{ "id": 12166358, "name": "ROSEMARY PAEZ and REY PAEZ, Plaintiffs-Appellants, v. BURLINGTON NORTHERN SANTA FE RAILWAY, MIKE A. ORTEGA, HECTOR L. DURAN, COUNTY OF SOCORRO, by and through its COMMISSIONERS, ROSALIND TRIPP, JAY SANTILLANES, LAUREL ARMIJO, CHARLES GALLEGOS, and STANLEY HERRERA, Defendants-Appellees", "name_abbreviation": "Paez v. Burlington Northern Santa Fe Railway ex rel. Commissioners", "decision_date": "2015-08-13", "docket_number": "Docket No. 32,105", "first_page": "11", "last_page": "30", "citations": [ { "type": "official", "cite": "2015-NMCA-112" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "2005-NMCA-045", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 929193 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0339-01" ] }, { "cite": "95 N.M. 670", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575514 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/95/0670-01" ] }, { "cite": "1980-NMCA-056", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0 }, { "cite": "88 N.M. 527", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2839428 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/88/0527-01" ] }, { "cite": "1975-NMSC-066", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 16" } ], "opinion_index": 0 }, { "cite": "2003-NMCA-085", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 77177 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 43" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0077-01" ] }, { "cite": "2003-NMCA-062", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 15664 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 24" } ], "opinion_index": 0, "case_paths": [ "/nm/133/0669-01" ] }, { "cite": "742 F. 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Supp. 2d", "case_ids": [ 4159621 ], "year": 2010, "pin_cites": [ { "page": "171", "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/742/0167-01" ] }, { "cite": "80 N.M. 766", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5354205 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0766-01" ] }, { "cite": "1969-NMSC-163", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0 }, { "cite": "350 P.3d 1234", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2015-NMCA-065", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4363334 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 26" }, { "page": "\u00b6 26" }, { "page": "\u00b6\u00b6 1,21" }, { "page": "\u00b6 26" }, { "page": "\u00b6 26" } ], "opinion_index": 0, "case_paths": [ "/nm-app/8/0095-01" ] }, { "cite": "705 F.3d 531", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 3660294 ], "weight": 2, "year": 2013, "pin_cites": [ { "page": "538-39" }, { "page": "538", "parenthetical": "\"[W]here photographs and undisputed measurements establish that a driver approaching the crossing would have had an unobstructed view of an oncoming train, . . . trial courts [are instructed] to grant judgment as a matter of law.\"" } ], "opinion_index": 0, "case_paths": [ "/f3d/705/0531-01" ] }, { "cite": "276 P.3d 973", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMCA-040", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4188477 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 9" }, { "page": "\u00b6 10" }, { "page": "\u00b6 8" }, { "page": "\u00b6\u00b6 3, 10" } ], "opinion_index": 0, "case_paths": [ "/nm-app/1/0562-01" ] }, { "cite": "550 U.S. 372", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3555943 ], "weight": 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"pagerank": { "raw": 4.3341757668126914e-08, "percentile": 0.2727388739652389 }, "sha256": "479142040dc4692538180f8056c330f14f2878f416cefd62cc6a6b2d34badca2", "simhash": "1:d3c2e782cc9104dd", "word_count": 6613 }, "last_updated": "2023-07-14T22:30:56.942854+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "J. MILES HANISEE, Judge", "JONATHAN B. SUTIN, Judge", "M. MONICA ZAMORA, Judge" ], "parties": [ "ROSEMARY PAEZ and REY PAEZ, Plaintiffs-Appellants, v. BURLINGTON NORTHERN SANTA FE RAILWAY, MIKE A. ORTEGA, HECTOR L. DURAN, COUNTY OF SOCORRO, by and through its COMMISSIONERS, ROSALIND TRIPP, JAY SANTILLANES, LAUREL ARMIJO, CHARLES GALLEGOS, and STANLEY HERRERA, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nHANISEE, Judge.\n{1} While driving her vehicle in Socorro County (the County), Rosemary Paez collided with a train owned and operated by Burlington Northern Santa Fe Railway (BNSF). Mrs. Paez and her husband, Rey Paez (Plaintiffs) filed a civil lawsuit against BNSF and the County (Defendants), among others. Defendants filed numerous motions for partial summary judgment. After multiple hearings, the district court granted summary judgment as to each motion, ultimately disposing entirely of Plaintiffs\u2019 negligence claims against Defendants. Plaintiffs appeal, arguing that disputed issues of material fact precluded summary judgment. We affirm.\nBACKGROUND\n{2} This case arises from a 2008 collision in Socorro County between a train, owned and operated by BNSF, and a vehicle driven by Mrs. Paez. The collision occurred at a railroad crossing known as the Paizalas Road crossing (the crossing), located within walking distance of Plaintiffs\u2019 property. Mrs. Paez was badly injured in the collision, and she and her husband sued Defendants, BNSF\u2019s train operators, and others, on the basis of negligence, for personal injury and damages. Plaintiffs\u2019 amended complaint asserted BNSF\u2019s negligent failure to: (1) maintain a safe railroad crossing, (2) provide adequate warning devices, and (3) eliminate visual obstructions to enable motorists\u2019 \u201cclear and unobstructed view of the crossing and approaching trains.\u201d Additionally, Plaintiffs contended that in conjunction with its train operators, BNSF failed to sound the train horn, keep a proper lookout, and slow the train \u201cas required to protect the traveling public.\u201d Similarly but not identically, Plaintiffs alleged that the County failed to maintain the roadway itself in a safe condition, post adequate warning signs, and to undertake on-site measures to clear visual obstructions. In addition to general and punitive damages, Plaintiffs sought attorney fees and costs.\n{3} BNSF answered Plaintiffs\u2019 amended complaint and subsequently filed nine motions for partial summary judgment, asserting at the outset and in relevant part for purposes of this appeal, that: (1) Mrs. Paez was negligent per se in failing to yield to the train and in failing to keep a lookout; (2) Plaintiffs\u2019 claim of failure to provide adequate warning devices was preempted by federal law; (3) Plaintiffs\u2019 claim regarding the unsafe condition of the crossing was preempted by federal law and failed for lack of causation; and (4) undisputed photographic evidence established the absence of visual obstructions. Initially, the district court denied BNSF\u2019s motion for partial summary judgment premised upon Mrs. Paez\u2019s negligence per se. It granted BNSF\u2019s preemption-based motions regarding both the crossing\u2019s upkeep and the asserted inadequacy of its warning devices. The record does not reflect an initial written order regarding BNSF\u2019s challenge to Plaintiffs\u2019 visual obstruction claim. Later during the litigation, BNSF filed a renewed motion for partial summary judgment on each basis that the district court initially rejected or withheld judgment.\n{4} Along with ultimately joining BNSF\u2019s renewed motion for summary judgment, the County filed three of its own summary judgment motions, asserting that: (1) it had no statutory duty to maintain the railroad crossing area or the railroad crossing itself; (2) federal law preempted Plaintiffs\u2019 inadequate warning device claim; (3) it had no actual or constructive notice of an alleged defect or dangerous condition associated with the crossing; and (4) Plaintiffs lacked evidence that the asserted negligence against the County was the proximate cause of any damages. The district court initially denied the County\u2019s motions with the exception of its request for summary judgment on Plaintiffs\u2019 inadequate warning device claim. Consequently, not only did the County join BNSF\u2019s motion for reconsideration, but it filed its own motion to reconsider alleging more specifically that Plaintiffs were unable to prove that the County was negligent or that the alleged negligence was a proximate cause of Mrs. Paez\u2019s injuries.\n{5} The district court eventually granted the renewed motions, following lengthy proceedings and by a written order that stated there to be \u201cno genuine issue as to any material fact.\u201d In conjunction with its rulings on these and BNSF\u2019s remaining motions for summary judgment that are not before us on appeal, the district court resolved the entirety of Plaintiffs\u2019 case against Defendants. The reasoning employed by the district court is best discerned from its statements during and at the conclusion of the two-day motion hearing it held. Addressing Plaintiffs\u2019 claims regarding both the condition of and visual obstructions alongside the crossing, and considering photographic evidence provided by the parties, the district court stated:\nThe train would have been visible. When you contrast that against . . . testimony that the vegetation somehow kept one from seeing it just is not\u2014I mean, the photographs are impossible to refute. The experts that Plaintiffs have both indicate [d] . . . that they are not giving opinions on causation, that the conditions on the road caused the accident, or that. . . [the] conditions caused the accident.\nFirst with particular focus on the County, the district court observed that, \u201cvery honestly it looks [as though Plaintiffs] absolutely sorely lack[] . . . proof of causation.\u201d It later generally concluded that \u201cPlaintiffs ha[d not] proven any proximate cause on any of their claims.\u201d\n{6} The district court further found that \u201c[fjederal money was expended by [BNSF] in connection with the installation of [the] crossbucks,\u201d and therefore, Plaintiffs\u2019 claim that the crossing was extra-hazardous due to the inadequacy of warning devices was preempted by federal law. Additionally, considering Mrs. Paez\u2019s own negligence in light of the photographs it reviewed, the district court was \u201cconvinced . . . that no reasonable jury would find that [Mrs.] Paez had not violated [NMSA 1978, Section 66-7-341(A)(2) (2003),]\u201d requiring her to stop within a prescribed distance of the railroad crossing for a visibly approaching train. Therefore, it concluded \u201cas a matter of law, that [Mrs.] Paez was negligent pirrsuant to the common law duty to stop, look, and listen, and negligent per se pursuant to [Section 66-7-341].\u201d\n{7} Plaintiffs appeal, contending that the district court erred in granting summary judgment to Defendants. They argue that: (1) material facts conflict as to whether the condition of the crossing was a proximate cause of the collision; (2) material facts conflict as to whether visual obstructions alongside the crossing were a proximate cause of the collision; (3) federal law does not preempt Plaintiffs\u2019 claims regarding the adequacy of warning devices or hazardous conditions at the crossing; and (4) the district court wrongly concluded Mrs. Paez to have been negligent per se.\nSTANDARD OF REVIEW\n{8} An appeal from an order granting summary judgment presents a question of law that we review de novo. Farmington Police Officers Ass\u2019n v. City of Farmington, 2006-NMCA-077, \u00b6 13, 139 N.M. 750, 137 P.3d 1204. \u201cWe affirm an order granting summary judgment when there is no evidence raising a reasonable doubt about any genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.\u201d Lujan v. N.M. Dep\u2019t of Transp., 2015-NMCA-005, \u00b6 5, 341 P.3d 001, cert. denied, 2014-NMCERT-011, 339 P.3d 841. The moving party bears the burden to demonstrate the absence of any genuine issue of material fact. Brown v. Taylor, 1995-NMSC-050, \u00b6 8, 120 N.M. 302, 901 P.2d 720. \u201cOnce this prima facie showing has been made, the burden shifts to the non-movant to demonstrate the existence of specific evidentiary facts which would require trial on the merits.\u201d Romero v. Philip Morris Inc., 2010-NMSC-035, \u00b6 10, 148 N.M. 713, 242 P.3d 280 (internal quotation marks and citation omitted). In New Mexico, summary judgment is disfavored, with trial on the merits being the preferred method by which litigation is concluded. Id. \u00b6 8. As such, in conducting a de novo review of the record \u201cwe resolve all reasonable inferences in favor of the non-movant\u201d and view the record in the light most favorable to a trial on the merits. Lujan, 2015-NMCA-005, \u00b6 5 (alteration, internal quotation marks, and citation omitted).\nDISCUSSION\n{9} Plaintiffs sued Defendants on the basis that both had been negligent in their respective responsibilities attendant to the railroad crossing, the surrounding areas, and their upkeep. Plaintiffs likewise asserted BNSF\u2019s negligent operation of the train with which Mrs. Paez collided.\nIt is axiomatic that a negligence action requires that there be a duty owed from the defendant to the plaintiff; that based on a standard of reasonable care under the circumstances, the defendant breached that duty; and that the breach was a cause in fact and proximate cause of the plaintiffs damages.\nRomero v. Giant Stop-N-Go of N.M., Inc., 2009-NMCA-059, \u00b6 5, 146 N.M. 520, 212 P.3d 408. Here, in conjunction with its general determination that material facts were not in dispute, the district court specifically concluded that \u201cPlaintiffs [had not] proven any proximate cause [as to] any of their claims.\u201d We commence our review by examining the facts of this case in light of the element of proximate cause.\n{10} Plaintiffs assert that evidence regarding the crossing\u2019s condition, its deficient warning devices, and the presence of visual obstructions that obscured Mrs. Paez\u2019s view of the approaching train establish disputed questions of material fact. In their supplemental briefing, Plaintiffs reiterate their belief that \u201cevidence submitted to the [district] court shows that the County breached its duty to provide a safe and non-hazardous roadway at the [] crossing, and that the visual obstructions at the crossing created a dangerous condition that was a proximate cause of the collision.\u201d Regarding the crossing itself, Plaintiffs contend that its elevation was excessively disproportionate to the roadway it traversed. As well, Plaintiffs renew their contention that BNSF \u201cfailed to eliminate or remove the visual obstructions at the [] crossing, which was a proximate cause of the collision[.]\u201d\n{11} BNSF answers that Plaintiffs altogether lacked proof that its negligence in maintaining the crossing served as a legal cause of the collision. In defending itself from Plaintiffs\u2019 assertions of negligence regarding upkeep of the roadway and crossing, and the presence of visual obstructions, the County similarly answers that Plaintiffs failed to \u201cplace any causal connection between any act or omission by [the] County\u201d and the collision. Regarding the visual obstruction claim, BNSF maintains the district court bore the authority to determine that, given clear photographic evidence to the contrary, no reasonable jury could conclude that Mrs. Paez\u2019s view of the train was obstructed from the road and direction she drove prior to the collision. BNSF relies specifically on a series of photographs taken by its expert accident reconstructionist, Brian Charles, contending that the images provide irrefutable evidence that the approaching train would have been plainly apparent such that the district court was \u201cnot required to accord weight to contradictory testimony.\u201d BNSF also points to photographs obtained from one of Plaintiffs\u2019 own experts, located at pages 2650, 2651, and 2652 of the record proper, that appear to show no visual obstruction when approaching the crossing from the roadway in the direction Mrs. Paez traveled. The County agrees that given the photographic evidence, \u201cit simply becomes impossible to argue that [Mrs.] Paez could not have seen the approaching train[.]\u201d As did the district court, we focus initially upon whether evidence in the record bore the capacity to establish a material factual dispute as to the element of proximate cause.\n{12} We have defined the element of \u201cproximate cause\u201d to be \u201cthat which, in a natural or continuous sequence, produces the injury and without which the injury would not have occurred.\u201d Lujan, 2015-NMCA-005, \u00b6 35 (internal quotation marks and citation omitted). Proximate cause encompasses \u201cwhether and to what extent the defendant\u2019s conduct foreseeably and substantially caused the specific injury that actually occurred.\u201d Id. (internal quotation marks and citation omitted). \u201cAn act or omission may be deemed a \u2018proximate cause\u2019 of an injury if it contributes to bringing about the injury, if the injury would not have occurred without it, and if it is reasonably connected as a significant link to the injury.\u201d Talbott v. Roswell Hosp. Corp., 2005-NMCA-109, \u00b6 34, 138 N.M. 189, 118 P.3d 194. In the majority of circumstances, proximate cause is a question of fact to be decided by the factfinder; however, proximate cause becomes an issue of law \u201cwhen the facts are undisputed and the reasonable inferences from those facts are plain and consistent}.]\u201d Lujan, 2015-NMCA-005, \u00b6 35 (internal quotation marks and citation omitted). In order to determine that a breach of duty did not legally cause the alleged damages, the district court must conclude that no reasonable jury would find that the breach of duty by the defendant legally caused the damages suffered by the plaintiff. Rodriguez v. Del Sol Shopping Ctr. Assocs., L.P., 2014-NMSC-014, \u00b6 24, 326 P.3d 465; see Lujan, 2015-NMCA-005, \u00b6 36. However, our Supreme Court has also articulated that \u201c[c]ourts are not powerless to dismiss cases as a matter of law,\u201d and they \u201cmay still decide whether a defendant did or did not breach the duty of ordinary care as a matter of law, or that the breach of duty did not legally cause the damages alleged in the case.\u201d Rodriguez, 2014-NMSC-014, \u00b6 24. Absent the element of proximate cause, a claim for negligence fails regardless of the presence of the remaining elements of the cause of action. See Romero, 2009-NMCA-059, \u00b6 5 (stating that the absence of any element of a negligence claim is fatal to the claim).\nProximate Cause: Condition of the Crossing and Roadway\n{13} To support the existence of a disputed issue of material fact regarding the condition of the crossing being a proximate cause of the collision, Plaintiffs first directus to the deposition testimony of expert witness Alan Blackwell, a railway consultant with a background in track inspection. Mr. Blackwell testified that drivers are forced to decrease speed when approaching the crossing due to its \u201croughness},] protruding spikes},] and everything else}.]\u201d He opined that BNSF failed to maintain the crossing surface in compliance with internal and industry standards such that \u201cvehicular traffic can travel across safely and a motorist\u2019s attention is not distracted from observance of an approaching train.\u201d Additionally, Mr. Blackwell asserted that the roadway leading to and from the crossing was to be maintained by the County; the County in fact performed road work at the crossing; yet the crossing remained \u201cextra[-]hazardous\u201d due to its noncompliance with the appropriate standard of care, related to its elevation from the roadway. However, and despite the existence of this expert opinion that the crossing and the roadway were improperly maintained, it remains necessary for Plaintiffs to show that these failures were a cause of the collision. See N.M. State Highway Dep\u2019t v. Van Dyke, 1977-NMSC-027, \u00b6 9, 90 N.M. 357, 563 P.2d 1150 (\u201cDespite the failure ... to conform to the standard[,] ... it is still necessary for the plaintiff to show that the failure to meet those standards proximately caused the accident.\u201d).\n{14} We have emphasized that in order to sustain a negligence action, along with a showing the defendant owed a duty to the plaintiff and breached that duty, the plaintiff must show that the breach was the cause in fact and proximate cause of any damages. Romero, 2009-NMCA-059, \u00b6 5. In addition to recently addressing the topic in Lujan, Uniform Jury Instruction 13-305 NMRA, crafted by our Supreme Court, defines \u201ccausation (proximate cause)\u201d to be an act, omission, or condition that contributes to bringing about an injury or harm, such that the injury would not have occurred without it. Id.; Lujan, 2015-NMCA-005, \u00b6 35. We find no record citation or support for Plaintiffs\u2019 view that their experts opined that the poor or defective conditions of the crossing or roadway were causally connected to the collision. Similarly, we find no record citation or support for the position that Plaintiffs\u2019 experts opined that the collision would not have occurred absent the poor or defective conditions of the crossing or roadway. In fact, Mr. Blackwell directly stated that he was \u201cnot providing an opinion that the condition of [the] crossing caused the accident[.]\u201d Furthermore, Plaintiffs\u2019 second expert, Mr. Burnham, a \u201ctraffic engineering and railroad safety expert,\u201d who Plaintiffs assert establishes a question of fact regarding causation, expressly stated that he had not \u201cisolated a factor that would be directly attributable] to the County\u201d that would have caused the collision. Nor did he maintain otherwise as to BNSF. Without a proper evidentiary showing of causation, Plaintiffs\u2019 negligence claim fails as to the condition of the crossing and the roadway leading to it. See Lujan, 2015-NMCA-005, \u00b6 7; Romero, 2009-NMCA-059, \u00b6 5. We hold that there is no disputed material fact as to proximate cause, and the district court did not err in granting summary judgment regarding Plaintiffs\u2019 claims that Defendants were negligent in relation to the condition of the crossing and roadway. See Philip Morris, 2010-NMSC-035, \u00b6 20 (holding that if a material element is absent, \u201cthere can be no issue of material fact\u201d). We affirm the district court\u2019s orders in this regard.\nProximate Cause: Visual Obstructions\n{15} Plaintiffs maintain that disputed issues of material fact precluded summary judgment as to both Defendants regarding claims that the presence of visual obstructions adjacent to the crossing and railroad tracks interfered with Mrs. Paez\u2019s line of sight to the oncoming train. The County again asserts that Plaintiffs failed to show a causal connection between any act or omission by the County and the collision. BNSF maintains that summary judgment was appropriate because Plaintiffs\u2019 claim in this regard was \u201cblatantly contradicted by the [photographic evidence], [such] that no reasonable jury could believe it[.]\u201d\n{16} In response to BNSF\u2019s fifth motion for partial summary judgment, regarding Plaintiffs\u2019 visual obstruction claim, Plaintiffs submitted six photographs taken within a month of the collision depicting the condition of the area surrounding the railroad tracks from different angles and distances. Additionally, Plaintiffs provided a report completed by Mr. Burnham detailing his findings regarding the collision. In it, but without direct reference to a particular photograph, Mr. Burnham perceived there to be a \u201cgreenery obstruction [that] is very significant to partially obscure approaching trains.\u201d He ultimately opined that from the direction Mrs. Paez traveled \u201c[t]here was insufficient distance for a westbound motorist to observe a plainly visible train as the vehicle approached the tracks at 10 mph or more.\u201d After additional photographs were entered into evidence and Defendants filed their joint \u201crenewed fifth motion,\u201d the district court found that \u201c[t]he train would have been visible... [as] the photographs are impossible to refute.\u201d\n{17} Specifically, the district court stated in reference to a motorist\u2019s position in relation to the crossing that \u201cyou can look at a picture from 50 feet out and see a train that\u2019s sitting . , . back from the crossing, and you .. . see it pretty clearly.\u201d The court noted that the photographs depicted surrounding dirt but not vegetation \u201cof any consequence at all.\u201d It explained that \u201cit looks like the photographs just directly contradict what [Plaintiffs\u2019] expert is saying about . . . visibility[,]\u201d and elaborated, stating that it did not think that the expert testimony regarding visibility \u201cis something that any reasonable jury would even consider as factually accurate\u201d given the photographs. The court ultimately found that \u201cthere is no way that a jury could not say that [the] train [was] readily visible.\u201d The district court granted the motion, determining there was no genuine issue of material fact as Plaintiffs had again failed to establish the element of proximate cause.\n{18} Addressing causation in its supplemental briefing, Plaintiffs again point to the testimony of their two experts, and emphasize the testimony of four lay witnesses to link the failure of Defendants to remove or rectify visual obstructions at the area around the crossing and the collision. Plaintiffs cite portions of the record they contend show that the County failed to elevate the roadway in order to eliminate the disproportionate gradient that made the crossing extra-hazardous, thereby creating an obstacle that drivers must overcome when looking for a train. They also repeat that BNSF failed to remove visual obstructions at the crossing in violation of its own engineering instructions. While these contentions may relate directly to the elements of duty and/or breach, the facts on which they are based do not establish that the roadway, the crossing, or the hump on which the crossing is located, or even any visual obstructions only generally identified by Plaintiffs, caused the collision. While Plaintiffs rely on the testimony of Mr. Paez to establish that Mrs. Paez could not see down the tracks due to the crossing\u2019s elevation or the surrounding vegetation, and that of'three other witnesses asserting that drivers cannot see, or encounter extreme difficulty when attempting to see, whether a train is approaching on the tracks being crossed, photographs taken by BNSF\u2019s expert accident reconstructionist, Mr. Charles, along with Plaintiffs\u2019 own photographs, illustrate circumstances wholly contrary to those described by Plaintiffs\u2019 witnesses.\n{19} For clarity, Paizalas Road parallels the train tracks, then approximately 200 feet from the crossing curves 90 degrees in order for the roadway to traverse the tracks. Following the curve, and between 75 and 100 feet of the crossing, Paizalas Road becomes perpendicular to the tracks such that a motorist can look to the left and right for the presence of approaching trains. Mr. Charles took eight photographs that \u201cshow the view of the approaching train that a motorist driving east on Paizalas Road toward the crossing would have had.\u201d While he recognized that his accident reconstruction was performed a little over two years after the accident, Mr. Charles confirms that based on his \u201creview of photographs taken on the same day or shortly after the accident, as well as satellite images, [his] opinion is that the environmental conditions and topography, including the road and track structure, are substantially similar to the conditions existing at the time of the accident.\u201d As stated previously and noted by the district court, Plaintiffs\u2019 own photographs, located atpages 2650-52 ofthe record proper, support this contention and are not markedly distinct from the Charles photographs that show an unobstructed view of an approaching train that a motorist would have as she or he approached the crossing. Mr. Charles\u2019s photographs, located atpages 2671,2675 and 2677 ofthe record proper, show a BNSF train approaching the crossing when a motorist\u2019s vehicle would be 79 feet, 50 feet, and 15 feet from it. The photographs and accompanying visibility study demonstrate that \u201cfrom 79 feet east to the crossing, a motorist\u2019s view of an oncoming train 650 feet to the south was clear and unobstructed, and the train would have been plainly visible the entire time.\u201d Our review ofthe photographs confirms the district court\u2019s repeated statement that a motorist\u2019s ability to see an approaching train is indisputable at distances in excess of and within 50 feet from the crossing.\n{20} We take a moment to speak with greater specificity as to the photographs on which the district court primarily relied. Of Mr. Charles\u2019s, the first, located at page 2671 of the record proper, was taken 79 feet from the crossing and depicted a clearly visible train approaching from the southerly direction as had the train that collided with Mrs. Paez\u2019s vehicle. The second, located at page 2675 of the record proper, was taken 50 feet from the crossing, and was noteworthy to the district court because that is the distance at which Mrs. Paez was required to stop pursuant to Section 66-7-341 (A)(2)(b) (requiring that a \u201cperson driving a vehicle approaching a railroad-highway grade crossing shall... stop not more than [50] feet and not less than [15] feet from the nearest rail of a crossing if. .. a train is plainly visible and approaching the crossing within hazardous proximity to the crossing\u201d). That photograph shows not only the approaching train engine to be clearly visible, but also its three illuminated headlights and many of its accompanying train cars. Lastly, page number 2677 of the record proper is a photograph that depicts a plainly visible train 15 feet from the crossing, the point by which Mrs. P aez was required to stop for a plainly visible train pursuant to the statute. Not relying exclusively on Mr. Charles\u2019s photographs, the district court was also presented with three photographs, located at pages 2650-52 of the record proper, taken by counsel for Plaintiffs within a few weeks of the collision. At oral argument, Plaintiffs did not dispute that these photographs were taken approximately 20 feet away from the crossing. Each depicted a scene free from obstructions that might obscure a driver\u2019s view of a train approaching the crossing. Based on these six photographs, namely the three taken by Mr. Charles and the three taken by Plaintiffs\u2019 counsel, the district court concluded that no visible obstruction impaired Mrs. Paez\u2019s view of the oncoming train.\n{21} When asked at oral argument to identify the photograph that best depicted visual obstructions adjacent to the railroad tracks, Plaintiffs\u2019 counsel identified an altogether different photograph, located at page 1205 of the record proper. But that photograph, which counsel conceded to have been taken \u201ca long way away\u201d from the crossing\u2014in excess of 50 feet\u2014is little different from the six photographs the district court primarily relied upon, and fails to undermine its conclusion regarding the absence of visual obstructions. Despite the photographic evidence, Plaintiffs reference a vague, stand-alone assertion by Mr. Burnham that expressed his \u201cconfiden[ce] that if [Mrs. Paez] was traveling 10 [mph] or more, she would not have seen [the train] until she got into a[] nonrecovery position[,]\u201d such that she would have been unable to stop even had she seen the train. However, this same expert agreed that Mrs. Paez would have had a plain view of the train 35 feet from the track had she looked.\n{22} BNSF asserts that the photographic evidence presented to the district court mandated the determination that summary judgment was proper, as the images irrefutably proved that Mrs. Paez\u2019s view was unobstructed prior to the collision. See Scott v. Harris, 550 U.S. 372, 380 (2007) (\u201cWhen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.\u201d (internal quotation marks and citation omitted)). Relying as well upon Perez v. City of Albuquerque, 2012-NMCA-040, \u00b6 9, 276 P.3d 973, which discusses Scott, BNSF contends that as a matter of law, the district court is not required to accord weight to testimony presented when it is blatantly at odds with the extensive and irrefutable photographic evidence. By way of supplemental authority, BNSF additionally notifies us of Brown v. Illinois Central Railroad Co., 705 F.3d 531, 538-39 (5th Cir. 2013), which affirmed summary judgment in favor of a railroad where photographs showed that the motorist had a clear view of an oncoming train.\n{23} Regarding Scott, we first note that this Court has twice determined it to be inapplicable when relied upon by a party in an effort to resolve a factual conflict on grounds of dispositive imagery. Yet Perez, 2012-NMCA-040, \u00b6 10, and Benavidez v. Shutiva, 2015-NMCA-065, \u00b6 26, 350 P.3d 1234, are both meaningfully dissimilar to Scott and are therefore distinguishable. Moreover, neither repudiates the proposition set forth in Scott. At issue in both Perez and Benavidez was videotape evidence that depicted an occurrence, but which required a jury\u2019s separate subjective interpretation of the actors\u2019 body language or movements. Perez, 2012-NMCA-040, \u00b6 8; Benavidez, 2015-NMCA-065, \u00b6 26. In Perez, a civil rights claim in which a plaintiff had sought a directed verdict based on a video and in reliance on Scott, we noted that the circumstance was different insofar as the video evidence portrayed only a sequence of events and did not provide a \u201cdeterminative or a definitive account of the full circumstances.\u201d Perez, 2012-NMCA-040, \u00b6\u00b6 3, 10. At issue was whether the actions of law enforcement officers were unreasonable under the total circumstances. Id. \u00b6 10. The plaintiff argued that there was only one interpretation of the videotape at issue, but we concluded the qirestion of reasonableness to be one of fact for the jury and did not disturb the district court\u2019s denial of a directed verdict. Id. \u00b6 10.\n{24} Benavidez also addressed a claimed violation of a plaintiffs constitutional rights as well as tort claims, where the district court granted summary judgment in favor of the defendants. Benavidez, 2015-NMCA-065, \u00b6\u00b6 1,21. The parties referred to a dashcam video of a vehicle stop to support their versions of facts concerning the handcuffing of the plaintiff; the defendants additionally relied upon Scott. Benavidez, 2015-NMCA-065, \u00b6 26. We distinguished Scott, explaining that \u201cthe video [in Scott] was used to establish a fact that did not depend on interpretation of people\u2019s body language or demeanor[,]\u201d unlike the situation presented where the actions of the parties were unclear from the videotape and were subject to multiple interpretations. Benavidez, 2015-NMCA-065, \u00b6 26. We ultimately determined that the identity of the officer who handcuffed the plaintiff might be conclusive, but whether the plaintiff was resisting arrest depended on one\u2019s interpretation of various movements of the plaintiff and the police officer. Therefore, we held that the district court erred in granting summary judgment. Id. \u00b6 27.\n{25} Here, photographs depicting the southerly view Mrs. Paez would have had when approaching the crossing require no subjective interpretation. They establish that an approaching motorist\u2019s capacity to see an oncoming train from that direction is plain and irrefutable. This case therefore squarely aligns with Scott, see 550 U.S. at 380, and the district court properly relied on indisputably decisive photographic evidence to determine that no reasonable jury could conclude that contrary testimony created a genuine issue of material fact as to Defendants\u2019 negligence. As well, no reasonable jury could conclude that any obstruction obscured the oncoming train from Mrs. Paez\u2019s view at some point between 50 and 15 feet before the crossing, the distances between which she was statutorily required to stop .Id.; see \u00a7 66-7-341(A)(2)(b). Despite Plaintiffs\u2019 effort to establish a factual dispute regarding this issue, \u201c[mjere argument or contention of [the] existence of [a] material issue of fact. . . does not make it so.\u201d Spears v. Canon de Carnue Land Grant, 1969-NMSC-163, \u00b6 12, 80 N.M. 766, 461 P.2d 415.\n{26} The instrument of summary judgment, when sparingly and properly utilized, is appropriate to resolve cases that do not present issues upon which reasonable jurors would disagree. When proper, such conclusions of law do not impermissibly intrude into the realm of the fact-finder, but serve the appropriate purpose of dispensing with claims that are premised upon insufficient factual showings. \u201cThe purpose of summary judgment is to pierce the boilerplate of the pleadings and assay the parties\u2019 proof in order to determine whether trial is actually required.\u201d Sovie v. Town of N. Andover, 742 F. Supp. 2d 167, 171 (D. Mass. 2010) (internal quotation marks and citation omitted). We view this circumstance to be the rare such occurrence that justifies the district court\u2019s use of its summary judgment authority regarding the element of proximate cause. We affirm the district court\u2019s grant of summary judgment in this case because we agree that no reasonable jury could find that vegetation near or around the crossing created a visual obstruction that was the proximate cause of the collision. See Scott, 550 U.S. at 380; Brown, 705 F.3d at 538 (\u201c[W]here photographs and undisputed measurements establish that a driver approaching the crossing would have had an unobstructed view of an oncoming train, . . . trial courts [are instructed] to grant judgment as a matter of law.\u201d); Rodriguez, 2014-NMSC-014, \u00b6 24 (holding that a \u201cjudge can enter judgment as a matter of law only if the judge concludes that no reasonable jury could decide the . . . legal cause question[] except one way\u201d).\nPreemption\n{27} Plaintiffs additionally assert that the district court erred in granting BNSF\u2019s third and seventh motions for partial summary judgment, along with the County\u2019s first such motion, on the basis that Plaintiffs\u2019 claims regarding inadequate warning devices and the hazardous condition of the crossing were preempted by federal law. Plaintiffs claim that this ruling constitutes error as both Defendants \u201cfailed to submit any evidence that federal monies were spent on [these] warning devices\u201d or to make any improvements to the crossing itself. (Emphasis omitted.) We note at the outset that Plaintiffs\u2019 preemption argument is, at best, muddled. Plaintiffs appear to abandon or otherwise decline to develop their argument regarding the inadequate warning devices on appeal, specifically notifying us that they \u201cdo not claim that the warning devices at the crossing (i.e., the lights and crossbucks) were inadequate].]\u201d However, Plaintiffs seem to argue that if their claim regarding the dangerous condition of the crossing could be construed to be one of inadequate warning devices, federal preemption would not be triggered as neither BNSF nor the County submitted evidence that federal funds were used to erect warning devices.\n{28} We need not resolve this issue as federal preemption is an affirmative defense. See Azar v. Prudential Ins. Co. of Am., 2003-NMCA-062, \u00b6 24, 133 N.M. 669, 68 P.3d 909. We have already determined that Plaintiffs failed to establish a prima facie case as to their negligence claim regarding the condition of the crossing, and therefore the availability of a preemption defense as to those claims cannot alter the outcome of the district court\u2019s ruling. See Lujan, 2015-NMCA-005, \u00b6 7 (stating that the absence of any element of negligence is fatal to a plaintiff\u2019s claim).\nNegligence Per Se\n{29} Lastly, Plaintiffs assert that the district court erred in granting partial summary judgment premised upon its determination that Mrs. Paez was negligent per se. Plaintiffs maintain this ruling is contrary to the evidence that was presented to the district court and is based on an impermissible factual determination of fault. Plaintiffs contend that a genuine issue of material fact exists as to the presence or absence of negligence on the part of Mrs. Paez and that the district court improperly adopted the role of fact-finder in lieu of allowing the matter to proceed to a jury. BNSF contends that summary judgment was proper as it is undisputed that all of the elements of negligence per se were satisfied. The County does not directly address the negligence per se claim; however, it maintains that Mrs. Paez could see the train, failed to perceive it in time, and, therefore, proximately caused the collision herself. The County generally reminds us that in order to recover damages, Plaintiffs must prove that an act or omission by the County was a proximate cause.\n{30} In order to determine whether a party was negligent per se, New Mexico courts employ the following four-part test: (1) a statute \u201cprescribes certain actions or defines a standard of conduct, either explicitly or implicitly,\u201d (2) the plaintiff \u201cviolate[d] the statute,\u201d (3) the plaintiff is \u201cin the class of persons sought to be protected by the statute,\u201d and (4) the plaintiffs \u201charm or injury ... must generally be of the type the [Legislature through the statute sought to prevent.\u201d Apodaca v. AAA Gas Co., 2003-NMCA-085, \u00b6 43, 134 N.M. 77, 73 P.3d 215 (alteration, internal quotation marks, and citation omitted). BNSF contends that Mrs. Paez violated Section 66-7-341(A)(2)(b), requiring her to stop between 50 and 15 feet before the crossing, that she is within the class of persons to be protected under this statute, and suffered the type of harm sought to be prevented through promulgation of the statute.\n{31} Section 66-7-341(A)(2)(b) requires that motorists \u201capproaching a railroad-highway grade crossing [to] stop not more than [50] feet and not less that [15] feet from the nearest rail of a crossing if... a train is plainly visible and approaching the crossing with hazardous proximity to the crossing[.]\u201d Additionally, Section 66-7-341 (A)(3) permits a motorist to \u201cproceed through the railroad-highway grade crossing only if it is safe to completely pass through the entire\u201d crossing without stopping. (Emphasis added.)\n{32} Because we have affirmed the district court\u2019s conclusion that photographic evidence established the plain visibility of the approaching train had Mrs. Paez looked for it, we can determine that she violated Section 66-7-341(A)(3) when she drove into its path. Whom the Legislature sought to protect is not explicitly stated in the statute; however, it is reasonable to construe that it is drivers, their passengers, and railroad operation personnel. The harm sought to be prevented was ostensibly collisions between motorists and traversing trains. It appears that the collision between Mrs. Paez and the train is just that which the Legislature sought to prevent in enacting this statute. See Archibeque v. Homrich, 1975-NMSC-066, \u00b6 16, 88 N.M. 527, 543 P.2d 820 (providing a negligence per se analysis). Given that all elements of the negligence per se test have been satisfied, we hold that the district court properly granted the summary judgment motion regarding negligence per se, and we affirm it. See Hernandez v. Brooks, 1980-NMCA-056, \u00b6 5, 95 N.M. 670, 625 P.2d 1187 (\u201cIn New Mexico, one who violates a statute ... is guilty of negligence per se, if the statute . . . was enacted for the benefit of the class of persons to which the injured person belongs.\u201d).\nCONCLUSION\n{33} For the foregoing reasons, we affirm the summary judgment rulings of the district court.\n{34} IT IS SO ORDERED.\nJ. MILES HANISEE, Judge\nWE CONCUR:\nJONATHAN B. SUTIN, Judge\nM. MONICA ZAMORA, Judge\nMrs. Paez died during the pendency of this case. Her husband is the remaining Plaintiff in this matter. It is unclear on appeal whether the estate of Rosemary Paez has formally been substituted to represent her preexisting personal interest in the underlying litigation. In this Opinion, we refer to Plaintiffs as being either Rosemary Paez or her estate, and Rey Paez.\nPlaintiffs also named the Middle Rio Grande Conservancy District (MRGCD) as a defendant in the complaint; however, the district court granted a motion by MRGCD to dismiss the claims against it on the basis of improper venue. The propriety of this dismissal is not before us on appeal; we therefore omit any discussion regarding MRGCD.\nPlaintiffs no longer dispute that BNSF engineers in fact sounded the train\u2019s horn. Nor do Plaintiffs persist in contentions regarding the keeping of a lookout or train speed.\nAlthough Plaintiffs assert that they arc appealing the entirety of the district court\u2019s judgment, their brief in chief solely contains argument regarding the four issues listed above. We address only those issues specifically raised on appeal as we do not consider unsupported assertions excluded from a party\u2019s brief in chief. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, \u00b6 15, 137 N.M. 339, 110 P.3d 1076.\nSupplemental briefing was ordered by this Court on April 10, 2015, due to the complexity of the underlying litigation and the nineteen-volume record proper. We appreciate the parties\u2019 effort in this regard and helpful presentations during the June 24, 2015 oral argument.\nThe six photographs primarily relied on by the district court, and the seventh identified by Plaintiffs\u2019 counsel during oral argument, are appended to this Opinion.", "type": "majority", "author": "HANISEE, Judge." } ], "attorneys": [ "Law Office of Tibo Chavez, Jr. Tibo J. Chavez, Jr. Belen, NM Branch Law Firm Turner W. Branch Albuquerque, NM for Appellants", "Atkinson, Thai & Baker, P.C. Clifford K. Atkinson John S. Thai Elizabeth Losee Albuquerque, NM for Appellee Burlington Northern Santa Fe Railway", "Robles Rael & Anaya, P.C. Marcus J. Rael, Jr. Douglas E. Gardner Albuquerque, NM for Appellee County of Soccoro" ], "corrections": "", "head_matter": "IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2015-NMCA-112\nFiling Date: August 13, 2015\nDocket No. 32,105\nROSEMARY PAEZ and REY PAEZ, Plaintiffs-Appellants, v. BURLINGTON NORTHERN SANTA FE RAILWAY, MIKE A. ORTEGA, HECTOR L. DURAN, COUNTY OF SOCORRO, by and through its COMMISSIONERS, ROSALIND TRIPP, JAY SANTILLANES, LAUREL ARMIJO, CHARLES GALLEGOS, and STANLEY HERRERA, Defendants-Appellees.\nLaw Office of Tibo Chavez, Jr. Tibo J. Chavez, Jr. Belen, NM Branch Law Firm Turner W. Branch Albuquerque, NM for Appellants\nAtkinson, Thai & Baker, P.C. Clifford K. Atkinson John S. Thai Elizabeth Losee Albuquerque, NM for Appellee Burlington Northern Santa Fe Railway\nRobles Rael & Anaya, P.C. Marcus J. Rael, Jr. Douglas E. Gardner Albuquerque, NM for Appellee County of Soccoro" }, "file_name": "0011-01", "first_page_order": 27, "last_page_order": 46 }