Murrell v. Union Pacific R. Co.
| Decision Date | 07 April 2008 |
| Docket Number | Civil No. 06-97-AA. |
| Citation | 544 F.Supp.2d 1138 |
| Parties | Martin E. MURRELL, Personal Representative of the Estate of Elfriede Maria Murrell, deceased, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, National Passenger Railroad Corporation dba Amtrak, George M. Landrock, Craig E. Billings, John Doe One, and City of Salem, Defendants. |
| Court | U.S. District Court — District of Oregon |
J. Randolph Pickett, R. Brendan Dummigan, Picket Dummigan Aguilar LLP, Portland, OR, for Plaintiff.
James L. Hiller, Hitt Hiller Monfils Williams LLP, Portland, OR, for Defendants, Union Pacific Railroad Company, National Passenger Railroad Corporation dba Amtrak, George M. Landrock, and Craig E. Billings.
Aaron D. Felton, City of Salem Legal Department, Salem, OR, for Defendant, City of Salem.
Pending before the court are three separate motions: two motions for summary judgment made by (1) the Union Pacific Railroad Company ("Union Pacific"), National Passenger Railroad Corporation dba Amtrak ("Amtrak"), George M. Landrock ("Landrock"), and Craig E. Billings ("Billings") (collectively, "railroad defendants"); and (2) the City of Salem ("City"); and (3) a separate motion to strike filed by railroad defendants. On March 31, 2008, the court held oral argument on these motions. Railroad defendants' motions are granted in part and denied in part. Defendant City's motion is granted.
In this action, plaintiff claims negligence and wrongful death. Pursuant to Fed. R.Civ.P. 56, railroad defendants move for an order granting summary judgment for each defendant on all of plaintiffs claims. Railroad defendants' alternatively move for an order granting each defendant summary judgment as to each specification of negligence asserted by plaintiff. Defendant City, a public body, also moves for summary judgment. Defendant City argues that plaintiffs amended complaint fails to adequately set forth a basis for subject matter jurisdiction as required by Fed.R.Civ.P. 8(a), that plaintiffs claims are preempted by federal or state law, and that defendant is immune from liability based on state common law tort defenses.
On June 28, 2004, Elfriede Maria Murrell, plaintiffs decedent, was walking in a westerly direction on the sidewalk located on the north side of Chemeketa Street, N.E., approaching the intersection of 12th Street, N.E., in the city of Salem. When she crossed the railroad tracks she was struck and killed by an Amtrak train. Plaintiff and defendants dispute whether the decedent was aware that the train was approaching the intersection.
The railroad crossing ("the Crossing") is used, owned, or regulated by defendants Union Pacific, Oregon Department of Transportation, and the City. Union Pacific assumed ownership and control of the tracks at the Crossing on September 11, 1996. However, Union Pacific does not maintain the roadways at grade crossings. Any construction or maintenance performed by Union Pacific at the Crossing was done at the direction of the Oregon Department of Transportation ("ODOT"). The Crossing is identified in the federal crossing inventory as United States Department of Transportation ("USDOT") No. 759670S. There are two vehicle gates, two warning bells, and two mast mounted flashing lights at the Crossing. These vehicular warning devices were all operational at the time of the incident.
In addition, there is a pedestrian control device which is visible to pedestrians traveling in a westerly direction on the north sidewalk of Chemeketa Street, that is located on the west side of 12th Street, across the railroad tracks, and across 12th street. This pedestrian control device indicates "DON'T WALK" when the automatic gates and flashing warning lights are activated to stop vehicular traffic traveling on Chemeketa Street. The crossing protection devices were paid for, in part, using 23 U.S.C. § 130 federal funding as ordered by the Oregon Public Utility Commission ("PUC"), Order No. 89-408, on March 24, 1989.
Although such protection devices were installed and functioning correctly, a number of fatalities have nevertheless occurred along the 12th Street Rail corridor. As a result, beginning in 1999, a plan was initiated and developed between the City of Salem, the Oregon Department of Transportation, and other groups to address this issue. Designs were developed to increase safety for pedestrians, including the one which ultimately was constructed as a safety rail along 12th Street. The safety rail is a solid structure which runs parallel to 12th Street with openings where pedestrians and bicyclists can cross the street over the railroad tracks. The State of Oregon acted as the ruling regulatory authority over the safety rail project while federal funds were used to construct it.
Nonetheless, the decedent was struck and killed by the Amtrak train as she approached the Crossing. The event recorder on the train locomotive shows engineer Landrock sounding the train's horn continuously for 4.9 seconds immediately before and as the train struck the decedent. In addition, the train horn sounded nearly continuously for the entire 335 feet between the Center Street crossing and Chemeketa Street crossing. The event recorder also shows the train was traveling at 37.4 miles per hour ("m.p.h.") at or just before the time of the incident.
Railroad defendants argue the `maximum allowable operating speed' for passenger trains traveling on a track classified as Class 3, as here, is 60 m.p.h. 49 C.F.R. § 213.9. Although railroad defendants contend this federal regulation predominates other railroad internal rules for speed limits, the defendants agree that the maximum allowable timetable speed set by Union Pacific through the Crossing was 35 m.p.h. Even so, defendants assert the 37.4 m.p.h. recorded speed was well within the federal parameters, as set forth in 49 C.F.R. § 229.117(a). Plaintiff argues, however, 49 C.F.R. § 229.117(a) simply sets forth calibration requirements for speed indicators and does not authorize train operators to exceed the maximum timetable speed limit, as alleged by the railroad defendants. Nonetheless, plaintiff also asserts the U.S. Department of Transportation Crossing Inventory Report indicates a maximum timetable speed of 20 m.p.h.
Railroad defendants also argue that there was no reason to stop or slow the: train when Landrock saw the decedent because there was nothing unusual about her walking towards the Crossing; in fact, they assert that nearly all such pedestrians will stop for a train as they near a crossing. They contend it would have been unsafe for Landrock to make an emergency application of the brakes in response to seeing the decedent walking towards the Crossing, since it would endanger the crew and passengers on train. Plaintiff disputes defendants' argument that there was no reason to at least slow down the train when Mr. Landrock saw the decedent.
On December 15, 2005, plaintiff first filed his complaint in Marion County Circuit Court alleging wrongful death and negligence. Plaintiff alleges the decedent's death was caused, enhanced, or contributed to the negligence of defendants Union Pacific, Landrock (the engineer), Billings (the conductor), Amtrak, John Doe One (the Union Pacific railroad track supervisor in charge of inspecting and maintenance of the Crossing prior to June 28, 2004), and the City in a number of different ways. See First Amended Complaint, pp. 7-11. On January 23, 2006, defendants removed the case to this court. 28 U.S.C. §§ 1331, 1349 and 1441.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Substantive law on an issue determines the materiality of a fact. T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Assoc., 809 F.2d 626, 630 (9th Cir.1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of a dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324, 106 S.Ct. 2548.
Special rules of construction apply when evaluating summary judgment motions: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Electrical, 809 F.2d at 630.
Plaintiff alleges state law negligence claims against railroad defendants on various grounds. See First Amended Complaint, pp. 7-11. Railroad defendants move this court for an order granting each defendant summary judgment on all of plaintiffs claims. In its motion, railroad defendants contend plaintiffs state tort law claims are precluded by the Federal Railroad Safety Act ("FRSA") and the regulations promulgated thereunder. Railroad defendants argue that the following plaintiffs claims are preempted by FRSA: (1) warning devices protecting the crossing were inadequate; (2) failure to warn; (3) failure to provide adequate visibility; (4) train operating at excessive speeds; (5) failure to issue a slow order; (6) failure to eliminate a dangerous condition; and (7) train operator's failure to keep a proper lookout. Memo, in Supp. of Railroad Defendants' Mot. for...
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