Bonacorsi v. Wheeling & Lake Erie Ry. Co.

• Decision Date: 22 May 2002
• Docket Number: No. 2000-2278.,2000-2278.
• Citation: 767 NE 2d 707,95 Ohio St.3d 314
• Court: Ohio Supreme Court
• Parties: BONACORSI, APPELLANT, v. WHEELING & LAKE ERIE RAILWAY COMPANY, APPELLEE.

95 Ohio St.3d 314

767 NE 2d 707

BONACORSI, APPELLANT, v. WHEELING & LAKE ERIE RAILWAY COMPANY, APPELLEE.

No. 2000-2278.

Supreme Court of Ohio.

Submitted January 29, 2002.

Decided May 22, 2002.

Linton & Hirshman, Robert F. Linton, Jr., and Mark W. Ruf; Allen Schulman & Assoc., Inc., and Allen Schulman, Jr., for appellant.

Howes, Daane, Milligan, Kyhos & Erwin, L.L.P., Philip E. Howes and Thomas R. Himmelspach, for appellee.

Squire, Sanders & Dempsey, L.L.P., and Charles F. Clarke, urging affirmance for amicus curiae Association of American Railroads.

Clark, Perdue, Roberts & Scott Co., L.P.A., and Paul O. Scott; and Dorothy H. Bretnall, urging reversal for amicus curiae Ohio Academy of Trial Lawyers.

DOUGLAS, J.

{¶ 1} In July 1996, plaintiff-appellant, Cris A. Bonacorsi, was seriously injured¹ when the motorcycle he was driving collided with the engine of a freight train at a railroad crossing on Howe Road in Brimfield Township, Ohio. The train was owned and operated by defendant-appellee, Wheeling & Lake Erie Railway Company ("W&LE").

{¶ 2} At the time of the accident, signs were posted along Howe Road warning westbound motorists, such as Bonacorsi, of the upcoming crossing. Posted approximately eight hundred fifty feet before the crossing was a round, yellow sign with a large black X flanked by two Rs. Next, about seven hundred feet from the crossing, the pavement was painted with a large white X flanked by two Rs. Three hundred feet before the crossing, the pavement marking was repeated. Immediately before the crossing were a red triangular "yield" sign and a white, X-shaped sign with the words "RAILROAD CROSSING" written in black ("crossbuck sign"). The signs and pavement markings described above are classified as "passive warning devices" because they indicate the presence of a crossing but they do not change in any respect when a train is approaching. Section 646.204, Title 23, C.F.R. In contrast, "active warning devices" are traffic control devices activated by the approach of a train, such as flashing light signals and automatic gates that warn motorists that a train is approaching the crossing. Id.

{¶ 3} On the day of the accident Bonacorsi was aware that he was approaching a crossing, but because there were no active warning devices at the crossing and because foliage growing near the railroad right-of-way blocked his view, he was unaware that a train was also approaching the crossing.² As Bonacorsi neared the tracks his line of sight became less obstructed by the foliage and he was able to see the approaching train, but he was travelling too fast to avoid a collision.

{¶ 4} Bonacorsi subsequently filed a claim against W&LE alleging that the accident was caused by W&LE's negligence "in failing to install active warning devices, failing to eliminate view obstructions caused by the foliage surrounding its crossing, failing to operate the train in a safe and lawful manner, including maintaining a proper lookout and maintaining control over the train so that it could avoid a collision, and by failing to properly sound the train's horn and bell."³

{¶ 5} W&LE moved for partial summary judgment asserting that Bonacorsi's claim that the warning devices were inadequate was preempted by federal law. In this regard, W&LE asserted that federal funds paid for the installation of the crossbuck sign posted on Howe Road and that warning devices installed using federal funds are adequate as a matter of federal law.⁴ Thus, W&LE argued, the subject of warning-device adequacy with regard to the Howe Road signs has been covered, thereby triggering the preemption provision of Section 20106, Title 49, U.S.Code.⁵

{¶ 6} As proof that federal funds were used to install the Howe Road crossbuck sign, W&LE submitted an affidavit executed by Bruce Brown, an employee of W&LE, stating that prior to the accident the crossbuck sign at the Howe Road crossing was installed with federal funds as part of Ohio's Buckeye Crossbuck Program. Attached as an exhibit to Brown's affidavit was a pamphlet created by the Ohio Department of Transportation ("ODOT"), titled "Ohio's Buckeye Crossbuck Program." The pamphlet described an experimental program designed to determine the effectiveness of a newly designed crossbuck sign. According to the pamphlet, the program required that crossbuck signs at all passive crossings in Ohio be replaced with new crossbuck signs.⁶

{¶ 7} Also attached to Brown's affidavit was an agreement between ODOT and W&LE, wherein W&LE agreed to replace existing crossbuck signs at all of its passive crossings in Ohio by the end of 1993 as part of the Buckeye Crossbuck Program. ODOT agreed to supply the new crossbuck signs and to reimburse W&LE for its installation costs. The agreement indicated that the reimbursement money would come from federal funds.

{¶ 8} In his brief opposing W&LE's motion, Bonacorsi attacked the sufficiency of Brown's supporting affidavit, arguing that the affidavit was not based on Brown's personal knowledge that federal funds were spent on the installation of the crossbuck sign at the Howe Road crossing. See Civ.R. 56(E), which requires that affidavits in support of motions for summary judgment be made on "personal knowledge." In addition, Bonacorsi argued that even if W&LE could prove that federal funds had been used to install the crossbuck sign, that fact alone would not be sufficient to trigger preemption. Bonacorsi argued that W&LE was also required to show that the Federal Highway Administration ("FHWA") had approved the installation.

{¶ 9} W&LE replied that proof of federal funding was sufficient, in and of itself, to trigger preemption because when federal funds are used to install warning devices at a railroad crossing it is presumed that the devices meet FHWA approval and thus meet the federal standards of adequacy.

{¶ 10} The trial court agreed with Bonacorsi and found that W&LE had failed to prove that federal funds were used to install the crossbuck sign. In addition, the trial court rejected W&LE's assertion that federal funding of sign installation was, in and of itself, sufficient to trigger preemption of an inadequate-signalization claim, and held that proof of FHWA approval was also required in this case. Accordingly, the court denied W&LE's motion for partial summary judgment.

{¶ 11} Thereafter, W&LE, with leave of court, filed an additional motion for partial summary judgment, again arguing that Bonacorsi's inadequate-warning-device claim was preempted. Attached to the motion was an affidavit executed by Susan Kirkland, an employee of the Ohio Rail Development Commission.⁷ In her affidavit, Kirkland stated that the crossbuck signs installed at all passive crossings in Ohio, including W&LE crossings, were installed with federal funds as part of the Buckeye Crossbuck Program.

{¶ 12} In his response to W&LE's motion, Bonacorsi argued that Kirkland, like Brown, did not have personal knowledge of the statements made in her affidavit regarding federal funding of the installation of the Howe Road crossbuck sign. In support of his assertion, Bonacorsi referred to Kirkland's deposition testimony in which Kirkland testified that ODOT was responsible for handling federal funds, that she did not work for ODOT, and that her knowledge of federal funding of sign installation at railroad crossings came from other people. In addition to his argument that Kirkland lacked the personal knowledge required by Civ.R. 56(E), Bonacorsi renewed his assertion that proof of federal funding alone was insufficient to preempt a state-law claim of inadequate warning devices.

{¶ 13} The court agreed with Bonacorsi that federal funding alone was not sufficient to trigger preemption and, consequently, denied W&LE's motion. The court did not discuss whether Kirkland's affidavit was sufficient to establish that federal funds were used to install the Howe Road crossbuck sign.

{¶ 14} W&LE subsequently moved to vacate the court's denial of its motion for partial summary judgment.⁸ The court again reviewed W&LE's additional motion for partial summary judgment, and again denied it. The court stated, "While federal funds may have been used in the purchase and/or installation of the * * * crossbuck signs at the Howe Road crossing, there is no evidence that the Federal Highway Administration approved the * * * crossbuck signs as being adequate to protect motorist safety at such crossing."

{¶ 15} Thereafter, the matter proceeded to a jury trial. The jury found for Bonacorsi, but further found that both Bonacorsi and W&LE were negligent and determined that each party's negligence contributed equally to causing the accident. In response to a written jury interrogatory labeled "One-A" that asked, "If you find that W&LE was negligent, in what respect(s) do you so find?" the jury responded in writing, "Two prior accidents; railroad did not initiate change in signals and signs. Proving ordinary care. Plaintiff unable to see the train."

{¶ 16} The jury determined that Bonacorsi's compensatory damages were $1,664,200. Reducing the verdict by fifty percent to account for Bonacorsi's contributory negligence, the trial court entered judgment in favor of Bonacorsi in the amount of $832,100.

{¶ 17} W&LE appealed raising numerous assignments of error.⁹ The assignment relevant to this appeal asserted that the trial court erred in denying W&LE's motion for partial summary judgment.

{¶ 18} The court of appeals, upon de novo review of W&LE's motion for partial summary judgment, found that Kirkland's affidavit established that federal funds had been used to pay for installation of the Howe Road crossbuck sign. In addition, the court held that proof of federal funding was, in and of itself, sufficient to trigger preemption of Bonacorsi's inadequate-warning-device claim. In support of its holding the court cited Norfolk S. Ry. Co. v. Shanklin (2000), 529 U.S. 344, 120 S.Ct. 1467, 146 L.Ed.2d 374, which was decided while ...