Zimmerman v. Norfolk Southern Corp.

Decision Date17 August 2011
Docket NumberCivil Action No. 10-cv-02267
CourtU.S. District Court — Eastern District of Pennsylvania

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On behalf of Plaintiff


On behalf of Defendant

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United States District Judge

This matter is before the court on Defendant's Motion for Summary Judgment filed March 31, 2011, together with the Brief in Support of Defendant's Motion for Summary Judgment. Plaintiff's Brief in Opposition to Defendant's Motion for Summary Judgment was filed April 21, 2011, together with Plaintiff's Statement of Facts in Response to Defendant's Motion for Summary Judgment. As permitted by my Order dated May 11, 2011, Defendant's Statement of Uncontested Facts was filed on May 19, 2011, and Plaintiff's Response to Defendant's Statement of Uncontested Facts was filed June 1, 2011.

Defendant, Norfolk Southern Corporation's1 Brief in Reply to Plaintiff's Brief in Opposition to Defendant's Motion for Summary Judgment was filed May 25, 2011. Plaintiff's Sur-Reply Brief in Opposition to Defendant's Motion for Summary Judgment was filed, with permission, on June 21, 2011.

_______For the following reasons, I grant Defendant's Motion for Summary Judgment and enter judgment in favor of defendant and against plaintiff. Specifically, I conclude that all of plaintiff's state-law negligence claims in Counts II and III of plaintiff's Complaint, and most of the excessive speed portion of plaintiff's state-law negligence claim in Count I,2 are preemptedby the Federal Railroad Safety Act of 1970 ("FRSA"), 49 U.S.C. §§ 20101-28505.3

Regarding the remaining portions of plaintiff's state-law negligence claim in Count I, that defendant breached a duty by failing to adequately sound the train's horn and illuminate the train's lights, I further conclude that there are no genuine issues of material fact which would preclude summary judgment in defendant's favor. Finally, I dismiss the claim for punitive damages in Count IV as moot.


Jurisdiction in this case is based upon diversity of citizenship pursuant to 28 U.S.C. § 1332. Plaintiff is an individual who is a citizen of Pennsylvania. Defendant is a Virginia corporation with its principal place of business in Virginia. The amount in controversy exceeds $75,000.00 exclusive of interests and costs.


Venue is proper pursuant to 28 U.S.C. § 1391(a)(2) because the events giving rise to plaintiff's claims allegedly occurred in Lancaster County, Pennsylvania, which is located within this judicial district.


Plaintiff Robert Zimmerman initiated this action on May 14, 2010 by filing a four-count civil Complaint against defendant Norfolk Southern Corporation ("Norfolk Southern"). The Complaint alleges claims for negligence arising out of a collision at a railroad crossing between plaintiff's motorcycle and a train operated by Norfolk Southern.

Count I alleges a negligence claim for failure to warn of an approaching train. Count II is a claim for negligent failure to maintain a safe grade crossing, which is the place where the railroad tracks intersect the public road. Count III alleges negligence per se for failure to properly mark and secure the crossing in accordance with 23 C.F.R. § 646.214. Count IV is a claim for punitive damages.

On June 22, 2010 defendant filed its Answer to Plaintiff's Complaint with Affirmative Defenses. On September 16, 2010, I conducted a Rule 16 Status Conference by telephone and set a deadline for defendant to file the within motion. As noted above, defendant filed its motion for summary judgment on March 31, 2011. Hence this Opinion.


In considering a motion for summary judgment, the court must determine whether "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue ofmaterial fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-2510, 91 L.Ed.2d 202, 211 (1986); Federal Home Loan Mortgage Corporation v. Scottsdale Insurance Company, 316 F.3d 431, 443 (3d Cir. 2003). Only facts that may affect the outcome of a case are "material". Moreover, all reasonable inferences from the record are drawn in favor of the non-movant. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513, 91 L.Ed.2d at 216.

Although the movant has the initial burden of demonstrating the absence of genuine issues of material fact, the non-movant must then establish the existence of each element on which it bears the burden of proof. See Watson v. Eastman Kodak Company, 235 F.3d 851, 857-858 (3d Cir. 2000). Plaintiff cannot avert summary judgment with speculation or by resting on the allegations in his pleadings, but rather he must present competent evidence from which a jury could reasonably find in his favor. Ridgewood Board of Education v. N.E. for M.E., 172 F.3d 238, 252 (3d Cir. 1999); Woods v. Bentsen, 889 F.Supp. 179, 184 (E.D.Pa. 1995).

The Accident

Based upon the pleadings, record papers, exhibits, and the parties' respective concise statements of fact, the pertinentfacts for purposes of the motion for summary judgment are as follows.

The accident in this case occurred shortly after 10:00 o'clock p.m. on June 12, 2008 in the Borough of New Holland, Lancaster County, Pennsylvania. Plaintiff Robert Zimmerman, a thirty-eight year old man, was operating a motorcycle southbound on Diller Avenue. Plaintiff was wearing a full-face helmet with visor.

Two of defendant's locomotives, designated 5657 and 5656, were approaching Diller Avenue from the west. The conductor, Steven Romberger, and the locomotive engineer, Douglas Eppley, were employees of Norfolk Southern who were stationed in the head end of the lead locomotive, 5657.

The Norfolk Southern train entered the Diller Avenue crossing and plaintiff, who had been traveling approximately thirty to thirty-five miles per hour, at or below the posted speed limit on Diller Avenue,4 was unable to stop in time toavoid an accident. Plaintiff locked his brakes and flew over the front handlebars of his motorcycle, and his body impacted the fuel tank of locomotive 5657. Plaintiff was airlifted to Lancaster General Hospital, and he suffered extensive injuries.

In his deposition, plaintiff contended that he had no recollection of the accident. Plaintiff stated that he was familiar with the Diller Avenue crossing and had traveled over the crossing hundreds of times, beginning when he was a teenager. Plaintiff also stated that he was familiar with the signs indicating a railroad crossing at Diller Avenue, and that he knew they signaled a railroad crossing was present. However, plaintiff averred that he had never seen a train cross the tracks, and that he believed the tracks were no longer in use. Accordingly, plaintiff explained that he could not state that he had a habit of looking both ways and slowing down whileapproaching the Diller Avenue crossing because he did not expect to see a train on the tracks.

At the time of the collision, each locomotive was equipped with a digital recording device, known as Event Data Recorders, which recorded information such as speed and horn activation. According to the Event Data Recorders, which information was confirmed by Mr. Eppley and Mr. Romberger in their depositions, the train was traveling approximately twenty-four miles per hour at the time of the accident. The track upon which the train was traveling is classified pursuant to federal regulations as a Class 3 Track, which has a maximum allowable speed of forty miles per hour.

The Event Data Recorders also provided information, confirmed by Mr. Eppley and Mr. Romberger, that the train horn was activated continually from a point of approximately one quarter mile prior to the crossing and through the crossing, and that the horn was sounded for approximately forty-five seconds total.

Plaintiff contends in his deposition that he has no recollection of whether or not the train sounded its horn. However, in his affidavit, plaintiff states that if he had heard a train horn, he would have stopped prior to reaching the Diller Avenue crossing.

Both the driver and a passenger in a car traveling sixty feet behind plaintiff as he approached the Diller Avenue crossing stated in affidavits that they heard the train sound its horn. Neither witness reported seeing train lights, but plaintiff averred in his Complaint that because of the angle of the track and the location of Shooter's Crossing, a tavern on the north side of the track, he would not have been able to see train lights upon approaching Diller Avenue crossing even if they had been operating.

The Diller Avenue Crossing

The Diller Avenue crossing was marked with yellow warning signs placed close to the crossing, and with crossbucks, which are x-shaped signs placed on posts that read "railroad crossing", placed at the site of the crossing itself. The crossing did not have pavement markings, nor was it equipped with flashing lights or automated gates. Shooter's Crossing obscures vision of the track to the west until one is within less than forty feet of the crossing.

On April 29, 1985, the Pennsylvania Department of Transportation entered into an agreement with Consolidated Rail Corporation5 for the installation of reflectorized crossbucks at public highways that cross railroad tracks owned and maintainedby Consolidated Rail Corporation. Under the terms of that agreement, federal funds were to be used in the installation of the crossbucks pursuant to the Highway Safety Act of 1973, 23 U.S.C. § 130.

On August 11, 1986, the crossing at Diller Avenue was inspected by a Pennsylvania Public Utility Commission ("PUC")...

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