Eubanks v. Norfolk S. Ry. Co.

Decision Date19 September 2012
Docket NumberCause No. 3:11–CV–135–RLM.
Citation875 F.Supp.2d 893
PartiesElaine EUBANKS, Plaintiff, v. NORFOLK SOUTHERN RAILWAY COMPANY and David R. Meier, Defendants.
CourtU.S. District Court — Northern District of Indiana


David T. Stutsman, Stutsman Mulvaney and Deboer, Elkhart, IN, David A. Cox, Bayliff Harrigan Cord & Maugans PC, Kokomo, IN, for Plaintiff.

Heather L. Emenhiser, Stuart & Branigin LLP, Lafayette, IN, for Defendants.


ROBERT L. MILLER, JR., District Judge.

This matter is before the court on a summary judgment motion filed by defendants Norfolk Southern Railway Company and David R. Meier, and on plaintiff Elaine Eubanks's motion for leave to file supplemental exhibits. The court heard argument on the motions on June 20. For the reasons that follow, the court grants the motion to supplement and also grants Norfolk Southern's summary judgment motion.

In April 2009, Elaine Eubanks walked along Main Street in Elkhart, Indiana, going from her home to an activity at her church. Walking south along the left (east) side of the street, she reached the point where five train tracks cross Main Street. She walked to a small island in the intersection, slightly past and across the street from the flashing gates, where she waited for the eastbound train to finish passing through the intersection. When the eastbound train made it all the way through the intersection, she saw a bicyclist scoot across the tracks and she began to walk across the tracks, looking down the length of the track to the west, from where the eastbound train had come. Ms. Eubanks never looked back to the east to see a westbound train entering the intersection just after the eastbound train had cleared it. The westbound train blew its horn and rang its bell continuously, but Ms. Eubanks walked in front of it with her eyes towards the west, apparently never seeing the train. The train struck her and knocked her into the area between the two tracks. Ms. Eubanks survived the accident, but was severely injured.

In a complaint filed in Elkhart Superior Court and removed to this court, Ms. Eubanks alleges that Norfolk Southern negligently caused the collision. Her claims can be divided into five categories. First, she asserts that Norfolk Southern is liable for designing a crossing—one with a high volume of train, auto, and foot traffic—that was more than ordinarily hazardous to pedestrians because one train can obscure the view of another on the curve, because there is no elevated or channelized sidewalk, and because there are no pedestrian gates separate from the automobile gates. Second, she asserts that Norfolk Southern is liable for failing to maintain the crossing, allowing the pavement surface to become pitted, defective, and difficult to walk on safely. Third, she contends that train horns are difficult to hear at this intersection when another train comes through at the same time. Fourth, Ms. Eubanks asserts that the engineer didn't sound the horn properly according to regulation and company policy. And, fifth, Ms. Eubanks asserts that the engineer caused the accident by not applying the brake as soon as he saw her.

Norfolk Southern Railway Company and David R. Meier, the engineer operating the train that day, have moved for summary judgment because federal law preempts all the claims, because its actions didn't cause the accident, and because Ms. Eubanks was more than fifty percent responsible for the accident.

Ms. Eubanks responds that the crossing's very complicated design and the way this train was operated combined to create a situation in which one passing train can obscure the view and sound of another approaching train. Ms. Eubanks provided the court with evidence of three witnesses who didn't become aware of the train until it was very close and Ms. Eubanks's own testimony saying she also wasn't aware of the train's approach. Ms. Eubanks says there is a question of fact whether a variety of factors, including the design of the intersection, the nature of sound and sightlines when two trains pass, the engineer's improper horn signaling sequence, and the condition of the pavement caused the accident.

Ms. Eubanks served her response opposing the summary judgment motion. Later, and on the same day that Norfolk Southern filed the fully-briefed motion, Ms. Eubanks filed a motion to file supplemental exhibits, with two declarations attached.

I. Motion for Leave to File Supplemental Exhibits

Ms. Eubanks seeks leave to file supplemental exhibits and says that two eyewitnesses to her train accident had “dropped out of sight and could not be found in the exercise of due diligence until now.” Having now found the missing eyewitnesses, Ms. Eubanks attached their declarations and asks the court to consider them under Federal Rule of Civil Procedure 56(d). Ms. Eubanks says the witnesses' declarations show a factual dispute that defeats Norfolk Southern's summary judgment motion. Norfolk Southern says Ms. Eubanks didn't comply with Rule 56(d)'s requirement to show that good faith was exercised and didn't produce the evidence in a timely manner. Ms. Eubanks then filed a notice of compliance with Rule 56(d) that included an affidavit describing her counsel's attempts to get the witness statements over the course of several months. Norfolk Southern also contends that these exhibits don't create a genuine issue of material fact.

That Ms. Eubanks didn't raise this discovery-related concern while the parties were briefing the summary judgment questions and only first filed this evidence after that process was complete raises a valid concern; it left Norfolk Southern unable to address the new evidence in its reply. Still, since the discovery period was still open and since Ms. Eubanks's counsel, according to the affidavit later filed, diligently pursued the witnesses, the court can't say that this action was in bad faith.

Rule 56(d) requires Ms. Eubanks to show by declaration or affidavit that she couldn't present the facts in opposition to the summary judgment motion, but it doesn't require that she do so on a particular timeline. While trial courts have the discretion to enforce rules strictly, they also can allow some leeway. Stevo v. Frasor, 662 F.3d 880, 887 (7th Cir.2011) (noting that, while district judges are entitled to enforce strict compliance, [w]e have not endorsed the very different proposition that litigants are entitled to expect strict enforcement by district judges. Rather, ‘it is clear that the decision whether to apply the rule strictly or to overlook any transgression is one left to the district court's discretion.’ quoting Little v. Cox's Supermarkets, 71 F.3d 637, 641 (7th Cir.1995)); accord Harmon v. OKI Systems, 115 F.3d 477, 481 (7th Cir.1997). This court has discretion to grant leave to file these declarations if good cause is shown.

Norfolk Southern also contends that the leave shouldn't be granted to file these declarations because video evidence shows the locomotive's approach, including when the horn was sounded and when a record includes very explicit evidence, such as video, conflicting accounts that blatantly contradict the record don't create a factual dispute. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). Scott v. Harris doesn't preclude the declarations. What Ms. Eubanks seeks to admit (Mr. and Mrs. Farmwald's declarations about when they personally heard the train horn) don't contradict the video evidence; they support the contention train horns are hard to hear in this particular intersection while two trains are passing. The parties ultimately don't disagree about when the horn was sounded. The declarations are admissible for considering the motion for summary judgment.

While Ms. Eubanks has left Norfolk Southern unable to respond to the last-minute evidence she has submitted, she has at least shown good cause (via the later-filed affidavit) as to why the witness declarations were submitted late. Because of this, the court grants Ms. Eubanks's motion for leave to file supplemental exhibits and, since they are attached to the motion, deems them filed for purposes of the summary judgment motion.

II. Summary Judgment Standard

“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a) (2011). A fact is “material” if it might affect the outcome of the litigation under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Conversely, where a fact wouldn't affect the outcome of a suit, whether it is disputed is irrelevant. Id. Disputes over material facts are “genuine” if the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The nonmovant “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Summary judgment is the time when a plaintiff must come forward with enough evidence to show that he can convince a trier of fact of his version of the facts by a preponderance of the evidence. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 252, 106 S.Ct. 2505;Johnson v. Cambridge Industries, Inc., 325 F.3d 892, 901 (7th Cir.2003) (describing summary judgment as the “put up or shut up” moment of a lawsuit).

While reviewing Norfolk Southern's summary judgment motion, the court doesn't weigh the evidence but rather accepts the admissible evidence Ms. Eubanks has presented and construes all facts and draws all reasonable inferences from those facts in favor of Ms. Eubanks, the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505;see also Gunville v. Walker, 583 F.3d 979, 985 (7th Cir.2009) (“Admissibility is the...

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