Turner v. CSX Transp., Inc., Docket Nos. 138138

• Decision Date: 16 February 1993
• Docket Number: Docket Nos. 138138,141583
• Citation: 198 Mich.App. 254,497 N.W.2d 571
• Parties: Robert A. TURNER, Personal Representative of the Estate of James R. Turner, Plaintiff-Appellant, v. CSX TRANSPORTATION, INC., a Virginia corporation, Defendant-Appellee. Robert A. TURNER, Personal Representative of the Estate of James R. Turner, Plaintiff-Appellant, v. DEPARTMENT OF TRANSPORTATION, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 571

497 N.W.2d 571

198 Mich.App. 254

Robert A. TURNER, Personal Representative of the Estate of James R. Turner, Plaintiff-Appellant, v. CSX TRANSPORTATION, INC., a Virginia corporation,

Defendant-Appellee.

Robert A. TURNER, Personal Representative of the Estate of James R. Turner, Plaintiff-Appellant, v. DEPARTMENT OF TRANSPORTATION, Defendant-Appellee.

Docket Nos. 138138, 141583.

Court of Appeals of Michigan.

Submitted Jan. 6, 1993, at Grand Rapids.

Decided Feb. 16, 1993, at 9:30 a.m.

Released for Publication April 12, 1993.

Stephen A. Seman, Saginaw, for Robert A. Turner.

Smith & Brooker, P.C. by A.T. Lippert, Jr., and Gary R. Campbell, Saginaw, for CSX Transp., Inc.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., and Brenda E. Turner, Vincent J. Leone, and Patrick J. O'Brien, Asst. Attys. Gen., for Department of Transp.

Before SAWYER, P.J., and HOOD and JANSEN, JJ.

PER CURIAM.

Plaintiff, Robert A. Turner, as personal representative of the estate of James R. Turner, deceased, appeals from orders of the circuit court and the Court of Claims granting summary disposition in favor of defendants, CSX Transportation, Inc., and the Department of Transportation (MDOT), on plaintiff's claims arising from an automobile-train accident. We affirm.

Plaintiff's decedent was killed when he drove his automobile into the side of a CSX locomotive engine. Witnesses of the accident stated that plaintiff's decedent attempted to beat the train across the railroad crossing. Witnesses also stated that the train whistle could be heard before the accident and that the railroad warning lights were engaged and flashing.

Plaintiff filed an action in the Saginaw Circuit Court against CSX, alleging that CSX was negligent in failing to properly warn motorists approaching the crossing. Specifically, plaintiff alleged that CSX failed to install necessary additional warning lights and failed to petition the MDOT for authority to install those additional warning lights. Plaintiff also filed an action in the Court of Claims against the MDOT, alleging that the MDOT was negligent in the maintenance and regulation of the crossing, particularly in failing to require the erection of additional and more advanced warning devices. Judge Leopold P. Borrello, presiding in both courts, granted summary disposition in favor of defendants.

Plaintiff first claims error in the granting of summary disposition in favor of CSX with regard to the theory that CSX was negligent in failing to install all the necessary warning devices. We disagree.

M.C.L. Sec. 257.668(2); M.S.A. Sec. 9.2368(2) provides in pertinent part as follows:

The erection of or failure to erect, replace, or maintain a stop or yield sign or other railroad warning device, unless such devices or signs were ordered by public authority, shall not be a basis for an action of negligence against the state transportation department, county road commissions, the railroads, or local authorities.

In the case at bar, there was no order by a public authority directing that additional warning devices or signals be installed. Thus, CSX cannot, under the clear and unambiguous language of the statute, be held liable for the failure to erect additional warning devices or signals. Baughman v. Consolidated Rail Corp., 185 Mich.App. 78, 80, 460 N.W.2d 895 (1990).

Plaintiff also argues that CSX may be liable because it had a common-law duty to petition the proper government entity for the authority to install additional warning devices. The case cited by plaintiff, Harrison v. Grand Trunk W.R. Co., 162 Mich.App. 464, 468, 413 N.W.2d 429 (1987), does stand for that proposition. However, we are persuaded that Harrison was incorrectly decided. In our view, in enacting the statute, the Legislature intended that no liability was to be premised upon the absence of warning devices at a railroad crossing absent an order by the proper authority...