Paddock v. Tuscola & Saginaw Bay Ry. Co., Inc., Docket No. 192854

• Decision Date: 26 September 1997
• Docket Number: Docket No. 192854
• Citation: 225 Mich.App. 526,571 N.W.2d 564
• Parties: Barbara Lovell PADDOCK, Personal Representative of the Estate of Brian Gregory Paddock, Plaintiff-Appellant, v. TUSCOLA & SAGINAW BAY RAILWAY COMPANY, INC., Raymond Robinson, Larry McCloud, Wexford County Board of County Road Commissioners, and Patrick McCormick, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 564

571 N.W.2d 564

225 Mich.App. 526

Barbara Lovell PADDOCK, Personal Representative of the Estate of Brian Gregory Paddock, Plaintiff-Appellant, v. TUSCOLA & SAGINAW BAY RAILWAY COMPANY, INC., Raymond Robinson, Larry McCloud, Wexford County Board of County Road Commissioners, and Patrick McCormick, Defendants-Appellees.

Docket No. 192854.

Court of Appeals of Michigan.

Submitted March 4, 1997, at Lansing.

Decided Sept. 26, 1997, at 9:05 a.m.

Released for Publication Dec. 23, 1997.

Dingeman, Dancer & Christopherson, P.L.C. by James A. Christopherson, Traverse City, for Barbara L. Paddock.

Hackett, Maxwell & Phillips, P.L.L.C. by Phillip B. Maxwell and Mark T. Butler, Pontiac, for Tuscola & Saginaw Bay Railway Corporation, Inc., Larry McCloud and Raymond J. Roninson.

Highland & Zanetti, P.C. by John N. Highland, Southfield, for Wexford County Board of Road Commissioners and Patrick McCormick.

Before FITZGERALD, P.J., and MacKENZIE and TAYLOR, JJ.

PER CURIAM.

Plaintiff appeals as of right from an order granting summary disposition in favor of defendants pursuant to MCR 2.116(C)(7), (8), and (10). We affirm.

Plaintiff's decedent was killed when the car he was driving was struck by a train operated by defendant Tuscola & Saginaw Bay Railway Company, Inc., at a railroad crossing on County Road 14 in Wexford County, a highway over which defendant Wexford County Board of County Road Commissioners had jurisdiction. The decedent's wife testified that he often took the road to work and that he had driven over the railroad crossing "many, many" times. She also stated that it was the decedent's custom to slow down "almost to a stop" every time he approached the crossing. The only eyewitnesses to the crash, however, testified that the decedent's car did not slow down at all before the collision. The record indicates that the crossing was marked with a railroad crossbuck sign and a yield sign, but no pavement marking or gate. The record also indicates that, before the engineer or the conductor saw the decedent's vehicle, the train's engineer blew the whistle and rang the bell as the train neared the crossing.

Plaintiff's complaint alleged that the crossing was "extra hazardous" and that "vegetation at the accident site obstructed the view" of motorists. The complaint further alleged both negligence and gross negligence, including the railroad's failure to (1) maintain a proper lookout at the crossing and (2) warn the public of the hazard, as well as the road commission's failure to (1) warn the public of the hazard, (2) clear the obstructing vegetation, and (3) paint appropriate pavement markings at the crossing. The trial court granted summary disposition with regard to each of these claims.

We initially address plaintiff's arguments concerning the railroad. Plaintiff first contends that because of the hazardous nature of the crossing, the railroad had a duty to stop its train and deploy a flagman in order to warn drivers of the train's presence. We conclude that this claim is preempted by federal law.

In CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993), the United States Supreme Court held that state-law tort claims based on train speed are preempted by federal law. The Court, however, specifically went on to note that its holding did not address the federal preemption of state tort-law duties, such as the duty "to slow or stop a train to avoid a specific, individual hazard." Id., 507 U.S. at 675, n. 15, 113 S.Ct. at 1743, n. 15. Since Easterwood was decided, other courts have held that an allegedly dangerous railroad crossing itself does not constitute a "specific, individual hazard," and that, under Easterwood, federal law preempts state law regarding a railroad's duty to slow a train for an extrahazardous crossing. Thus, in Bowman v. Norfolk Southern R. Co., 832 F.Supp. 1014, 1017-1018 (D.S.C., 1993), the court rejected a claim that state law was not preempted because the crossing at issue presented a hazard. Likewise, in Wright v. Illinois Central R. Co., 868 F.Supp. 183, 187 (S.D.Miss., 1994), the court held that the plaintiffs could not avoid federal preemption of their state tort claim by alleging that a railroad crossing was " 'extrahazardous' because of 'vegetation, grade and angle of the crossing, and inadequate warnings' " because accepting such an argument would "swallow the clear intent [that applicable federal law should] preempt state law." A similar result was reached in Armstrong v. Atchison, Topeka, & Santa Fe R. Co., 844 F.Supp. 1152, 1153 (W.D.Tex., 1994), where the court held that "[t]he 'specific, individual hazard' identified by the Easterwood court logically relates to the avoidance of a specific collision" and not to a particular grade crossing. Most recently, in Bakhuyzen v. Nat'l Rail Passenger Corp., 1996 U.S. Dist LEXIS 1884, *9-10 (W.D.Mich., 1996), the court concluded that the plaintiffs' allegations that a train "should have slowed due to the obstructed view, the lack of crossing protections and [the engineer's] knowledge that this was a dangerous crossing all come within the reasoning of the Easterwood/Bowman line of cases and are preempted" by federal law.

Applying these cases, plaintiff's claim, that the crossing itself was a "specific, individual hazard" that the railroad owed a duty to avoid, is preempted under federal law. The claim that the railroad owed a duty to deploy a flagman at the crossing must fail as well. As the trial court reasoned, if a train cannot be compelled to slow down as it approaches a crossing, it also cannot be compelled to stop altogether in order to deploy a flagman. Summary disposition was properly granted with regard to this issue.

Plaintiff next argues that the trial court erred in ruling that the railroad did not have a duty to petition the road commission to install warning devices at the crossing. An identical claim was considered and rejected by this Court in Turner v. CSX Transportation, Inc., 198 Mich.App. 254, 256-257, 497 N.W.2d 571 (1993), in which this Court essentially held that, where a railroad has no duty to do a certain act, it also has no duty to petition for someone else to do the act. The Turner Court began its analysis by quoting M.C.L. § 257.668(2); M.S.A. § 9.2368(2), which provides in pertinent part:

The state transportation department with respect to highways under its jurisdiction, the county road commissions, and local authorities with reference to highways under their jurisdiction, may designate certain grade crossings of railways by highways as yield crossings, and erect signs at the crossings notifying drivers of vehicles upon the highway to yield.... The erection of or failure to erect, replace, or maintain a stop or yield sign or other railroad warning device, unless such devices or signs were ordered by public authority, shall not be a basis for an action of negligence against the state transportation department, county road commissions, the railroads, or local authorities. [Emphasis added.]

The Turner Court then continued:

In the case at bar, there was no order by a public authority directing that additional warning devices or signals be installed. Thus, CSX cannot, under the clear and unambiguous language of the statute, be held liable for the failure to erect additional warning devices or signals. Baughman v. Consolidated Rail Corp., 185 Mich.App. 78, 80, 460 N.W.2d 895 (1990).

Plaintiff also argues that CSX may be liable because it had a common-law duty to petition the proper government entity for the authority to install additional warning devices. The case cited by plaintiff, Harrison v. Grand Trunk W R Co., 162 Mich.App. 464, 468, 413 N.W.2d 429 (1987), does stand for that proposition. However, we are persuaded that Harrison was incorrectly decided. In our view, in enacting the statute, the Legislature intended that no liability was to be premised upon the absence of warning devices at a railroad crossing absent an order by the proper authority to install devices and a failure to follow that order. Under M.C.L. § 257.668; M.S.A. § 9.2368, as well as M.C.L. § 257.615(a); M.S.A. § 9.2315(a), the duty to determine the appropriate warning devices to be installed at railroad crossings lies with the appropriate governmental entity with jurisdiction over the roadway, not with the railroad. With these points in mind, we conclude that a railroad has no duty to petition the appropriate governmental entity for the installation of warning devices at a railroad crossing. See Kesslering v. Chesapeake & O R Co., 437 F.Supp. 267, 269 (E.D.Mich., 1977). [198 Mich.App. at 256-257, 497 N.W.2d 571.]

In this case, as in Turner, no public authority had ordered the installation of additional warning devices. Therefore, applying Turner, we find no error.

Plaintiff also contends that, because the railroad knew that the obstructing vegetation at the crossing made it extra hazardous, the trial court should have found that the railroad had a duty to request that a clear vision area be created to protect the public. We conclude that the rationale of Turner, supra, applies with equal force to this claim, and hence we find no error.

Section 317 of the Railroad Code of 1993, M.C.L. § 462.317; M.S.A. § 22.1263(317), provides in relevant part:

(1) If a road authority determines to establish a clear vision area as described in this section, the railroad and a road authority may agree in writing for clear vision areas with respect to a particular crossing. The portions of the right-of-way and property owned and controlled by the respective parties within an area to be provided for clear vision shall be considered as dedicated to the joint usage of the railroad and the road authority. [Emphasis added.]

Under the plain language of this statute, it is the responsibility of the road authority--not the railroad--to determine the need for a clear vision area. As this Court...