Bakhuyzen v. National Rail Passenger Corp.

• Decision Date: 06 February 1996
• Docket Number: No. 1:95-CV-106.,No. 1:94-CV-607.,No. 1:94-CV-264.,No. 1:94-CV-281.,1:94-CV-264.,1:94-CV-281.,1:94-CV-607.,1:95-CV-106.
• Citation: 20 F.Supp.2d 1113
• Parties: Nancy A. BAKHUYZEN, Personal Representative of the Estate of Nicholas A. Bakhuyzen, Plaintiff, v. NATIONAL RAIL PASSENGER CORPORATION, et al., Defendants. Mamie DAVIS, Plaintiff, v. NATIONAL RAILROAD PASSENGER CORPORATION, et al., Defendants. James W. CHILES, Plaintiff, v. NATIONAL RAILROAD PASSENGER CORPORATION, et al., Defendants. NATIONAL RAILROAD PASSENGER CORPORATION, Plaintiff, v. VAN ANDEL, INC., et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

20 F.Supp.2d 1113

Nancy A. BAKHUYZEN, Personal Representative of the Estate of Nicholas A. Bakhuyzen, Plaintiff, v. NATIONAL RAIL PASSENGER CORPORATION, et al., Defendants.

Mamie DAVIS, Plaintiff, v. NATIONAL RAILROAD PASSENGER CORPORATION, et al., Defendants.

James W. CHILES, Plaintiff, v. NATIONAL RAILROAD PASSENGER CORPORATION, et al., Defendants.

NATIONAL RAILROAD PASSENGER CORPORATION, Plaintiff, v. VAN ANDEL, INC., et al., Defendants.

No. 1:94-CV-264.

No. 1:94-CV-281.

No. 1:94-CV-607.

No. 1:95-CV-106.

United States District Court, W.D. Michigan, Southern Division.

February 6, 1996.

Douglas A. Merrow, Chambers, Steiner, PC, Kalamazoo, MI, for Nancy A. Bakhuyzen, Nicholas A. Bakhuyzen.

Mary C. O'Donnell, Hopkins & Sutter, Troy, MI, for National Railroad Passenger, Corp., Consolidated Rail Corp. James L. Wernstrom, Law, Weathers & Richardson, Grand Rapids, MI, for James W. Chiles.

Daniel K. Jamieson, Ryan, Jamieson & Morris, Kalamazoo, MI, Robert C. Engels, Reed, Stover & O'Connor, PC, Kalamazoo, MI, for Balkema Sand & Gravel, Inc.

Daniel K. Jamieson, Ryan, Jamieson & Morris, Kalamazoo, MI, for Henry Balkema, Josephine G. Balkema.

Paul B. Hines, Galbraith & Booms, Southfield, MI, James R. Hulbert, Henry L. Guikema, PC, Grand Rapids, MI, for Van Andel, Inc., Lambert Van Andel, Van Andel Propane, Van Andel Propane Kalamazoo, Inc., Van Andel LP Gas, Van Andel Propane of Michigan.

Jon J. Schrotenboer, Nelson & Kreuger, PC, Grand Rapids, MI, for John Scholten.

OPINION ON AMTRAK AND CHILES' MOTIONS FOR SUMMARY JUDGMENT AS TO BAKHUYZEN AND DAVIS

ROBERT HOLMES BELL, District Judge.

These consolidated lawsuits arise out of a collision on March 10, 1993, between a truck carrying liquid propane and a National Railroad Passenger Corporation ("Amtrak") train. This matter is currently before the Court on a motion for summary judgment filed by Amtrak against Nancy Bakhuyzen and Mamie Davis, the plaintiffs in Case Nos. 1:94-CV-264 and 1:94-CV-281. James Chiles has joined in Amtrak's motion.

At the time of the accident Nicholas Bakhuyzen was driving a truck owned by his employer, Van Andel L.P. Gas. He was traveling south on a private grade crossing which intersects with the railroad tracks and M-96 at milepost 139.0. Bakhuyzen was struck by an Amtrak train traveling at approximately 60 miles per hour.

Nancy Bakhuyzen (personal representative of the estate of Nicholas Bakhuyzen) and Mamie Davis (a passenger on the Amtrak train) filed actions against Amtrak and Chiles, alleging that Chiles, the train engineer, was negligent in the following respects:

a. Operating the passenger train at a speed too fast for conditions;

b. Failing to operate the train in a careful and prudent manner;

c. Failing to keep a proper lookout for vehicular traffic crossing in the path of the train;

d. Failing to give adequate warnings of the train's approach; and

e. Failing to brake in time to avoid the collision.

Bakhuyzen and Davis have further alleged that Amtrak is vicariously liable for the actions of Chiles because Chiles was Amtrak's agent and was acting in the scope of his employment at the time of the accident.

Amtrak and Chiles contend they are entitled to judgment in their favor as a matter of law as to each of these allegations of negligence.

I.

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. In evaluating a motion for summary judgment the Court must look beyond the pleadings and assess the proof to determine whether there is a genuine need for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). If the movants carry their burden of showing there is an absence of evidence to support a claim then the non-moving parties must demonstrate by affidavits, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Inferences to be drawn from the underlying facts must be viewed in the light most favorable to the parties opposing the motion. Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. Nevertheless, the non-moving parties must do more than simply show that there is some metaphysical doubt as to the material facts. Id. at 586, 106 S.Ct. 1348. The mere existence of a scintilla of evidence in support of the non-moving parties, position is not sufficient to create a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The proper inquiry is whether the evidence is such that a reasonable jury could return a verdict for the parties opposing the motion. Id. See generally, Street v. J.C. Bradford & Co., 886 F.2d 1472, 1476-80 (6th Cir.1989).

II.

Bakhuyzen and Davis are willing to stipulate to the entry of summary judgment with respect to the fifth allegation, i.e., that Chiles was negligent in failing to brake in time to avoid the collision. They contend, however, that there are issues of fact and law that prevent entry of judgment on the first four allegations of negligence.

A. Train Speed

The first allegation of negligence is that the train was traveling too fast for conditions. Bakhuyzen and Davis do not dispute the fact that the train was traveling 58 to 60 miles per hour at the time of the accident. They concede that the train speed was within the FRA maximum track speed, although they disagree what the track speed was at the site of the accident.¹

The Federal Railroad Safety Act of 1970 ("FRSA"), 45 U.S.C. §§ 421-447 (repealed July 5, 1994), was enacted "to promote safety in all areas of railroad operations and to reduce railroad-related accidents, and to reduce deaths and injuries to persons ..." 45 U.S.C. § 421. The FRSA gave the Secretary of Transportation broad powers to "prescribe, as necessary, appropriate rules, regulations, orders, and standards for all areas of railroad safety." 45 U.S.C. § 431(a). Where such rules were adopted by the Secretary, they would preempt any state "law, rule, regulation, order, or standard relating to railroad safety." 45 U.S.C. § 434.² The Supreme Court has held that "[l]egal duties imposed on railroads by the common law fall within the scope of these broad phrases." CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 113 S.Ct. 1732, 123 L.Ed.2d 387, 396-97 (1993).

In Easterwood Plaintiff's husband was killed when a train collided with his truck at a crossing. The Supreme Court held that Plaintiff's claim that the railroad breached its common-law duty to operate its train "at a moderate and safe rate of speed" was preempted by the regulations adopted by the Secretary of Transportation pursuant to the FRSA. 113 S.Ct. 1732, 123 L.Ed.2d at 402-04. The Court rejected the plaintiff's argument that common-law speed restrictions were preserved by the "essentially local safety hazard" language of § 434:

The state law on which respondent relies is concerned with local hazards only in the sense that its application turns on the facts of each case. The common law of negligence provides a general rule to address all hazards caused by lack of due care, not just those owing to unique local conditions. Respondent's contrary view would completely deprive the Secretary of the power to pre-empt state common law, a power clearly conferred by § 434.

Id. 113 S.Ct. 1732, 123 L.Ed.2d at 403-04. Amtrak and Chiles contend that Bakhuyzen and Davis' claim of negligence based upon train speed is similarly preempted by the FRSA.

Bakhuyzen and Davis respond that Easterwood only preempts general allegations of negligence and does not preempt common-law speed claims where a specific condition at a crossing is alleged as the reason for the excessive speed claim. They note that in addition to the "essentially local safety hazard" language of § 434, in Easterwood the Court specifically declined to address the preemptive effect of the FRSA upon claims based upon breaches of related tort law duties, "such as the duty to slow or stop a train in order to avoid a specific, individual hazard." 113 S.Ct. 1732, 123 L.Ed.2d at 404 n. 15.³ Bakhuyzen and Davis have presented the affidavit of their expert, Michael P. Massie, identifying the following "specific, individual hazards" that required Chiles to operate the train at a slower speed: 1) the limited visibility due to snowy weather conditions, 2) the obstructed view from motorists looking westbound at the crossing, 3) the lack of protection at the crossing, and 4) the engineer's admission that this was a dangerous crossing.

With respect to crossing hazards, the Supreme Court noted in Easterwood that although the provisions of § 213.9(a) address only the maximum speeds at which trains are permitted to travel given the nature of the track on which they operate, § 213.9(a) "should be understood as covering the subject matter of train speed with respect to track conditions, including the conditions posed by grade crossings." 113 S.Ct. 1732, 123 L.Ed.2d at 402-03.

In line with this language from Easterwood, a number of district courts have held that excessive speed claims were preempted by the FRSA despite the fact that the plaintiffs identified specific hazards associated with the particular crossing where the accident occurred. See, e.g., Herriman v. Conrail, Inc., 883 F.Supp. 303 (N.D.Ind.1995) (hazardous lighting at crossing); Wright v. Illinois Central Railroad Co., 868 F.Supp. 183 (S.D.Miss.1994) (vegetation, grade and angle of crossing, and inadequate warnings); Earwood v. Norfolk Southern Ry. Co., 845 F.Supp. 880 (N.D.Ga.1993) (congested intersection, visibility impaired); Armstrong v. Atchison, Topeka & Santa Fe Ry. Co., 844 F.Supp. 1152 (W.D.Tex.1994) (grade crossing in a high vehicular traffic area which was not equipped with...