Miller v. Grand Trunk Western RR, Inc.

• Citation: 727 N.E.2d 488
• Decision Date: 26 April 2000
• Docket Number: No. 64A05-9907-CV-320.,64A05-9907-CV-320.
• Parties: Daniel MILLER and Polly Miller, Appellants-Plaintiffs, v. GRAND TRUNK WESTERN RAILROAD, INC., Appellee-Defendant.
• Court: Court of Appeals of Indiana

727 N.E.2d 488

Daniel MILLER and Polly Miller, Appellants-Plaintiffs, v. GRAND TRUNK WESTERN RAILROAD, INC., Appellee-Defendant.

No. 64A05-9907-CV-320.

Court of Appeals of Indiana.

April 26, 2000.

Fred M. Cuppy, Kathryn D. Schmidt, Lily M. Schaefer, Burke, Costanza & Cuppy, LLP, Merrillville, Indiana, Attorneys for Appellant.

Claire Konopa Aigotti, Robert J. Konopa, Konopa & Murphy, P.C., South Bend, Indiana, Attorneys for Appellee.

OPINION

ROBB, Judge.

Daniel and Polly Miller (collectively referred to as the "Millers") appeal from the trial court's grant of partial summary judgment in favor of Grand Trunk Western Railroad Company ("Grand Trunk") and also the trial court's denial of their motion to strike an affidavit submitted in support of the motion. We affirm.

Issues

The Millers present two issues for our review, which we restate as follows:

1. Whether the trial court properly granted partial summary judgment for Grand Trunk on the issue of federal preemption of the Millers' claims for inadequate warning devices at railroad crossings; and

2. Whether the trial court properly denied their motion to strike the affidavit of Stephen J. Hull and accompanying documents submitted by Grand Trunk and properly relied on them in ruling on Grand Trunk's motion for partial summary judgment.

Facts and Procedural History

On December 10, 1996, Daniel was involved in an automobile-train accident at the intersection of County Road 250 West with a railroad crossing in Valparaiso, Indiana. The crossing was owned and operated by Grand Trunk. The Millers filed a lawsuit against Grand Trunk¹ in Porter Superior Court alleging that Daniel had suffered permanent injuries and pain and suffering as a result of the accident and that Grand Trunk's negligence was the proximate cause of the accident. Grand Trunk answered the complaint, raising the affirmative defense of federal preemption.

Following discovery, Grand Trunk filed a motion for partial summary judgment, alleging that the Federal Railroad Safety Act of 1970² preempted the Millers' state common law negligence claim that there were inadequate warning devices at the railroad crossing. The Millers responded, and also filed a cross-motion for summary judgment on the issue of preemption. Their designated evidence included the affidavit of William C. Pugh, retired chief of the Railroad Division of the National Transportation Safety Board, who opined that Grand Trunk failed to comply with federal regulations regarding warning devices. R. 168-70. Grand Trunk's designated evidence included the affidavit of Stephen J. Hull³ purporting to authenticate 113 pages of documents which he believes indicate that the crossing was upgraded with federal funds and was found to be satisfactorily completed and accepted by the United States Department of Transportation. R. 194-96. The 113 pages of documents attached to the affidavit are largely illegible. R. 197-308.

The Millers subsequently moved to strike the Hull affidavit and the accompanying documents for the following reasons: 1) the accompanying documents were illegible; 2) Grand Trunk acknowledged that it did not have legible copies of the documents and thus, could not provide legible copies; and 3) the conclusions drawn in the affidavit were done "to the best of [Hull's] knowledge" based upon his review of the attached records. The Millers asserted that because the affidavit's conclusions relied upon documents which would not be admissible into evidence due to their illegible nature, the affidavit itself was inadmissible pursuant to Trial Rule 56(E). In response, Grand Trunk filed the supplemental affidavit of Steven J. Hull which purported to identify the specific pages of the 113 pages of documentation on which he relied in making the conclusions in his original affidavit. The same 113 illegible documents were attached to the supplemental affidavit.

On June 15, 1999, the trial court entered an order on Grand Trunk's motion for partial summary judgment, as well as both parties' motions to strike the opponents' affidavits. The order, in pertinent part, reads:

On December 15, 1998 [Grand Trunk] filed a Motion for Partial Summary Judgment on the issue of federal preemption of [the Millers'] claim of inadequate warning devices at the railroad crossing in question in this case.... [The Millers] have moved to strike the affidavit of Steven Hull. Those motions... were heard May 14, 1999 and taken under advisement by the Court. The Court has now had the opportunity to review the memoranda filed, both in support and in opposition to, those motions and has also had a chance to review the applicable case law in this matter.

First, the Court denies the motions to strike ... the Hull affidavit[ ] and will consider [it] in ruling on the Motion for Partial Summary Judgment.

The Court finds that there is no genuine issue as to any material fact regarding the preemption of [the Millers'] claim of inadequacy of warning devices and that [Grand Trunk] is entitled to judgment as a matter of law on that issue.

The Court therefore grants [Grand Trunk's] Motion for Partial Summary Judgment and orders judgment entered for [Grand Trunk] and against [the Millers] on the issue of federal preemption of [the Millers'] claim of inadequacy of warning devices at the crossing in question and that issue will not be presented to the jury at trial of this cause.

R. 469.

The Millers timely instituted this interlocutory appeal of both the trial court's denial of their Motion to Strike the Hull affidavit and the grant of partial summary judgment in favor of Grand Trunk on the issue of federal preemption.

Discussion and Decision

I. Motion for Summary Judgment

The Millers contend that the trial court erred in granting partial summary judgment for Grand Trunk and denying partial summary judgment for them.

A. Standard of Review

When reviewing a grant or denial of summary judgment, our well-settled standard of review is the same as it was for the trial court: whether there is a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Shell Oil Co. v. Lovold Co., 705 N.E.2d 981, 983-84 (Ind.1998). We must consider the pleadings and evidence designated pursuant to Indiana Trial Rule 56(C) without deciding their weight or credibility. Rogers v. Grunden, 589 N.E.2d 248, 252 (Ind.Ct.App.1992), trans. denied. Summary judgment should be granted only if such evidence shows that there is no genuine issue of material fact and that judgment is warranted as a matter of law. T.R. 56(C); Hanson v. Saint Luke's United Methodist Church, 704 N.E.2d 1020, 1022 (Ind.1998).

B. Federal Preemption of State Negligence Claims

The Federal Railroad Safety Act ("FRSA") was enacted in 1970 "to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." 49 U.S.C. § 20101. To aide in developing solutions to railroad grade crossing safety problems, the FRSA provides that the Secretary of Transportation "as necessary, shall prescribe regulations and issue orders for every area of railroad safety supplementing [existing] laws and regulations." 49 U.S.C. § 20103.

In 1973, Congress enacted the Highway Safety Act ("HSA") which makes federal funds available to the states to improve grade crossings. As a prerequisite to receiving federal funds, the states must "conduct and systematically maintain a survey of all highways to identify those railroad crossings which may require separation, relocation, or protective devices, and establish and implement a schedule of projects for this purpose." 23 U.S.C. § 130(d). Additional conditions on the states' use of federal funds to improve grade crossings are set out in regulations promulgated by the Secretary through the Federal Highway Administration ("FHWA"). See 23 C.F.R. §§ 646, 655, 924, 1204.

The FRSA specifically provides for preemption:

Laws, regulations, and orders related to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force a law, regulation, or order related to railroad safety until the Secretary of Transportation prescribes a regulation or issues an order covering the subject matter of the State requirement.

49 U.S.C. § 20106. The Supreme Court has held that "covering" is a restrictive term which indicates that Congress intended preemption to lie "only if the federal regulations substantially subsume the subject matter of the relevant state law." CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993).

In Easterwood, the Supreme Court addressed the preemptive force of the FRSA with respect to state warning device claims for accidents at grade crossings and held that, of all potential sources of preemption, only the regulations found at 23 C.F.R. sections 646.214(b)(3) and (4), when applicable, preempt state law because only those regulations establish actual requirements as to the installation of particular warning devices. 507 U.S. at 670, 113 S.Ct. 1732. Subsections (b)(3) and (4) outline the types of warning devices deemed adequate for certain types of crossings. Subsection (b)(3)(i) mandates that:

Adequate warning devices under § 646.214(b)(2) or on any project where Federal-aid funds participate in the installation of the devices are to include automatic gates with flashing light signals when one or more of the following conditions exist:

(A) Multiple main line railroad tracks.

(B) Multiple tracks at or in the vicinity of the crossing which may be occupied by a train or locomotive so as to obscure the movement of another train approaching the crossing.

(C) High Speed train operation combined with limited sight distance at either single or multiple track crossings.

(D) A combination of high speed and moderately high volumes of highway and railroad traffic.

(E) Either a high volume of vehicular traffic, high number of train movements,...