Graves v. Norfolk Southern Corporation

Filing 20

OPINION AND ORDER granting 14 Motion for Summary Judgment. Signed by Magistrate Judge Andrew P Rodovich on 5/31/2011. (rmn)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ROGER GRAVES,

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Plaintiff
v.
NORFOLK SOUTHERN RAILWAY
COMPANY,
Defendant

Case No. 2:09 cv 401

OPINION AND ORDER
This matter is before the court on the Motion for Summary
Judgment [DE 14] filed by the defendant, Norfolk Southern Railway
Company, on January 17, 2011.

For the following reasons, the

motion is GRANTED.
Background
The defendant, Norfolk Southern Corporation, operates on a
train track that runs through Hammond, Indiana, northwest towards
Chicago and southeast towards Hobart, Indiana.
169th Street in Hammond.

The track crosses

There are two sets of tracks at this

crossing, as well as crossing gates over the road on both the
east and west sides of the intersection, flashers, and a bell, to
warn of approaching trains.

The gates were installed over the

roadway and did not include pedestrian gates over the sidewalk.
The warning devices were installed in 2004 as part of an agreement Norfolk entered with the City of Hammond.

Norfolk was

required to modernize the grade crossing warning in conformance
with the State of Indiana Special Provisions for Installation of
Active Warning Devices at Highway-Railway Grade Crossings and the
Manual on Uniform Traffic Control Devices for Streets and Highways.

In turn, the State of Indiana applied for and obtained

federal funding for the project from the Federal Highway Administration.
costs.

Federal funds paid for 80 percent of the construction
Neither Norfolk’s agreement with Hammond nor the applica-

ble state and federal regulations required Norfolk to install
pedestrian gates at the crossing, and none were installed.

The

warning gates and devices installed as part of this project still
were in use in October 2007.
On October 31, 2007, the plaintiff, Roger Graves, was shopping at the Walgreens located on the south side of 169th Street
in Hammond just west the railroad crossing.

When he exited the

store, he saw a train at the railroad crossing and walked to the
corner.

When the end of the train was in sight, he began jogging

in an effort to cross to the north side of 169th Street before
the traffic waiting at the crossing started to move.

After

crossing the street, Graves continued jogging down the sidewalk
toward the crossing.

He reached the crossing at about the same

time the first train was clearing and decided to cross the
tracks.

When he looked up, he saw a second train approaching

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from the other direction.

At his deposition, Graves testified

that he decided "to gun it" to beat the second train across the
tracks.

Graves explained that his momentum already was moving in

that direction.

When he attempted to stop, he began to slide,

and he believed if he did not dive across the tracks, he would
have ended up under the train.

Graves proceeded to dive across

the tracks to the east side of the crossing, but he was hit by
the second approaching train.
At the time of the incident, the train was traveling approximately 30 mph, and the train’s engineer, Robert Larson, was
sounding the train’s horn.

The flashers and gates were operat-

ing, the gates were down, and traffic on both sides of the
crossing was stopped.
Graves filed a complaint on October 30, 2009, alleging that
the train crossing is an ultra hazardous crossing because it did
not have pedestrian gates and that the defendant failed to exercise reasonable care in the ownership, maintenance, control, and
operation of the railroad tracks and crossing.

Norfolk now moves

for summary judgment, arguing that federal law preempts state law
because the crossing primarily was paid for with federal funds.
Discussion
Pursuant to Federal Rule of Civil Procedure 56(c), summary
judgment is proper only if it is demonstrated that "there is no

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genuine issue as to any material fact and the moving party is
entitled to a judgment as a matter of law."

Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986); Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir. 2009).
The burden is upon the moving party to establish that no material
facts are in genuine dispute, and any doubt as to the existence
of a genuine issue must be resolved against the moving party.
Adickes v. S.H. Kress & Company, 398 U.S. 144, 160, 90 S.Ct.
1598, 1610, 26 L.Ed.2d 142, 155 (1970); Stephens, 569 F.3d at
786.

A fact is material if it is outcome determinative under

applicable law.

There must be evidence on which the jury could

reasonably find for the nonmoving party.

Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d
202, 212 (1986); Stephens, 569 F.3d at 786; Wheeler v. Lawson,
539 F.3d 629, 634 (7th Cir. 2008).
Summary judgment is inappropriate for determination of
claims in which issues of intent, good faith, and other subjective feelings play dominant roles.
781, 784 (7th Cir. 2006).

Ashman v. Barrows, 438 F.3d

Upon review, the court does not evalu-

ate the weight of the evidence, judge the credibility of witnesses, or determine the ultimate truth of the matter; rather,
the court will determine whether there exists a genuine issue of

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triable fact.

Wheeler, 539 F.3d at 634 (citing Anderson, 477

U.S. at 248, 106 S.Ct. at 2510).
In deciding a motion for summary judgment, the trial court
must determine whether the evidence presented by the party
opposed to the summary judgment is such that a reasonable jury
might find in favor of that party after a trial.
The inquiry performed is the threshold inquiry of determining whether there is the
need for a trial--whether, in other words,
there are any genuine factual issues that
properly can be resolved only by a finder of
fact because they may reasonably be resolved
in favor of either party.
[T]his standard mirrors the standard for a
directed verdict under Federal Rule of Civil
Procedure 50(a), which is that the trial
judge must direct a verdict if, under the
governing law, there can be but one reasonable conclusion as to the verdict.
Anderson, 477 U.S. at 250, 106 S.Ct. at 2511
See also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
149-151, 120 S.Ct. 2097, 2109, 147 L.Ed.2d 105, 120-122 (2000)
(setting out the standard for a directed verdict); Celotex Corp.,
477 U.S. at 322-23, 106 S.Ct. at 2553; Stephens, 569 F.3d at 786;
Argyropoulos v. City of Alton, 539 F.3d 724, 732 (7th Cir. 2008)
(stating that a genuine issue is one on which a reasonable fact
finder could find for the nonmoving party); Springer v. Durflinger, 518 F.3d 479, 483 (7th Cir. 2008)(stating that a genuine
issue exists and summary judgment is inappropriate if there is
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sufficient evidence for a jury to return a verdict for the
nonmoving party).
The defendant contends that Indiana tort law, with respect
to the adequacy of the warning devices at 169th Street, is preempted by the Federal Highway Safety Act of 1973, 23 U.S.C. §130
et. seq., and regulations promulgated thereunder.

Among the

provisions of the FHSA, Congress has established the Federal
Railway-Highway Crossings Program in an effort to provide federal
funds to participating states for the "cost of construction of
projects for the elimination of hazards of railway-highway
crossings." Norfolk Southern Railway Company v. Shanklin, 529
U.S. 344, 348, 120 S.Ct. 1467, 1471, 146 L.Ed.2d 374 (2000)
(quoting 23 U.S.C. §130(a)).

Participation in the Crossings

Program requires that the participating state must "conduct and
systematically maintain a survey of all highways to identify
those railroad crossing which may require separation, relocation,
or protective devices, and establish and implement a schedule of
projects for this purpose." 23 U.S.C. §130(d).

Under the stat-

ute, this schedule at least must provide signs for all railwayhighway crossings. Shanklin, 529 U.S. at 349, 120 S.Ct. at 1471.
In administering the Crossings Program, a number of regulations have been implemented addressing the design of grade crossings.

Shanklin, 529 U.S. at 348-49 120 S.Ct. at 1471. See, e.g.,

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23 C.F.R. §646.214(b).

Under 23 C.F.R. §§646.214(b)(3) and

646.214(b)(4), the Federal Highway Administration has set requirements for warning devices at railway grade crossings.
Shanklin, 529 U.S. at 349, 120 S.Ct. at 1472. These regulations
establish what constitutes an adequate warning device for projects installed with federal funds. Automatic gates and warning
lights are required as adequate warning devices for crossings
which involve the following conditions: multiple main line
railroad tracks, multiple tracks in the vicinity where one train
might obscure the movement of another train, high speed trains
combined with limited sight distances, a combination of high
speeds and moderately high volumes of highway and railroad
traffic, the use of the crossing by substantial numbers of school
buses or trucks carrying hazardous materials, or where they are
recommended by a diagnostics team. 23 C.F.R. §646.214(b)(3);
Shanklin, 529 U.S. at 349, 120 S.Ct. at 1472. For railway crossings not meeting any of these conditions, "the type of warning
device to be installed, whether the determination is made by a
state regulatory agency, and/or the railroad, is subject to the
approval of FHWA."

23 C.F.R. §646.214(b)(4).

The Supreme Court previously has ruled that these regulations preempt state tort law on matters covering the same topic
where warning devices actually have been installed using federal

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funds. CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 670,
113 S.Ct. 1732, 1741, 123 L.Ed.2d 387 (1993). This preemption
includes any claims under state tort law that a grade crossing is
extra-hazardous and that the warning devices provided at the
crossing are inadequate. Shanklin, 529 U.S. at 358, 120 S.Ct. at
1477. In Shanklin, the plaintiff's decedent was fatally injured
when he attempted to cross the tracks and his car was struck by
an oncoming train. The crossing did not provide automatic gates
or flashers, but instead it was equipped with reflectorized
crossbucks. The crossbucks were installed as a part of the
Crossings Program which affected a total of 196 crossings
throughout the state. The project was approved by the FHWA, and
the warning devices were paid for almost exclusively with federal
funds. Shanklin concluded that state tort law was displaced on
the subject because 23 C.F.R. §§646.214(b)(3) and 646.214(b)(4)
established a federal standard of adequacy for the devices.
Shanklin, 529 U.S. at 357-58, 120 S.Ct. at 1476. As noted in
Shanklin, preemption occurred "[o]nce the FHWA approved the
project and the signs were installed using federal funds . . . ."
Shanklin, 529 U.S. at 359, 120 S.Ct. at 1477.

"Whether the State

should have originally installed different or additional devices,
or whether conditions at the crossing have since changed . . . is
immaterial to the preemption question . . . What States cannot do

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- once they have installed federally funded devices at a particular crossing - is hold the railroad responsible for the adequacy
of those devices."

Randall v. Norfolk Southern Railway Co., 800

N.E.2d 951, 955-56 (citing Shanklin, 529 U.S. at 357-58, 120
S.Ct. at 1476).

Preemption attaches at the time federal funds

are used to install warning devices, regardless of whether an
express determination of adequacy has been made.

See Shanklin,

529 U.S. at 356, 120 S.Ct. at 1475. See also Ingram v. CSX
Transportation, Inc., 146 F.3d 858, 863 (11th Cir. 1998); Armijo
v. Atchison, Topeka & Santa Fe Railroad Co., 87 F.3d 1188, 1192
(10th Cir. 1996); Elrod v. Burlington Northern Railroad Co., 68
F.3d 241, 244 (8th Cir. 1995).
It is undisputed that safety measures at the 169th Street
crossing were installed almost exclusively with federal funds
under a program approved by the FHWA.

Once this occurred, feder-

al law preempted any state law claim regarding the adequacy of
the warning device at that particular crossing. See Shanklin, 529
U.S. at 359, 120 S.Ct. at 1477.

Because there were two mainline

railroad tracks at the crossing, the regulations required that
the track be equipped only with automatic gates and flashing
light signals, and these precautions were followed.

Neither the

regulations, other nationally recognized design guidelines and
standards, nor Norfolk’s agreement with Hammond and the State of

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Indiana, required the installation of pedestrian gates.

Because

the crossing was financed with federal funds and the defendant
complied with the federal regulations, Graves cannot now assert a
state law tort claim against Norfolk for the deficiency of safety
measures.
Graves attempts to distinguish his incident on two grounds.
First, he argues that federal preemption does not apply because
he was a pedestrian, and the cases addressing the matter have
concerned injuries to people operating a vehicle.

However,

federal preemption is not considered on a case-by-case basis.

If

it is determined that the federal government intended to preempt
state law in one area, the entire subject is preempted regardless
of the type of plaintiff that comes forth.

Because it previously

was determined that any claims under state tort law that a grade
crossing is extra-hazardous and that the warning devices provided
at the crossing are inadequate cannot be raised against the
railroad when federal funds were used to install the warnings,
and Graves’ complaint concerns the adequacy of the warning
devices at the railroad crossing, his claim is preempted and
cannot be brought against Norfolk.

See Shanklin, 529 U.S. at

359, 120 S.Ct. at 1477.
Next, Graves argues that Norfolk did not comply with the
federal regulations.

The regulations require the installation of

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automatic gates and flashing light signals when there are multiple main line railroad tracks at the crossing.
§646.214(b)(3)(i)(A).

23 C.F.R.

Graves asserts that in light of this

regulation, Norfolk was required to install a pedestrian gate
because two mainlines crossed the pedestrian walkway.

However,

pedestrian gates are considered a separate safety regulation from
the automatic gates and flashing light signals contemplated by 23
C.F.R. §646.215.

See Federal Highway Administration, 74 Fed.

Reg. 240, 66855, 2009 WL 4822301, (Dec. 16, 2009) (available at
http://edocket.access.gpo.gov/2009/pdf/E9-28322.pdf) ("The FHWA
also proposed to recommend that the LOOK sign and/or pedestrian
gates should be considered if an engineering study shows that
flashing-light signals with a Crossbuck sign and an audible
device would not provide sufficient notice of an approaching
light rail transit vehicle.").
At the time the safety devices were installed at the crossing on 169th Street, neither federal law nor state law expressly
required the installation of pedestrian gates at multi-lane
crossings.

Provided that the federal regulations have been

complied with, preemption attaches when federal funds are expended on the project, regardless of whether an express determination of adequacy has been made by the FHWA.
U.S. at 356, 120 S.Ct. at 1475.

See Shanklin, 529

Because the warning devices were

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installed with federal funds and complied with the demands of the
federal regulations, Graves’ complaint is preempted by federal
law, and he cannot assert a state law tort claim against Norfolk
concerning the adequacy of the safety devices.
_________________
Based on the foregoing, the Motion for Summary Judgment [DE
14] filed by the defendant, Norfolk Southern Railway Company, on
January 17, 2011, is GRANTED.
ENTERED this 31st day of May, 2011

s/ ANDREW P. RODOVICH
United States Magistrate Judge

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