Partenfelder v. Rohde

• Decision Date: 22 July 2014
• Docket Number: No. 2012AP597.,2012AP597.
• Parties: Monica Ensley PARTENFELDER, Plaintiff, Managed Health Services Insurance Corp./Healthcare Recoveries, Inc., Involuntary–Plaintiff, Scott Partenfelder, Plaintiff–Appellant–Cross–Respondent, v. Steve ROHDE, Defendant–Respondent–Petitioner, Soo Line Railroad Company, Defendant–Respondent–Cross–Appellant–Petitioner. League of Wisconsin Municipalities Mutual Insurance, Involuntary–Plaintiff, Cyndi Krahn and John Krahn, Plaintiffs–Appellants–Cross–Respondents, v. Steve Rohde, Defendant–Respondent–Petitioner, Soo Line Railroad Company, Defendant–Respondent–Cross–Appellant–Petitioner.
• Court: Wisconsin Supreme Court

356 Wis.2d 492

850 N.W.2d 896

2014 WI 80

Monica Ensley PARTENFELDER, Plaintiff,

Managed Health Services Insurance Corp./Healthcare Recoveries, Inc., Involuntary–Plaintiff,

Scott Partenfelder, Plaintiff–Appellant–Cross–Respondent,

v.Steve ROHDE, Defendant–Respondent–Petitioner,Soo Line Railroad Company, Defendant–Respondent–Cross–Appellant–Petitioner.

League of Wisconsin Municipalities Mutual Insurance, Involuntary–Plaintiff,

Cyndi Krahn and John Krahn, Plaintiffs–Appellants–Cross–Respondents,

v.Steve Rohde, Defendant–Respondent–Petitioner,Soo Line Railroad Company, Defendant–Respondent–Cross–Appellant–Petitioner.

No. 2012AP597.

Supreme Court of Wisconsin.

Argued March 14, 2014.

Decided July 22, 2014.

For the defendant-respondent-cross-appellant-petitioner, there were briefs by Timothy R. Thornton, Jonathan P. Schmidt, and Briggs and Morgan, P.A., Minneapolis, and William H. Frazier, Melinda A. Bialzik and Godfrey, Braun & Frazier, LLP, Milwaukee, and oral argument by Timothy R. Thornton.

For the plaintiffs-appellants-cross-respondents, there was a brief by Robert D. Crivello and Cannon & Dunphy, S.C., Brookfield, and Victor C. Harding and Warhafsky, Rotter, Tarnoff, Bloch, S.C., Milwaukee, with oral argument by Robert D. Crivello.

An amicus curiae brief was filed by Beth Ermatinger Hanan and Gass Weber Mullins LLC, Milwaukee, and Daniel Saphire, Washington, D.C., on behalf of the Association of American Railroads.

DAVID T. PROSSER, J.

¶ 1 This is a review of a published decision of the court of appeals ¹ relating to the applicability of federal preemption under the Federal Railroad Safety Act (FRSA).

¶ 2 The FRSA and its accompanying federal regulations normally preempt state law claims relating to train speed. 49 U.S.C. § 20106 (2006). However, there are exceptions. One exception provides that regardless of the speed set by the federal regulations, federal preemption does not foreclose a lawsuit against a railroad for breaching the duty to slow or stop when confronted with a “specific, individual hazard.” See CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 675 n. 15, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). The question in this case is whether a parade and the resultant parade traffic qualify for the “specific, individual hazard” exception to preemption.

¶ 3 The case stems from a tragic collision between a train and a minivan during a Memorial Day parade in the Village of Elm Grove. Before the parade, the Elm Grove Police Department sent a letter to rail police officer Steve Rohde (Rohde) asking him to notify train conductors of potential hazards on the tracks near the parade. Rohde passed along the information, and Soo Line Railroad Company (Soo Line) issued an order for train crews to sound the engine bell and look out for potential hazards at the Elm Grove crossings. Unfortunately, a vehicle became stuck on the tracks, and while Elm Grove Police Officer John Krahn (Officer Krahn) and Scott Partenfelder (Scott) were trying to remove Scott's child from the car seat in the back of the vehicle, there was a collision in which the men were injured.

¶ 4 In two separate lawsuits that were eventually consolidated, Scott, Officer Krahn, and Officer Krahn's wife, along with their insurance companies, sued Soo Line, Rohde, and unknown insurance companies for negligence. The plaintiffs contended that Soo Line should have issued an order for trains to go more slowly through the Elm Grove crossings because the potential increase in traffic was a specific, individual hazard. The defendants disagreed and asserted that the FRSA preempted the plaintiffs' claims. Thus, the question for Wisconsin courts has been whether the Memorial Day parade falls under the “specific, individual hazard” exception to preemption. See Easterwood, 507 U.S. at 675 n. 15, 113 S.Ct. 1732.

¶ 5 We conclude the following.

¶ 6 First, the Elm Grove Memorial Day parade was not a “specific, individualhazard” because the parade created only a generally dangerous traffic condition. Imminence and specificity are crucial components of the specific, individual hazard exception to preemption. See Armstrong v. Atchison, Topeka & Santa Fe Ry. Co., 844 F.Supp. 1152, 1153 (W.D.Tex.1994); Hightower v. Kansas City S. Ry. Co., 70 P.3d 835, 847 n. 21 (Okla.2003). While the parade traffic in general may have increased the likelihood of an accident , it did not create a specific hazard, nor did the mere increase in traffic present an imminent danger of a collision. The parade traffic in this case is far afield of the paradigmatic specific, individual hazard of a child or vehicle stuck on the tracks in front of an oncoming train. Therefore, we reverse that portion of the court of appeals decision that concluded that the Elm Grove parade was a specific, individual hazard. In addition, we reverse the court of appeals decision to the extent that it alters the circuit court's dismissal of Rohde and to the extent that it alters the circuit court's decision to exclude evidence of Soo Line's prior notice of the parade, failure to issue a slow order, and failure to hit the brakes prior to seeing the vehicle on the tracks. See Hightower, 70 P.3d at 853–54.

¶ 7 Second, as Soo Line concedes, the vehicle on the tracks in front of the approaching train was a specific, individual hazard. Thus, the question whether the train crew was negligent in responding to the vehicle stuck on the tracks remains, and we affirm that portion of the court of appeals decision that determined that the circuit court properly denied the defendants' summary judgment motion as it related to the claims regarding the train's reaction to the vehicle on the tracks.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶ 8 In 2009 the Village of Elm Grove's annual Memorial Day Parade took place on May 25. In anticipation of the parade, Sergeant Ryan A. Unger (Sergeant Unger) of the Elm Grove Police Department sent a letter dated May 6 to Steve Rohde, a member of the Canadian Pacific ² Rail Police. The letter was titled “SPECIAL EVENTS NOTIFICATION” and said that Elm Grove would celebrate Memorial Day with a parade that would begin at 10:30 a.m. and end around noon on Monday, May 25, 2009. In the letter, Sergeant Unger stated that parade-related activities might increase pedestrian traffic into the afternoon. The letter asked Rohde to notify the conductors “of the potential for pedestrian and vehicle hazards on the tracks” at the Watertown Plank Road and Legion Drive crossing and at the Juneau Boulevard crossing. The letter did not ask for trains to be operated at reduced speeds.

¶ 9 When Sergeant Unger did not hear back from Rohde, he sent an identical letter dated May 15 and followed up by calling Rohde on May 22. Sergeant Unger claims that during the conversation, Rohde said that he placed a lookout order to conductors for train crossings in Elm Grove.³

¶ 10 Rohde sent an email memo to inform dispatch ⁴ that Elm Grove was having a Memorial Day parade and that the Elm Grove Police Department asked that train crews be notified about the parade. One of dispatch's functions is to create a document called a Tabular General Bulletin Order (TGBO), which contains specific instructions for train operators and supersedes the general requirements based on unanticipated events or conditions. The TGBO for the trains going through Elm Grove on the day of the parade said, “SOUND ENG BELL CONTINUOUSLY AND LOOKOUT FOR CROWDS OF PEOPLE WITHIN THESE LIMITS.” The TGBO listed the limits as milepost 94.5 and 96.0, an area that included the Juneau Boulevard crossing where the accident occurred.

¶ 11 On May 25, 2009, Scott and Monica Ensley–Partenfelder (Monica) took their children to the Elm Grove Memorial Day parade. Scott and Monica took separate vehicles because their three children and the children's bicycles did not all fit into one. Scott was in front with the two older children; Monica was directly behind Scott in a 2000 Dodge Grand Caravan and had their 23–month–old son in her vehicle. Travelling west on Juneau Boulevard, Scott and Monica approached the Juneau Boulevard railroad crossing. There are two sets of tracks at the Juneau Boulevard crossing with 28 feet between them; trains going eastward travel on the westernmost tracks. When Scott and Monica came to the crossing, traffic stopped abruptly.

¶ 12 There are some inconsistencies in the accounts of what happened next. Monica said that she and Scott had been stopped at the tracks for a minute to a minute and a half when the crossing gate began to lower and the bells began to sound. She remembered that Scott was completely on the tracks and she was only partially on the easternmost tracks when the gate lowered onto the back of her van. An eyewitness said that the crossing gate came down on the roof of Monica's van but that the van was still clear of the tracks. ⁵ Monica could not back up because there was a car close behind her. Monica said that traffic started moving again, and she followed Scott, who was able to drive clear of both sets of tracks.

¶ 13 Officer Krahn was at his assigned post roughly 150 feet west of the Juneau Boulevard crossing. When Officer Krahn heard the railroad crossing bell, he went to check the crossing and saw that there was a minivan straddling the tracks. Officer Krahn told the driver to move to an open gravel area to the right, but the right tire became stuck on the tracks. Officer Krahn told the driver to accelerate, which caused the vehicle to spin so that it was parallel to the tracks. The train crew applied the emergency brakes, but there was not enough track between the train and the vehicle for the train to stop before reaching the crossing. Officer Krahn physically extracted Monica from the vehicle and pushed her away from the tracks. Monica informed Officer Krahn that her son was in the back of the car, but Officer Krahn was unable to unlock the van's door. At that point, Scott arrived and unlocked the door; he then leaned in to...