Driesen v. Iowa

• Citation: 777 F.Supp.2d 1143
• Decision Date: 15 February 2011
• Docket Number: No. 08–CV–4109–DEO.,08–CV–4109–DEO.
• Court: U.S. District Court — Northern District of Iowa
• Parties: David DRIESEN; Denise Driesen, Plaintiffs,v.IOWA, CHICAGO & EASTERN RAILROAD CORPORATION, Defendant.

777 F.Supp.2d 1143

David DRIESEN; Denise Driesen, Plaintiffs,

v.IOWA, CHICAGO & EASTERN RAILROAD CORPORATION, Defendant.

No. 08–CV–4109–DEO.

United States District Court, N.D. Iowa, Western Division.

Feb. 15, 2011.

Jeff W. Wright, Heidman Law Firm, LLC, Sioux City, IA, Ryan L. Woody, Matthiesen, Wickert & Lehrer, SC, Hartford, WI, for Plaintiffs.Brian J. Donahoe, Onna B. Houck, Cutler & Donahoe, LLP, Sioux Falls, SD, for Defendant.

MEMORANDUM OPINION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

DONALD E. O'BRIEN, Senior District Judge.I. INTRODUCTION

This matter is before the Court on Defendant Iowa, Chicago & Eastern Railroad Corporation's (hereinafter “Defendant” or “IC & E”) motion for summary judgment.

II. FACTS

The record in this case, when viewed in the light most favorable to the non-moving party, Plaintiffs David and Denise Driesen (hereinafter “Plaintiffs” or “the Driesens”), reveals the following facts:

At 9:00 a.m. on December 18, 2006, IC & E employees Dean Porter, the locomotive engineer, and Kenneth Kisner, the conductor or switch foreman, began work by boarding their train in Spencer, Iowa. Porter and Kisner were responsible for picking up and dropping off loaded railcars in Hartley, Sheldon, and Sanborn, Iowa. Porter was responsible for operating the locomotive on December 18, 2006. Kisner assisted the engineer and was responsible for completing required paperwork and certain ground operations, including diverting tracks and attaching and detaching railcars.¹

At approximately 8:20 p.m. on December 18, 2006, Porter and Kisner arrived at the Bruening railroad siding, which is located just west of the grade crossing at 180th Avenue in Spencer, Iowa, and runs parallel to the main railroad line. Trains access the Bruening siding from the main line by two switches located on either end of the siding. When the IC & E train arrived at the Bruening siding, the train consisted of two locomotives pulling five grain hopper railcars.

At the Bruening siding, Porter and Kisner were charged with picking up nine empty flatcars and attaching them to their train, a process referred to as “switching.” West of 180th Avenue and west of the furthest entrance to the Bruening siding, Kisner cut the grain hopper railcars from the two IC & E locomotives. Porter then operated the train eastward over the switch, allowing Kisner to align the switch to facilitate the pick-up of the flat bed railcars waiting on the Bruening siding. With the switch flipped, Porter backed his locomotives into the Bruening siding to couple the engines to the railcars. Once the cars were coupled to the locomotives, Kisner connected the air line between the locomotives and the railcars and proceeded to remove the hand brakes. Kisner then conducted the federally mandated air test of each railcar. After the air test was complete, Porter operated the train eastward, pulling the nine flat bed railcars from the Bruening crossing, through the switch, and over and across the grade crossing at 180th Avenue. Kisner then realigned the switch to the mainline and Porter began shoving the train westward over 180th Avenue.

Around 8:25 p.m. on December 18, 2006, as Porter and Kisner conducted their operations, Rose Fear turned north from County Road B–24 onto 180th Avenue and toward the grade crossing en route to her home. The grade crossing is one-quarter to one-half mile north of the County Road B–24/180th Avenue intersection. As Fear approached the grade crossing, she set her cruise control to approximately 60 miles per hour and utilized her high-beam headlights. As she neared the grade crossing, Fear sensed that it was darker than usual, and she picked up a big object in her headlights. Fear applied her brakes and swerved into the southbound lane, onto the shoulder, and around the flatbed railcars. Her brakes did not squeal and her anti-lock braking system did not engage. Fear testified that she did not hear any train whistle or horn. Fear remembered seeing and knowing the crossbucks were at the crossing. Fear believed that had she not been able to swerve onto the shoulder and around the railcars, she would have hit the railcars. After swerving around the train, Fear came to a stop on the north side of the grade crossing where she was able to observe a person at a distance west of the crossing with a flashlight pointing down at the ground.

Porter, who was on board the locomotive, was notified by Kisner over the radio that a vehicle was approaching the crossing “at a pretty good clip,” but Porter did not sound the locomotive's horn to notify the oncoming vehicle of the train's presence on the crossing. Porter then witnessed the vehicle nearly hit the train.²

At approximately 8:50 p.m. on December 18, 2006, Trooper Driesen was driving from his home to the district office in Spencer, Iowa, as he was scheduled to work the midnight shift from 9:30 p.m. to 6:00 a.m. Trooper Driesen turned north on 180th Avenue from County Road B–24. He was not using his computer, phone or other mobile device. He did not recall exactly what speed he was traveling or whether he was using his high beams. The posted speed limit on 180th Avenue is 55 miles per hour. Trooper Driesen stated he usually tried to stay between 55–60 miles per hour, but on a clear night with no snow or other vehicles present, it was not unusual for him to travel at 63 miles per hour. On this particular night, there were no visibility issues relating to fog or precipitation.

Having patrolled this area in the past, Trooper Driesen was familiar not only with the Spencer area, but also with the 180th Avenue grade crossing. As he approached the crossing, he neither saw nor heard any signs of a train, and he saw no people on the ground. At some point, he may have seen white lettering on the train, and he applied his brakes and steered to the left. The railcars were blocking the crossing and he struck a railcar.

At some point prior to the impact, Kisner heard the sound of a car engine and reported to Porter over the radio that a car was approaching the train. Kisner then shouted over the radio that the car was not slowing down and told Porter to put the train into emergency. Porter immediately engaged the train's emergency brake and, from his position in the locomotive, saw Trooper Driesen's car impact the side of the train. Porter immediately dialed 911, and Kisner aided Trooper Driesen until emergency personnel arrived. Deputy Brad Hawley of the Clay County Sheriff's Department was the first to arrive on the scene.

Trooper Driesen struck the third railcar in the train, identified as KRL 70948. The impact caused the patrol vehicle to weld itself to the train, necessitating the power of two wreckers to pull it away.

All of the empty flatcars lacked retro-reflective tape. KRL 70948 did not have significant retroreflective material on it on the night of the incident. Both Kisner and Porter had fusees available on the train for their use. Neither Porter nor Kisner flagged the crossing or placed lighted fusees across the grade crossing to warn oncoming motorists of the train's presence in the crossing.

Porter did not sound the locomotive's horn to warn Trooper Driesen of the train's presence on the crossing. Porter testified that he did not want to use the horn because he saw every day where other cars tried to beat him to the crossing; thus, he figured Trooper Driesen would not heed a warning sound.

After the incident, the Iowa State Patrol conducted an investigation. Trooper Robert Subbert, a technical investigator for the Iowa State Patrol, arrived on the scene and began taking photographs and measurements. In taking measurements, Subbert first established a reference point at the east edge of the road at the railroad tracks. Subbert then identified the skid marks extending 121 feet, 8 inches south from his reference point. On December 19, 2006, Subbert returned to the scene in the daylight and identified skid marks of 196 feet, six inches. Using this measurement as well as the speedometer slap indicating Trooper Driesen was traveling at 48 miles per hour at the time of impact, Subbert concluded that at the time Trooper Driesen applied his brakes, he had been driving at a minimum 63.78 miles per hour. Subbert also determined that a motorist could not see the railcars until they were right up to the train.

Trooper Driesen requested Dennis Skogen, a professional engineer, to provide an expert opinion regarding the speed at which he operated his state patrol vehicle on December 18, 2006. Utilizing Subbert's initial measurement of 121 feet of skid marks, Skogen concluded Trooper Driesen was traveling at a rate between 60–67 miles per hour at the start of his skid. Had Skogen used Subbert's conclusion that there was 196 feet of skid marks, the calculated speed would increase to 69–76 miles per hour. However, Skogen testified that he would not use the alleged 196 feet of skid marks in his calculation because it would have required Trooper Driesen to see and react to the railcar at over 300 feet away, which was farther than the range of his headlights. Pl.App. 200. Skogen also opined that the dark flatcar would not have been visible to Trooper Driesen as he approached the grade crossing.

Trooper Driesen also retained Colon Fulk of Railex, Inc., to provide expert opinions regarding the duties of the railroad in this case. Mr. Fulk produced a report that was highly critical of IC & E and its employees.

The grade crossing on 180th Avenue was a passive crossing,³ marked with a crossbucks sign, painted pavement markings, and an advanced warning disc. The grade crossing at 180th Avenue has a history of train/automobile collisions.

In October 2005, the State of Iowa, through its Department of Transportation, and IC & E entered into an agreement for the use of federal funding ⁴ for safety improvements at various IC & E crossing locations, including some in Clay County. Pursuant to the terms of the...