Petre v. Norfolk Southern Ry. Co., 3:03CV7223.

Decision Date13 October 2006
Docket NumberNo. 3:03CV7223.,3:03CV7223.
Citation458 F.Supp.2d 518
PartiesTerry PETRE, Executor of the Estates of Wanda Petre, Chelsey Petre, and Amber Petre, Plaintiff, v. NORFOLK SOUTHERN RAILWAY COMPANY, et al., Defendants.
CourtU.S. District Court — Northern District of Ohio

Brian W. Palmer, Lawrence Landskroner, Cleveland, OH, for Plaintiff.

James R. Knepp, II, Thomas J. Antonini, Robison, Curphey & O'Connell, Toledo, OH, John D. Latchney, Tomino & Latchney, Medina, OH, for Defendants.


LIMBERT, United States Magistrate Judge.

This matter is before the Court on the separate motions for summary judgment filed by Defendants, Norfolk Southern Railway Co. (Norfolk Southern), and Florence Township, Ohio (Township). See ECF Dkts. #96, #106. The case is a wrongful death and survival action alleging multiple counts of negligence against both Defendants. ECF Dkts. # 1, # 10.

Defendants are before the Court asserting that any alleged negligence on their part cannot, as a matter of law, support a finding that the Railway or Township was the cause in fact, or proximate cause, of the fatal accident that gave rise to this litigation. ECF Dkts. # 96, # 106, # 117, # 119, # 125. The Township also asserts it is immune from liability in this suit. ECF Dkts. # 106, # 125.

For the reasons set forth below, the Court GRANTS Summary Judgment as to all claims alleged by Plaintiff against both Norfolk Southern Railway, and Florence Township, Ohio.


On a clear afternoon in July 2001, Wanda Petre and her daughters, Chelsey and Amber (as well as Bradley Krontz, a cousin of the Petre's, and Chelsea Green, a family friend), were killed in a collision with Defendant's freight train at the Norfolk Southern Railway crossing on County Road I in Florence Township (Williams County), Ohio.

The railroad crossing was marked with standard black and white reflective crossbucks at the edge of the tracks, and an advanced warning disc (a standard reflective yellow "Railroad Crossing" sign) posted approximately 800 feet from the crossing. ECF Dkt. #108 (Attachment 4, OHSP Traffic Accident Report, at 16). County Road I is a two-lane rural highway with a speed limit of 55 m.p.h.; there are no painted lines to mark the lanes of travel (i.e., no yellow center lines, and no white edge lines), and no pavement markings (i.e., "R x R" or "stop bar") on approach to and at the Norfolk Southern crossing. Id. (Attachment 4 at 13, 17) and ECF Dkt. #120.

The driver, Wanda Petre, was a resident of Indiana, thereby unfamiliar with County Road I and the Norfolk Southern crossing. ECF Dkt. # 108 (Attachment 2, Affidavit of Terry Petre). The Norfolk Southern train was traveling northbound at 61 m.p.h. (ECF Dkt. #96 at 14, n. 6) and pulling 24 freight cars, all but one were loaded. ECF Dkt. # 108 (Attachment 4 at 10, 13). The locomotive was equipped with an Event Data Recorder and a video recorder ("RailView") that was mounted in the engineer's window; from this equipment, evidence of the train's speed, whistle activity, and braking activity, has been recorded. ECF Dkt. #99.1

An eyewitness, Dennis Curry, observed the Petre vehicle traveling westbound towards the railroad crossing and witnessed the subsequent collision. ECF Dkt. # 108 (Attachment 4 at 3-4). Mr. Curry estimated that the Petre vehicle was traveling approximately 50 m.p.h. when he first noticed it, however, he did not watch the vehicle's entire approach to the railroad crossing, but indicated his attention was drawn back to that area when he heard an "unusually long" train whistle. Id. At that time, Mr. Curry saw the train collide with the Petre vehicle; he could not recall whether the vehicle's brake lights actuated. Id.

The multiple accident reconstruction and engineering experts that examined RailView appear to agree that the Petre vehicle had slowed to some extent in the final seconds before the collision, but the speed was not conclusively established (it is estimated to be somewhere in the range of 30-40 m.p.h. in the last four seconds of travel). ECF Dkt. #96 at 8. RailView confirms that the train's whistle was sounding on approach to the intersection and at the time of the collision; also from this evidence, it is clear that Mrs. Petre's driversside window was rolled down. ECF Dkt. # 110 (RailView).

RailView, and photographs taken at the scene by Ohio Highway Patrol investigating officers, evince several momentary view obstructions along County Road I, the last of which is located approximately 132 feet from the crossing. ECF Dkts. #108 at 6 (and Attachment 4), #110 (RailView). These visual impediments (a farmhouse, several outbuildings, and several trees and bushes) are located on private property adjacent to, but not closely abutting, Norfolk Southern's right-of-way. ECF Dkts. # 108 (Attachment 4), # 110 (RailView). Both parties' accident reconstruction experts appear to agree, to a reasonable degree of professional probability, that the moment the Petre vehicle passed the final visual obstacle, both Mrs. Petre, and the Norfolk Southern crew, would have positively been able to see one another. ECF Dkts. # 96 at 19, # 108 at 8, #110 (RailView). Based on the distance and relative speeds involved, each had four seconds with which to react to one another's presence. Id. To a lay witness, and this Court, it does not appear that Mrs. Petre took any evasive action in those four seconds. See e.g., ECF Dkt. # 110 (RailView). Additionally, the Norfolk Southern crew did not appear to recognize the danger of this vehicle approaching the tracks until the second of impact. Id. AH five of the vehicle's occupants perished at the scene of the collision.

Plaintiffs complaint was originally filed in Williams County Court of Common Pleas; it was removed to this Court by Norfolk Southern on May 7, 2003. ECF Dkt. # 1. The Court's jurisdiction is proper based on removal jurisdiction for diversity of citizenship, per 28 U.S.C. § 1441(b), as the Township was later added as a resident Defendant. See e.g., ECF Dkt. # 32. Additionally, the parties have consented to the jurisdiction of the undersigned Magistrate Judge. ECF Dkt. # 56. In December 2004 this Court granted partial summary judgment to Norfolk Southern due to federal preemption of Plaintiffs State law claims attacking the sufficiency of the warning devices at the railroad crossing. ECF Dkt. # 62.2

Plaintiffs remaining negligence allegations consist of the following: (1) that Norfolk Southern failed to maintain adequate sight distances/remedy visibility obstructions at or near the crossing (i.e., failed to maintain a safe crossing) (ECF Dkt. # 10 at ¶¶ 34-39, ¶¶ 54-65); (2) failed to give an adequate audible warning of the train's approach (Id. at ¶¶ 24-33); (3) failed to maintain a proper lookout ahead on the tracks (Id. at ¶¶ 44-50); and, (4) failed to follow federally mandated track speed limits. See e.g., ECF Dkts. #96, #108. # 117. # 118-1, # 119.3 Plaintiff has also alleged that Norfolk Southern's customs, policies, and conduct involving all of the above allegations were willful, wanton, and demonstrated reckless disregard to the public. ECF Dkt. # 108 at 8,10.

Against Florence Township, Plaintiff alleges the Township failed to maintain adequate warnings on approach to the crossing (i.e., failed to paint lane lines, "R x R," and a stop bar on the pavement), and failed to maintain the pavement markings previously in place. ECF Dkts. # 10, # 106, # 120, # 125.


Jurisdiction based upon diversity of citizenship requires this Court to apply Ohio's substantive law; the Court will apply the Federal Rules of Civil Procedure (FED.R.CIV.P. 56(C)) in deciding the standards for summary judgment. See e.g., Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The function of summary judgment is to dispose of claims without trial when one party is unable to demonstrate the existence of a factual dispute which, if present, would require resolution by a jury or other trier of fact. Schultz v. Newsweek, Inc., 668 F.2d 911, 918 (6th Cir.1982). Summary judgment is proper "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 the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(C).

The party moving for summary judgment has the burden of showing there exists no genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). This burden can be discharged by showing that the nonmoving party has failed to establish an essential element of his case, for which he bears the ultimate burden of proof at trial. See e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Morales v. Am. Honda Motor Co., Inc., 71 F.3d 531, 535 (6th Cir.1995). The evidence and all the inferences that can reasonably be drawn therefrom must be read in the light most favorable to the nonmoving party. Id.

If the moving party meets his burden, the nonmoving party must take affirmative steps to avoid the entry of a summary judgment. See FED.R.CIV.P. 56(e). To refute such a showing, the nonmoving party must present some significant, probative evidence indicating the necessity of a trial for resolving a material, factual dispute. Celotex, Ml U.S. at 322,106 S.Ct. 2548. A mere scintilla of evidence is not enough. Anderson v. Liberty Lobby, 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In ruling on a motion for summary judgment, the court is not obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim. InterRoyal Corp. v. Sponseller, 889 F.2d 108,...

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