Illinois Central Railroad Company v. Cryogenic Transportation, Inc. et al
Filing
315
ORDER finding as moot 266 Motion to Bifurcate; granting in part and denying in part 268 Motion for Summary Judgment; temporarily denying 273 Motion to Exclude; temporarily denying 275 Motion to Exclude; granting 290 Motion for Leave to File Excess Pages; temporarily denying 298 Motion to Exclude; finding as moot 305 Motion for Hearing Signed by District Judge Henry T. Wingate on 9/30/2012 (tn)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
Illinois Central Railroad Company
VS.
PLAINTIFF
CIVIL ACTION NO. 3:09CV473-HTW-LRA
Cryogenic Transportation, Inc. et al
DEFENDANTS
_____________________________________________________________________
Clydine Daniel, in her capacity as
Administratrix/executrix/personal
Representative of the Estate of
Michael Daniel, Deceased; Clydine
Daniel, individually
COUNTER-PLAINTIFF
VS.
Illinois Central Railroad Company
COUNTER-DEFENDANT
One Beacon America Insurance Company
INTERVENOR PLAINTIFF
ORDER GRANTING IN PART AND DENYING
IN PART SUMMARY JUDGMENT
In this lawsuit, defendant and counter-plaintiff Clydine Daniel (“C. Daniel”) has
filed counter-claims against the original plaintiff, Illinois Central Railroad Company
(“ICRR”), accusing ICRR of negligently causing the death of her husband, Michael
Daniel (“M. Daniel”), when an ICRR train collided with the decedent’s tanker-truck at a
railroad crossing. ICRR filed this tort lawsuit alleging M. Daniel’s negligence and
seeking recompense from M. Daniel’s employer and M. Daniel’s estate for, among
other things, damage to the train, railroad tracks, and right-of-way. All parties and
claims have been dismissed or settled, except C. Daniel’s counter-claims against ICRR.
1
Now before this court is ICRR’s motion for summary judgment on C. Daniel’s
counter-claims [docket no. 268]. Also before the court are: a motion to bifurcate filed by
ICRR [docket no. 266]; three motions filed by ICRR to exclude the testimony of C.
Daniel’s expert witnesses [docket nos. 273, 275, and 298]; a motion for leave to file
excess pages filed by ICRR [docket no. 290]; and a motion to set/reset hearings filed by
C. Daniel [docket no. 305].
I. Procedural History and Jurisdiction
On August 11, 2009, ICRR filed the underlying lawsuit in this federal court
pursuant to this court’s diversity subject matter jurisdiction, Title 28 U.S.C. § 1332(a)1.
The plaintiff, ICRR, an Illinois corporation with its principal place of business in the
State of Illinois, accused M. Daniel, now deceased, of negligently operating his tractortrailer truck and causing a collision between M. Daniel’s truck and an ICRR train at a
grade crossing in Star, Mississippi. ICRR sued Cryogenic Transportation, Inc., M.
Daniel’s employer, and C. Daniel, the administratrix, executrix, and personal
representative of the decedent, M. Daniel. M. Daniel was a resident of Alabama. His
widow C. Daniel, the defendant and counter-plaintiff, is a resident of Alabama.
Cryogenic Transportation, Inc., is a Pennsylvania corporation with its principal place of
business in Quakertown, Pennsylvania. The amount in controversy exceeds $75,000,
exclusive of costs and interest.
With her answer to ICRR’s complaint, C. Daniel filed the counter-claims now
before this court against ICRR in her individual capacity, on behalf of M. Daniel’s
1
Title 28 U.S.C. § 1332(a)(1) states that “[t]he district courts shall have original
jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of
$75,000, exclusive of interest and costs, and is between--citizens of different States;”
2
wrongful death beneficiaries, and as the personal representative of the estate of M.
Daniel. Answer and counter claim, docket no. 9.
This court has subject matter jurisdiction over the original claims made by ICRR
under Section 1332(a), and has supplemental jurisdiction, pursuant to Title 28 U.S.C.
§ 1367,2 over these counter-claims, which are compulsory under Fed.R.Civ.P. 13(a).3
In addition to her claims against ICRR, C. Daniel has asserted claims of
negligence against the following: Airgas Carbonics, Inc., a Mississippi corporation with
its principal place of business in Georgia; the Mississippi Department of Transportation;
Rankin County, Mississippi; Canadian National Railway (“CNR”), a Canadian
corporation with its principal place of business in Montreal, Quebec, Canada; Grand
Trunk Corporation, a Delaware Corporation with its principal place of business in
Delaware; and Illinois Central Corporation, a Delaware Corporation with its principal
place of business in Delaware.4
2
Title 28 U.S.C. § 1367(a) states, in relevant part, that “in any civil action of which the
district courts have original jurisdiction, the district courts shall have supplemental jurisdiction
over all other claims that are so related to claims in the action within such original jurisdiction
that they form part of the same case or controversy under Article III of the United States
Constitution.”
3
Fed.R.Civ.P. 13(a) states:
(a) COMPULSORY COUNTER-CLAIM.
(1) In General. A pleading must state as a counter-claim any claim that—at the time of its
service—the pleader has against an opposing party if the claim:
(A) arises out of the transaction or occurrence that is the subject matter of the opposing
party’s claim; and
(B) does not require adding another party over whom the court cannot acquire
jurisdiction.
4
Grand Trunk Corporation owns Illinois Central Corporation, which in turn owns ICRR.
Both Illinois Central Corporation and Grand Trunk Corporation are non-operating holding
companies. Canadian National Railway owns Grand Trunk Corporation. Aff. of Michael T.
Novak, General Counsel for the United States operating subsidiaries of CNR, ¶ 16, docket no.
106-2.
3
The train engineer, James Roberts, and conductor, Marcus Lovette, both
Mississippi residents, sued Cryogenic and C. Daniel as a result of the subject collision.
Marcus Lovette’s lawsuit (Civil Action No. 5:10-cv-80-DCB-JRR) was consolidated with
this case. James Robert filed a complaint as an intervenor in this lawsuit.
All claims between C. Daniel and these additional parties have been dismissed
or resolved through settlement. The only claims remaining in this lawsuit are the
counter-claims filed by C. Daniel against ICRR.
II. Facts
On the morning of July 26, 2009, at the time of the mishap in question, M. Daniel
was driving an eighteen-wheeler truck as an employee of Cryogenic Transportation.
Amended counter-claim, ¶ 8, docket no. 80. He was on the premises of the Airgas
Carbonics, Inc.’s (“Airgas”) plant in Star, Mississippi. Once he filled his truck with liquid
carbon dioxide, he exited the plant and began to cross the railroad crossing at Andrew
Jackson Circle. This conjunction was identified in the federal crossing inventory as
United States Department of Transportation No. 305437D. Id. The railroad crossing
encompasses three sets of tracks: the spur track, which leaves the mainline and enters
the Airgas facility; a mainline, which is owned and operated by ICRR; and another set of
tracks, which traverse Dixie Road where it meets Andrew Jackson Circle. Id; see
survey of existing conditions, docket no. 284-5.
M. Daniel left the Airgas plant and turned north onto Andrew Jackson Circle. He
crossed the first set of tracks–the spur entering Airgas–and the cab of his truck crossed
over the mainline tracks. Suddenly, an ICRR locomotive traveling east to west collided
with the tanker of his truck. Amended counter-claim, ¶ 8, docket no. 80. The tanker
4
immediately exploded, destroying the truck.5 M. Daniel was expelled from the cab. He
died two days later.6 Id.
III. Summary Judgment
A. Legal Standard
Summary judgment is appropriate "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986). In response to a motion for summary judgment, the non-moving
party must provide specific proof demonstrating a triable issue of fact as to each of the
elements required to establish the claim asserted. Washington v. Armstrong World
Indus., 839 F.2d 1121, 1122-23 (5th Cir. 1988). The court must resolve all reasonable
doubts about the existence of a genuine issue of material fact against the movant. Byrd
v. Roadway Express, Inc., 687 F.2d 85, 87 (5th Cir. 1982).
B. Federal Railroad Safety Act (“FRSA”) and Pre-emption
Illinois Central Railroad asks this court to dismiss a number of C. Daniel’s
negligence claims, alleging that the FRSA pre-empts them. First the court will review
the pre-emptive effect of the FRSA on state law-based causes of action. The FRSA
5
ICRR, has submitted a video taken from an Airgas security camera which shows the
decedent exiting the Airgas plant and entering the intersection. The last seconds of the video
show the moment of impact between M. Daniel’s tanker-truck and the ICRR train. The final
video frames are filled with the explosion of the liquid carbon dioxide from M. Daniel’s tankertruck.
6
C. Daniel, in her amended counter-claim, alleges that M. Daniel died on July 28, 2009,
two days after the collision. Docket no. 80. In other pleadings, C. Daniel alleges that M. Daniel
died in the collision on July 26, 2009.
5
only pre-empts state law where the Secretary of Transportation has promulgated
regulations covering the subject matter. The court, then, will evaluate each of C.
Daniel’s claims of negligence in the context of regulation which has been promulgated
by the Secretary of Transportation governing the subject of those claims.
The United States Congress enacted the FRSA in 1970 “to promote safety in all
areas of railroad operations and to reduce railroad-related accidents and incidents.”
Norfolk Southern Railway Co. v. Shanklin, 529 U.S. 344, 347, 120 S.Ct. 1467, 1471,
146 L.Ed.2d 374 (2000) (citing Title 49 U.S.C. § 20101) (“Shanklin”). The Act grants
the Secretary of Transportation authority to “prescribe regulations and issue orders for
every area of railroad safety.” Id (citing Title 49 U.S.C. § 20103(a)). The FRSA
specifically addresses the issue of railroad crossing grades, saying “the Secretary of
Transportation shall maintain a coordinated effort to develop and carry out solutions to
the railroad grade crossing problem.” Id (citing Title 49 U.S.C. § 20134(a)).
The Act prescribes its own pre-emptive effect on state law, and includes a
savings clause which allows state law legislation and claims in areas where the
Secretary of Transportation has not promulgated regulation. Id at 347-48 (citing Title
49 U.S.C. § 20106). The pre-emption and savings clause states:
(a) National uniformity of regulation.
(1) Laws, regulations, and orders related to railroad safety and laws,
regulations, and orders related to railroad security shall be nationally
uniform to the extent practicable.
(2) A State may adopt or continue in force a law, regulation, or order
related to railroad safety or security until the Secretary of
Transportation [. . .] prescribes a regulation or issues an order covering
the subject matter of the State requirement. A State may adopt or
continue in force an additional or more stringent law, regulation, or
order related to railroad safety or security when the law, regulation, or
order-(A) is necessary to eliminate or reduce an essentially local safety or
6
security hazard;
(B) is not incompatible with a law, regulation, or order of the United
States Government; and
(C) does not unreasonably burden interstate commerce.
Under this Section, if the Secretary of Transportation issues a regulation that “covers”
the same subject as state law, it pre-empts that state law. Shanklin, 529 U.S. at 352.
An area is “covered,” and thus pre-empted, if the “federal regulations substantially
subsume the subject matter of the relevant state law.” Id. Any state law or cause of
action which conflicts with the Department of Transportation regulation will be displaced
by federal law. Id at 352-53.
Subsections (a)(2)(A), (B), and (C) reserve to the states the right to pass laws
(and allows state law causes of action) related to unique “local hazards” that cannot be
adequately addressed by uniform federal laws. A “local hazard” is a specific hazardous
condition that, by definition, cannot be found at many crossings across the state or
region. Hesling v. CSX Trans. Inc., 396 F.3d 632, 640-41 (5th Cir. 2005). A state law
regarding a “local hazard” will not be pre-empted as long as it is compatible with the
existing federal regulation and does not burden interstate commerce. Id at 640.
In 2007, Congress amended the pre-emption clause of the statute, adding
subsection (b), as part of the Federal Railroad Safety Improvement Act of 2007. P.L.
110-432. Congress added this “clarification,” as the amendment is entitled, in response
to a catastrophic train derailment which occurred in Minot, North Dakota in 2002, and
subsequent judicial opinions issued in the related litigation.7 See House Report on the
7
“On January 18, 2002, a Canadian Pacific Railway Company freight train derailed near
Minot, North Dakota, and caused the release of more than 220,000 gallons of anhydrous
ammonia into the air, exposing the area’s population to a cloud of toxic gas, causing many
people to suffer from permanent respiratory and eye damage.” Lundeen v. Canadian Pacific
Ry. Co., 532 F.3d 682, 687 (8th Cir. 2008) (Lundeen II)). Many of the injured parties sued in
7
Federal Railroad Safety Improvement Act of 2007, H.R. Report No. 110-336, 2143-44.8
The amendment to Title 49 U.S.C. § 20106 states:
(b) Clarification regarding State law causes of action.
(1) Nothing in this section shall be construed to pre-empt an action under
State law seeking damages for personal injury, death, or property damage
alleging that a party-(A) has failed to comply with the Federal standard of care established by a
regulation or order issued by the Secretary of Transportation [. . .]
covering the subject matter as provided in subsection (a) of this section;
(B) has failed to comply with its own plan, rule, or standard that it created
pursuant to a regulation or order issued by either of the Secretaries; or
(C) has failed to comply with a State law, regulation, or order that is not
incompatible with subsection (a)(2).
Although the United States Court of Appeals for the Fifth Circuit has not yet
interpreted this amendment, the United States Courts of Appeal in the Eighth and Tenth
Circuits have addressed FRSA pre-emption of negligence claims involving train-vehicle
collisions since the 2007 amendment was enacted. Both Circuits have distinguished
between regulations which provide a “standard of care” with which the railroads must
comply, as opposed to a specific rule that supplants the railroad or local government’s
decision-making. See Grade v. BNSF Ry. Co., 676 F.3d 680, 686 (8th Cir. 2012) (the
2007 clarifying amendment to the FRSA pre-emption clause is limited to narrow
instances where a plaintiff alleges that the railroad negligently failed to comply with a
state court, and Canadian Pacific removed the actions to federal court. In Lundeen v.
Canadian Pacific Ry. Co., 447 F.3d 606 (8th Cir. 2006) and Mehl v. Canadian Pacific Ry. Co.,
417 F.Supp.2d 1104 (D.N.D. 2006), the courts found that federal regulations governing
inspection and maintenance of railroad tracks pre-empted the plaintiffs’ state tort law claims.
447 F.3d at 614; 417 F.Supp.2d at 1110-11, 1116.
8
The House Report cites Lundeen v. Canadian Pacific Ry. Co., 447 F.3d 606 (8th Cir.
2006) and Mehl v. Canadian Pacific Ry. Co., 417 F.Supp.2d 1104 (D.N.D. 2006), saying that
Congress disagreed with these decisions and “adopted a provision to clarify the intent and
interpretations of the existing pre-emption statute [. . .].” The amendment allows state law
causes of action which allege a violation of a regulatory “standard of care.” See Title 49 U.S.C.
§ 20106(b)(1)(A).
8
regulatory “standard of care;” the amendment does not apply to warning signal
regulations that “take the final authority to decide what warning system is needed . . .
out of the railroad’s and the state’s hands” (internal citations omitted)); Henning v.
Union Pacific Ry. Co., 530 F.3d 1206, 1214-1215 (10th Cir. 2008) (holding that a claim
that the railroad negligently failed timely to install active warning devices after the
Oklahoma Transportation Commission and the Federal Highway Administration
(“FHWA”) both approved upgrading from passive warning signals to active signals was
pre-empted by the FRSA and Department of Transportation regulations). In the former
case, where a regulatory standard of care creates an affirmative duty for the railroad to
act, the plaintiff may sue, alleging the railroad violated that standard of care. Henning,
530 F.3d at 1215. If the regulation “displace[s] railroad decision-making authority,” then
that area of state law is pre-empted by the federal regulation, regardless of compliance
with the regulatory requirement. Id.
Considering the above backdrop, this court will address each of C. Daniel’s
allegations of negligence individually to evaluate whether that claim is pre-empted.
C. Analysis: Negligence Claims
C. Daniel alleges that ICRR negligently caused the collision which killed her
husband. In her amended counter-claim, C. Daniel cited eighteen grounds to support
her allegations of negligence against ICRR. Amended counter-claim, ¶ 10, docket no.
80. After ICRR filed its motion for summary judgment, C. Daniel reduced her claims to
four, although she offers numerous facts to support each one. These claims are: (1)
inadequate warning signals at the grade crossing; (2) excessive speed; (3) inadequate
sight distance; and (4) failure of the ICRR engineer to take appropriate actions to avoid
9
the collision. C. Daniel’s response in opposition at 10, docket no. 284. C. Daniel also
challenges ICRR’s claims of per se negligence and lack of proximate cause. This court
will address each in turn.
1. Inadequate Warning Signals
This court finds that C. Daniel’s claim of inadequate signalization at the railroad
crossing where her husband died is pre-empted by federal law. ICRR has provided
evidence that the federal government expended funds to install the signals, thus
triggering the FRSA’s pre-emptive effect. Binding precedent indicates that even
significant changes at a grade crossing subsequent to installation of the federally
funded signals do not act to remove federal pre-emption. 529 U.S. at 357-358.
This result seems tragic in the face of evidence offered by C. Daniel that radical
changes have occurred since federal law pre-emption took effect, including the
wholesale new construction of a chemical plant, which have increased the danger of
negotiating this intersection and grade crossing. If this court’s reading of the cases of
CSX Transp. Inc. v. Easterwood, 507 U.S. 658, 113 S.Ct. 1732, 123 L.d.2d 387 (1993)
and Shanklin, as well as their progeny, is correct, then it is exclusively within the
purview of Congress to address the law.
The federal government has provided monies, under the Federal RailwayHighway Crossings Program (“Crossings Program”), to fund construction projects to
eliminate hazards associated with railway-highway crossings. Shanklin, 529 U.S. at
348 (citing Title 23 U.S.C. § 130(a)). The Secretary of Transportation has promulgated
companion regulations governing minimum standards for railroad crossing projects that
receive funds through the Crossings Program. Title 23 C.F.R. § 646.214(b)(3) and (4)
10
address requirements for railroad crossing warning signals installed with federal funds
under the Crossings Program and are maintained by the FHWA.9 Id at 348-49. The
United States Supreme Court, in Shanklin, evaluated the pre-emptive effect of these
regulations and found that once crossing warning signals are installed using federal
funds from this program, claims of adequacy of the warning signals are pre-empted by
federal law regardless whether the signals comply with the federal regulations at the
time of an accident. Id at 357-58 (stating, “[i]t is this displacement of state law
concerning the devices’ adequacy, and not the State’s or FHWA’s adherence to the
standard [. . .] that pre-empts state tort actions”). Federal Circuit Courts that have
considered the 2007 Congressional amendment to the FRSA pre-emption clause have
found that Shanklin continues to apply to warning signal claims. Grade, 676 F.3d at
686; Henning, 530 F.3d at 1215-1216.
9
Title 23 C.F.R. § 646.214(b) states in part:
(b) Grade crossing improvements.
(3)(i) Adequate warning devices, under § 646.214(b)(2) or on any project where Federal-aid
funds participate in the installation of the devices are to include automatic gates with
flashing light signals when one or more of the following conditions exist:
(A) Multiple main line railroad tracks.
(B) Multiple tracks at or in the vicinity of the crossing which may be occupied by a train
or locomotive so as to obscure the movement of another train approaching the crossing.
(C) High Speed train operation combined with limited sight distance at either single or
multiple track crossings.
(D) A combination of high speeds and moderately high volumes of highway and railroad
traffic.
(E) Either a high volume of vehicular traffic, high number of train movements,
substantial numbers of schoolbuses or trucks carrying hazardous materials, unusually
restricted sight distance, continuing accident occurrences, or any combination of these
conditions.
(F) A diagnostic team recommends them.
(ii) In individual cases where a diagnostic team justifies that gates are not appropriate,
FHWA may find that the above requirements are not applicable.
(4) For crossings where the requirements of § 646.214(b)(3) are not applicable, the type of
warning device to be installed, whether the determination is made by a State regulatory agency,
State highway agency, and/or the railroad, is subject to the approval of FHWA.
11
Section 646.214(b)(3) lists hazardous conditions which necessitate automatic
gates and flashing lights at grade crossings. Grade, 676 F.3d at 683-684. Some of
these conditions cited in this section arguably are present at the crossing in question
here. These conditions are:
...
(B) Multiple tracks at or in the vicinity of the crossing which may be
occupied by a train or locomotive so as to obscure the movement of
another train approaching the crossing.
(C) High speed train operation combined with limited sight distance at
either single or multiple track crossings.
...
(E) Either a high volume of vehicular traffic, high number of train
movements, substantial numbers of schoolbuses or trucks carrying
hazardous materials, unusually restricted sight distance, continuing
accident occurrences, or any combination of these conditions.
Id (citing § 646.214(b)(3)(i)(emphasis added)).
If the crossing does not contain the hazards listed in Section 646.214(b)(3), the
decision of what devices to install “is subject to the approval of FHWA.” Id at 684 (citing
§ 646.214(b)(4)). As mentioned above, the United States Supreme Court in its
Shanklin opinion ruled that when federal funds are used to install warning signals at
grade crossings, state law based claims of inadequate signals are pre-empted even
where the signals do not comply with § 646.214(b)(3). 529 U.S. at 358.
In the Shanklin, the widow of a motorist who was struck by a train and killed at a
railroad crossing sued the railroad, alleging that the railroad had failed to maintain
adequate warning signals at the crossing. The crossing signals had been installed
using federal funds in 1987. The plaintiff’s decedent died at the railroad crossing in
1993.
12
The crossing in question in the Shanklin case did not have automatic gates and
flashing lights. The warnings installed included “advance warning signs and
reflectorized crossbucks, the familiar black-and-white, X-shaped signs that read
‘RAILROAD CROSSING.’” 529 U.S. at 350.
The Court found that “once the FHWA has funded the crossing improvement and
the warning devices are actually installed and operating, the regulation ‘displace[s] state
and private decision-making authority by establishing a federal-law requirement that
certain devices be installed or federal approval obtained.’” Id at 354. The Court further
stated that “§§ 646.214(b)(3) and (4) pre-empt state tort claims concerning the
adequacy of all warning devices installed with the participation of federal funds.” Id at
357 (referencing CSX Transp. Inc. v. Easterwood, 507 U.S. 658, 113 S.Ct. 1732, 123
L.d.2d 387 (1993)).
The Court addressed the effect that post-funding changes in the crossing’s
surroundings have on federal law pre-emption. Because federal law pre-empts or
replaces state law at the time the federally funded devices are installed, the Shanklin
court stated, “whether conditions at the crossing have since changed such that
automatic gates and flashing lights would be appropriate” would not affect whether the
FRSA pre-empted state law. Id at 358.
a. Title 23 U.S.C. § 409 and Admissibility of Evidence of Federal
Funding
C. Daniel here argues that her claim of inadequate warnings is not pre-empted
by federal law because: the evidence of federal funding offered by ICRR is privileged
under Title 28 U.S.C. § 409 and inadmissible; ICRR cannot show that all of the warning
signs at the crossing were installed using federal funds; and the signage in place at the
13
time of the collision at the grade crossing failed to comply with federal regulations.
The documents ICRR offers to show that federal funds were used to install
warnings at the crossing, says C. Daniel, are privileged under Title 23 U.S.C. § 409.
This court affirmed that privilege, she says, in an order quashing her subpoena of the
information. See Order of Magistrate Judge dated April 29, 2011, docket no. 231.
Indeed, this court granted a motion to quash filed by the Mississippi Department
of Transportation (“MDOT”), and a protective order, which prevented C. Daniel from
deposing MDOT employees regarding the “specific evidence collected or compiled by
the states to obtain federal funding for safety improvements at railroad crossings as
required under federal law.” Id at 2.
C. Daniel concludes, then, that the evidence in question is inadmissible and
cannot be used to support ICRR’s motion for summary judgment. Further, C. Daniel
says, it would be unfair to bar her from deposing MDOT about this evidence, only to
allow it to be used later against her.
To qualify for federal funds, Title 23 U.S.C. § 152 requires states to “conduct and
systematically maintain an engineering study of all public roads to identify hazardous
locations, sections, and elements [. . .] and establish and implement a schedule of
projects for their improvement.” Pierce County, Washington v. Guillen, 537 U.S. 129,
133, 123 S.Ct. 720, 154 L.Ed.2d 610 (2003) (citing Title 23 U.S.C. § 152(a)(1)).
Congress enacted Title 23 U.S.C. § 409 to address states’ concerns that this
data about road safety would subject them to greater liability for accidents. Id at 134.
This privilege statute “was implemented to foster the free flow of information” from the
states and to ensure that railroads would not be hesitant to participate in providing
14
information to make roads and crossings safer. See Burlington Northern R.R. Co. v.
Deatherage, 1997 WL 33384269, *2 (N.D.Miss. 1997). Title 23 U.S.C. § 409 states:
Notwithstanding any other provision of law, reports, surveys, schedules,
lists, or data compiled or collected for the purpose of identifying,
evaluating, or planning the safety enhancement of potential accident sites,
hazardous roadway conditions, or railway-highway crossings, pursuant to
sections 130, 144, and 148 of this title or for the purpose of developing
any highway safety construction improvement project which may be
implemented utilizing Federal-aid highway funds shall not be subject to
discovery or admitted into evidence in a Federal or State court proceeding
or considered for other purposes in any action for damages arising from
any occurrence at a location mentioned or addressed in such reports,
surveys, schedules, lists, or data.
The United States Supreme Court has found that this statute bars discovery or
admissibility of data and information collected specifically to satisfy the requirements of
Title 23 U.S.C. § 152, such as that data compiled or collected by state departments of
transportation for analysis and planning of highway projects. See Pierce County, 537
U.S. at 144, 146. The statute, however, does not bar discovery of data originally
compiled for purposes unrelated to § 152, such as accident data compiled by law
enforcement. Id. The statute protects data collected for planning of federally funded
highway improvement projects. Evidence merely showing that federal funds have been
used to implement those projects is not governed by § 409. Deatherage, 1997 WL
33384269, *2.
C. Daniel’s subpoena demanded production of:
All diagnostic studies and/or safety studies performed at the crossing
identified as crossing no. 305437D which is located at Star, Mississippi at
the intersection of Andrew Jackson Circle and Dixie Road at the Airgas
plant. Subpoena, docket no. 186.
The Magistrate Judge’s order quashing this subpoena explains that Title 23
U.S.C. § 409 must be strictly construed, and that it bars discovery of information
15
compiled by the states to obtain federal funding. April 29, 2011 order at 2 (citing Pierce
County, 537 U.S. at 145), docket no. 231. The Magistrate Judge cited the affidavit of
Robert A. Burt II (“Burt”), Special Projects Engineer, who was the Director of the
Freight, Rails, Ports and Waterway Division of MDOT during the time the safety studies
and data were compiled. The affidavit recites that this information was collected to
obtain federal funding. See id. C. Daniel’s subpoena specifically asked MDOT to
produce this privileged information and, therefore, was quashed.
The statute, however, does not bar evidence that federal funding was used for a
crossing or highway project. See Deatherage, 1997 WL 33384269, *2. Federal funding
is a necessary ingredient for the court to find federal law pre-emption with respect to the
adequacy of railroad crossing signage. If Title 23 U.S.C. § 409 operated to bar
evidence of federal funding, this statute “would eliminate the doctrine of federal preemption of inadequate signalization claims, as there would be no way to prove that
federal funds were used to install or upgrade signalization at specific crossings.” See
id. The Magistrate Judge’s order only precluded discovery of privileged information,
specifically diagnostic reports and safety studies compiled by MDOT to obtain federal
funding.
C. Daniel filed a motion to reconsider [docket no. 250], asking the court to allow
her to depose MDOT employees regarding:
•
•
•
•
The July 26, 2009 accident at crossing no. 305437D wherein Michael Daniel was
hit by an Illinois Central train;
Their investigation, notes, photographs, drawings or any other record they may
have of their inspections of the crossing no. 305437D;
The March 28, 2004 accident at crossing no. 305437D wherein LC McCallum
was driving a truck and was hit by an Illinois Central/Canadian National train;
The December 15, 2005 accident at crossing no. 305437D wherein Jeff Wright
was driving a truck and was hit by an Illinois Central/Canadian National train.
16
C. Daniel’s motion to reconsider, ¶ 2, docket no. 250.
C. Daniel has focused her discovery efforts, with respect to MDOT, on obtaining
accident and safety data. C. Daniel never asked to depose an MDOT representative on
the narrow issue of whether federal funding had been used at the crossing.
This court is persuaded that Burt’s affidavit and the attached documents showing
final plans and receipts for crossing warnings installed at the crossing in question
[docket no. 268-9] are admissible. These documents support ICRR’s claim that federal
funds were used to install signals at the railroad crossing at Andrew Jackson Circle.
b. Whether ICRR has shown that the signs in place at the time of the
accident were installed using federal funds.
C. Daniel argues that although the FRSA may pre-empt challenges to the
adequacy of warnings and signals installed with the participation of federal funds, ICRR
has not provided evidence that the warnings and signals in place at the crossing at the
time of the accident were installed using federal funds. C. Daniel has provided a
timeline of changes to the area surrounding the crossing.
C. Daniel says that the railroad crossing in question has been in existence since
the 1970's and federal funds were used sometime in the early 1980's to install signals.
The crossbuck present in front of the mainline was installed between 2005 and 2009,
and was not installed with federal funds. Dep. Dinning, pp. 14-15 (testifying that a
crossbuck was added to the crossing between 2005 and 2009); Dep. McCallum, p. 14
(testifying that there was no stop sign on Andrew Jackson Circle south of the spur track
in 2004); Dep. Wright, p. 15 (testifying that a crossbuck was placed south of the main
line after he had an accident at the crossing in 2005). Other changes are also cited by
C. Daniel, to wit, addition of the spur track with its own signage, removal of a siding
17
track, and the construction of the Airgas plant in 1986 and 1987. C. Daniel also points
to a “3-tracks sign” at the spur crossing installed by the railroad. Opposition to motion
for summary judgment at 21; Ex. 2 Loumiet Report, pp. 12-13, docket no. 284-2.
C. Daniel cites Gauthier v. Union Pacific Railroad Co., 644 F.Supp.2d 824
(E.D.Tex. 2009), in which the District Court denied summary judgment, finding that the
defendant did not show that the actual crossing warnings in question were installed
using federal funds when the federally funded project occurred in 1996, but internal
railroad emails in 2005 indicated the railroad subsequently had installed or replaced the
warning signals. Id at 837.
The reasoning urged by C. Daniel fails to address key underpinnings of federal
pre-emption of state law. When pre-emption applies, federal statutory law “displace[s]
state and private decision-making authority” to determine whether crossing signals are
sufficient. See Hesling v. CSX Trans. Inc., 396 F.3d at 645 (citing CSX Transp. Inc. v.
Easterwood, 507 U.S. 658, 113 S.Ct. 1732, 123 L.d.2d 387 (1993)). Once pre-emption
attaches, when the federal government approves funds for the crossing signals and the
signals are installed, state statutory and common law becomes inapplicable. See id.
The Fifth Circuit in Hesling v. CSX Transportation found that state tort law was
pre-empted, even after MDOT notified the railroad that changes at a crossing
necessitated installation of automatic crossing gates. See 396 F.3d 644-45. In
Hesling, federal funds initially were used to install crossing warnings in 1981. Id at 645.
In 1994 MDOT notified the railroad that a diagnostic survey team recommended gates
at the crossing in question. Id at 635. Two years later on October 25, 1996, when
plaintiff’s decedent was struck by a train while driving across the crossing, the railroad
18
had not installed the necessary automatic gates. Id.
The Fifth Circuit affirmed a magistrate judge’s ruling that federal law pre-empted
evidence regarding inadequate signalization. See id at 645. The court found that state
law was pre-empted beginning in 1981 when federal funds were provided “for the
installation of passive warning devices that were present” at the crossing in question,
despite the subsequent finding by MDOT that automatic crossing gates were
necessary. Id.
More recently, the Tenth Circuit in the case of Henning v. Union Pacific R.R. Co.,
addressed a similar scenario. A teenager was killed at a railroad crossing when his car
was struck by a train. The crossing in question was equipped with passive warning
devices–crossbucks and a stop sign–originally installed with federal funds. 530 F.3d at
1211. In Henning, the city where the crossing was situated requested installation of
flashing signals and gates in 1999. Id. In September of 2001, the Oklahoma
Transportation Commission recommended this upgrade and the FHWA approved
federal funding. Id. The active warning system was not installed at the grade crossing
until November of 2002, less than a month after the teenager was killed. Id. Despite a
three year delay between the first recognition that the crossing should have active
signals and the installation of those signals, the Tenth Circuit found the plaintiff’s
signalization claims were pre-empted by the FRSA and companion regulations.
In the present case, ICRR has provided an affidavit from MDOT employee Burt,
stating that “on or about November 4, 1982, two crossbuck blades and two multiple
track crossing signs were installed at or near crossing No. 305437D” and “paid for with
federal funds.” Burt aff., ¶ 6, docket no. 268-9. C. Daniel has not contested Burt’s
19
statement that federal funds were used to install some of the crossbucks and multiple
track crossing signs at the intersection in question.
The evidence provided by C. Daniel indicates that a spur track and signage have
been added to the crossing. She provides no indication that the federally funded
warning signs have been removed. The result here seems harsh in light of the fact that
the M. Daniel was exiting a chemical plant built entirely after the installation of the
federally funded warning signals. This court finds, however, that the Fifth Circuit and its
peers have spoken to this point, and C. Daniel’s complaint of inadequate warning
signals is pre-empted by federal law.
c. Installed Signs’ Compliance with Federal Standards
Federal regulations require that signals and warnings must comply with the
FHWA’s Manual of Uniform Traffic Control Device (“MUTCD”) standards. Easterwood,
507 U.S. at 666; Title 23 C.F.R. § 646.214(b)(1).10 C. Daniel argues that because the
crossing where her husband was killed did not meet all of the specifications set out in
the MUTCD, the issue of signal adequacy at this crossing is excepted from federal law
pre-emption.
C. Daniel cites expert James R. Loumiet’s report stating that under MUTCD
(2003), § 8B.03, because the angle of the crossing restricted sight distance, an
additional crossbuck sign should have been installed on the left side of the highway and
that the backs of the crossbuck blades at the crossing were missing a strip of
10
Title 23 C.F.R. § 646.214(b)(1) states:
(b) Grade crossing improvements.
(1) All traffic control devices proposed shall comply with the latest edition of the Manual on
Uniform Traffic Control Devices for Streets and Highways supplemented to the extent
applicable by State standards.
20
retroflective white material required by the MUTCD. C. Daniel’s opposition to motion for
summary judgment at 23 (citing Loumiet report, p. 29-30), docket no. 284.
As mentioned above, the United States Supreme Court and Fifth Circuit both
have found claims of inadequate signalization to be pre-empted despite changes to the
crossing which occurred after installation of federally funded warning signs. The Fifth
Circuit, in Helsing, found the plaintiff’s claims were pre-empted even when the crossing
signals clearly did not satisfy federal regulations. C. Daniel has cited no case authority
to convince this court that signal and warning deficiencies under the MUTCD provide a
basis for tort liability. This claim is an iteration of the arguments rejected by the United
States Supreme Court in Shanklin. Pre-emption of signalization claims rests not on
compliance with federal regulations, but on the replacement of the railroad’s decisionmaking authority about signal requirements by federal regulation. Shanklin, 529 U.S. at
354.
This court is persuaded that federal law pre-empted state law at the time
federally funded signals were installed at this crossing. The intervening installation of
additional signs does not operate to replace federal law with state law. Tort claims
based on the adequacy of signals and warnings, then, are pre-empted by federal law.
2. Excessive Speed
C. Daniel offers two arguments related to train speed. Her first argument is that
even though the ICRR train was operating within federally established speed limits, the
train engineers had a duty to reduce the train’s speed and operate at a safer speed to
minimize the dangers posed by the Andrew Jackson Circle grade crossing. Secondly,
says C. Daniel, even if excessive train speed arguments are pre-empted by federal
21
speed limits, her claim in this instance is not pre-empted because it falls into a “local
hazard” exception.
The Department of Transportation has established maximum speed limits for
freight and passenger trains, based on the railroad track classification upon which the
train is operating. Easterwood, 507 U.S. at 673; Title 49 C.F.R. 213. Track
classification takes into consideration a number of variables, including “gage, alignment,
curvature, surface uniformity [. . .].” 507 U.S. at 673. “These speed limits must be read
as not only establishing a ceiling, but also precluding additional state regulation” related
to train speed. Id at 674. Train speed limits set by Department of Transportation
regulations take into consideration “the conditions posed by grade crossings.” Id at
675. Any claims of negligence based on train speed are pre-empted by federal law.
Hesling, 396 F.3d at 638 (citing Easterwood, 507 U.S. at 673).
The parties agree that this collision occurred on a class 4 railroad track. Title 49
C.F.R. §213 sets a maximum speed of 60 miles per hour for freight trains operating on
a class 4 track. See Title 49 C.F.R. §213. The data recorders on the train,
unchallenged by C. Daniel’s expert, set the speed of the train at a maximum of 32.5
miles per hour before the engineer applied the brakes. See Loumiet report at 37, Table
4-Train and Truck Positions and Speeds Before Impact, docket no. 284-2. The ICRR
train, then, was traveling almost thirty miles per hour under the speed limit set by
federal regulations.
C. Daniel argues that her excessive speed claim is not pre-empted by the FRSA
because it fits into the “local hazard” exception to pre-emption, codified at Title 49
U.S.C. § 20106(a)(2)(A), which states:
22
A State may adopt or continue in force an additional or more stringent law,
regulation, or order related to railroad safety or security when the law,
regulation, or order-(A) is necessary to eliminate or reduce an essentially local safety or
security hazard;
The local hazard exception, generally applies to a specific circumstance which
“relates to the avoidance of a specific collision.” Hesling, 396 F.3d at 640. “A condition
that can be or is present at many, or most sites cannot be a specific individual hazard.”
Id. The Fifth Circuit in the Hesling case cited as examples of local hazards: a crossing
with short sight lines and repeated warning signal device malfunctions and one where
heavy snow created poor visibility. Id at 640 n.4.
C. Daniel points to a Southern District of Mississippi case, Cameron v. Wall,
2011 WL 554076 (S.D.Miss. 2011), in which the district court judge contemplated
whether a car sitting on the tracks fit the definition of a “local hazard,” so as to create an
exception to federal law pre-emption. See Cameron, 2011 WL 554076, *5. In
Cameron, the district judge conflated the local hazard exception with the train
engineer’s general duty to operate the train in a safe manner, so as to avoid collision.
The Cameron court, stated, “the substantial dispute here is whether Plaintiff’s allegation
that Defendants ‘fail[ed] to maintain a safe speed through the intersection’ relates to a
duty to slow or stop to avoid a specific, individual hazard or a more general duty to
operate the train at a slower speed.” Id.
ICRR says that the “local hazard” savings clause does not apply to the crossing
in question because issues cited by C. Daniel, such as the track layout, the angle at
which the road crosses the track, and signal and warning signs, could occur anywhere
across the state, and do not qualify as a local hazard. See Wright v. Illinois Central
23
R.R. Co., 868 F.Supp. 183, 187 (S.D.Miss. 1994) (J. Barbour); Bowman v. Norfolk So.
R.R. Co., 832 F.Supp. 1014, 1017-18 (D.S.C. 1993) (crossing’s proximity to roadway
with heavy traffic and use of crossing by trucks transporting hazardous materials found
not to be a local hazard); O’Bannon v. Union Pacific R.R. Co., 960 F.Supp. 1411, 1421
(W.D.Mo. 1997) (steep grade, angle of crossing, and proximity to highway not deemed
a local hazard); and Deatherage, 1997 WL 33384269, at *3 (limited sight distance does
not constitute a local hazard).
To the extent that C. Daniel attempts to place a duty on ICRR to operate its train
at a speed slower than the regulatory speed limit, her claim is pre-empted by federal
law. The ICRR train engineer, however, had a duty to respond appropriately to avoid a
collision with the tanker-truck sitting on the main line railroad tracks. This duty does not
impose a specific limit on the train’s operating speed, but rests on factual issues to be
decided by a jury as to whether the train engineer’s efforts to avoid the collision were
sufficient.
3. Inadequate Sight Distance
C. Daniel has cited a number of variables affecting sight distance at the grade
crossing in question, including: the skewed angle between the roadway and the railroad
tracks, and an overgrowth of vegetation. C. Daniel’s opposition to motion for summary
judgment at 11, docket no. 284. ICRR contends that Miss. Code Ann. § 77-9-254 sets
a sight distance requirement of 300 feet at railroad grade crossings as a matter of law.
If the facts indicate that the sight distance at a crossing exceed the 300 feet established
in the statute, says ICRR, then the railroad has satisfied its legal duty. ICRR argues
that all other factors affecting sight distance, such as the skewed angle of the crossing,
24
are pre-empted because they are taken into consideration when the FHWA approves
warning signals installed at the crossing.
The Mississippi statute cited by ICRR establishes the railroad’s duty to clear the
right-of-way of vegetation which would obstruct the view of a motorist traversing the
railroad crossing. This statute requires, for crossings without automatic flashing lights
or gates, that the railroad remove vegetation from its right-of-way for 300 feet in either
direction from the centerline of the road or highway which crosses the tracks. See
Miss. Code Ann. § 77-9-254.11
Miss. Code Ann. § 77-9-254 was enacted in 2004, and this court finds no
interpretation of it by a Mississippi appellate court. Several United States District
Courts have addressed the issue of sight distance at Mississippi grade crossings since
the enactment of this statute. In Brown v. Nat’l R.R. Passenger Corp., 2011 WL
1130545 (S.D.Miss. 2011), the district court found that this statute “established the
required sight distance for public railroad crossings in Mississippi.” 2011 WL 1130545
at *9. The court granted summary judgment with respect to the issue of sight distance
saying that the evidence “reveal[ed] that the sight distance from the railroad advance
11
Miss. Code Ann. § 77-9-254(1) states:
(1) At all public highway railroad grade crossings that do not have automatic flashing lights
and/or gates where vegetation would materially obstruct the view of a vehicle operator
exercising reasonable care of a train approaching a grade crossing from either direction, every
railroad, as is reasonably practical, shall remove from its right-of-way which it owns or operates,
such vegetation as weeds, brush, climbing vines, shrubbery and trees, for a distance of not less
than three hundred (300) feet in each direction from the centerline of the public road or
highway, unless the authorized train speed is ten (10) miles per hour or less, in which case the
distance from the centerline of the public road or highway shall be not less than one hundred
(100) feet. At the outer edges of the public road or highway, the vegetation shall be removed to
a width of twenty-five (25) feet on each side of the centerline of the railroad or to the full width of
the railroad's operating right-of-way whichever is shorter. The area cleared of vegetation may
be tapered inward from its full width at the involved roadway to the outer limits of the area being
cleared so as to create a triangle, or it may be cleared at a constant width so as to form a
rectangle.
25
warning sign [. . .] [was] approximately 2,658 feet,” far exceeding the 300 feet required
by law. Id.
The district court in Waters v. Nat’l R.R. Passenger Corp., 2007 WL 3355394
(S.D.Miss. 2007), denied summary judgment based on evidence that “the railroad
tracks [. . .] curved behind a line of trees, and one witness testified that he complained
to Illinois Central about the vegetation north of the crossing.” Id at *5. In Waters, a
Federal Railroad Administration Operations Inspector, who was riding in the locomotive
of the train at the time of the accident, stated that he “guessed” the sight distance from
the crossing was approximately 400 feet. Id at *4. The court quoted the Mississippi
statute, but did not relate the vegetation removal requirement to a statutory requirement
for sight distance. Despite the Federal Railroad Inspector’s testimony that the sight
distance exceeded the 300 feet required in the statute, the court found that “the
question of whether Illinois Central negligently failed to remove vegetation from its rightof-way is a fact question for the jury.” Id.
Finally, C. Daniel cites Baker v. Canadian Nat’l/ Illinois Centr. Railway Co., 397
F.Supp.2d 803 (2005), aff’d on other grounds, 536 F.3d 357 (5th Cir. 2008), in which the
district court found that sight distance and whether visibility is obstructed at a crossing
are issues of fact which, given sufficient evidence, “cannot be resolved via summary
judgment.” Id at 816. In the Baker case, decided after Mississippi enacted the
abovementioned statute, the court was faced with competing expert testimony
regarding sufficiency of the sight distance at the crossing. The defendant’s expert
stated that:
based on my calculation of train speed and Plaintiff’s vehicle positioning,
when the Plaintiff’s truck was located at the stop bar, the train was located
26
216 feet from the crossing, which is 17.5 feet clear of the tree line, south
of the southernmost edge of the crossing. [. . .] [A]t approximately 216
feet, the train appeared huge, clear of the tree line, and dominated the
sight distance picture. Id at 816 n.11.
The court in Baker did not mention Miss. Code Ann. § 77-9-254, or its effect on
the adequacy of the sight distance at the crossing.
This court is not persuaded that the Mississippi legislature has established a
minimum required sight distance through enactment of Miss. Code Ann. § 77-9-254.
Mississippi courts have not specifically addressed this issue, and the sum total of the
federal courts decisions on this issue do not provide a clear answer. The statute itself
mentions only the requirement that the railroad clear vegetation from its right-of-way,
not that it provide a certain minimum sight distance at each crossing. A requirement to
clear vegetation for 300 feet from the crossing does not necessarily equate to a
motorist having 300 feet of visibility from the crossing looking down the railroad track.
Further, as expert Loumiet’s report demonstrates, the sight distance necessary to see a
train in time to avoid a collision will vary depending on the speed limit on the railroad
tracks. This court finds, then, that the adequacy of the sight distance at the intersection
where the accident occurred is a material question of fact which precludes summary
judgment.
This court agrees with ICRR, however, that some variables related to sight
distance are pre-empted by federal law. As mentioned in Sections III.C.1. and III.C.2.
of this opinion, adequacy of crossing warnings and train speed are pre-empted by
federal law. These issues are interwoven with, and dependent upon, the skewed angle
between the roadway and railroad track, and that angle’s effect on M. Daniel’s ability to
see the train. As such, the angle between the railroad track and the roadway is pre27
empted as a factor considered by the Department of Transportation when establishing
warning signal requirements and train speed limits.
Variables not subsumed within warning signal requirements and train speed
limits, such as an overgrowth of vegetation, may be considered by a jury to determine
ICRR’s negligence under state law.
4. Failure of the ICRR Engineer to Avoid the Collision
Neither party disputes that the train engineer, James Roberts, applied the
emergency brake on the front locomotive of the train prior to colliding with the decedent.
The parties contest the appropriateness of his actions and whether an alternate braking
procedure–applying an “independent brake”–could have prevented the collision.
The train involved in the accident was operating in a “lite” locomotive
configuration, meaning a locomotive traveling with no rail cars.12 When the train is
operating in this configuration, C. Daniel’s argues, to stop in the shortest possible
distance the engineer must apply the “independent brake” first and then apply the
emergency brake. According to C. Daniel , the type of brake valve installed in the
locomotive in this collision is called a Wabtec 30-CDW brake valve. In support of her
argument, C. Daniel points to the manual for the Wabtec 30-CDW brake valve, which
states:
Emergency “Lite” Locomotive Operation
WARNING: In an emergency situation, when operating a “Lite”
Locomotive, moving the Independent Brake Valve handle to full
application position is the fastest way to develop brake cylinder pressure
12
Title 49 C.F.R. § 229.5 defines “lite locomotive” as “a locomotive or a consist of
locomotives not attached to any piece of equipment or attached only to a caboose.” C. Daniel’s
expert Richard Beall describes this “lite” operation as locomotives with no rail cars. Docket no.
284-3 at 2.
28
on the locomotive up to the full Independent Brake Cylinder pressure
setting. Immediately after moving the Independent Brake Valve handle to
full application position, the brake valve handle should be placed in
Emergency position. Failure to comply with this procedure during an
emergency brake application when operating a “Lite” locomotive consist
could extend the stopping distance and increase the likelihood of
equipment damage and/or personal injury. Loumiet report at 39-40,
docket no. 284-2 (emphasis added).
ICRR’s representative, Steve Condon, stated in his deposition that he had been
told about the braking procedure which was recommended in the Wabtec 30-CDW
brake valve manual, but he disagreed with applying the independent brake valve before
the emergency brake when operating in “lite” mode. See 30(B)(5) & (6) depo. of Steve
Condon, 78:10-80:24.
C. Daniel also cites Rule 311 of the Canadian National Air Brake & Train
Handling Rules as supportive of her position.13 C. Daniel’s fails, however, to provide
the actual rules or evidence that these rules governed the ICRR engineer’s conduct.
C. Daniel says that the train engineer’s negligent failure to apply the correct
brake, in compliance with the manufacturer’s brake valve manual, as well as other
rules, proximately caused the collision.
ICRR has provided a sworn affidavit from its expert in locomotive handling,
Foster Peterson, in which Peterson states that the train engineers operating the ICRR
train in question acted appropriately by applying the emergency brake. Docket no. 26812. Peterson states that “accepted train handling procedures in North America require
13
C. Daniel, in her response in opposition to summary judgment [docket no. 284],
states that the Canadian National Air Brake & Train Handling Rules provide an exception to the
requirement that the emergency brake be applied. She quotes the exception as stating:
These guidelines do not apply when emergency braking is necessary to protect life or
property. The use of maximum available braking effort may be required in these
situations.
29
that when an engineer determines a collision is imminent at a crossing, the train’s
emergency brakes should be applied.” Peterson aff., ¶ 9, docket no. 268-12. Peterson
argues that “[h]aving an accepted, uniform method of braking and response to an
emergency event is preferable as it minimizes the risk [. . .] and does not delay
response [. . .].” Id.
ICRR further argues that no material issue of fact exists regarding this claim
because C. Daniel has produced no competent summary judgment evidence in support
of her claim. ICRR says that this court must disregard C. Daniel’s expert’s statements
because they are unsworn, and thus not competent to defeat a motion for summary
judgment.
After ICRR challenged the sufficiency of C. Daniel’s summary judgment
evidence, she filed a supplement to her response in opposition to summary judgment,
attaching an excerpt from expert James Loumiet’s deposition in which he verifies under
oath his previously submitted expert expert report. Docket nos. 293, 293-1.
Both expert Loumiet and ICRR’s representative Condon have referenced the
manufacturer’s brake valve manual which instructs that in an emergency when
operating a “lite” locomotive configuration the engineer should apply the independent
brake first before applying the emergency brake. ICRR’s expert claims that this
recommendation is erroneous and the safer course of action is for engineers to
maintain uniform procedures for dealing with emergencies.
This court finds that a material issue of fact precludes summary judgment with
respect to whether the engineers acted properly to stop the train.
30
D. Analysis: Negligence Per Se and Proximate Cause
Federal Motor Carrier regulation, Title 49 C.F.R. § 392.10(a),14 mandates that
commercial truck drivers hauling hazardous material must stop before all railroad
crossings. Violation of this statute by M. Daniel, says ICRR, constituted negligence per
se. See Stong v. Freeman Truck Line, Inc., 456 So.2d 698, 708-711 (Miss. 1984).
ICRR has submitted a security video from Airgas which shows that M. Daniel did not
come to a complete stop at the stop signs or railroad tracks at the crossing. ICRR
argues that this video shows that M. Daniel violated Title 49 C.F.R. § 392.10(a) (which
requires he stop before the railroad crossing); and that M. Daniel’s negligence was
proximately and solely responsible for the accident.
C. Daniel says that her husband, M. Daniel, was in an untenable situation in
which the configuration of the crossing and stop signs forced him to pick and choose
which law to disobey. Title 49 C.F.R. § 392.10(a) required that he stop at the railroad
14
Title 49 C.F.R. § 392.10(a) states in pertinent part:
[. . .] the driver of a commercial motor vehicle specified in paragraphs (a)(1) through (6) of this
section shall not cross a railroad track or tracks at grade unless he/she first: Stops the
commercial motor vehicle within 50 feet of, and not closer than 15 feet to, the tracks; thereafter
listens and looks in each direction along the tracks for an approaching train; and ascertains that
no train is approaching. When it is safe to do so, the driver may drive the commercial motor
vehicle across the tracks in a gear that permits the commercial motor vehicle to complete the
crossing without a change of gears. The driver must not shift gears while crossing the tracks.
(1) Every bus transporting passengers,
(2) Every commercial motor vehicle transporting any quantity of a Division 2.3 chlorine.
(3) Every commercial motor vehicle which, in accordance with the regulations of the
Department of Transportation, is required to be marked or placarded with one of the
following classifications:
[. . .]
(4) Every cargo tank motor vehicle, whether loaded or empty, used for the transportation of
any hazardous material as defined in the Hazardous Materials Regulations of the
Department of Transportation, Parts 107 through 180 of this title.
(5) Every cargo tank motor vehicle transporting a commodity which at the time of loading
has a temperature above its flashpoint as determined by § 173.120 of this title.
(6) Every cargo tank motor vehicle, whether loaded or empty, transporting any commodity
under exemption in accordance with the provisions of Subpart B of Part 107 of this title.
31
tracks before crossing, but Miss. Code Ann. § 63-3-90115 prohibits a driver from
stopping with his vehicle sitting on the railroad tracks. The stop signs and tracks were
situated such that M. Daniel had to either stop with his trailer sitting on the railroad
tracks in a position with very limited visibility, or continue through the stop signs and
across the tracks without stopping. C. Daniel argues that M. Daniel proceeded across
the railroad tracks as safely as possible, given the hazards inherent in the crossing.
Further, argues C. Daniel, negligence per se does not apply here because it
requires ICRR to show that M. Daniel’s violation of a statute was the proximate cause of
the accident. The record evidence, says C. Daniel, shows that ICRR’s negligence was
the proximate cause of the collision.
“Mississippi recognizes the doctrine of negligence per se, which in essence
provides that the breach of a statute or ordinance renders the offender liable in tort
without proof of a lack of due care.” Wayne County School Dist. v. Worsham, 2012 WL
954156 (Miss. 2012). Finding negligence per se applicable to a party’s actions,
however, does not end the inquiry. “To prevail in an action for negligence per se, a
party must prove that he was a member of the class sought to be protected under the
statute, that his injuries were of a type sought to be avoided, and that violation of the
statute proximately caused his injuries.” Gallagher Basset Svcs., Inc. v. Jeffcoat, 887
So.2d 777, 787 (Miss. 2004).
15
Miss. Code Ann. §63-3-901 states in pertinent part:
No person shall stop, stand or park a vehicle, except when necessary to avoid conflict with
other traffic or in compliance with the directions of a police officer or traffic control device, in any
of the following places:
...
c. Within an intersection;
...
i. Within fifteen feet of the nearest rail of a railroad crossing;
32
The evidence shows that M. Daniel violated a statute specifically designed to
prevent accidents at railroad crossings, such as this one. The court has reviewed the
Airgas security video, which shows that M. Daniel proceeded across the grade crossing
without stopping before the railroad tracks. Further, C. Daniel’s expert Loumiet
indicates in his report that M. Daniel proceeded through the intersection, without
stopping, at a speed that ranged between approximately three and six miles per hour.
Loumiet report, Table 4, at 37, docket no. 284-2.
As to proximate cause, the record is replete with factual evidence and expert
opinions which support both sides. Whether M. Daniel’s failure to stop was the
proximate cause of the collision is a disputed question of fact, which cannot be decided
at this stage.
The parties will have the opportunity to present evidence at trial regarding the
cause or causes of this collision. ICRR may be entitled to an instruction that M. Daniel
had an obligation under the law to stop at the railroad tracks, and was negligent for not
stopping. To find that M. Daniel’s failure to stop provides a defense for ICRR, however,
the jury must determine that M. Daniel’s actions proximately caused the accident.
Thomas v. McDonald, 667 So.2d 594, 596-97 (Miss. 1995). Once the parties have
submitted their proposed jury instructions, this court will determine the appropriate
instruction regarding M. Daniel’s alleged negligence.
IV. Conclusion
For the reasons cited above, this court grants in part and denies in part ICRR’s
motion for summary judgment [docket no. 268]. The grounds asserted by C. Daniel
regarding inadequate signalization at the grade crossing and train speed are pre-
33
empted by federal law. The issues of sight distance at the crossing and whether the
train engineer was negligent in his attempts to avoid the collision are issues of fact
which will be carried to trial. ICRR’s motion for leave to file excess pages [docket no.
290] is unopposed and is granted. The court has considered all of ICRR’s pleadings,
including the excess pages, when deciding its motion for summary judgment.
ICRR’s motions to exclude C. Daniel’s experts [dockets no. 273, 275, 298] are
denied at this time and will be carried to trial. The court will hear the issues related to
admission of the experts testimony prior to trial.16
The motion to set/reset hearings [docket no. 305] filed by C. Daniel is moot.
The motion to bifurcate [docket no. 266] filed by ICRR involves a party which has
previously been dismissed from this case and is denied as moot.
SO ORDERED AND ADJUDGED, this, the 30th day of September, 2012.
/s/ Henry T. Wingate
UNITED STATES DISTRICT JUDGE
Order Granting in Part and Denying in Part Summary Judgment
3:09-cv-473-HTW-LRA
16
Reference to plaintiff’s “expert” in this opinion is not meant to imply that the court has
accepted him as such. This court will conduct hearings prior to trial to qualify the experts and
determine the appropriate treatment of their testimony.
34
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