United States Court of Appeals

For the Eighth Circuit

___________________________

No. 15-1373

___________________________

Soo Line Railroad Company, a Minnesota corporation, doing business as

Canadian Pacific

lllllllllllllllllllll Plaintiff - Appellant

v.

Werner Enterprises

lllllllllllllllllllll Defendant - Appellee

____________

Appeal from United States District Court 

for the District of Minnesota - Minneapolis

____________

 Submitted: October 22, 2015

 Filed: June 7, 2016

____________

Before WOLLMAN, BYE, and GRUENDER, Circuit Judges.

1

____________

WOLLMAN, Circuit Judge.

A truck driven by a Werner Enterprises (Werner) employee struck a train

operated by Soo Line Railroad Company, doing business as Canadian Pacific

This opinion is being filed by Judge Wollman and Judge Gruender pursuant

1

to 8th Cir. Rule 47E.
(Canadian Pacific), causing a tanker car to spill the chemical it was carrying. 

Canadian Pacific sued Werner for the clean-up costs under theories of trespass,

nuisance, and negligence. The district court granted summary judgment to Werner 2

on the trespass and nuisance claims, and the case proceeded to trial on the negligence

claim. The jury returned a verdict for Werner, and the district court denied Canadian

Pacific’s motion for judgment as a matter of law or for a new trial. Canadian Pacific

appeals, arguing that the district court erred in granting summary judgment on its

trespass and nuisance claims, in denying its motion for summary judgment, in

denying its post-trial motion, and in instructing the jury. We affirm. 3

I.

At approximately 3:20 a.m. on March 31, 2012, Dale Buzzell was driving a

Werner-owned truck northbound on U.S. Highway 59 toward Plummer, Minnesota. 

At the same time, a train operated by Canadian Pacific, which consisted of some 106

cars and a head-end and a trailing locomotive, was in the process of switching from

one track to another in order to make room for another train headed in the opposite

direction. The track that the train was switching to intersected with Highway 59. As

the train approached the intersection, it wastraveling at approximately five miles per

hour to the southeast, and its engineer sounded the train’s horn multiple times to

signal the train’s presence at the intersection. The intersection was equipped with

crossing-guard signals, which began flashing asthe train approached the intersection,

and the locomotive was equipped with two sets of headlightsthat illuminated the area

ahead of the train for approximately one-half mile.

The Honorable David S. Doty, United States District Judge for the District of 2

Minnesota.

We grant Canadian Pacific’s motion to supplement the record with the

3

redacted version of Dr. Thomas Young’s deposition transcript.

-2-
South of the highway-railroad intersection, Highway 59 curves slightly to the

right for northbound drivers and straightens out approximately 535 feet from the

intersection. Buzzell successfully navigated the curve leading to the railroad

crossing, but did not slow down after the curve. He struck the ninth car of the train

at approximately fifty-five miles per hour, derailing the train and puncturing the

tanker car, which spilled aromatic concentrate (a 50% benzene solution) on the

ground. Buzzell’s truck caught fire, causing Buzzell to die from smoke inhalation. 

Emergency responders extinguished the fire using chemical foam and water. 

The train’s engineer, conductor, and a superintendent for Canadian Pacific testified

that they observed skid marks leading up to the intersection, indicating that Buzzell

had attempted to swerve to avoid the collision. State police completed a fatality

report and an accident reconstruction report. The reconstruction report noted no skid

marks or other evidence that Buzzell had attempted to avoid the collision. Dr. Mark

Koponen, the medical examiner who performed Buzzell’s autopsy, concluded that he

died fromsmoke inhalation soon after the collision. The autopsy further revealed that

Buzzell’s heart exhibited signs that a blood clot had obstructed the blood flow in

Buzzell’s right coronary artery,which indicated the beginning stages of a heart attack. 

Dr. Koponen testified that the blood clot occurred before the collision and that it

could have caused Buzzell to become incapacitated, but that he might not have

experienced symptoms before becoming incapacitated. After ruling out other

possible causes of the accident, including the possibility that the truck had

experienced a mechanical failure, thatBuzzell had committed suicide, or that Buzzell

had been distracted or had fallen asleep, Dr. Koponen concluded that the “totality of

the evidence” indicated that the collision was caused by Buzzell’s experiencing “an

acute cardiac event which led to his inability to control his motor vehicle.”

Canadian Pacific incurred costs of $7.76 million in cleaning the hazardous

materials from the accidentsite. After Werner refused a request for indemnification,

Canadian Pacific brought suit, alleging that Werner was vicariously liable for the

-3-
damages caused by Buzzell’s negligence and directly liable for its negligent

supervision and retention of Buzzell. Canadian Pacific later amended its complaint

to include nuisance and trespass claims.

Before the parties completed discovery, Canadian Pacific moved for summary 

judgment on all of its claims, arguing that Buzzell violated state traffic laws requiring

drivers to yield to trains at a crossing and that the state-law violation constituted per

se negligence. The district court denied the motion, holding that violations of state

traffic laws are only prima facie evidence of negligence and that genuine disputes of

materialfact remained with respect to each of Canadian Pacific’s claims. At the close

of discovery, Werner moved for summary judgment on all claims, arguing that

Canadian Pacific had not presented evidence sufficient to satisfy all of the necessary

elements of its trespass and nuisance claims and that Werner’s evidence that Buzzell

was medically incapacitated at the time of the accident was sufficient to defeat

Canadian Pacific’s negligence claim. Canadian Pacific responded that Department

of Transportation (DOT) regulations promulgated under authority granted by the

Federal Motor Carrier Safety Act of 1984 § 206 (FMCSA), 49 U.S.C. § 31136,

preempted Werner’s state-law sudden-incapacitation defense. The district court

granted Werner’s motion on the nuisance and trespass claims and denied Werner’s

motion with respect to the negligence claim. It rejected Canadian Pacific’s

preemption argument, but concluded that there remained a genuine dispute over

whether Buzzell was negligent.

The parties did not dispute the amount of damages, so the trial was limited to

the issue of liability. Canadian Pacific proceeded on its claim that Buzzell was

negligent in his driving and in his failure to report fatigue to his DOT-licensing

physician. Both Werner and Canadian Pacific introduced expert testimony, with

Werner’s experts supporting the sudden-incapacitation defense and Canadian

Pacific’s experts concluding that it was impossible to rule out alternative

explanations, such as driver fatigue or distraction. 

-4-
The parties also disputed the significance of Buzzell’s medical records, which

included a diagnosis of “fatigue” in his primary care doctor’s progress notes from

August 13, 2010, September 2010, and December 2011; lab results from a blood test

ordered because of the fatigue diagnosis; a list of medicationsindicating that Buzzell

took vitamin supplements for fatigue; and rehabilitation-center progress notes from

January 2012 noting that Buzzell had difficulty sleeping on his left side because of

pain in his left shoulder. None of Buzzell’s medical records, however, indicated that

Buzzell had been diagnosed with a sleep disorder, nor did they provide context for

whether his fatigue diagnosis affected his ability to drive. Canadian Pacific

introduced a medical questionnaire from Buzzell’s August 3, 2010, DOT-required

driver-fitness examination, in which Buzzell indicated that he did not experience

fainting, dizziness, “sleep disorders, pauses in breathing while asleep, daytime

sleepiness, [or] loud snoring.” Canadian Pacific presented testimony from an

occupational medical physician, who testified that Buzzell violated federal

regulations by failing to report to the DOT that his primary care physician diagnosed

him with fatigue on August 13, 2010, and that Buzzell violated the regulations by

denying having a sleep disorder during his driver-fitness medical examination with

a DOT physician ten days earlier. Werner presented testimony challenging the

accuracy of Buzzell’s medical records, highlighting that they did not provide context

for whether his fatigue diagnosis affected his ability to drive, and asserting that

Buzzell’s fatigue diagnosis did not constitute a sleep disorder.

The jury indicated on its special verdict form that Buzzell was not negligent in

operating his truck and that he was not “negligent in failing to report fatigue to his

[DOT]-licensing physician and to Werner Enterprises.” 

Canadian Pacific then moved for judgment as a matter of law or for a new trial,

arguing that Werner had not presented sufficient evidence to support its suddenincapacitation defense, that the evidence permitted only the conclusion that Buzzell

negligently failed to report a fatigue diagnosis, and that the district court had

-5-
improperly denied its per se negligence instruction for violations of federal

regulations. The district court denied the motion, and this appeal followed.

II.

A. Trespass and Nuisance Claims

Canadian Pacific challenges the district court’s grant of summary judgment to

Werner on Canadian Pacific’s trespass and nuisance claims. “We review the district

court’s grant of summary judgment de novo, viewing the record in the light most

favorable to the nonmoving party and drawing all reasonable inferences in that

party’s favor.” Bishop v. Glazier, 723 F.3d 957, 960-61 (8th Cir. 2013). Summary

judgment is proper if “there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In granting

summary judgment on Canadian Pacific’s trespass claim, the district court concluded

that Canadian Pacific had not presented any evidence that Buzzell acted with the

requisite intent. For the nuisance claim, the district court concluded that a single act

cannot constitute a nuisance under Minnesota law.

Canadian Pacific argues that it presented adequate evidence to survive

summary judgment on its trespass claim because itshowed that Buzzell intentionally

hid his fatigue diagnosis from his DOT physician. Under Minnesota law, “a trespass

is committed where a plaintiff has the ‘right of possession’ to the land at issue and

there is a ‘wrongful and unlawful entry upon such possession by defendant.’” 

Johnson v. Paynesville Farmers Union Coop. Oil Co., 817 N.W.2d 693, 701 (Minn.

2012) (quoting All Am. Foods, Inc. v. County of Aitkin, 266 N.W.2d 704, 705 (Minn.

1978)). Trespassis an intentional tort and requiresthat “a person ‘intentionally enters

. . . the land in possession of another.’” Id. (quoting Dan B. Dobbs, The Law of Torts

§ 50, at 95 (2000)). Canadian Pacific does not argue that Buzzell entered the

intersection intentionally, and its theory that Buzzell intentionally hid a fatigue

-6-
diagnosis, even if true, was insufficient to make out a trespass claim. The district

court thus properly granted summary judgment to Werner on that claim.

Canadian Pacific argues that the district court erred in its interpretation of

Minnesota nuisance law. Werner responds that the question whether a single act can

constitute a nuisance is irrelevant in light of the jury’s finding that Buzzell was not

negligent. In Minnesota, nuisance is a statutory offense. Minn. Stat. § 561.01

(“Anything which is injurious to health, or indecent or offensive to the senses, or an

obstruction to the free use of property, so as to interfere with the comfortable

enjoyment of life or property, is a nuisance.”). The Minnesota Supreme Court has

interpreted the statute to require that “there must be some kind of conduct causing the

nuisance harmwhich is‘wrongful.’” Highview N. Apartments v. County of Ramsey,

323 N.W.2d 65, 70-71 (Minn. 1982) (quoting Randall v. Vill. of Excelsior, 103

N.W.2d 131, 134 (Minn. 1960)). In Wendinger v. Forst Farms, Inc., the Minnesota

Court of Appeals concluded that the wrongful-conduct requirement was meant “to

limit the scope of nuisance liability to situations in which the defendant can be said

to be at fault,” and that the requisite fault included “intentional harms and harms

caused by negligence, [or] reckless or ultrahazardous conduct.” 662 N.W.2d 546, 551

(Minn. Ct. App. 2003) (quoting Randall, 103 N.W.2d at 134). Because negligence

was the only potential basis of wrongful conduct that was presented to the jury, its

finding that Buzzell was not negligent is fatal to Canadian Pacific’s nuisance claim.

B. Negligence Claim

Canadian Pacific argues that regulatory violations constitute negligence per se

under Minnesota law rather than only prima facie evidence of negligence and that the

regulations promulgated under the FMCSA preempt state-law defenses.

The district court held that violations of FMCSA regulations were prima facie

evidence of negligence rather than negligence per se. Under Minnesota law,

-7-
violations of state traffic laws are prima facie evidence of negligence. Minn. Stat.

§ 169.96(b) (“In all civil actions, a violation of any of the provisions of this chapter

. . . shall not be negligence per se but shall be prima facie evidence of negligence

only.”). Although the statute refers only to violations under Chapter 169, Minnesota

courts have extended the rule to violations of FMCSA regulations. Ruhland v. Smith,

Nos. C7-91-668, C4-91-675, 1991 WL 257962, at *3 (Minn. Ct. App. Dec. 10, 1991)

(“It would be anomalous to differentiate between traffic violations occurring under

Minnesota law and those occurring under federal law.”). Assuming that Canadian

Pacific preserved its negligence-per-se argument and that it was correct about the

proper standard, it nevertheless would not have been entitled to summary judgment

because a genuine dispute of material fact existed over whether Buzzell was

incapacitated at the time of the accident. See Seim v. Garavalia, 306 N.W.2d 806,

810 (Minn. 1981) (“[N]egligence per se is not liability per se.”).

Canadian Pacific argues that the regulations promulgated under the FMCSA

preempt Minnesota’ssudden-incapacitation defense. Those regulations provide rules

for the commercial trucking industry that are intended to promote highway safety. 

Under the regulations, a driver must submit to a physical exam every two years from

a DOT-certified physician, during which he must self-report any medical conditions

and thereafter, while on duty, carry his “medical examiner’s certificate that he . . . is

physically qualified to drive a commercial motor vehicle.” 49 C.F.R. §§ 391.41(a),

391.42, 391.45. Drivers with certain diagnosed heart, respiratory, or mental health

conditionsthat would interfere with the driver’s ability to operate a commercial motor

vehicle are not considered qualified. Id. § 391.41(b). Further, the regulations

prohibit commercial drivers from driving while fatigued. Id. § 392.3. Despite the

FMCSA’s broad highway-safety purpose, Congress did not intend that it preempt

state law more than necessary. See 49 U.S.C. § 31136(c)(2)(B) (requiring the

Secretary of Transportation to minimize the extent to which the department’s

regulations preempt state law). Accordingly, the regulations permit application of

state law when the federal statute and regulations are silent. 49 C.F.R. § 390.9

-8-
(“Except as otherwise specifically indicated, subchapter B of this chapter is not

intended to preclude States or subdivisions thereof from establishing or enforcing

State or local laws relating to safety, the compliance with which would not prevent

full compliance with these regulations by the person subject thereto.”). 

Federal preemption of state law can occur “through express language in a

statute,” or “through ‘field’ pre-emption or ‘conflict’ pre-emption.” Oneok, Inc. v.

Learjet, Inc., 135 S. Ct. 1591, 1595 (2015). Field preemption occurs where

“Congress . . . intended ‘to foreclose any state regulation in the area,’ irrespective of

whether state law is consistent or inconsistent with ‘federal standards.’” Id. (quoting

Arizona v. United States, 132 S. Ct. 2492, 2502 (2012)). Conflict preemption occurs

where either “compliance with both state and federal law is impossible” or “the state

law ‘stands as an obstacle to the accomplishment and execution of the full purposes

and objectives of Congress.’” Id. (quoting California v. ARC Am. Corp., 490 U.S.

93, 100, 101 (1989)). “What is a sufficient obstacle is a matter of judgment, to be

informed by examining the federal statute as a whole and identifying its purpose and

intended effects.” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 373 (2000). 

When determining whether federal law preempts state-law causes of action, we “start

with the assumption that the historic police powers of the States were not to be

superseded by the Federal Act unless that was the clear and manifest purpose of

Congress.” In re Aurora Dairy Corp. Organic Milk Mktg. & Sales Practices Litig.,

621 F.3d 781, 792 (8th Cir. 2010) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470,

485 (1996)). 

Canadian Pacific argues thatsection 392.2 ofthe FMCSA regulations expressly

preempts the sudden-incapacitation defense by providing that “if a regulation of the

Federal Motor Carrier Safety Administration imposes a higher standard of care than

that law, ordinance or regulation, the Federal Motor Carrier Safety Administration

regulation must be complied with.” 49 C.F.R. § 392.2. Canadian Pacific further

argues that the FMCSA regulations preempt the sudden-incapacitation defense

-9-
because they occupy the field of commercial-driver safety. But the suddenincapacitation defense is a defense, not a “standard of care,” and thus section 392.2

does not apply. Moreover, in light of Congress’s express intent to avoid preemption

ofstate law, 49 U.S.C. § 31136(c)(2)(B); see also 49 C.F.R. § 390.9, we conclude that

the FMCSA regulations do not foreclose state-law defenses to negligence claims.

Canadian Pacific argues that Minnesota’s sudden-incapacitation defense

conflicts with the FMCSA’s purpose of promoting roadway safety by undermining

the regulations’ preventive measures. But the sudden-incapacitation defense is not

an obstacle to the FMCSA’s purpose and effects because the FMCSA is intended to

reduce preventable highwayaccidents, and the sudden-incapacitation defense excuses

only unforeseeable incapacitation. See Luke v. City of Anoka, 151 N.W.2d 429, 434

(Minn. 1967) (explaining that “no person . . . may be held liable for an accident . . .

which could not have been reasonably foreseen or prevented by the exercise of

reasonable care”). Canadian Pacific asserts that Luke does not apply because it held

drivers only to the reasonable-care standard, while the FMCSA imposes a higher

standard of care, requiring commercial drivers to mitigate the risks of medical

emergencies. Regardless of the standard of care, however, sudden-incapacitation is

available as a defense and does not interfere with the FMCSA’s purposes.

Canadian Pacific argues that it is entitled to judgment as a matter of law on its

negligence claimbecause Werner did not present evidence sufficient for a reasonable

jury to conclude that Buzzell was suddenly incapacitated. We review de novo the

district court’s denial of a motion for judgment as a matter of law. Lee ex rel. Lee v.

Borders, 764 F.3d 966, 971 (8th Cir. 2014). “In reviewing the sufficiency of the

evidence to support the jury’s verdict, we interpret the record in a light most favorable

to the prevailing party, affirming unless no reasonable juror could have reached the

same conclusion.” Jackson v. City of Hot Springs, 751 F.3d 855, 860 (8th Cir. 2014)

(quoting Structural Polymer Grp., Ltd. v. Zoltek Corp., 543 F.3d 987, 991 (8th Cir.

2008)). Werner introduced the expert testimony of Dr. Shannon Mackey-Bojack, a

-10-
cardiovascular pathologist, and, as earlier set forth, Dr. Koponen, the medical

examiner who performed the autopsy onBuzzell’s body. Both doctors concluded that

Buzzell suffered from“an acute cardiac event” that caused himto lose consciousness,

which ultimately caused the truck he was driving to collide with the train. In reaching

that conclusion, both testified that, after taking into account the state’s accident

reconstruction report and other available documents, they had ruled out other

potential explanations for the collision, including mechanical failure, suicide,

distraction, and driver fatigue. Werner also introduced expert testimony from Ken

Drevnick, an accidentreconstructionist,who testified that incapacitation wasthe most

likely cause of the collision. In reaching that conclusion, Drevnick reviewed the

medical examiner’s report and the state trooper’s investigation report and opined that

Buzzell did not apply the truck’s brakes before hitting the train, that it was unlikely

that water or firefighting foam would wash away skid marks, and that sudden

incapacitation was the only plausible explanation for the collision. Canadian

Pacific’s experts concluded that there wasinsufficient evidence to rule out alternative

explanations and that there could have been skid marks indicating a last-second

avoidance maneuver. This testimony did not entitle Canadian Pacific to judgment as

a matter of law, however, and when viewed in the light most favorable to Werner, the

evidence was sufficient to enable a reasonable jury to find that Buzzell was

incapacitated and therefore not negligent in operating his truck.

Canadian Pacific argues in the alternative that it is entitled to judgment as a

matter of law on its claim that Buzzell violated FMCSA regulations by failing to

disclose his fatigue diagnosis to a DOT physician. Werner presented testimony from

Jamie Maus, Werner’s Vice President of Safety and Compliance, who stated that

under company policy and federal regulations, Buzzell was required to report

potential fatigue problems only if his doctor ordered a sleep study, diagnosed him

with a sleep disorder, or placed him on a work restriction, and that he was not

required to report fatigue that developed after his examination by a DOT physician

unless fatigue would have “impair[ed] his ability to safely operate a vehicle.” 

-11-
Moreover, Werner disputed the accuracy of Buzzell’s medical records, suggesting

that the fatigue diagnosis was listed as an active problem in his medical record only

because of a clerical error and noting that his primary care physician did not include

any treatment notes discussing the fatigue diagnosis, that fatigue is not a sleep

disorder and was not listed on the DOT questionnaire, and that Buzzell’s medical

records lacked sufficient detail to determine whether Buzzell experienced fatigue

while driving. Taken in the light most favorable to Werner, this evidence was

sufficient to enable a reasonable jury to find that Buzzell did not suffer from a

condition that he was required to report and that he thus was not negligent in not

reporting his fatigue to Werner or the DOT.

C. Jury Instructions

Canadian Pacific argues that the district court abused its discretion when it did

not instruct the jury: “Violation of a federal regulation is negligence per se, unless

the violator proves by a preponderance of the evidence that the federal regulatory

violation was an act of God.” The district court instructed the jury: “Violations of

a traffic law or regulation is negligence, unlessthere is evidence tending [to] show . . .

the person had a reasonable excuse or justification for breaking the law.” In denying

Canadian Pacific’s motion for a new trial, the district court concluded that the

instruction Canadian Pacific requested was an incorrect statement of the law because

violations of federal regulations are prima facie evidence of negligence. “We review

a district court’s jury instructions for abuse of discretion.” Mems v. City of St. Paul,

Dep’t of Fire & Safety Servs., 327 F.3d 771, 781 (8th Cir. 2003). “Our review is

limited in scope: we ask ‘whether the instructions, taken as a whole and viewed in

the light of the evidence and applicable law, fairly and adequately submitted the

issues in the case to the jury.’” Id. (quoting Wheeling Pittsburgh Steel Corp. v.

Beelman River Terminals, Inc., 254 F.3d 706, 711 (8th Cir. 2001)). The primary

issue at trial was whether Buzzell was incapacitated when his truck collided with

Canadian Pacific’s train, i.e., whether a reasonable excuse or justification existed to

-12-
explain the accident. We conclude that the district court’s instructions adequately

submitted the issues to the jury and that it did not abuse its discretion in denying the

requested instruction.

III.

The judgment is affirmed.

______________________________

-13-