Ezell v. Kansas City Southern Railway Company et al
MEMORANDUM OPINION re 101 Order on Motion for Summary Judgment. Signed by District Judge Sharion Aycock on 5/18/2016. (psk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
SHAWN T. EZELL
CAUSE NO.: 1:14CV120-SA-DAS
KANSAS CITY SOUTHERN RAILWAY COMPANY
On the morning on July 12, 2011, at approximately 3:15 am, Shawn Ezell collided his
vehicle with a stationary train at the North Division Street Crossing in West Point, Mississippi.1
Ezell’s vehicle became lodged under the rail car and he suffered extensive injuries from the
Ezell filed a lawsuit alleging that Kansas City Southern Railway Company (KCSR) (1)
operated the train in a negligent and unsafe manner for local existing conditions; (2) failed to
keep a proper lookout; (3) failed to adequately warn motorists on North Division Street that the
crossing was obstructed; (4) obstructed the crossing in violation of Mississippi Code Section 779-235; (5) obstructed the crossing in violation of KCSR’s own operating and safety rules; and (6)
placed the train in motion without warning as required by the laws and rules of KCSR.
KCSR has moved for summary judgment on the grounds that these claims are preempted
by federal law.2
Although not relevant for consideration of this motion, the record reflects that Ezell’s blood alcohol level at the
time of the incident was .218%, almost three times the legal limit to drive.
Defendant moved for summary judgment on all claims including failure to keep a proper lookout and improper
construction and/or maintenance of the crossing. Plaintiff failed to respond to the proper lookout and improper
construction arguments and offer specific facts showing an issue for trial. Therefore, summary judgment on those
claims is appropriate, and the Court grants Defendant’s request as to those claims accordingly. See FED. R. CIV. P.
56(e)(2); Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (holding that the district court has no
duty to search the record for triable issues).
Summary Judgment Standard
Federal Rule of Civil Procedure 56 governs summary judgment. Summary judgment is
warranted when the evidence reveals no genuine dispute regarding any material fact, and the
moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). The rule
“mandates the entry of summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
The moving party “bears the initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of [the record] which it believes demonstrate
the absence of a genuine issue of material fact.” Id. at 323, 106 S. Ct. 2548. The nonmoving
party must then “go beyond the pleadings” and “designate ‘specific facts showing that there is a
genuine issue for trial.’” Id. at 324, 106 S. Ct. 2548 (citation omitted). In reviewing the evidence,
factual controversies are to be resolved in favor of the non-movant, “but only when . . . both
parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994) (en banc). When such contradictory facts exist, the Court may “not make
credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000). Conclusory allegations,
speculation, unsubstantiated assertions, and legalistic arguments are not an adequate substitute
for specific facts showing a genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash., 276
F.3d 754, 759 (5th Cir. 2002); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1997); Little, 37 F.3d
Discussion and Analysis
KCSR contends that most of Plaintiff’s claims are preempted by either the Interstate
Commerce Commission Termination Act (ICCTA), 49 U.S.C. § 10101, et seq., or the Federal
Railroad Safety Act (FRSA), 49 U.S.C. § 20101.
The ICCTA was enacted to “minimize the need for Federal regulatory control over the
rail system” as well as “foster sound economic conditions in transportation.” Id. at § 10101. In
section 10501 of the ICCTA, the jurisdiction of the Surface Transportation Board (“STB”) is
defined and the preemptive effect of the statute is declared as follows:
(b) The jurisdiction of the Board over(1) transportation by rail carriers, and the remedies provided in this part with
respect to rates, classifications, rules (including car service, interchange,
and other operating rules), practices, routes, services, and facilities of such
(2) the construction, acquisition, operation, abandonment, or discontinuance
of spur, industrial, team, switching, or side tracks, or facilities, even if the
tracks are located, or intended to be located, entirely in one State,
is exclusive. Except as otherwise provided in this part, the remedies provided
under this part with respect to regulation of rail transportation are exclusive and
preempt the remedies provided under Federal or State law.
49 U.S.C. § 10501. Section 10501(b) gives the Board exclusive jurisdiction over “transportation
by rail carriers,” and the term “transportation” is defined by statute, at 49 U.S.C. 10102(9), to
embrace all of the equipment, facilities, and services relating to the movement of property by
Ezell’s claims include violation of Mississippi’s Anti–Blocking statute, Section 77–9–
235 of the Mississippi Code of 1972, as amended, as well as the anti-blocking rule 6.32.6 of
KCSR’s General Code of Operating Rules. The Fifth Circuit has already held that the ICCTA
preempts negligence per se claims brought pursuant to Mississippi Code Section 77-9-235.3
Elam v. Kan. City S. Ry. Co., 635 F.3d 796, 806-07 (5th Cir. 2011). That statute “hones in on
‘railroad company[ies]’ and rail ‘cross[ings]’” and as such “has no application except with
respect to the operation of railroads at rail crossings.” Id. at 807. Therefore, Plaintiff’s antiblocking claim brought pursuant to the Mississippi state anti-blocking statute are preempted. Id.
at 808 (noting that the Mississippi state anti-blocking statute is “incompatible with the ICCTA
and not saved by the FRSA.”).
While Plaintiff acknowledges that his negligence per se claim may be preempted, he
contends that the crossing was obstructed in violation of KCSR’s operating and safety rules,
which results in a violation of the federal standard of care. General Code of Operating Rule
(GCOR) 6.32.6, as adopted by KCSR, states that “[w]hen practical, a standing train or switching
movement must avoid blocking a public crossing longer than 10 minutes.”
Plaintiff, the train at issue in this litigation was blocking the North Division Street crossing for
twenty-four minutes. Thus, Plaintiff contends that KCSR breached a duty of care.
Based on the above cited statutory language, Plaintiff’s claim based on the GCOR would
be preempted under the ICCTA as well. The Surface Transportation Board has exclusive
jurisdiction over the remedies of operating rules of rail carriers. 49 U.S.C. § 10501. Plaintiff has
made clear that his claim is being pursued under GCOR 6.32.6. See Friberg v. Kansas City S.
Ry. Co., 267 F.3d 439, 443 (5th Cir. 2001) (labeling claims related to regulating the time a train
can occupy a rail crossing, train speed, length and scheduling, as concerning a “railroad’s
economic decisions,” which are necessarily preempted by the ICCTA). Accordingly, that claim
is also preempted.
That statute provides that “. . . [e]very railroad company shall, upon stopping any train at a place where such
railroad is crossed by a street, so uncouple the cars as not to obstruct travel thereon for a longer period than shall be
prescribed by ordinance of the city, town or village.” MISS. CODE. ANN. § 77-9-235.
Inadequate Warning Claims
Plaintiff contends that Defendant provided inadequate warnings of a dark stationary train
motionless in the middle of the night. Plaintiff, however, does not dispute that the crossbuck,
pavement markers, and other advanced warning signs were adequate at the North Division Street
crossing. While Plaintiff admits he was aware of the crossing prior to the incident, he claims that
the dark tank car, the “kind of like foggy” night, and an incline in the road created such a
peculiar or hazardous condition that the “Occupied Crossing Rule” would not apply.
Under Mississippi law, “ordinarily a train legitimately stopped or standing over a public
crossing because of its tremendous size is all the warning the traveling public is entitled to.”
King v. Illinois Cent. R.R., 337 F.3d 550, 553 (5th Cir. 2003)(citing Clark v. Columbus &
Greenville Ry. Co., 473 So. 2d 947, 950 (Miss. 1985)).
There is, however, a recognized
exception to the “occupied crossing rule” where the railroad should foresee that a motorist using
ordinary care may not see the train because of a peculiar environment or hazardous condition.
Spilman v. Gulf & S.I.R. Co., 163 So. 445 (Miss. 1935).
Courts have only found the exception applicable where extraordinary physical
environments or landscapes make the crossing difficult to see. For example,
Mississippi courts make an exception where a vehicle approaches a crossing
on a street with a steep and varied incline so that a vehicle’s headlights do not
strike the train’s cars. Illinois Cent. R.R. Co. v. Williams, 242 Miss. 586, 135
So. 2d 831, 837 (1961). Likewise, a sharp curve in the road leading to the
crossing, creating a trap for approaching drivers, constitutes a peculiar
environment or hazardous condition taking the case outside of the scope of the
occupied crossing rule. Green v. Gulf, Mobil & Ohio R.R. Co., 244 Miss. 211,
141 So. 2d 216 (1962). Similarly, a decline or dip in the street over the
crossing such that a flatcar cannot be seen at night during heavy fog
constitutes a peculiar environment or hazardous condition. Boyd v. Illinois
Cent. R.R. Co., 211 Miss. 409, 52 So. 2d 21, 25–27 (1951). A physical
obstruction blocking the view of the crossing may also constitute a peculiar
environment or hazardous condition. Hales v. Illinois Cent. Gulf R.R. Co., 718
F.2d 138, 142–143 (5th Cir. 1983). However, the darkness of night is not a
peculiar environment or hazardous condition. Owens v. Int'l Paper Co., 528
F.2d 606, 610 (5th Cir. 1976).
King, 337 F.3d at 553-54.
Plaintiff has failed to show a peculiar environment or hazardous condition.
photographs attached in the record reveal a slight incline, less than five percent according to
Defendant’s expert, from the road to the crossing. Plaintiff has likewise failed to produce proof
supporting his claim that there was fog during the early morning hours of July 12, 1011. Both
accident reports filed in this case indicate that the weather conditions were “clear.” Even if there
was a light fog, however, Mississippi case law shows that dense fog and a stationary train did not
produce conditions excepted from the occupied crossing rule. Mississippi Export R. Co. v.
Summers, 11 So. 3d 429, 430 (Miss. 1943). In fact, the Mississippi Supreme Court stated that
the “railroad company had the right to assume that [the driver that ran into the train] was
complying with the law.” Id.
Viewing the evidence in the light most favorable to the Plaintiff, Ezell has produced
insufficient evidence for a jury determination in the exception to Mississippi’s occupied crossing
Improper Motion Claim
After the switching task was completed, the train was moved approximately twenty-five
yards prior to being told by the West Point Police that a car was trapped under a rail car.
Accordingly, Ezell claims that KCSR put the train in motion without any warning which caused
him further damage and injury.
Plaintiff has failed to indicate any particular injury or damage that occurred from the train
moving after impact. This claim is properly dismissed for a lack of genuine issue of material
Defendant’s Motion for Summary Judgment is GRANTED. Plaintiff’s claims are
DISMISSED, and this case is CLOSED.
SO ORDERED, this the 18th day of May, 2016.
/s/ Sharion Aycock_________
U.S. DISTRICT JUDGE
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