Shanklin v. Norfolk Southern Ry. Co.

• Decision Date: 27 May 2004
• Docket Number: No. 01-6449.,01-6449.
• Citation: 369 F.3d 978
• Parties: Dedra SHANKLIN, Individually and as next friend of her son Jessie Guy Shanklin, Plaintiff-Appellee, v. NORFOLK SOUTHERN RAILWAY CO., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 978

369 F.3d 978

Dedra SHANKLIN, Individually and as next friend of her son Jessie Guy Shanklin, Plaintiff-Appellee, v. NORFOLK SOUTHERN RAILWAY CO., Defendant-Appellant.

No. 01-6449.

United States Court of Appeals, Sixth Circuit.

Argued: October 30, 2003.

Decided and Filed: May 27, 2004.

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Pamela R. O'Dwyer (argued and briefed), Paty, Rymer & Ulin, Chattanooga, TN, John W. Chandler, Jr. (briefed), Memphis, TN, for Plaintiff-Appellee.

Everett B. Gibson (argued and briefed), Ralph T. Gibson (briefed), Bateman, Gibson, Memphis, TN, for Defendant-Appellant.

Before: MOORE and ROGERS, Circuit Judges; FORESTER, Chief District Judge.^*

FORESTER, D.J., delivered the opinion of the court, in which MOORE, J., joined. ROGERS, J. (pp. 994-98), delivered a separate concurring opinion except as to Part V.

OPINION

FORESTER, Chief District Judge.

Defendant-Appellant Norfolk Southern Railway Company ("Norfolk") appeals the district court's denial of its renewed motion for judgment as a matter of law filed following a jury trial in which judgment was entered in favor of Plaintiff-Appellee Dedra Shanklin ("Shanklin") in the amount of $1,434,014.60. In 1993, a train operated by Norfolk struck the vehicle of Eddie Shanklin, Dedra Shanklin's husband, killing him. The fatal accident occurred at the Oakwood Church Road railroad crossing near Milan, Tennessee. Shanklin filed an action against Norfolk, asserting various common-law claims based on Norfolk's negligence in failing to install adequate warning devices at the crossing and in failing to remove vegetation from the area surrounding the crossing. Shanklin claimed that excessive vegetation and lack of adequate warning devices resulted in Eddie Shanklin's failure to perceive the imminently oncoming train prior to his vehicle's entry into the crossing, and thus into the train's path. In 1996, a jury found in Shanklin's favor. This Court subsequently affirmed the verdict, but the Supreme Court reversed with respect to the inadequate warning claim, holding that it was preempted by federal regulations governing the installation of warning devices. Norfolk So. Ry. Co. v. Shanklin, 529 U.S. 344, 120 S.Ct. 1467, 146 L.Ed.2d 374 (2000).

The Supreme Court remanded and the parties tried the vegetation claim before a second jury in 2001. Shanklin presented evidence, over Norfolk's objection, which tended to demonstrate that Norfolk knew that overgrown vegetation in the vicinity of railroad crossings could obstruct the vision of both automobile drivers and locomotive engineers approaching said crossings. Specifically, Shanklin showed that such overgrown vegetation existed at the Oakwood Church Road railroad crossing, and that Norfolk failed to remove it. Norfolk filed a motion for judgment as a matter of law before the jury retired to deliberate which the district court denied. After the jury once more found in favor of Shanklin, Norfolk renewed its motion, which the district court again denied.

Norfolk now appeals several aspects of the trial, including the district court's determination that the vegetation claim was not preempted, the district court's admittance of three pieces of evidence tending to show knowledge, the district court's decision to read an allegedly irrelevant Tennessee statute to the jury, and the district court's determination that the evidence was sufficient to permit a reasonable jury to find in Shanklin's favor.

For the following reasons, we AFFIRM.

I. JURISDICTION

The district court had proper original jurisdiction over Shanklin's action under 28 U.S.C. § 1332(a) because there existed a diversity of citizenship and the matter in controversy exceeded $75,000. Shanklin is a Tennessee resident and Norfolk is a Virginia corporation. Norfolk timely appealed a final decision of a United States district court and this court accordingly has jurisdiction over this appeal under 28 U.S.C. § 1291.

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The Oakwood Church Road railroad crossing is located about seven-tenths of a mile from the home Eddie Shanklin shared with his wife, Dedra Shanklin. Eddie Shanklin's commute to the restaurant where he worked brought him across the railroad tracks twice a day for the almost four years he and his wife occupied the residence, and his route the morning of October 3, 1993 was no different.

Eddie Shanklin left his home in the pre-dawn darkness of a clear autumn day at 5:15 a.m., and began his journey to work. As Eddie traveled east on Oakwood Church Road toward the railroad crossing, a Norfolk train was simultaneously approaching the intersection, traveling at about 37 miles per hour. Based on the evidence presented at trial, it appears that Eddie Shanklin slowed his car to 20 miles per hour as he entered the railroad crossing, yet never attempted to further slow or stop his vehicle; there were no skid marks leading to the impact zone. The Norfolk train reportedly sounded its horn for approximately eleven seconds before the impact, yet could not avoid broadsiding Eddie Shanklin's vehicle, pushing it more than one-quarter of a mile before stopping. Eddie Shanklin died as a result of the accident.

On September 26, 1994, Dedra Shanklin filed a wrongful death action in federal court, asserting several common-law negligence claims against Norfolk. Shanklin argued that Norfolk's failure to provide adequate warning devices, sound the train's horn as it approached the crossing within a reasonable time to give adequate warning, and maintain a safe sight distance by reducing the height of any embankment and/or clearing the vegetation from the existing bank proximately resulted in her husband's death. Shanklin also claimed that Norfolk violated Tenn.Code Ann. § 65-6-132, which requires railroad owners to maintain trees on its grounds near the tracks.

On February 16, 1996, Norfolk filed a motion for summary judgment, arguing that federal regulations covering grade crossings, 23 C.F.R. §§ 646.214(b)(3)-(4), preempted all of Shanklin's common-law tort claims. The district court denied Norfolk's motion with respect to the grade-crossing and vegetation claims, holding that said claims were not preempted. The first trial ended in a jury verdict in favor of Shanklin, assigning Norfolk 70% of the responsibility for the accident, and assessing damages of $615,379. Norfolk filed a motion for judgment as a matter of law, or in the alternative for a new trial, which the district court denied.

Norfolk appealed this denial, renewing its argument that federal law preempted Shanklin's claims. This Court affirmed, ruling that government funding of the installation of warning devices at grade crossings did not trigger preemption of state common law claims. Shanklin v. Norfolk So. Ry. Co., 173 F.3d 386, 394 (6th Cir.1999). Recognizing a circuit split on the issue, the Supreme Court granted certiorari, 528 U.S. 949, 120 S.Ct. 370, 145 L.Ed.2d 289 (1999), and reversed. See Norfolk So. Ry. Co. v. Shanklin, 529 U.S. 344, 120 S.Ct. 1467, 146 L.Ed.2d 374 (2000). The Court held that common-law claims attacking the adequacy of grade-crossing warning signals were preempted from the time federal authorities approved and committed funding to the installation of warning signals. The Court did not speak explicitly to the vegetation claim, and accordingly remanded the case for rehearing on any remaining claims.

At the second trial, Shanklin asserted her vegetation claim, presenting evidence that Eddie Shanklin's view of the approaching Norfolk locomotive and its headlamp was obscured by trees and vegetation located on Norfolk's right of way. Key expert testimony indicated that the vegetation surrounding the crossing would have prevented Eddie Shanklin from being able to see the train until he was ninety-four feet (three seconds) from the tracks. Shanklin's expert further testified that in order to perceive the threat, react, and stop his vehicle, Eddie, traveling at twenty miles per hour, needed to see the train when he was 135 feet from the tracks. Various additional supporting evidence was admitted over Norfolk's objection. The jury found in favor of Shanklin, and judgment was entered against Norfolk in the amount of $1,434,014.60.¹

Norfolk now resurrects three evidentiary objections as made at trial. First, Norfolk objects to the introduction of a "sight distance triangle chart," and accompanying diagram, published in the Federal Highway Administration ("FHA") Railroad-Highway Grade Crossing Handbook ("Handbook"). Norfolk maintains that the documents do not create a duty with respect to railroads, as the Handbook was written as a guide for traffic engineers. At trial, Shanklin conceded that the evidence did not constitute a legal standard or regulation, but argued that the Handbook had been used by railroads to understand sight distances and thus helped to demonstrate that Norfolk was aware of the sight distance problem. The district court ultimately admitted the documents. Shanklin later introduced, without objection, the deposition of James McCloskey, an attorney for Norfolk serving on the company's Crossing Oversight Committee, who testified that Norfolk used the sight distance documents in assessing the safety of particular crossings.

Second, Norfolk objects to the introduction of a "policy" developed by Paul Melander, a manager of the Railroad Safety Division of the Tennessee Public Service Commission ("PSC"), addressing potential hazards created by decreased sight lines at railroad crossings. The policy, essentially a recommendation to the state legislature, incorporated the sight distance chart from the Handbook, and the PSC distributed it to all the railroads in Tennessee. While the policy lacked legal authority in that it was not adopted by the PSC or the Tennessee Legislature, the PSC Commissioners had seen the policy and approved its dissemination. Shanklin therefore offered it for the...