Winckler v. Bnsf ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
FILED 3-26-2015
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
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.
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WINCKLER v. BNSF
Decision of the Court
¶5 A 12-day jury trial ensued. At the close of Winckler’s case-
in-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
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Decision of the Court
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.
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Decision of the Court
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
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WINCKLER v. BNSF
Decision of the Court
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 ¾ of an inch to 1½ 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.
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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.”).
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Decision of the Court
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. . . .
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WINCKLER v. BNSF
Decision of the Court
[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 non-
compliance 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
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WINCKLER v. BNSF
Decision of the Court
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.”).
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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.”
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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.
:ama
 “[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.
12