Macfarlane v. Canadian Pacific Ry. Co.

• Decision Date: 02 January 2002
• Docket Number: Docket No. 01-7083.
• Citation: 278 F.3d 54
• Parties: Mary Ester MACFARLANE, individually and as Administrator of the Estate of D. Kenneth Macfarlane, Patrick Macfarlane, Scott Macfarlane, Christopher Macfarlane and Kelly Gill, Plaintiffs-Appellants, v. CANADIAN PACIFIC RAILWAY COMPANY as Successor in Interest to FKA Delaware and Hudson Railroad Co., Inc. and National Railroad Passenger Corporation d/b/a Amtrak, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

278 F.3d 54

Mary Ester MACFARLANE, individually and as Administrator of the Estate of D. Kenneth Macfarlane, Patrick Macfarlane, Scott Macfarlane, Christopher Macfarlane and Kelly Gill, Plaintiffs-Appellants, v. CANADIAN PACIFIC RAILWAY COMPANY as Successor in Interest to FKA Delaware and Hudson Railroad Co., Inc. and National Railroad Passenger Corporation d/b/a Amtrak, Defendants-Appellees.

Docket No. 01-7083.

United States Court of Appeals, Second Circuit.

Argued November 13, 2001.

Decided January 2, 2002.

Kaveh S. Shahi, Rutland, VT (Cleary Shahi Associates, P.C.), for Plaintiffs-Appellants Mary Ester Macfarlane, Patrick Macfarlane, Scott Macfarlane, Christopher Macfarlane and Kelly Gill.

Craig Weatherly, Burlington, VT (Gravel and Shea), for Defendants-Appellees Canadian Pacific Railway Company and National Railroad Passenger Corporation d/b/a Amtrak.

Before: FEINBERG, CARDAMONE, and POOLER, Circuit Judges.

FEINBERG, Circuit Judge.

This appeal arises out of a wrongful death action brought by Mary Ester Macfarlane (the widow of D. Kenneth Macfarlane), individually and as administrator of the estate of D. Kenneth Macfarlane, and her children (collectively Macfarlane) against National Railroad Passenger Corporation (Amtrak) and Canadian Pacific Railway Company (Canadian Pacific), for damages caused by a collision between an Amtrak passenger train and a pick-up truck in which D. Kenneth Macfarlane was a passenger. Amtrak is a federally-chartered not-for-profit corporation with its principal place of business and citizenship in Washington D.C.¹

Plaintiff Macfarlane asks us to review two orders of the United States District Court for the District of Vermont, William K. Sessions III, J. The first granted partial summary judgment to defendant Amtrak on plaintiff's claim that, under the factual circumstances here, the Amtrak train was proceeding at an excessive speed when the accident occurred. The district court held that this claim was pre-empted by the Federal Railway Safety Act of 1970, 49 U.S.C. §§ 20101 et seq. (FRSA). The second order granted Amtrak summary judgment, on the ground that there was no triable issue of fact, on plaintiff's remaining claim that the train's warning signals were inadequate. We affirm in part, and reverse and remand in part.

I. Background

The record before us discloses the following facts, which are undisputed unless otherwise noted.

On January 19, 1997, at 3:26 p.m., the decedent was killed when the pick-up truck in which he was a passenger was struck by a passenger train at a railroad highway grade crossing in Putnam, NY. The driver of the truck was also killed. The two men were returning home from Putnam House, a bar and restaurant, where each consumed three beers and some food. The Amtrak train was traveling north at a speed of 48 miles per hour as it approached the railroad crossing. The truck was heading east as it approached the crossing, which has no gates on either side. There is, however, an X-shaped wooden warning sign posted on the west side of the crossing, visible to road traffic traveling east across the tracks. A large rock formation exists on either side of the track south of the crossing. These rock outcroppings bar visibility for a driver driving east over the crossing and looking south along the tracks. The driver can see an approaching northbound train only when the train reaches a point 500 feet from the crossing. The train in this case, at its rate of speed, would have been visible from the crossing for only seven seconds prior to the collision.²

The train sounded a warning whistle 11 seconds prior to the collision and four seconds prior to the collision. Amtrak argues that a whistle was also sounded 25 seconds before the crossing at the whistle post, which is located 1750 feet south of the crossing. Macfarlane argues that the train first sounded the whistle at 11 seconds.

At four seconds prior to the collision, the engineer saw the truck crossing the tracks from west to east and sounded the whistle, and at three seconds applied the emergency brakes. The train struck the truck on the passenger side, tossing it 50 feet before it hit a telephone pole. Both men were killed instantly.

In January 1999, Macfarlane brought this wrongful death action in the Superior Court of Addison County, Vermont against the alleged track owner, Canadian Pacific, for its alleged negligence in "maintaining and repairing its tracks and properly warning of on-coming trains" and against Amtrak for its alleged failure to operate the train "in a safe manner which included giving proper warning of its approach ... and traveling at a safe rate of speed in its approach to the intersection." Based upon diversity jurisdiction, defendants removed the case to the United States District Court for the District of Vermont.

Thereafter, both defendants moved for summary judgment. In September 2000, the district court granted summary judgment to Canadian Pacific on the ground that it neither owned nor controlled the track on which the collision occurred. In its opinion the district court also granted partial summary judgment to defendant Amtrak on Macfarlane's claim of excessive speed, on the ground that the claim was pre-empted by the FRSA. However, the court denied summary judgment to Amtrak on Macfarlane's claim of inadequate auditory warning, finding that there was "a genuine issue of material fact" regarding when the train's whistle was initially sounded, and whether it was "sufficiently in advance of the collision."

Two months later, Amtrak filed a renewed motion for summary judgment on the inadequate auditory warning claim. In December 2000, the district court changed its mind and granted summary judgment to Amtrak on the ground that there was no triable issue of fact as to the adequacy of the train's whistle warning. Macfarlane now appeals the district court's grant of summary judgment to Amtrak on both of Macfarlane's claims.³

II. Discussion

A. Standard of Review

The district court's grant of summary judgment is reviewed de novo, drawing all factual inferences in favor of the non-moving party. Lane Capital Mgmt., Inc. v. Lane Capital Mgmt., Inc., 192 F.3d 337, 343 (2d Cir.1999).

B. Federal pre-emption of claim for excessive speed on facts of this case

Macfarlane's first argument in this appeal is that the district court erred in holding that the claim concerning the train's speed at the time of the accident was pre-empted by the FRSA.

1. District court proceedings

As indicated above, Macfarlane's complaint alleged that Amtrak failed to operate the train "in a safe manner which included ... traveling at a safe rate of speed in its approach to the intersection." FRSA regulations provide maximum train speeds for every track class. See 49 C.F.R. § 213.9(a) (2000). At the time of the accident, the Amtrak train was traveling at a constant speed of 48 miles per hour, which the parties agree was below the established federal speed limit. Amtrak, in its first motion for summary judgment, thus argued to the district court that Macfarlane's claim of excessive speed was pre-empted by the FRSA and its regulations.

Amtrak based its pre-emption argument primarily on the Supreme Court's holding in CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). In that case, plaintiff Easterwood argued that despite defendant CSX's compliance with FRSA speed regulations, it breached its common law duty to operate its train at a moderate and safe rate of speed in light of the conditions at the particular crossing where the collision occurred. Id. at 673, 113 S.Ct. 1732. Defendant CSX countered that this claim was "pre-empted because the federal speed limits are regulations covering the subject matter of the common law of train speed." Id. The Supreme Court rejected Easterwood's argument, interpreting the FRSA broadly to preclude the suit against the railroad where the train in question was in compliance with federal speed regulations. Id. at 674-76, 113 S.Ct. 1732. The Court stated that the speed limits in the FRSA regulations were set with safety concerns in mind, id. at 674, 113 S.Ct. 1732, and that these regulations "should be understood as covering the subject matter of train speed with respect to track conditions, including the conditions posed by grade crossings." Id. at 675, 113 S.Ct. 1732 (emphasis supplied). Easterwood's claim that the train was traveling too fast given the "time and place" was therefore pre-empted. Id. at 675, 676 n. 15, 113 S.Ct. 1732.

In its first summary judgment papers, Amtrak argued that Macfarlane's excessive speed claim was no different from Easterwood's claim in CSX that the train was traveling too fast given the "time and place," which the Supreme Court had held was pre-empted. Id. Amtrak claimed that "conditions posed by the grade crossings" necessarily include track geometry and sight distances at particular crossings, and that "[p]laintiffs have failed to demonstrate how the rock outcropping ... does not constitute part of the `track conditions.'"

In opposition to Amtrak's first motion for summary judgment, Macfarlane argued that the location of the rock outcropping and the resulting obstructed view were not related to the condition of the crossing, and therefore the Supreme Court's statements in CSX did not apply to Macfarlane's claim based upon excessive train speed in light of the obstructive rock out-croppings. Thus, Macfarlane contended, the claim was not pre-empted by the FRSA regulations.

Macfarlane also pointed to a saving clause in the FRSA, which was discussed by the Supreme Court in CSX. Id. at 675, 113 S.Ct. 1732. That clause provides that a state may continue in force an additional or more stringent standard regarding railroad safety when necessary to eliminate or reduce "an essentially local safety hazard" when not incompatible with any federal law.⁴ Macfarlane asserted that, unlike the situation...