Omega Concrete had a gravel pit and factory.

Access was difficult, so Omega contracted with Union Pacific Railroad (UP) for the right to use a private road that crossed UP property and tracks. The contract stated that use of the road was solely for Omega employees and that Omega would be responsible for closing a gate that UP planned to build where the private road joined a public highway. In fact, UP never constructed the gate. Omega had no authority to construct the gate. Mathew Rogers, an Omega employee, was killed by a train while using the private road to reach Omega. Rogers’s family sued Omega, claiming, among other things, that Omega failed to keep the gate closed as the contract required.

Is Omega liable based on that failure?