Bowman v. Norfolk Southern Ry. Co.

• Decision Date: 09 September 1993
• Docket Number: Civ. A. No. 0:91-3270-12.
• Court: U.S. District Court — District of South Carolina
• Parties: John L. BOWMAN, individually and as executor of the estate of John W. Bowman, Plaintiff, v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant.

832 F. Supp. 1014

John L. BOWMAN, individually and as executor of the estate of John W. Bowman, Plaintiff, v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant.

Civ. A. No. 0:91-3270-12.

United States District Court, D. South Carolina, Columbia Division.

September 9, 1993.

A. Philip Baity, Ridley, Ridley & Burnette, Fort Mill, SC, Sharon McCain Rickborn, Columbia, SC, for plaintiff.

John Gregg McMaster, Henry Dargan McMaster, Frank Barnwell McMaster, Tompkins & McMaster, Columbia, SC, for defendant.

MEMORANDUM OPINION AND ORDER

JOSEPH F. ANDERSON, Jr., District Judge.

This matter is currently before the court on the defendant's motion for summary judgment on all of the plaintiff's causes of action, the defendant's alternative motion to dismiss for failure to state a claim plaintiff's action based on inadequate grade crossing warning devices, and the plaintiff's motion for summary judgment on his claim for failure to sound statutorily required warnings. In addition, the plaintiff has moved to have this court reconsider its order of February 26, 1992, in which the court concluded that the speed ordinance of the City of Rock Hill was preempted by federal law. Oral argument on these motions was heard on August 18, 1993. For the reasons discussed below, the defendant's motion for summary judgment is granted in part and denied in part; the defendant's motion to dismiss is denied; the plaintiff's motion for summary judgment is denied; and the plaintiff's motion to reconsider is denied.

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). It is well-established that summary judgment should be granted "only when it is clear that there is no dispute concerning either the facts of the controversy or the inferences to be drawn from those facts." Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir.1987).

The party moving for summary judgment has the burden of showing the absence of a genuine issue of material fact, and the court must view the evidence before it and the inferences to be drawn therefrom in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 993, 8 L.Ed.2d 176 (1962). When the defendant is the moving party and the plaintiff has the ultimate burden of proof on an issue, the defendant must identify the parts of the record that demonstrate the plaintiff lacks sufficient evidence. The nonmoving party must then go beyond the pleadings and designate "specific facts showing that there is a genuine issue for trial." Fed. R.Civ.P. 56(e). See also Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Viewed in the light most favorable to the plaintiff, the facts are as follows: On May 22, 1990 at approximately 7:00 a.m., defendant Norfolk Southern's freight train was proceeding north near Rock Hill, South Carolina. At the same time, John W. Bowman, the plaintiff's decedent, was driving his pick-up truck east on Robertson Road on his way to work. Bowman worked at the MTM Chemical plant, located adjacent to the defendant's railroad tracks near the Robertson Road crossing. He had worked at MTM for about four months. As Bowman attempted to cross the tracks at the Robertson Road crossing, the defendant's train struck his pickup truck and caused the truck to flip over. Bowman survived the accident, but sustained severe head injuries, which rendered him comatose. Bowman remained in a coma until December 10, 1992, when he died of complications associated with his vegetative condition.

John L. Bowman, the decedent's father, brought this diversity action both individually and as the executor of his son's estate for wrongful death and negligence. The plaintiff alleges that the defendant was negligent for the following: (1) operating the train at an excessive speed; (2) failing to provide adequate warning devices at the grade crossing; (3) failing to remove from the railroad's right of way vegetation that obstructed the decedent's view of the approaching train; and (4) failing to sound the warnings required by S.C.Code Ann. § 58-15-910 (Law.Co-op. 1976). In addition, the plaintiff alleges negligent entrustment by the defendant in allowing the engineer who was driving at the time of the accident to operate the train.

The defendant's main argument for summary judgment on most of the plaintiff's claims is that these state-law claims are preempted by federal law. This issue is largely controlled by the United States Supreme Court's recent decision, CSX Transportation, Inc. v. Easterwood, ___ U.S. ___, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993), which presented a fact situation very similar to the case presently at bar. In Easterwood, the Court addressed the pre-emptive effect of the Federal Railroad Safety Act of 1970 (FRSA), 45 U.S.C. §§ 421-447 (1988 & Supp. II 1990).

The FRSA contains an express pre-emption clause, section 434, which provides, in part:

The Congress declares that laws, rules, regulations, orders, and standards relating to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force any law, rule, regulation, order, or standard relating to railroad safety until such time as the Secretary has adopted a rule, regulation, order, or standard covering the subject matter of such State requirement.

45 U.S.C. § 434 (1988). Thus, the focus of the pre-emption inquiry is whether the Secretary of Transportation has issued regulations pursuant to the FRSA "covering the same subject matter" as the state law pertaining to railroad negligence.

I. Excessive Speed

The defendant first argues that the plaintiff's negligence action based on alleged excessive speed is pre-empted. The court agrees.

The Secretary of Transportation has issued regulations, codified at 49 C.F.R. § 213.9(a) (1992), that set the maximum speed limits for all freight and passenger trains for the different classes of track on which they travel. The Easterwood Court held that these speed regulations pre-empt state common-law claims based on excessive speed. Easterwood, ___ U.S. at ___-___, 113 S.Ct. at 1742-44. As the Court observed:

On their face, 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. Nevertheless, related safety regulations adopted by the Secretary reveal that the limits were adopted only after the hazards posed by track conditions were taken into account. Understood in the context of the overall structure of the regulations, the speed limits must be read as not only establishing a ceiling, but also precluding additional state regulation of the sort which Easterwood seeks to impose on the defendant railroad.

Id. at ___, 113 S.Ct. at 1742.

In the instant case, the uncontradicted evidence demonstrates that the tracks where the accident occurred were Class IV tracks. Under the speed regulations of 49 C.F.R. § 213.9(a), the maximum speed limit on this class of track is 60 m.p.h. There is no evidence in the record in this case that the train was exceeding 60 m.p.h. The speed tapes from the train indicate that the train was traveling between 46 and 48 m.p.h. at the time of the accident. At oral argument on this motion, plaintiff's counsel conceded that these records were reasonably accurate.

Two federal district court decisions after Easterwood have applied the Supreme Court's analysis and have concluded that state-law claims based on excessive speed are preempted. See Eldridge v. Missouri Pacific R.R., 832 F.Supp. 328, 330 (E.D.Okla. 1993); Watson v. Rail Link, Inc., 826 F.Supp. 487, 490 (S.D.Ga.1993).

Moreover, before Easterwood, this court reached essentially the same conclusion in its order of February 26, 1992, in which this court held that the FRSA pre-empted the City of Rock Hill's speed ordinance restricting trains to twenty-five miles per hour. The court recognized that the Secretary's train speed regulations, C.F.R. §§ 213.9 and 213.57, covered the exact subject matter of the municipal ordinance. Therefore, the court concluded that the plaintiff's claims based on excessive speed were pre-empted.

Plaintiff has moved this court to reconsider its order of February 26, 1992 in light of newly discovered evidence that the defendant railroad allegedly has an internal policy of following municipal speed ordinances. Additionally, the plaintiff asserts that the railroad has a self-imposed speed limit of 50 m.p.h. on the track at which the accident occurred. Although a defendant's internal policies may be evidence of due care in a typical negligence action, see e.g., Lee v. Missouri Pacific R. Co., 566 So.2d 1052 (La.Ct.App.1990), that issue merely goes to the state common-law of negligence. Because this court determines that state law regarding train speed is pre-empted, evidence of the defendant's internal policies about train speed is irrelevant.

Plaintiff also argues that state law regarding train speed is not pre-empted because the crossing at issue in this case presented an essentially local hazard. The pre-emption clause of the FRSA contains a savings clause, which provides:

A State may adopt or continue in force an additional or more stringent law, rule, regulation, order, or standard relating to railroad safety when necessary to eliminate or reduce an essentially local safety hazard, and when not incompatible with any Federal law, rule, regulation, order, or standard, and when not creating an undue burden on interstate commerce.

45 U.S.C. § 434 (1988). The Easterwood Court specifically did not address the FRSA's pre-emptive effect of suits "for breach of related tort law duties, such as the duty to slow or stop a train to avoid a...