Trimbur v. Norfolk S. Ry. Co.
| Decision Date | 10 August 2015 |
| Docket Number | Case No. 2:13-cv-0160 |
| Parties | RENEE K. TRIMBUR, et al., Plaintiffs, v. NORFOLK SOUTHERN RAILWAY COMPANY, et. al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
OPINION AND ORDER
This matter is before the Court on Defendants' Motion to Strike (ECF No. 117), and Defendants' Motions for Summary Judgment (ECF Nos. 90, 106). For the reasons set forth below, the Court DENIES as moot Defendants' Motion to Strike, GRANTS Defendants' Motion for Partial Summary Judgment (ECF No. 106) and GRANTS in PART and DENIES in PART Defendants' Motion for Summary Judgment (ECF No. 90).
On July 11, 2012, a train traveling eastbound on tracks owned and operated by Defendant Norfolk Southern Railway Company1 derailed at approximately 2 a.m. just south of the Ohio State Fairgrounds in Columbus, Ohio. (Talley Aff. ¶ 4; ECF No. 90-1, Ex. 1; ECF No. 90-2.) The train, 186L809, consisted of two locomotives carrying 97 loaded cars (in addition to one empty), 49 of which contained hazardous materials.
Three of the cars, NATX 364083, NATX 364118, and NATX 364017 were DOT-111A100W1 ("DOT-111") tank cars2 containing denatured ethanol.3 (Schoendorfer Aff. ¶ 3; ECF No. 106-1.) A third-party company named American Railcar Industries ("ARI") manufactured the tank cars in 2007 on behalf of General Electric Capital Railcar ("GE"), for the transport of flammable liquids. (Id. ¶ 4.) In 2007, ARI certified that the design and construction of NATX 364083, NATX 364118, and NATX 364017 conformed to all applicable Department of Transportation ("DOT") and Association of American Railroads ("AAR")4 requirements, as reflected in a 2007 ARI Application for Approval and Certificate of Construction. (Id. ¶ 5.) The Association of American Railroads North American Tank Car Committee subsequently approved ARI's Application for Approval and Certificate of Construction for these cars in June 2007. (Id. ¶ 6.) On July 3-4, 2012, a third party inspected, loaded, and offered the DOT-111 tank cars into service in Cedar Rapids, Iowa. (Id. ¶ 7.) The consignee certified that the tank car materials were in proper condition for transportation according to the applicable DOT regulations. (Id.) NSRC then accepted the cars in interchange from another railroad in Chicago, Illinois, on or about July 10, 2012. (Id. ¶ 8.)
Seventeen loaded cars derailed at the time of the incident, including two cars carrying corn syrup, three cars carrying ethanol, and 12 cars carrying various types of grain (, malt, oats and wheat). (Id.) At the time of the derailment, NATX 364083 was punctured by a coupler.5 The puncture caused ethanol to release and the car caught fire. The release of ethanol onto the ground caused a pool fire within the immediate area where NATX 364118 and NATX364017 were derailed. The pool fire, in turn, caused both cars to suffer heat induced tears. (Id.) Grain and corn syrup were also released or spilled as a result of the derailment. (Connelly Dep., pp. 122, 191-92; ECF No. 81.)
As a result of the derailment-induced ethanol fire, the Columbus fire department evacuated approximately 100 people from 30 homes and various businesses in the immediate area. (Id.) The evacuation lasted from shortly after the derailment to the morning of July 13, 2012. (Pickard Aff. ¶¶ 11-12; ECF No. 90-6.) The Columbus fire department worked with NSRC management and the Federal Rail Administration ("FRA") on the initial response and derailment cleanup. (Talley Aff. Ex. 1.) Several hours after the derailment, the National Train Safety Board ("NTSB") informed NSRC that it would be sending a full investigatory team to the area. (Id.)
Plaintiffs in this case are Renee K. Trimbur ("Trimbur"), The Kyron Tool & Machine Co., Inc., ("Kyron Tool") and C4R's, LLC ("C4R") (collectively, "Plaintiffs"). Plaintiffs own the following properties near the site of the derailment:
Kyron Tool
C4R
(Haueisen Dep., pp. 9, 16-19, 37; ECF No. 83, Trimbur Dep., pp. 186, 188; ECF No. 75.) Kyron Tool primarily manufactures component parts for industrial scales of all sizes. (Haueisen Dep., p. 15.) At one time, Kyron Tool used the above-reference buildings for machine tool operations. (Id., p. 22, 24.) Prior to the derailment, Kyron Tool moved the majority of its businessoperations to a new facility and, on an intermittent basis, sent employees to the buildings located near the derailment. (Id.) C4R is a holding company that owns the real estate referenced above. (Id., p. 19.) Trimbur is an officer of both Kyron Tool and C4R. (Trimbur Dep., pp. 186, 188.)
The derailment occurred as a result of a broken outside rail. (Wolf Rep. ¶ 4; ECF No. 90-5.) NSRC does not dispute that grain may have ended up on Plaintiffs' property. (Connelly Dep., p. 22; Martin Dep., pp. 63-64.) NSRC does, however, dispute that ethanol was released onto Plaintiffs' property. (NSRC Br., p. 7; ECF No. 90.) NSRC states that approximately 37,000 gallons of ethanol were recovered from the tank cars during the cleanup process. (Id.) Plaintiffs estimate that approximately 53,000 gallons of the total 90,000 gallons of ethanol stored in the three railcars spilled. (Eckels Dep., pp. 193-195.) Plaintiffs further assert that, as a result of the derailment, chemicals released onto their properties have rendered them unsafe for commercial use. (Trimbur Dep., pp. 191-92; Gossman Dep., pp. 31, 87-88, 216; ECF No. 87; Gossman Rep., pp. 7-8; ECF No. 107-13; Eckels Rep., pp. 5, 14; ECF No. 107-11.)
Plaintiffs initiated this action by filing a Complaint on February 25, 2013 (ECF No. 2) (the "Complaint" or "Compl."), alleging the following: negligence, gross negligence, negligence per se, common law strict liability, and nuisance. (Compl., pp. 6-15.) Plaintiffs seek compensatory damages, punitive damages and attorney's fees. (Id., pp. 16-20.)
NSRC filed a Motion for Partial Summary Judgment on August 4, 2014 (ECF No. 48), arguing for federal preemption of Plaintiffs' claims pertaining to the DOT-111 tanker cars. On November 25, 2014, the Court denied NSRC's motion without prejudice to re-filing (ECF No. 94), pursuant to Rule 56(d) of the Federal Rules of Civil Procedure, because Plaintiffs asserted they were unable to present facts essential to their opposition. On November 21, 2014, NSRC filed a second summary judgment motion (ECF No. 90) as permitted by this Court (ECF No. 71).The second motion moved for judgment as to all claims. On December 30, 2014, Defendants re-filed their motion for partial summary judgment pertaining to the DOT-111 tanker claims (ECF No. 106). On February 17, 2015, Defendants filed a Motion to Strike certain exhibits to and statements of fact contained within Plaintiffs' Response to Defendants' Motion for Summary Judgment (ECF No. 117). All three motions are addressed below.
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant has the burden of establishing that there are no genuine issues of material fact, which may be accomplished by demonstrating that the nonmoving party lacks evidence to support an essential element of its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1388-89 (6th Cir. 1993). To avoid summary judgment, the nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); accord Moore v. Philip Morris Cos., 8 F.3d 335, 340 (6th Cir. 1993). "[S]ummary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In evaluating a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970); see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (). Furthermore, the existence of amere scintilla of evidence in support of the nonmoving party's position will not be sufficient; there must be evidence on which the jury reasonably could find for the nonmoving party. Anderson, 477 U.S. at 251; see Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995); see also Matsushita, 475 U.S. at 587-88 ().
NSRC moves to strike certain exhibits attached to and statements of fact contained within Plaintiffs' Response to NSRC's Motion for Summary Judgment (ECF No. 117). Specifically, NSRC argues that Plaintiffs submit inadmissible evidence consisting of improper hearsay, opinion evidence, and unauthenticated or uncertified documents.
The Court has examined only the well-founded evidence and determined that its ruling for summary judgment does not hinge upon any of the contested exhibits or statements of fact. Therefore, the motion to strike is DENIED as moot.
Under the Supremacy Clause of the United States Constitution, "[w]here a state statute conflicts with, or frustrates, federal law, the former must give way." CSX Transportation Inc. v. Easterwood, 507 U.S. 658, 663 (1993); citing U.S....
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