Reno v. Consolidated Rail Corp.

• Decision Date: 08 July 1992
• Docket Number: No. IP91-309C.,IP91-309C.
• Citation: 797 F. Supp. 700
• Parties: Leroy H. RENO, Jr., Administrator of the Estates of Brandon Hungerford and Ryan Hungerford, Both Deceased, Plaintiff, v. CONSOLIDATED RAIL CORP., Defendant.
• Court: U.S. District Court — Southern District of Indiana

797 F. Supp. 700

Leroy H. RENO, Jr., Administrator of the Estates of Brandon Hungerford and Ryan Hungerford, Both Deceased, Plaintiff, v. CONSOLIDATED RAIL CORP., Defendant.

No. IP91-309C.

United States District Court, S.D. Indiana, Indianapolis Division.

July 8, 1992.

Earl C. Townsend, III, Townsend & Townsend, Indianapolis, Ind., for plaintiff.

Victor Frost, II, Frost & Hugon, Indianapolis, Ind., for defendant.

BARKER, District Judge.

On July 7, 1989, Brandon and Ryan Hungerford were passengers in a southbound vehicle which collided with a westbound train operated by defendant Consolidated Rail Corporation ("Conrail") at the Swain Street railroad grade crossing in Ingalls, Indiana, at approximately 6:16 p.m. Both Brandon and Ryan were killed in this collision.

Plaintiff Leroy H. Reno, Jr., as administrator of their estates, has brought suit against Conrail, alleging that the defendant was "negligent, careless, wanton and willfull sic" in failing to warn the driver of the vehicle of the ultrahazardous condition of the Swain Street crossing, in failing to install automatic signal lights and automatic gates, in failing to order its employees to reduce speed through the Swain Street crossing, in failing to sound a horn to warn approaching traffic, and in failing to maintain an unobstructed eastward view along the tracks. Complaint for Damages, para. 5.

The Swain Street crossing was numbered for an inventory and apparently surveyed by the Indiana Department of Highways (now known as the Indiana Department of Transportation) ("the Department") in 1975 and then surveyed again in 1985. Although the Department makes a priority list of all railroad crossings in need of improvements (including roadway warning devices), the Swain Street crossing was not on this list between the time of its inclusion in the inventory and July 7, 1989. During this time period, the Department did not make any determination that the Swain Street crossing was in need of any roadway warning device beyond what presently existed. Affidavit of A. Fred Hohl, pp. 3-4.

Currently before the court is the Motion for Partial Summary Judgment of Defendant Consolidated Rail Corporation. The Plaintiff's Request for Oral Argument Upon Defendant's Motion for Partial Summary Judgment is denied because the court finds that it would not aid in the resolution of the purely legal issues presented by the defendant's motion.

The defendant's motion for partial summary judgment will be granted "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).

The defendant advances its motion based on the argument that the plaintiff's claims with respect to the need for additional grade crossing and/or traffic control devices and the failure to close the crossing (a claim advanced in the plaintiff's contentions filed November 1, 1991) are preempted by the Federal Railroad Safety Act of 1970 ("FRSA"), 45 U.S.C. § 421 et seq.

"State law is pre-empted under the Supremacy Clause, U.S. Const. Art. VI, cl. 2, in three circumstances." English v. General Elec. Co., 496 U.S. 72, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990). Conrail argues that one such circumstance applies here: "Congress can define explicitly the extent to which its enactments pre-empt state law." Id. "The question, at bottom, is one of statutory intent, and we accordingly `begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose." Morales v. Trans World Airlines, Inc., ___ U.S. ___, 112 S.Ct. 2031, 2036, 119 L.Ed.2d 157 (1992) (quoting FMC Corp. v. Holliday, 498 U.S. 52, 111 S.Ct. 403, 407, 112 L.Ed.2d 356 (1990)).

Congress enacted the FRSA "to promote safety in all areas of railroad operations and to reduce railroad-related accidents, and to reduce deaths and injuries to persons and to reduce damage to property caused by accidents involving any carrier of hazardous materials." 45 U.S.C. § 421. To accomplish this goal, Congress ordered the Secretary of Transportation ("the Secretary") to make "a comprehensive study of the problem of eliminating and protecting railroad grade crossings" and to "undertake a coordinated effort toward the objective of developing and implementing solutions to the grade crossing problem...." 45 U.S.C. § 433. Moreover, the Secretary was directed to "(1) prescribe, as necessary, appropriate rules, regulations, orders, and standards for all areas of railroad safety supplementing provisions of law and regulations in effect on October 16, 1970, and (2) conduct, as necessary, research, development, testing, evaluation, and training for all areas of railroad safety." 45 U.S.C. § 431. The Secretary was directed to achieve this goal "insofar as practicable, under the authority provided by this subchapter and pursuant to his authority over highway, traffic, and motor vehicle safety, and highway construction...." 45 U.S.C. § 433(b).

Conrail argues that the plaintiff's claims with respect to the need for additional grade crossing and/or traffic control devices and the failure to close the crossing are expressly and strictly preempted by 45 U.S.C. § 434, which provides:

The Congress declares that laws, rules, regulations, orders, and standards relating to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force any law, rule, regulation, order, or standard relating to railroad safety until such time as the Secretary has adopted a rule, regulation, order or standard covering the subject matter of such State requirement. A State may adopt or continue in force an additional or more stringent law, rule, regulation, order, or standard relating to railroad safety when necessary to eliminate or reduce an essentially local safety hazard, and when not incompatible with any Federal law, rule, regulation, order, or standard, and when not creating an undue burden on interstate commerce.

Working from the language of the statute, Congress' intent to preempt state law relating to railroad safety is clear: state laws concerning this subject matter remain in force "until such time" as the Secretary has, under one of the sources of authority listed in section 433(b), adopted a rule, regulation, order or standard covering the same subject matter.

Conrail argues that the Secretary adopted such standards in the form of the Manual on Uniform Traffic Control Devices for Streets and Highways ("MUTCD"), 23 C.F.R. § 655.601(a), as "the national standard for all traffic control devices installed on any ... highway," 23 C.F.R. § 655.603(a), specifically to be applied to the improvement of traffic control devices at grade crossings. 23 C.F.R. 646.214(b).¹ Part VIII of the MUTCD deals with "Traffic Control Systems for Railroad-Highway Crossings." Section 8A-1 of this part of the MUTCD provides in part that "the determination of need and selection of devices at a grade crossing is made by the public agency with jurisdictional authority." Likewise, section 8D-1 provides that "the selection of traffic control devices at a grade crossing is determined by public agencies having jurisdiction responsibility at specific locations." Conrail maintains that, by virtue of the adoption of the MUTCD, railroads are absolved of responsibility for determining the need for traffic control devices in favor of local authorities and that the standards dictated by the MUTCD have been substituted for common law duties previously imposed on railroads.

The plaintiff does not contest that the MUTCD covers the same subject matter as the state common law claims which he asserts, or that the local safety hazard exception should apply. Instead, the plaintiff contends that the MUTCD did not set forth safety standards and did not absolve Conrail of its duty under Indiana law to maintain safe railroad crossings, and that to find preemption in this case would not further the safety goals of the FRSA.

Before considering the plaintiff's arguments on the preemption issue, however, the court will address the plaintiff's argument that this court strike the Affidavit of A. Fred Hohl (which was helpful but not essential to the court in reaching its ruling) because the affidavit allegedly contains assertions not based on Hohl's personal knowledge and because it contains legal conclusions. Hohl is the Highway-Railroad Manager for the Division of Design of the Indiana Department of Transportation. Reno contends that, despite Hohl's profession of personal knowledge in paragraph one of the affidavit, Hohl lacks personal knowledge as to whether "any other public authorities besides the Department of Transportation having jurisdiction over the roadway at the crossing had made any determination that this Swain Street crossing needed any roadway warning devices other than those which were already installed." Affidavit of A. Fred Hohl, para. 8. Reno contends that this testimony could only be hearsay because Hohl did not testify that he attended meetings of local authorities discussing the need for warning devices at the Swain Street crossing. Hohl testified, however, that he had personal knowledge of such local determinations, and that it was one of his job responsibilities to "work in conjunction with" local authorities. Affidavit of A. Fred Hohl, para. 4. Reno's contention that Hohl lacked personal knowledge is nothing more than speculation and an insufficient justification for striking this testimony.

More persuasive is Reno's argument that Hohl impermissibly makes legal conclusions in his affidavit. In paragraph five of his affidavit, Hohl testifies that decisions with respect to highway warning devices are made in compliance with the MUTCD. The court understands this testimony to indicate how Hohl...