Smith v. Consolidated Rail Corporation et al

Filing 7

ORDER Denying Plaintiff's 3 Motion to Strike Defendants' Notice of Non-Involved Parties. Signed by District Judge Matthew F. Leitman. (Monda, H)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT SMITH,
Plaintiff,

Case No. 14-CV-10426
Hon. Matthew F. Leitman

v.
NORFOLK SOUTHERN COMPANY and
CONSOLIDATED RAIL CORPORATION,
Defendants
_________________________________/
ORDER DENYING PLAINTIFF’S MOTION TO STRIKE DEFENDANTS’
NOTICE OF NON-INVOLVED PARTIES (ECF #3)
INTRODUCTION
Plaintiff Robert Smith (“Smith”) alleges that on February 25 2013, he was
driving on Georgia Street in the City of Detroit (the “City”) when he approached a
railroad crossing. (See Am. Compl., ECF #4-4 at ¶¶7-11.) Smith claims that
debris “completely obscured the railroad tracks” (id. at ¶15) and the “warning
device and lights [at the crossing] did not activate and as a result failed to give
[him] any reasonable warning of an incoming train.” (Id. at ¶11.) When Smith
attempted to cross the tracks, an oncoming train hit and damaged his vehicle. (Id.
at ¶17.)

Smith thereafter filed suit in Wayne County Circuit Court against

Defendants Norfolk Southern Company and Consolidated Rail Corporation
(collectively, “Defendants”), whom Smith alleges owned the train that hit him (id.

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at ¶13) and “were the owners and operators of the railroad tracks” where the
accident occurred. (Id. at ¶20.)
Defendants removed Smith’s action to this Court on the basis of the Court’s
diversity jurisdiction. (See ECF #1.) They have now filed a “Notice of NonInvolved Parties,” giving notice pursuant to Michigan law that the Michigan
Department of Transportation (the “MDOT”) and the City “could be [the]
proximate causes of damages, if any, alleged by [Smith]...” (See the “Notice,”
ECF #2 at 2, Pg. ID 29.) Smith has moved to strike the Notice (see ECF #3);
Defendants oppose the motion. (See ECF #4.) For all the reasons stated in this
Order, the Court agrees with Defendants and DENIES Smith’s motion to strike the
Notice.
ANALYSIS
In the Notice, Defendants named the City and the MDOT as non-parties at
fault pursuant to Michigan Court Rule 2.112(K) and MCL § 600.2957. Smith
seeks to strike the Notice on two grounds. First, Smith argues that neither the City
nor the MDOT owed Smith a duty, and that “[f]ault cannot be apportioned to a
non-party if the non-party owes the plaintiff no duty of care.” (ECF #3 at 5, Pg. ID
35.)

Second, Smith argues that the City and the MDOT are entitled to

governmental immunity, this immunity “would preclude liability on the part of the

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[MDOT] and City for the activities alleged,” and therefore neither can be named in
the Notice. (Id. at 2, Pg. ID 32.) Neither of these grounds entitles Smith to relief.
A.

Michigan’s Notice of Non-Party at Fault Regime

Under applicable Michigan law, “[a] party against whom a claim is asserted
may give notice of a claim that a nonparty is wholly or partially at fault.” MCR
2.112(K)(3)(a). “The notice must be filed within 91 days after the party files its
first responsive pleading.” MCR 2.112(K)(3)(c). This notice is a critical provision
of Michigan tort law. Indeed, “the trier of fact shall not assess the fault of a
nonparty unless notice has been given as provided in this subrule.”

MCR

2.112(K)(2) (emphasis added). This rule was
promulgated in response to the [Michigan] Legislature's
adoption of MCL 600.2957 and MCL 600.6304. MCR
2.112(K) concerns the procedural implementation of the
elimination of joint liability, the reapplication of several
liability, and the allocation of fault to a nonparty as
provided in MCL 600.2957 and MCL 600.6304. The
purposes of the court rule are to provide notice that
liability will be apportioned, provide notice of nonparties
subject to allocated liability, and allow an amendment to
add parties, thereby promoting judicial efficiency by
having all liability issues decided in a single proceeding.
Greenwich Ins. Co. v. Hogan, 351 F.Supp.2d 736, 739 (W.D. Mich. 2004) (quoting
Veltman v. Detroit Edison, Co., 261 Mich. App. 685, 694-695 (2004)).
While MCR 2.112(K) is a state (and not federal) court rule, numerous
federal courts in Michigan have enforced the rule in diversity cases, finding it to be

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“a necessary component of Michigan's statutory scheme of ‘fair share liability.’”
Id. This Court agrees. “Viewing MCR 2.112(K) as a purely procedural matter
[and thus not applicable in federal court] … rather than as an integral part of
Michigan's substantive tort law scheme, would promote the very forum shopping
and inequitable administration of the laws [Erie v. Railroad Co. v. Tompkins, 304
U.S. 64 (1938)] sought to avoid.” Id; See also 739-40 (collecting cases); American
Ins. Co. v. Dornbracht Americas, Inc., 2013 WL 1788573 at *2 (E.D. Mich. Apr.
26, 2013) (finding the provisions of MCR 2.112(K) applicable and “adopt[ing] the
reasoning provided by the Western District of Michigan [in Greenwich]...”).
B.

Smith Has Failed to Show that the City and the MDOT Did Not
Owe Him Duties Related to the Safety of the Railroad Crossing

Smith is correct that, under Michigan Supreme Court precedent, “[w]ithout
owing a duty to the injured party, the ‘negligent’ actor could not have proximately
caused the injury and could not be at ‘fault’ for purposes of the comparative fault
statutes.”

Romain v. Frankenmuth Mut. Ins. Co., 483 Mich. 18, 22 (2009).

However, Smith has failed to show that the City and the MDOT did not owe him
any duties here. Indeed, Defendants have cited numerous Michigan statutes and
court rulings that support a finding that the City and the MDOT owed Smith (and
all other motorists) numerous duties related to the safety concerns Smith has raised
in this case. Smith has failed to provide any response to these citations.

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For example, Smith has argued that Defendants are exclusively liable
because “elevated mound and debris [] completely obscured the railroad tracks and
any view down the tracks to the south…” (id. at ¶15) and that the warning signals
at the railroad crossing were “in disrepair, improperly designed, and inoperable.”
(ECF #4-4 at ¶32.) But based on the statutes Defendants cite, which Smith has not
disputed, it is the City, as the applicable “road authority,” that Michigan law tasks
with determining if a “clear vision area” needs to be established at a “particular
crossing” so that motorists can safely observe the tracks and surrounding areas.
MCL § 462.317; See also Paddock v. Tuscola & Saginaw Bay Ry. Co., Inc., 225
Mich. App. 526, 534 (1997) (“Under the plain language of [MCL § 462.317], it is
the responsibility of the road authority—not the railroad—to determine the need
for a clear vision area.”).
In addition, Smith has not challenged Defendants’ contention that “[u]nder
M.C.L. § 257.668; M.S.A. § 9.2368, as well as M.C.L. § 257.615(a); M.S.A. §
9.2315(a), the duty to determine the appropriate warning devices to be installed at
railroad crossings lies with the appropriate governmental entity with jurisdiction
over the roadway [i.e, in this case, the MDOT], not with the railroad.” Id. at 533,
citing Kesserling v. Chesapeake & O.R. Co., 437 F.Supp. 267, 269 (E.D. Mich.
1977).

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Thus, in this case, Smith has failed to present any authority to contradict
Defendants’ position that the City and the MDOT owed Smith duties related to the
safety of the railroad crossing. The Court therefore finds no reason to strike the
Notice.
C.

The City’s and the MDOT’s Governmental Immunity Does Not
Preclude Defendants From Naming Them in the Notice

Smith’s second argument – that because the City and the MDOT are
immune from liability in this action, they cannot be named in the Notice (see ECF
#3 at 2, Pg. ID 32) – is equally unavailing. The applicable Michigan statute
provides that “[i]n assessing percentages of fault … the trier of fact shall consider
the fault of each person, regardless of whether the person is, or could have been,
named as a party to the action.” MCL § 600.2957(1) (emphasis added). Thus,
even if the City and the MDOT could not be named in Smith’s suit because of
governmental immunity, they still must be considered when “assessing percentages
of fault.”

See, e.g., Dresser v. Cradle of Hope Adoption Center, Inc., 421

F.Supp.2d 1024, 1027 (E.D. Mich. 2006) (“Given the change of the legislative
focus on the tort reparations system in Michigan from making an injured plaintiff
whole to protecting partially at-fault defendants from excessive exposure to
damages, the Court believes that Michigan courts would conclude that liability
must be apportioned under section 600.2957(1) to parents of an injured child, even
if the parents are immune from suit”); Wall v. Cherrydale Farms, Inc., 9 F.Supp.2d

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784 (E.D. Mich. 1998) (granting leave to file notice of non-party at fault against
immune party).
Indeed, this is the exact conclusion another court in this district reached
when faced with a similar objection to a notice of non-party fault in a case
involving a decedent who was killed when a train struck his car. See O’Hara v.
Norfolk Southern Ry. Co., 2006 WL 435723 at *4 (E.D. Mich. Feb. 21, 2006),
quoting MCL § 600.2957(1) (finding request to strike MDOT from a notice of
non-party fault “baseless” because “Michigan law allows a trier of fact to
apportion fault in tort actions like this one ‘regardless of whether the person is, or
could have been, named as a party to the action.’”) Smith’s argument that the
Court should strike the Notice due to the existence of governmental immunity
therefore fails.
CONCLUSION
For all of the reasons stated above, IT IS HEREBY ORDERED that
Smith’s Motion to Strike is DENIED.

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE

Dated: June 12, 2014

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I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on June 12, 2014, by electronic means and/or ordinary
mail.
s/Holly A. Monda
Case Manager
[phone]

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