Anderson v. Wisconsin Cent. Transp. Co.

• Decision Date: 27 July 2004
• Docket Number: No. 03C0304.,03C0304.
• Citation: 327 F.Supp.2d 969
• Parties: Ryan ANDERSON et al., Plaintiff, v. WISCONSIN CENTRAL TRANSPORTATION COMPANY, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

327 F.Supp.2d 969

Ryan ANDERSON et al., Plaintiff, v. WISCONSIN CENTRAL TRANSPORTATION COMPANY, Defendant.

No. 03C0304.

United States District Court, E.D. Wisconsin.

July 27, 2004.

COPYRIGHT MATERIAL OMITTED

Jerome R Kerkman, Kerkman Law Office, Milwaukee, WI, for Ryan M Anderson, Plaintiff.

Brian D Baird, Borgelt Powell Peterson & Frauen SC, Milwaukee, WI, for Wisconsin Central Transportation Corporation, Defendant.

DECISION AND ORDER

ADELMAN, District Judge.

Ryan Anderson ("plaintiff") brought this action in state court seeking damages for injuries he sustained when his car collided with a freight train operated by the Wisconsin Central Transportation Company ("defendant" or "Wisconsin Central") at the County Highway M ("County M") crossing in Waukesha County, Wisconsin. Plaintiff named the West Bend Mutual Insurance Company ("West Bend Mutual"), a partial subrogee, as an involuntary plaintiff and also named a fictitious insurance company as a defendant. Plaintiff now requests that I dismiss the latter entity as a party, which request will be granted. Pursuant to 28 U.S.C. § 1332, defendant timely removed the case. Plaintiff is a Wisconsin citizen, West Bend Mutual is a Wisconsin corporation whose principal place of business is Wisconsin, and Wisconsin Central is an Illinois corporation whose principal place of business is Illinois.¹

Plaintiff alleges that defendant was negligent in a number of respects including by operating the train at an unreasonable speed, failing to reduce the train's speed as it approached the crossing, failing to sound an audible warning signaling the train's approach, failing to install and maintain an adequate warning device at the crossing, failing to clear vegetation on its right of way, and violating Wis. Stat. Ch. 195. Defendant now moves for partial summary judgment arguing that some of plaintiff's claims are preempted by federal law and some fail on the merits. Plaintiff cross-moves for partial summary judgment arguing that defendant's preemption defenses are without merit and that in some respects, defendant was negligent as a matter of law.

I. FACTS

On December 10, 2001, at approximately 9:35 a.m., plaintiff's pick-up truck collided with defendant's train at the County M crossing. There were no gates at the crossing, but there was a set of flashing lights. Plaintiff was driving west on County M, and the train was traveling south. In front of plaintiff was a vehicle driven by Aaron Kumlein. Plaintiff states that Kumlein did not see lights at the crossing, unsuccessfully attempted to stop and, then, accelerated across the tracks before the train reached the crossing. Plaintiff states that as he approached the crossing, he could not see the warning lights because they were washed out by the sun, could not hear the train's horn, and, because the vegetation adjacent to the tracks was not cut, did not see the train until immediately before the collision. As a result of the accident, he was seriously injured.

Additional facts will be stated in the course of the decision.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is required "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). The mere existence of some factual dispute does not defeat a summary judgment motion; "the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). For a dispute to be genuine, the evidence must be such that a "reasonable jury could return a verdict for the nonmoving party." Id. For the fact to be material, it must relate to a disputed matter that "might affect the outcome of the suit." Id.

Although summary judgment is a useful tool for isolating and terminating factually unsupported claims, Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), courts should act with caution in granting summary judgment, Anderson, 477 U.S. at 255, 106 S.Ct. 2505. When the evidence presented shows a dispute over facts that might affect the outcome of the suit under governing law, summary judgment must be denied. Id. at 248, 106 S.Ct. 2505.

In evaluating a motion for summary judgment, the court must draw all inferences in a light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). However, it is "not required to draw every conceivable inference from the record — only those inferences that are reasonable." Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991).

When both parties have moved for summary judgment, both are required to show that no genuine issues of fact exist, taking the facts in the light most favorable to the party opposing each motion. If issues of fact exist, neither party is entitled to summary judgment. Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 349 (7th Cir.1983).

Under Fed.R.Civ.P. 56(d), I may grant summary judgment on less than a whole claim. Zapata Hermanos Sucesores, S.A. v. Hearthside Baking Co., Inc., 313 F.3d 385, 391 (7th Cir.2002).

III. DISCUSSION

A. Federal Preemption

The Federal Railroad Safety Act ("FRSA") grants the Secretary of Transportation authority to prescribe regulations and issue orders relating to railroad safety. 49 U.S.C. § 20103(a). The FRSA and regulations prescribed pursuant thereto generally preempt state laws covering the same subject matter. Id. § 20106. Thus, if a claim against a railroad is brought under state law but falls within the subject matter of a federal regulation, the claim is preempted unless it relates to a local hazard. Id. Because preemption is an affirmative defense, the defendant bears the burden of proof on the issue. Chicago Bd. of Educ. v. Substance, Inc., 354 F.3d 624, 629 (7th Cir.2003). In the present case, defendant moves for summary judgment arguing that a number of plaintiff's claims are preempted, and plaintiff cross-moves for summary judgment arguing that defendant's preemption defense should be dismissed based on insufficient evidence.

1. Inadequate Warning Device Claim

When federal funds are used to install a warning device at a railroad crossing, 23 C.F.R. §§ 646.214(b)(3) and (4) establish requirements relating to such device. See Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344, 352-53, 120 S.Ct. 1467, 146 L.Ed.2d 374 (2000). If a crossing possesses certain characteristics, § 646.214(b)(3) requires that automatic gates with flashing light signals be installed. If a crossing does not possess the characteristics identified in § 646.214(b)(3), § 646.214(b)(4) provides that the Federal Highway Administration ("FHWA") must approve the warning device that is installed. Where §§ 646.214(b)(3) and (4) apply, state tort law claims alleging that the type of warning device installed was inadequate are preempted. Shanklin, 529 U.S. at 353, 120 S.Ct. 1467; CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 671, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). Such claims are barred "once the FHWA has funded the crossing improvement and the warning devices are actually installed and operating." Shanklin, 529 U.S. at 354, 120 S.Ct. 1467. Defendant argues that plaintiff's claim that it failed to install an adequate warning device, i.e., gates, at the County M crossing is preempted because federal funds paid for the lights at the crossing, and such lights were installed and operating. Plaintiff disputes these assertions. For the reasons stated below, both parties' motions for summary judgment will be denied.

a. Use of Federal Funds

Defendant's evidence regarding the use of federal funds consists of an affidavit from Debra Haack, accompanied by records from the Wisconsin Department of Transportation, and an affidavit from Railroad Commissioner Rodney Kruenen, also accompanied by documents.² The records accompanying the Haack affidavit indicate that between 1980 and 1982 federal funds financed a construction project involving "crossing signals" at a Soo Line crossing on County Trunk Highway SS, now County M. (Haack Aff. Ex. A & B.) In his affidavit, Kruenen asserts that "[f]ederal funds participated in the installation of the flashing light signals with cantilevers present and operating at rail crossing No. 692232Y on December 10, 2001, at County Trunk Highway SS, later renamed County Highway M." (May 26, 2004 Baird Aff. Ex. B ¶ 4.)

However, plaintiff points out that in the early 1980s there were two railroad crossings on County M, and the Haack and Kruenen submissions do not make clear which one was the site of the federally funded lights. Kruenen asserts that federal funds paid for lights located at a crossing that he identifies by number and mile post. However, he does not explain how he came to know which crossing the federal funds were directed to. His affidavit suggests that he reviewed the documents attached to it but no document identifies the number and mile post of the crossing where federal funds were used, and it is implausible that Kruenen personally recollects such information. In sum, Kruenen's affidavit is conclusory and thus will not support granting defendant's motion. See, e.g., Thomas v. Christ Hosp. & Med. Ctr., 328 F.3d 890, 894 (7th Cir.2003) (stating that conclusory assertions are insufficient to defeat a motion for summary judgment). Nevertheless, it is undisputed that the accident took place at a former Soo Line Crossing, and the documents regarding federal funding refer to the crossing by that name. Other documents refer to the other County M crossing as a "C.M. ST. P. & P. RR" crossing. (Anderson's Resp. Regarding Fed. Funds for Crossing at 2.) Thus, a reasonable jury could conclude that federal funds paid for the warning lights...