Smith v. Norfolk and Western Ry. Co.

• Decision Date: 08 October 1991
• Docket Number: No. S90-494 (RLM).,S90-494 (RLM).
• Parties: Stevie SMITH, et al., Plaintiffs, v. NORFOLK AND WESTERN RAILWAY CO., Defendant.
• Court: U.S. District Court — Northern District of Indiana

776 F. Supp. 1335

Stevie SMITH, et al., Plaintiffs, v. NORFOLK AND WESTERN RAILWAY CO., Defendant.

No. S90-494 (RLM).

United States District Court, N.D. Indiana, South Bend Division.

October 8, 1991.

Ken Allen, Dale Allen and Leon Sarkisian, Merrillville, Ind., for plaintiffs.

John C. Duffey and Russell H. Hart, Lafayette, Ind., for defendant.

MEMORANDUM AND ORDER

MILLER, District Judge.

On October 6, 1988, Judy Smith died as a result of a tragic automobile/train collision on U.S. 35 (Heaton Street) in Knox, Indiana. At 5:30 a.m., Ms. Smith's southbound automobile was crossing single main line tracks and was struck by a westbound train operated by Norfolk and Western Railway Company ("Norfolk"). Ms. Smith's husband and children brought this wrongful death action, alleging that Norfolk negligently failed to provide adequate warning devices and negligently operated its train.

Norfolk moves for summary judgment, contending that the plaintiffs' claims are preempted by federal law, that there is no evidence of negligence on Norfolk's part, that Ms. Smith's conduct was the sole proximate cause of the collision, and that Ms. Smith's comparative negligence constituted more than fifty per cent of the cause of the accident, barring the plaintiffs from recovery.

Standard of Review for Summary Judgment

A party seeking summary judgment must demonstrate that no genuine issue of fact exists for trial and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Certain Underwriters of Lloyd's v. General Accident Ins. Co. of America, 909 F.2d 228, 231 (7th Cir.1990). If that showing is made and the motion's opponent would bear the burden at trial on the matter that forms the basis of the motion, the opponent must come forth with evidence to show what facts are in actual dispute. Lujan v. National Wildlife Federation, ___ U.S. ___, 110 S.Ct. 3177, 3186, 111 L.Ed.2d 695 (1990); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Sims v. Mulcahy, 902 F.2d 524, 540 (7th Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 249, 112 L.Ed.2d 207 (1990). If he fails to do so, summary judgment is proper. Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir.1990); Tatalovich v. City of Superior, 904 F.2d 1135, 1142 (7th Cir.1990). A genuine factual issue exists only when there is sufficient evidence for a jury to return a verdict for the motion's opponent. Harbor House Condominium Ass'n v. Massachusetts Bay Ins. Co., 915 F.2d 316, 320 (7th Cir.1990); Hines v. British Steel Corp., 907 F.2d 726, 728 (7th Cir.1990). Summary judgment should be granted if no reasonable jury could return a verdict for the motion's opponent. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Visser v. Packer Engineering Associates, Inc., 924 F.2d 655, 660 (7th Cir.1991).

The parties cannot rest on mere allegations in the pleadings, Hughes v. Joliet Correctional Center, 931 F.2d 425, 428 (7th Cir.1991); McCarthy v. Kemper Life Ins. Companies, 924 F.2d 683, 687 (7th Cir.1991), or upon conclusory allegations in affidavits. Mestayer v. Wisconsin Physicians Service Ins. Corp., 905 F.2d 1077, 1079 (7th Cir.1990). The court must construe the facts as favorably to the non-moving party as the record will permit, Brennan v. Daley, 929 F.2d 346, 348 (7th Cir.1991); Soldal v. County of Cook, 923 F.2d 1241, 1245 (7th Cir.1991), and draw any permissible inferences from the materials before it in favor of the non-moving party, Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Illinois Bell Telephone Co. v. Haines and Co., Inc., 905 F.2d 1081, 1087 (7th Cir.1990), as long as the inferences are reasonable. Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991). The non-moving party must show that the disputed fact is material, or outcome-determinative, under applicable law. Johnson v. Pelker, 891 F.2d 136, 138 (7th Cir.1989).

The court will address the defendant's motion with the above standards in mind.

Federal Preemption

1. Warning Devices

At the time of the accident, the Heaton Street crossing was equipped with a warning sign and stenciled highway markings that indicated the motorist's approach to the crossing. Crossbucks (signs with X-shaped warnings) also were attached to multiple sets of train-activated flashers (warning lights) at the crossing. Exhibit J to the motion contains photographs taken at 10:30 a.m. on the day of the accident, indicating that these warning devices were visible from thirty, fifty, and two hundred feet north of the crossing.

The Heaton Street warning devices were selected and installed at the direction of the Indiana Department of Transportation ("IDOT"), formerly Indiana Department of Highways ("IDOH"). Following IDOH's determination of the devices necessary to upgrade the Heaton Street crossing, on October 8, 1985 the United States Department of Transportation, Federal Highway Administration, approved the upgrading project proposed by IDOH. On February 26, 1988, the IDOH inspected the crossing and determined that, with minor deviations not relevant to this case, the work contemplated to upgrade the crossing had been completed, and that the warning devices at the crossing conformed to the "project work". The IDOH (or IDOT) did not take any action to require warning devices other than those that were present at the time of the accident.

Norfolk argues that the Federal Railroad Safety Act ("FRSA"), 45 U.S.C. § 421 et seq., preempts the plaintiffs' claim that Norfolk failed to provide additional warning devices, including gates, at the Heaton Street crossing. To determine whether Norfolk is correct, the court must look to the intent of Congress in passing the FRSA. English v. General Electric Co., ___ U.S. ___, 110 S.Ct. 2270, 2275, 110 L.Ed.2d 65 (1990). Under the Supremacy Clause, U.S. Const. art. VI, cl. 2, state law may be preempted in three circumstances:

First, Congress can define explicitly the extent to which its enactments preempt state law....

Second, in the absence of explicit statutory language, state law is preempted where it regulates conduct in a field that Congress intended the Federal Government to occupy exclusively. Such an intent may be inferred from a "scheme of federal regulation ... so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it," or where an Act of Congress "touches a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject." ... Although this Court has not hesitated to draw an inference of field preemption where it is supported by the federal statutory and regulatory schemes, it has emphasized: "Where ... the field which Congress is said to have preempted" includes areas that have "been traditionally occupied by the States," congressional intent to supersede state laws must be "`clear and manifest.'" ...

Finally, state law is preempted to the extent that it actually conflicts with federal law. Thus, the Court has found preemption where it is impossible for a private party to comply with both state and federal requirements.... or where state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."

English v. General Electric, 110 S.Ct. at 2275.

Norfolk claims that the FRSA expressly preempts state law covering the same subject matter as that addressed in the FRSA and the regulations promulgated by the Secretary of Transportation. The FRSA's purpose is "to promote safety in all areas of railroad operations and to reduce railroad-related accidents...." 45 U.S.C. § 421. The FRSA requires the Secretary of Transportation to study and report to Congress on the problem of safety at railroad crossings, and, under the Secretary's authority under the FRSA and pursuant to the Secretary's authority over highway and motor vehicle safety, to "undertake a coordinated effort toward the objective of developing and implementing solutions to the grade crossing problem...." 45 U.S.C. § 433.

Norfolk contends that Congress expressly preempted state law relating to warning devices at railroad crossings in 45 U.S.C. § 434, which reads:

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 same 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.

Thus, a state law concerning railway safety remains in effect until federal law covering the same subject matter is adopted, and may remain in effect even after federal law covering the same subject matter is adopted if the state law: (1) is necessary to reduce a local safety hazard; (2) is not incompatible with federal law; and (3) does not create an undue burden on interstate commerce.

Several recent cases discuss the extent to which the FRSA affects a railroad company's liability for negligence in actions arising out of accidents at railroad crossings. In Marshall v. Burlington Northern, Inc., 720 F.2d 1149 (9th Cir.1983), Judge (now Justice) Kennedy wrote that the FRSA preempts only those state laws where the government has acted with respect to the same "subject matter", and that unlike the Federal Boiler Inspection Act which regulates locomotive...