.S.C. § 1291. Our jurisdiction extends only to “final

decisions,” 28 U.S.C. § 1291, and in cases “involving multiple claims or parties,

“any order . . . which adjudicates fewer than all the claims or the rights and

liabilities of fewer than all the parties” is final—and thus appealable—only if “the

court . . . direct[s] the entry of a final judgment as to one or more but fewer than

all of the claims or parties.” Fed. R. Civ. P. 54(b).

The district court did not issue a Rule 54(b) certification. Accordingly, had

Mr. Beugler attempted to appeal the February 3, 2005, summary judgment order

dismissing Burlington Northern within thirty days of that date, we would have

lacked jurisdiction. See Heimann v. Snead, 133 F.3d 767, 769–70 (10th Cir.

1998). The time to file an appeal began to run on March 28, 2006, when the

district court issued its final order dismissing all remaining claims. Mr. Beugler

filed his notice of appeal on April 17, 2006, well within thirty days of that date. 

Mr. Beugler’s notice of appeal was therefore timely.

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Burlington Northern] or discoverable with due diligence.” Appellant’s App.

1134. The court also rejected Mr. Beugler’s argument that it misinterpreted

Oklahoma negligence law. Mr. Beugler filed a notice of appeal on April 17,

2006, appealing from the grant of summary judgment in favor of Burlington

Northern and the denial of his motion to reconsider.1

II.

A. The District Court Correctly Held that Burlington Northern Did

Not Owe Mr. Beugler a Duty of Care.

In diversity cases, federal courts apply principles of state substantive law

announced by the State’s highest court. See Salt Lake Tribune Publ’g Co. v.

Mgmt. Planning, Inc., 454 F.3d 1128, 1134 (10th Cir. 2006). “To establish

negligence liability for an injury” under Oklahoma law, “plaintiffs must prove
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that (1) defendants owed them a duty to protect them from injury, (2) defendants

breached that duty, and (3) defendants’ breach was a proximate cause of

plaintiffs’ injuries.” Iglehart v. Bd. of County Comm’rs of Rogers County, 60

P.3d 497, 502 (Okla. 2002). The district court granted summary judgment in

favor of Burlington Northern after holding that the railroad had no duty to protect

Mr. Beugler from the harm he suffered, and that Mr. Beugler failed to introduce

sufficient evidence to create a genuine issue of material fact as to proximate

cause. See Appellant’s App. 1007–08. On appeal, Mr. Beugler asks us to reverse

both of these holdings. We agree with the district court’s conclusion that

Burlington Northern did not owe Mr. Beugler a duty of care and therefore need

not address the district court’s proximate cause holding.

“The threshold question for negligence suits is whether a defendant owes a

plaintiff a duty of care.” Iglehart, 60 P.3d at 502 (emphasis omitted). This is a

question of law, id., which courts resolve by examining “the relationship between

the parties and the general risks involved in the common undertaking. . . . The

court decides whether a defendant stands in such a relationship to a plaintiff that

the defendant owes an obligation of reasonable conduct for the benefit of the

plaintiff.” Delbrel v. Doenges Bros. Ford, Inc., 913 P.2d 1318, 1320–21 (Okla.

1996). Many factors inform the duty analysis, but

the most important consideration is foreseeability. Generally a

defendant owes a duty of care to all persons who are foreseeably

endangered by his conduct with respect to all risks which make the
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conduct unreasonably dangerous. Foreseeability establishes a “zone

of risk,” which is to say that it forms a basis for assessing whether

the conduct creates a generalized and foreseeable risk of harming

others.

Iglehart, 60 P.3d at 502 (emphasis and some internal quotation marks and

footnotes omitted).

We conclude that Burlington Northern did not owe Mr. Beugler—an

employee of another railroad—a common law duty to protect him from injury in

these circumstances. Burlington Northern’s allegedly negligent conduct was

repairing the broken track in such a way as to activate the crossing gate. This

undoubtedly created a foreseeable zone of risk to a wide range of persons. But

we need not define that zone’s precise bounds in this case because, whatever they

may be, another railroad’s trained employee lifting crossing arm gates manually

so that traffic can flow is not within them.

As Mr. Beugler’s own evidence attests, railroad conductors are trained to

safely and routinely lift gates. He testified that “[a]ll [the] old head conductors

[he] ever worked with” trained him how to lift crossing gates, Appellant’s App.

139; that he had lifted gates manually more than 100 times himself, id. at 399–40;

that he had “witnessed other Union Pacific employees lift crossing gates to let

traffic through on more than 100 occasions,” id. at 400; and that because he had

lifted gates “dozens of times,” he did not foresee any possibility that he was going

to hurt himself by lifting the Main Street crossing gates, id. at 143. Other
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evidence establishes that lifting falsely activated crossing gates manually was a

routine, “common practice.” Id. at 1129–30 (affidavit of Mark Polk, a former

Union Pacific employee, who also testified that he lifted gates more than 100

times); see also id. at 945–46 (affidavit of David Spriggs, a twenty-year veteran

conductor, who testified that lifting gates manually was a “common occurrence”

that he personally performed more than twenty-five times); id. at 775 (deposition

of Richard Eldridge, a Union Pacific signal maintainer, who lifted gates “probably

50 times”).

In light of this evidence, Burlington Northern actually reduced the zone of

risk by informing Mr. Beugler of the Main Street false activation. Mr. Beugler

was a trained professional whose actions decreased the likelihood of injury to

those within that zone. An individual who suffers an ordinary and unforeseeable

work injury in course of performing his professional duties to his employer

cannot sue another person for creating the occasion for the performance of those

duties, even if that person’s action was negligent.

To be sure, Burlington Northern’s conduct in repairing the track was

certainly the first link in the chain of events that led to Mr. Beugler injuring

himself. That seems to be Mr. Beugler’s theory of how Burlington Northern was

negligent. But under Oklahoma law, that is insufficient to establish the existence

of a duty because it does not tether the foreseeability inquiry to the anchor the

Oklahoma Supreme Court has specified: the “risks which make the conduct
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unreasonably dangerous.” Iglehart, 60 P.3d at 502 (internal quotation marks

omitted).

Burlington Northern did not have a duty to protect Mr. Beugler from all

possible injuries that might be spatially or temporally related to his stop at the

interlocker while waiting for the crew to repair the track. Instead, Burlington

Northern had a duty to protect him only from injuries traceable to “risks which

make” lifting the gates “unreasonably dangerous.” By Mr. Beugler’s own

evidence, it is not unreasonably dangerous for an experienced railroad employee

to lift a crossing arm at a down-track railroad crossing; he has done this all his

life and so have many others. 

We point out in conclusion that this opinion discusses only Burlington

Northern’s common law duties because Mr. Beugler sought damages only for

common law negligence. We do not address what effect, if any, the Federal

Railroad Safety Act and regulations promulgated thereunder might have on this

case. Cf. Mauldin v. Worldcom, Inc., 263 F.3d 1205, 1211 (10th Cir. 2001)

(declining to consider ERISA preemption where the parties failed to brief the

issue). 

B. The District Court Did Not Abuse Its Discretion by Denying Mr.

Beugler’s Rule 60(b) Motion.

Finally, we address Mr. Beugler’s contention that the district court erred by

denying his Rule 60(b) motion. “Our task upon review” of a district court’s
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denial of a Rule 60(b) motion “is to determine only whether the district court

abused its discretion in denying such relief.” Pelican Prod. Corp. v. Marino, 893

F.2d 1143, 1145 (10th Cir. 1990). When doing so, we are mindful that Rule 60(b)

“relief is extraordinary and may only be granted in exceptional circumstances.” 

Amoco Oil Co. v. EPA, 231 F.3d 694, 697 (10th Cir. 2000) (internal quotation

marks omitted).

After reviewing the record, we are convinced that the district court’s ruling

was not an abuse of discretion. We agree with the district court’s conclusion that

the bulk of the “newly discovered evidence”—various affidavits and depositions

and Mr. Beugler’s responses to interrogatories, Appellant’s App. 1133–34—was

not in fact “new” because it was known or discoverable before the court entered

summary judgment in favor of Burlington Northern. Appellant is correct that the

Public Law Board ruling in favor of Mr. Beugler was entered on March 25, 2005,

nearly two months after the court granted summary judgment to Burlington

Northern. The district court was nonetheless within its discretion to deny the Rule

60(b) motion, however, because the Public Law Board’s ruling simply finds that

Union Pacific violated Mr. Beugler’s employment agreement. That finding is

irrelevant to the dispositive question in this case: whether, and to what extent,

Burlington Northern owed Mr. Beugler a duty of care. 
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The circumstances of this case are far from those exceptional enough to

warrant Rule 60(b) relief. We therefore affirm the district court’s denial of Mr.

Beugler’s motion.

III.

The judgment of the district court is AFFIRMED.