Owens v. Norfolk S. Corp.
| Decision Date | 13 June 2011 |
| Docket Number | CIVIL NO. 2:10cv262 |
| Parties | AMBER OWENS, Executrix of the Estate of Roger Owens, Plaintiff, v. NORFOLK SOUTHERN CORPORATION, Defendant. |
| Court | U.S. District Court — Northern District of Indiana |
This matter is before the court on a motion for summary judgment filed by the defendant, Norfolk Southern Corporation ("Norfolk Southern")1 , on April 6, 2011. The plaintiff, Amber Owens, Executrix of the Estate of Roger Owens ("Owens"), filed her response on May 13, 2011, to which Norfolk Southern replied on May 27, 2011.
For the following reasons, the motion for summary judgment will be granted.
Summary Judgment
The Federal Rules of Civil Procedure provide that motions for summary judgment should be granted "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A genuine issue of material fact exists when"'there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.'" AA Sales & Assocs. v. Coni-Seal, Inc., 550 F.3d 605, 608-09 (7th Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). Under Rule 56(e)(2), a party opposing a properly made and supported motion for summary judgment "may not rely merely on allegations or denials in its own pleading; rather its response must—by affidavits or as otherwise provided in this rule—set out specific facts showing a genuine issue for trial." If appropriate, summary judgment should be entered against a party who fails to so respond. Fed. R. Civ. P. 56(e)(2); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (). A court's role on summary judgment is not to weigh the evidence, make credibility determinations, or decide which inferences to draw from the facts, but instead to determine whether there is a genuine issue of triable fact. Anderson, 477 U.S. at 255; Washington v. Haupert, 481 F.3d 543, 550 (7th Cir. 2007); Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003). Thus, a court in ruling on a summary judgment motion construes all facts in the light most favorable to the nonmoving party and draws all reasonable inferences in that party's favor. AA Sales & Assocs., 550 F.3d at 609.
Discussion
Norfolk Southern provides the following background facts, which it claims are undisputed. Roger Owens died after being run over by a Norfolk Southern freight train on September 6, 2009, at Gary, Indiana. At the time of the accident, Mr. Owens waslying between the rails at a remote section of Norfolk Southern's mainline track between the Grant Street/Ridge Road grade crossing intersection to the east and the Chase Street grade crossing intersection to the west. Mr. Owens was nearly one-half mile from the nearest public road crossing. He was highly intoxicated, and also had drugs in his system at the time of his death (marijuana and anticonvulsants/he was an epileptic). He never moved as the train approached, failing to respond to multiple blasts of the train's horn. Mr. Owens told medical responders at the scene that he had been trying to kill himself.
On the day of the accident, Norfolk Southern train 217L405 ("Train 217") was traveling from New Haven, Indiana to Chicago over Norfolk Southern's mainline track, which run northwest through the city of Gary. The train was operated by a Norfolk Southern crew, Engineer Nick Kern and Conductor Michael Randolph. Train 217 consisted of 89 cars and two locomotive units, weighed approximately 2,704 tons, and was nearly 4,912 feet in length.
Train 217 reached Gary just before 6:00 p.m. As the lead locomotive cleared the Grant Street/Ridge Road crossing heading northwest at about thirty (30) miles per hour, Engineer Kern and Conductor Randolph were looking down the track toward an intermediate wayside train signal that becomes visible as the train approaches the Chase Street crossing. Additionally, Engineer Kern and Conductor Randolph were keeping a lookout for any conditions of the right-of-way while also maintaining the train's speed within the Timetable limit.
About one-half mile after the lead locomotive crossed the Grant Street/Ridge Road crossing, Conductor Randolph spotted something orange between the rails and said, "What isthat?" to Engineer Kern. (Randolph Decl. ¶ 13.) Engineer Kern thought that the object might have been a piece of trash or a construction barrel, but neither he nor Conductor Randolph could determine what the object was at that point, as the train was about five railroad car lengths (approximately 250 feet) away from the object. (Kern Decl. ¶ 14; Randolph Decl. ¶ 13.) About this same time, Engineer Kern began to blow the locomotive's horn, and he continued to blow the horn as the train approached the object, but the object didn't move. (Id.)
It was not until the train was nearly on top of the object - about one railroad car length (about 50 feet) away - that the crew could see that the object was a person lying across the track, as Mr. Owens was lying facing away from the train with part of his legs across the south rail of the track and the rest of his body between the rails. (Id.) As soon as the crew recognized that the object was a person, Engineer Kern applied the train's brakes, but he couldn't stop the train in time to prevent running over Mr. Owens. (Id.)
Train 217 was traveling just under thirty (30) miles per hour immediately before the crew discovered Mr. Owens on the track. (Declaration of Jeff Gentsch, ¶ 6.) From the time the crew first saw anything on the track, only about six seconds elapsed before the train reached Mr. Owens. (Kern Decl. ¶ 14; Declaration of Adam M. Mastrangelo, ¶ 11.) The crew's testimony is corroborated by the RailView recording, which has been provided to the court as an exhibit. The RailView recording confirms that Train 217 was traveling just under thirty (30) miles per hour at the time of the incident (approximately 17:08.23 on the RailView timestamp). (Mastrangelo Decl. ¶ 12.) RailView further confirms that Train 217 was approximately two hundred fifty (250) feet from Mr. Owens when Engineer Kern first sounded the horn, that Engineer Kern repeatedly sounded the horn during those six seconds before the train reached Mr. Owens, and that Mr.Owens never moved as the train approached.(Mastrangelo Decl.¶¶ 12-13.)
Given the size and the speed of the train, Norfolk Southern argues that there was nothing the crew could have done to stop the train in time to prevent the accident. (Gentsch Decl. ¶ 10.) In fact, the train traveled in excess of 1,400 feet after Engineer Kern first applied the train's brakes before coming to a stop. (Gentsch Decl. ¶ 8; Kern Decl. ¶ 14; Randolph Decl. ¶ 13.)
The distance between the Grant Street/Ridge Road and Chase Street crossings is approximately one mile, and there are no public or private crossings within about V2 mile east or west of the location that Mr. Owens was lying on the track. It was unusual for the crew to see any persons walking alongside or crossing the track in this area, as much of the railroad right-of-way is wooded and separated from the adjoining property by trees and vegetation. (Kern Decl. ¶ 8; Randolph Decl. ¶ 8.). Before encountering Mr. Owens in this area, neither Engineer Kern nor Conductor Randolph had seen any person or animal walking alongside or crossing the track, or any other condition or object that might have affected the safe movement of their train as they proceeded northwest towards the Chase Street crossing. (Kern Decl. ¶¶ 12-13, 16; Randolph Decl. ¶¶ 12, 16.) Mr. Owens was not an employee of Norfolk Southern, (Zroskie Decl. ¶ 6), and no third-party contractors were performing any work on Norfolk Southern's property in the vicinity of the accident, (Zroskie Decl. ¶ 7).
In support of its motion for summary judgment, Norfolk Southern first argues that there is no evidence that it breached any duty to Mr. Owens, who was a trespasser on Norfolk Southern's property. Owens has alleged in her complaint that Norfolk Southern was negligent in its operation of the locomotive and that it failed to maintain control of the vehicle, failed to apply its brakes, and failed to maintain a safe and proper lookout over the railway. Under Indianalaw, to prevail on her claim Owens must prove that: (1) Norfolk Southern owed a duty to Mr. Owens; (2) Norfolk Southern breached its duty; and (3) Norfolk Southern's breach proximately caused Mr. Owens' injuries. See Pisciotta v. Old Nat'l Bancorp, 499 F.3d 629, 635 (7th Cir. 2007) (applying Indiana law).
Because Mr. Owens was injured on Norfolk Southern's property, this is a premises liability case. See Perry v. Norfolk and Western Ry. Co., 865 F. Supp. 1292, 1297 (N.D. Ind. 1994). In a premises liability case, an entrant's status as a trespasser, licensee, or invitee determines the duty that the landowner owes to him. E.g., Burrell v. Meads, 569 N.E.2d 637, 639 (Ind. 1991). Here, it cannot be disputed that Mr. Owens was a trespasser on Norfolk Southern's property. Mr. Owens was lying across Norfolk Southern's mainline track at the time of the accident, and failed to move as the train approached. (Kern Decl. ¶ 14; Randolph Decl. ¶¶ 14, 16.)
It is well-settled under Indiana law that Norfolk Southern's duty of care toward Mr. Owens, a trespasser, was very limited:
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