Fifth Third Bank ex rel. Trust Officer v. Csx

• Decision Date: 22 July 2005
• Docket Number: No. 04-2780.,04-2780.
• Citation: 415 F.3d 741
• Parties: FIFTH THIRD BANK, by and through its TRUST OFFICER, as Special Administrator of the Estate of Kacie Bechard, Deceased, Sheryl M. Bechard, and Stephen Bechard, Plaintiffs-Appellants, v. CSX CORPORATION, CSX Transportation Corporation, Newton County Highway Department, Newton County, by and through its Board of Commissioners, and the National Railroad Passenger Corporation, also known as Amtrak, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 741

415 F.3d 741

FIFTH THIRD BANK, by and through its TRUST OFFICER, as Special Administrator of the Estate of Kacie Bechard, Deceased, Sheryl M. Bechard, and Stephen Bechard, Plaintiffs-Appellants, v. CSX CORPORATION, CSX Transportation Corporation, Newton County Highway Department, Newton County, by and through its Board of Commissioners, and the National Railroad Passenger Corporation, also known as Amtrak, Defendants-Appellees.

No. 04-2780.

United States Court of Appeals, Seventh Circuit.

Argued February 10, 2005.

Decided July 22, 2005.

William J. Lazarus (argued), Kenneth J. Allen (argued), Allen & Associates Valparaiso, IN, for Plaintiffs-Appellants.

Harold Abrahamson (argued), Aimee R. Rivera, Abrahamson & Reed, Hammond, IN, Timothy M. Swan (argued), Clark & assocaites Munster, IN, for Defendants-Appellees.

Before MANION, EVANS, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

This case arises from a tragic train-car collision that caused serious injuries to the driver of the car and killed her three-and-one-half-year-old daughter, a passenger. The daughter's estate and her mother and father brought a personal injury and wrongful-death action in Indiana state court, which the defendants — the owner of the railroad crossing, Newton County and its Highway Department, the railroad, and the State of Indiana and its Department of Transportation — removed to federal district court. The suit asserted that railroad warning devices at the crossing were inadequate, that the defendants negligently failed to remove vegetation that obstructed the ability to view oncoming trains, and also that Newton County negligently failed to maintain other signage at the crossing.

On the defendants' motions for summary judgment, the district court concluded that the case was controlled by Norfolk Southern Railroad Co. v. Shanklin, 529 U.S. 344, 120 S.Ct. 1467, 146 L.Ed.2d 374 (2000); applying Shanklin, the court held that the plaintiffs' inadequate warnings claims were preempted by federal law. We agree. Under Shanklin and the facts of this case, the Federal Railroad Safety Act ("FRSA"), 49 U.S.C. §§ 20101 et seq., preempts the plaintiffs' claims to the extent they are premised upon the alleged inadequacy of the warning devices at the crossing. The district court also held that the plaintiffs' negligence claim against Newton County for obstruction of view and failure to maintain signage was factually insufficient to survive summary judgment. We affirm that decision as well.

I. Background

At approximately 9:45 a.m. on January 13, 2000, an automobile operated by Sheryl Bechard was struck by a train operated by the National Passenger Railroad Association ("Amtrak"). The accident occurred on County Road ("CR") 400 East in Newton County, Indiana, at a rail crossing owned and maintained by CSX Transportation Corporation. Sheryl Bechard suffered serious injuries in the collision but survived; her daughter Kacie, a passenger in the vehicle, died three days later from injuries sustained in the accident.

At the time of the accident, the CR 400 crossing was marked by advance warning signs and reflectorized cross-bucks facing northbound and southbound traffic. Cross-bucks are the familiar white boards marked with the words "RAILROAD CROSSING" in black letters assembled in a large "X" configuration. These warning devices were installed pursuant to a 1976 agreement between the State of Indiana and the Louisville & Nashville Railroad Company, a predecessor to CSX Transportation Corporation. The agreement enabled the disbursement of federal funds under the Federal Railway-Highway Crossings Program, 23 U.S.C. § 130, which helps the states pay for projects designed to eliminate hazards at railway-highway crossings. Under federal regulations, warning signs installed under the Crossings Program must conform to the latest edition of the Manual on Uniform Traffic Control Devices for Streets and Highways ("MUTCD"), supplemented to the extent applicable by state standards. See 23 C.F.R. § 646.214(b)(1) (2005). It is undisputed that 90% of the cost of the warning devices installed at the CR 400 crossing was paid for using federal funds.

Kacie's mother and father, as individuals, and Fifth Third Bank, as the administrator of Kacie's estate, filed suit in Indiana state court against CSX Corporation and CSX Transportation Corp. (jointly "CSX"), as well as Newton County and the Newton County Highway Department (jointly "the County"). The complaint was later amended to include Amtrak and the State of Indiana and the Indiana Department of Transportation. Amtrak removed the case to federal court pursuant to 28 U.S.C. § 1441, the general removal statute, and 28 U.S.C. § 1349, which confers federal jurisdiction over suits involving corporations when one-half of the capital stock in that corporation is owned by the United States. See Lynch v. Household Fin. Corp., 405 U.S. 538, 550 n. 17, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972). Attached to Amtrak's removal motion were consent letters from the other defendants. See Doe v. GTE Corp., 347 F.3d 655, 657 (7th Cir.2003). The letter from the State of Indiana and the Indiana Department of Transportation was signed by an Indiana Assistant Attorney General. After the case was docketed in federal court, the plaintiffs moved to remand to state court on the ground that Indiana's consent to removal did not validly waive its Eleventh Amendment immunity to federal suit. The court denied the motion and the proceedings continued.

The plaintiffs' complaint, as amended, alleged four counts of negligence. In the first count the plaintiffs claimed that CSX negligently failed to install and maintain adequate warning devices at the CR 400 crossing and failed to remove obstructions from the right-of-way for which it was responsible. In the second count the plaintiffs alleged that the County negligently maintained the CR 400 crossing in an extrahazardous and unreasonably dangerous condition. The third count leveled the same allegation against Indiana and its Department of Transportation. In the fourth count the plaintiffs claimed that Amtrak negligently trained the crew and negligently operated the train involved in the accident. Each of the four counts sought damages for the injuries sustained by Kacie, Sheryl, and Stephen Bechard. The plaintiffs later stipulated to the dismissal of the State of Indiana and the Indiana Department of Transportation.

CSX and Amtrak moved jointly for summary judgment; the County filed a separate summary judgment motion. Applying Shanklin, the district court held that insofar as the plaintiffs' claims were premised upon the alleged inadequacy of the warning devices at the crossing, they were preempted by federal law. Fifth Third Bank v. CSX Corp., 306 F.Supp.2d 841, 848-52 (N.D.Ind.2004). The court accordingly granted summary judgment to all defendants with respect to claims premised on the inadequacy of the warning devices. As for the plaintiffs' negligence claim against the County for failure to remove vegetation obstructions from its right-of-way, the court held there was no factual basis in the record to conclude that but for an obstruction of view, Bechard would have seen the train and stopped. Id. at 846. The court also held there was no factual basis for the plaintiffs' claim that the County was negligent in failing to properly maintain its signage on the public road approach to the crossing. In the alternative, the court held that the County was entitled to immunity under the Indiana Tort Claims Act, IND. CODE § 34-13-3-3(7) (2005).

The district court denied summary judgment on the plaintiffs' obstruction-of-view claim against CSX and Amtrak, concluding that although the plaintiffs "had an extremely steep uphill climb" under Indiana statutory and case law on this remaining claim, summary judgment was inappropriate. As is relevant to this claim, the court declined to resolve a dispute between the parties over Sheryl Bechard's competence to testify due to head injuries suffered in the collision; the court concluded that until the competence question was resolved, disputed issues of fact precluded summary judgment on the obstruction-of-view claim against CSX and Amtrak.¹ The district court then issued an order pursuant to Rule 54(b), FED. R. CIV. P., and this appeal followed.

II. Discussion

The plaintiffs raise four arguments on appeal. First, they contend that federal law does not preempt their inadequate warnings claims, because the defendants failed to prove that the railroad warning signs at the crossing were properly installed, approved, adequate, and operating. Second, they argue that summary judgment was improperly granted on their claim against the County for obstruction of view and failure to maintain signage — including stop signs and pavement markings — because the district court rested its decision in part on Sheryl Bechard's testimony, even though it separately held that the unresolved competence issue precluded summary judgment on the obstruction-of-view claim against CSX and Amtrak. Third, the plaintiffs argue that the County is not entitled to immunity under the Indiana governmental immunity statute. Finally, the plaintiffs contend that this case should not have been in district court at all because Indiana's consent to removal did not validly waive its Eleventh Amendment immunity.

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, demonstrate that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Federal preemption is an affirmative defense upon which the defendants bear the burden of proof. Fort Howard Paper Co. v. Standard Havens, Inc., 901 F.2d 1373, 1377 (7th Cir.1990). Our review of all the issues...