O'Bannon v. Union Pacific Railroad Co., 98-2279

Decision Date02 January 1999
Docket NumberNo. 98-2279,98-2279
PartiesChristopher Dale O'BANNON; Justin Bradley O'Bannon, by and through their duly appointed next friend, Sharon Michelle O'Bannon; David L. O'Bannon; and Ruth E. Rialti, Appellants, v. UNION PACIFIC RAILROAD COMPANY; National Railroad Passenger Corporation, doing business as Amtrak, Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

James D. Walker, Jr., Kansas City, Missouri, argued (Gerald W. Furnell, Lee's Summit, Missouri, on the brief), for appellant.

Douglas R. Richmond, Kansas City, Missouri, argued, for appellee,

Before RICHARD S. ARNOLD, HEANEY, and JOHN R. GIBSON, Circuit Judges.

RICHARD S. ARNOLD, Circuit Judge.

This case arises out of an accident in which Kevin O'Bannon was killed when his truck was struck by an Amtrak train. Mr. O'Bannon's statutory survivors brought a wrongful-death claim against Amtrak, the official title of which is the National Railroad Passenger Corporation, and also against the Union Pacific Railroad Company, which operated and controlled the railroad crossing where the accident took place. The District Court 1 granted summary judgment in favor of the Union Pacific, holding that the plaintiffs' claim was preempted by federal law. The case against Amtrak went to trial, and the jury returned a verdict in favor of the defendant. Plaintiffs appeal. The principal question presented is whether there was sufficient evidence to avoid summary judgment on the preemption issue, a question that depends on whether warning devices at the crossing were paid for by federal funds. We affirm.

I.

The crossing where the accident occurred is located in Pettis County, Missouri, and is known as the Sellers Road crossing. The crossing was protected by two crossbucks. The parties agree on the basic principles of law to be applied. In CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993), the Supreme Court held that state tort claims are preempted by federal law, the Federal Railroad Safety Act of 1970, 45 U.S.C. §§ 421 et seq., see also 23 C.F.R. §§ 646.214(b)(3) and (4), if "federal funds participate in the installation of the [warning] devices ...." Easterwood, 507 U.S. at 670, 113 S.Ct. 1732. See also Elrod v. Burlington Northern R. Co., 68 F.3d 241 (8th Cir.1995).

What is the state of the record on the source of funding for the two crossbucks at the Sellers Road crossing? Affidavits submitted by Union Pacific in support of its motion for summary judgment establish that the Missouri Public Service Commission, on July 25, 1979, entered an "order authorizing installation of warning signs." This order approved a contract between the Missouri Highway Commission and the Missouri Pacific Railway Company (predecessor of Union Pacific) for the installation of "two reflectorized crossbucks warning signs at each public highway crossing of the railroad's tracks in the state of Missouri where such protection is not already in place." App. 164. It was the responsibility of the Railroad to install the crossbucks. The State would reimburse 90 per cent. of the cost, and the State had received federal funding for the project. Attached to the contract for the installation of the crossbucks was a tabulation for each county in Missouri, listing the crossbucks and warning devices required. The tabulation for Pettis County included the Sellers Road crossing and listed one crossbuck and one wooden post at that location.

The defendant's affidavits further established that on May 19, 1982, George Satterlee, an employee of the Missouri Highway and Transportation Commission, recommended payment for 222 reflectorized crossbucks and 206 posts in his district, which included Pettis County. Assuming reimbursement in federal funds at the rate of 90 per cent., which is the rate provided by law, installation of this number of crossbucks and posts would have entitled the Railroad to a payment from the State in the amount of $31,660.00. On June 16, 1983, the Railroad received payment in the amount of $34,488.00. According to an affidavit submitted by the defendant, this payment was "for the installation of crossbucks in Missouri." Business records of the Missouri Division of Transportation, produced by the plaintiffs, revealed that the Railroad was to install, in the entire state, 1,300 reflectorized crossbucks and about 1,000 new posts. In 1982, the Railroad reported by letter that almost all the crossbucks and posts required in the state had been installed. If this was true, a federally funded payment to the Railroad of approximately $175,700.00 should have been made. The only evidence of payment, however, was the $34,488.00 received in 1983.

As the plaintiffs point out, this amount does not match either the amount of $31,660.00 requested in 1982 for the six-county area that included Pettis County, or the much higher figure of $175,700.00 the Railroad should have received for installing crossbucks and posts throughout the entire state. Plaintiffs rely, in addition, on two affidavits from people familiar with the crossing. One such affidavit, made by a neighbor, states that the two crossbucks now at the Sellers Road crossing have been there since 1968. "To my knowledge," the affiant says, "these crossbucks are no different nor have the signs been changed" during that period of time. In addition, Emmet W. Fairfax, Pettis County Sheriff from 1961 to 1977, stated in an affidavit that the crossing had had crossbucks since 1961, and that as of 1997, two years after the accident, the crossbucks appeared to be the same in all respects as they had been since 1961.

On this state of the record, plaintiffs argue, a rational jury could find that the crossbucks at the Sellers Road crossing had been there since before 1979, the date of the Public Service Commission order on which Union Pacific relies. Further, plaintiffs assert, even if crossbucks were installed at Sellers Road after 1979, a jury would not have to find that they were paid for by federal funds. An order was entered for installation of a crossbuck and a warning device at Sellers Road, Missouri Pacific billed the State for that installation, and an employee of the State requested that the bill be paid. Thereafter, Missouri Pacific was paid an amount of money sufficient to cover the entire six-county district, but the amount was too large to be entirely attributable to that district. The payment, therefore, plaintiffs argue, could have been for warning devices anywhere in the State. It is not inescapably tied either to Pettis County or to the six-county district in which that county is located.

Although the question is not completely free from all doubt, we believe the District Court acted correctly in granting the Union Pacific's motion for summary judgment on this question. There is no doubt that the Public Service Commission, in 1979, ordered the installation of a warning device at the Sellers Road crossing. The Missouri Pacific thereafter billed the State for work that included this warning device. The State acknowledged that the billing was appropriate and ordered payment. An amount of money sufficient to cover the bill was then paid. It is not disputed that federal funds were part of the payment actually made. And, in addition to the evidence already referred to, Greg Hayes, a railroad liaison working for the Missouri Highway and Transportation Commission, has made an affidavit stating, among other things:

The "Contract for Crossbucks" and the tabulation [documents already referred to] indicate that the Highway Commission participated with federal funding and the Missouri Pacific to install one reflectorized crossbuck warning sign and one crossbuck post at the Sellers Road crossing.

App. 299.

We do not think that there is any substantial likelihood that the State would pay the Railroad for work that the Railroad had not done. Nor do we find significant the fact that the only record of payment is for $34,488.00, an amount much smaller than the amount that would actually have been due for warning devices installed throughout the entire State. Whether payment was made for devices located outside Pettis County is...

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