CSX Transportation, Inc. v. Benore et al

Filing 61

OPINION AND ORDER denying 55 Motion to Dismiss. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARK A. LAPOINTE and
BECKY LAPOINTE,
Counter-Plaintiffs,

Case No. 15-11575
Paul D. Borman
United States District Judge

v.
CSX TRANSPORTATION, INC.,

Mona K. Majzoub
United States Magistrate Judge

Counter-Defendant.
________________________________/
OPINION AND ORDER DENYING COUNTER-DEFENDANT’S MOTION
TO DISMISS
Counter-Plaintiff Mark LaPointe was driving a tractor-trailer truck when he
arrived at a two-track perpendicular railroad crossing owned and operated by
Counter-Defendant CSX Transportation, Inc. (“CSX”). At least one of the crossing
gates was down and a train idled on the nearer track, partially blocking the view of
the track next to it. After a few minutes during which the vehicles ahead of LaPointe
drove around the gates and across the tracks one by one, LaPointe followed suit. As
he crossed the tracks he was hit by an oncoming train that had been obscured from
view by the stationary train, and suffered grievous injuries as a result. The accident
also caused property damage to CSX. This lawsuit was initiated by CSX suing
LaPointe and others to recover for its damages. LaPointe countersued with a
negligence claim (along with his wife Becky, who asserts a derivative loss of

consortium claim). All other claims except for those asserted by Mark and Becky
LaPointe (collectively “Counter-Plaintiffs”) have dropped out of the action.
CSX now moves to dismiss the action for failure to state a claim. Owing to a
significant ambiguity in Counter-Plaintiffs’ allegations regarding the activation of
the crossing gates, however, the Court will deny CSX’s Motion to Dismiss.
BACKGROUND
Counter-Plaintiffs’ Factual Allegations
On November 24, 2013, Counter-Plaintiff Mark A. LaPointe (“LaPointe”)
was driving a tractor-trailer truck eastbound on County Road 151 in Monroe County,
Michigan, when he arrived at a multi-track railroad crossing owned and operated by
CSX. The railroad tracks were roughly perpendicular to the road. At the crossing, a
train was idling on the southbound track (the track closer to LaPointe), and part of
the train protruded into the crossing. The protruding part of the train thus obstructed
the road’s path through the crossing, and the rest of the train blocked any view to the
south of the adjacent track. (ECF No. 54, Am. Counter-Compl. ¶ 4.)
At least one gate of the crossing was down; the parties disagree as to the
second gate. There were no flaggers or other railroad personnel at the crossing, and
Counter-Plaintiffs allege on information and belief that the train on the southbound
track had been idling in the same position for hours. There was no moving train
traffic on either track while LaPointe waited at the crossing for over five minutes,
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during which time several vehicles in front of him traveled successfully through the
crossing. (Am. Counter-Compl. ¶ 4.) When LaPointe himself entered the crossing
and maneuvered past the idling train, he was unexpectedly struck by a northbound
train. (Am. Counter-Compl. ¶ 7.) Counter-Plaintiffs contend that the northbound
train either failed to sound its horn as it went through the crossing, or sounded a horn
that was drowned out by the sound of the idling southbound train. (Am. CounterCompl. ¶¶ 9-10.) LaPointe was severely injured as a result of the collision, and his
injuries included a traumatic brain injury, injuries to his hip and shoulder that each
required surgery, a serious and prolonged infection, and other physical and
psychological pain including post-traumatic stress. (Am. Counter-Compl. ¶ 15.) His
wife Becky also seeks damages for loss of consortium.
Counter-Plaintiffs allege that CSX has consistently left its trains idling near
and protruding into this crossing with the gates down, and that LaPointe himself
“had passed through this crossing on countless occasions previously and knew that
the operation of the crossing [gates and signals] was unreliable.” (Am. CounterCompl. ¶¶ 6, 9.) Counter-Plaintiffs further allege that CSX violated its own safety
rules by leaving the southbound train protruding into the crossing such that it
obstructed motorists’ view of the adjacent track, and by failing to deploy a flagman
at the crossing to warn motorists and direct traffic. (Am. Counter-Compl. ¶ 5.)

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Procedural History
This lawsuit was originally filed on May 1, 2015 by CSX against various
parties including LaPointe, the owners of the truck he was driving, and an insurance
company that had insured the other defendants. (ECF No. 1.) Jurisdiction was
predicated on the complete diversity of the parties. (See id. ¶ 13.) On December 30,
2015, this Court entered an Opinion and Order dismissing some of the claims and
defendants, and granting CSX leave to file an amended complaint, which CSX did
on January 15, 2017. (ECF Nos. 27, 28.) Two weeks later, Mark and Becky LaPointe
(Counter-Plaintiffs here) filed a Counter-Complaint in which they first asserted the
claims against CSX that are now the target of CSX’s Motion to Dismiss: one count
of negligence and one derivative count of loss of consortium. (ECF No. 30.)
On January 13, 2017, CSX dropped all remaining claims except for one claim
against LaPointe (ECF No. 40), leaving only that claim and Counter-Plaintiffs’
counter-claims against CSX still in the action. One month later, Counter-Plaintiffs
moved for leave to amend their counter-complaint based on information they had
obtained since they first filed it. (ECF No. 42.) The proposed changes to their
allegations specifically concerned the crossing gates. Counter-Plaintiffs’ original
counter-complaint alleged that “the crossing gates and warning signals located at the
crossing were not activated” at the time of the accident. (ECF No. 30 ¶ 5.) But,
Counter-Plaintiffs stated in their motion for leave to amend, further investigation
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tended to show that the east gate—the gate on the other side of the crossing from
where LaPointe approached it—was lowered. (ECF No. 42 at 2-3, Pg ID 372-73.)
Counter-Plaintiffs’ motion for leave to amend was referred to Magistrate
Judge Mona K. Majzoub on February 14, 2017. (ECF No. 44.) Shortly thereafter,
CSX dropped its last claim against LaPointe (ECF Nos. 50-51), at which point only
Counter-Plaintiffs’ claims against CSX were left.
CSX opposed Counter-Plaintiffs’ motion for leave to amend on the basis of
futility (ECF No. 47), but the Magistrate Judge determined that Counter-Plaintiffs’
proposed counter-complaint did not fail to state a claim on its face, and granted their
motion for leave to amend (ECF No. 53). Counter-Plaintiffs filed their Amended
Counter-Complaint on July 25, 2017 (ECF No. 54. Am. Counter-Compl.), and CSX
filed the instant Motion to Dismiss eight days later (ECF No. 55, Def.’s Mot.).
Counter-Plaintiffs filed a timely Response (ECF No. 58, Pls.’ Resp.), and CSX filed
a timely Reply (ECF No. 60, Def.'s Reply.)
This Court conducted a hearing on CSX’s Motion to Dismiss on Thursday,
October 26, 2017, and now issues the following ruling.
LEGAL STANDARDS
Federal Rule of Civil Procedure 12(b)(6) allows for the dismissal of a case
where the complaint fails to state a claim upon which relief can be granted. When
reviewing a motion to dismiss under Rule 12(b)(6), a court must “construe the
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complaint in the light most favorable to the plaintiff, accept its allegations as true,
and draw all reasonable inferences in favor of the plaintiff.” Handy-Clay v. City of
Memphis, 695 F.3d 531, 538 (6th Cir. 2012).
To state a claim, a complaint must provide a “short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[T]he
complaint ‘does not need detailed factual allegations’ but should identify ‘more than
labels and conclusions.’” Casias v. Wal–Mart Stores, Inc., 695 F.3d 428, 435 (6th
Cir. 2012) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The
court “need not accept as true a legal conclusion couched as a factual allegation, or
an unwarranted factual inference.” Handy-Clay, 695 F.3d at 539 (internal citations
and quotation marks omitted).
In other words, a plaintiff must provide more than “formulaic recitation of the
elements of a cause of action” and his or her “[f]actual allegations must be enough
to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555-56.
The Sixth Circuit has recently reiterated that “[t]o survive a motion to dismiss, a
litigant must allege enough facts to make it plausible that the defendant bears legal
liability. The facts cannot make it merely possible that the defendant is liable; they
must make it plausible.” Agema v. City of Allegan, 826 F.3d 326, 331 (6th Cir.
2016) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

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ANALYSIS
Negligence (Count I)
Michigan law governs the substantive components of this diversity action. “A
federal court exercising diversity jurisdiction applies the choice-of-law rules of the
state in which it sits. And a federal court in a diversity action is obligated to apply
the law it believes the highest court of the state would apply if it were faced with the
issue.” Doe v. Etihad Airways, P.J.S.C., 870 F.3d 406, 435 (6th Cir. 2017) (internal
quotation marks and citations omitted). “In a tort action, Michigan courts recognize
a presumption in favor of lex fori and apply Michigan law ‘unless a “rational reason”
to do otherwise exists.’” Standard Fire Ins. Co. v. Ford Motor Co., 723 F.3d 690,
693 (6th Cir. 2013) (quoting Sutherland v. Kennington Truck Serv., Ltd., 454 Mich.
274, 286 (1997)). The “rational reason” inquiry begins with a determination as to
whether “any foreign state has an interest in having its law applied. If no state has
such an interest, the presumption that Michigan law will apply cannot be overcome.”
Id. As Counter-Plaintiffs are Michigan citizens, the collision occurred in Michigan,
and the parties have consistently cited Michigan law throughout the litigation thus
far, this Court sees no grounds for concluding that any other state has an interest in
having its law applied.
To establish a prima facie case of negligence under Michigan law, “a plaintiff
must prove that ‘(1) the defendant owed the plaintiff a legal duty, (2) the defendant
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breached the legal duty, (3) the plaintiff suffered damages, and (4) the defendant's
breach was a proximate cause of the plaintiff's damages.’” Hill v. Sears, Roebuck &
Co., 492 Mich. 651, 660 (2012) (quoting Loweke v. Ann Arbor Ceiling & Partition
Co., L.L.C., 489 Mich. 157, 162 (2011)). At the pleading stage, “[a] cause of action
for negligence must include allegations to support each of [the] four elements” of
duty, breach, damages, and proximate causation. Diem v. Sallie Mae Home Loans,
Inc., 307 Mich. App. 204, 214 (2014) (citing Loweke v. Ann Arbor Ceiling &
Partition Co., LLC, 489 Mich. 157, 162 (2011)). “The question whether a defendant
has breached a duty of care is ordinarily a question of fact for the jury . . . .” Latham
by Perry v. Nat'l Car Rental Sys., Inc., 239 Mich. App. 330, 340, 608 N.W.2d 66,
72 (2000) (citing Spikes v. Banks, 231 Mich. App. 341, 355 (1998)).
Counter-Plaintiffs assert various theories of negligence in their Amended
Counter-Complaint. Chief among them is the theory that CSX was negligent in its
failure to warn LaPointe that the northbound track was active and the presence of a
train on it was imminent, despite the fact that the train on the southbound track was
allowed to remain stationary so as to obscure eastbound motorists’ view to the south.
In connection with this theory, Counter-Plaintiffs claim that CSX negligently failed
to “maintain the crossing gates . . . in proper working order;” that CSX negligently
failed to “require a flagman at the . . . crossing to warn east and west bound motor
vehicle traffic that the northbound track was active;” or that the northbound train
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negligently “failed to sound its horn when entering the crossing in violation of
applicable federal regulations and railroad orders.” (Am. Counter-Compl. ¶ 13(d)(f).)
CSX separately addresses each of Counter-Plaintiffs’ theories of negligence
in its Motion to Dismiss. Regarding Counter-Plaintiffs’ theory that the crossing gates
were not kept in working order, CSX argues that Counter-Plaintiffs’ own allegation
that the east gate was down is fatal to their theory that the gates were not in working
order. The gates are designed to be lowered when a train is at or near the crossing,
CSX contends, and at all times relevant to the allegations in the Amended CounterComplaint, both of these were the case: the east gate was down, and a train was
approaching on the easternmost track. Any subjective belief on LaPointe’s part that
the gates were malfunctioning, then, was unreasonable given that the east gate was
activated. CSX also points out that the Michigan Vehicle Code requires any “person
driving a vehicle [who] approaches a railroad grade crossing” when “[a] crossing
gate is lowered” to “stop the vehicle not more than 50 feet but not less than 15 feet
from the nearest rail of the railroad, and . . . not proceed until the driver can do so
safely . . . .” Mich. Comp. Laws § 257.667(1). The statute further provides that any
person who fails to do this, or who “drive[s] a vehicle through, around, or under a
crossing gate or barrier at a railroad crossing while the gate or barrier is closed or is
being opened or closed,” is “responsible for a civil infraction.” Id. § 257.667(2)-(3).
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What these arguments fail to account for, however, is that the Amended
Counter-Complaint is silent on whether the west gate was lowered in addition to the
east gate, and this omission significantly undermines CSX’s argument that it
discharged any duty of warning that it had by activating the gates at the crossing. If
the west gate was not lowered despite the fact that a stationary train was on the
southbound track, then the gates (plural) would not have been fully serving their
intended purpose as warning signals, and this would have rendered a belief on
LaPointe’s part that the gates were malfunctioning more reasonable under the
circumstances. This factual gap will benefit from discovery. Consequently, the Court
declines to find that the Amended Counter-Complaint fails as a matter of law to state
a negligence claim based on the theory that the crossing gates malfunctioned.
Moreover, to whatever extent LaPointe did violate Mich. Comp. Laws §
257.667 by entering the crossing, this goes to the question of comparative fault,
which is an issue for the trier of fact. See Mich. Comp. Laws § 600.6304(1)
(providing that the fact-finder in certain categories of tort actions shall make findings
indicating the “percentage of the total fault of all persons that contributed to the death
or injury”).1 CSX characterizes its arguments regarding Mich. Comp. Laws §

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Courts within this District have commonly regarded this provision as applicable
in tort actions governed by Michigan law. See, e.g., Redmond v. United States, 194
F. Supp. 3d 606, 623-24 (E.D. Mich. 2016); K.S. v. Detroit Pub. Sch., 153 F. Supp.
3d 970, 979-80 (E.D. Mich. 2015); Sedgwick Ins. v. F.A.B.E. Custom Downstream
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257.667 as directed towards the presence or absence of essential elements in
Counter-Plaintiffs’ case rather than comparative fault. But given that the ambiguity
regarding the activation of the west gate at the crossing undermines CSX’s argument
that Counter-Plaintiffs have failed to plead the elements of their case, as explained
above, the only clear relevance of Mich. Comp. Laws § 257.667 at this time is to
comparative fault.
Because the gap in Counter-Plaintiffs’ allegations regarding the activation of
the west gate precludes dismissal of the Amended Counter-Complaint for failure to
state a claim, this Court will deny CSX’s Motion to Dismiss as to Counter-Plaintiffs’
negligence claim.
Loss of Consortium (Count II)
“The derivative claim of loss of consortium stands or falls on the primary
claims in the complaint.” Kohler v. N. Star Steel Co., 408 F. Supp. 2d 380, 386–87
(E.D. Mich. 2005) (internal quotation marks omitted) (quoting Loper v. Computer
Network Technology Corp., 128 F. Supp. 2d 1061, 1069 (E.D. Mich. 2001) and Long
v. Chelsea Community Hospital, 219 Mich. App. 578 (1996)); see also Grain v.
Trinity Health, 431 F. App'x 434, 454 (6th Cir. 2011) (“Under Michigan law, a claim
for a loss of consortium ‘does not arise at all unless the other, impaired spouse has

Sys., Inc., 47 F. Supp. 3d 536, 538-42 (E.D. Mich. 2014). This Court assumes for
the purposes of the instant Motion that it would apply in this case as well.
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sustained some legally cognizable harm or injury.’”) (quoting Eide v. Kelsey–Hayes
Co., 431 Mich. 26, 29 (1988)).
As Counter-Plaintiffs’ negligence claim survives CSX’s Motion to Dismiss,
their loss of consortium claim does as well.
CONCLUSION
For the above reasons, the Court hereby DENIES CSX’s Motion to Dismiss.
IT IS SO ORDERED.

s/Paul D. Borman
Paul D. Borman
United States District Judge
Dated: November 6, 2017
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon
each attorney or party of record herein by electronic means or first class U.S. mail
on November 6, 2017.
s/D. Tofil
Deborah Tofil, Case Manager

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