United States District Court, N.D. Indiana, Fort Wayne Division
THOMAS A. JANERO, individually and as Personal Representative of the Estate of Kristen M. Janero and the Estate of Xander D. Janero, Plaintiffs,
NORFOLK SOUTHERN RAILWAY COMPANY, Defendant.
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE
matter comes before the Court on Defendant Norfolk Southern
Railway Company's Motion for Partial Summary Judgment
[ECF No. 73] and Plaintiff Thomas A. Janero's Motion for
Partial Summary Judgment [ECF No. 76]. The Plaintiff,
individually and as a personal representative of the Estate
of Kristen M. Janero and the Estate of Xander D. Janero,
filed a Complaint [ECF No. 1] against the Defendant for
wrongful death. This matter is fully briefed and ripe for the
September 3, 2011, an accident occurred in Montpelier,
Indiana, at the intersection of High Street and the railroad
track owned and operated by the Defendant. The High Street
crossing and its surroundings are laid out like this:
Decl. Ex. 2, ECF No. 80-5.)
following facts are not in dispute. On the morning of
September 3, 2011, a train that was owned and operated by the
Defendant headed south toward High Street. There were two
locomotive cars and 35 loaded railcars, and the
Defendant's train was approximately 5, 768 tons and 6,
615 feet long. Engineer Mickey Coak was seated on the right
side of the train and Conductor Christopher Barnes was also
in the locomotive. The train's speed was a constant 53
miles per hour as it approached the High Street crossing.
Brown, who was driving a Pontiac Grand-Prix, headed west on
High Street toward the railroad crossing. His wife, Angela
Brown, was in the passenger seat. In the backseat were Ms.
Janero and her son Xander, the decedents in this case. Mr.
Brown approached the High Street crossing at roughly 5.5
miles per hour.
Brown approached the High Street crossing, the
intersection's northeast quadrant was on his right. There
was a set number of warning devices at the High Street
crossing: flashing lights, a mast with crossbucks and a bell,
and an advanced railroad warning sign. To his right was a
shed-structure, which blocked his line of sight further north
on the railroad track. There was a signal box at the
intersection's corner, between the tracks and the
shed-structure in the northeast quadrant. And further north
up the track to Mr. Brown's right was a tree.
13 seconds before reaching the crossing, the Defendant's
train started to sound its horn. The horn sounded five times
total before the accident occurred. Engineer Coak first
observed Mr. Brown's car when it was east and to the left
(from his vantage point) of the shed-structure, approximately
6-7 seconds before the accident. The shed-structure
obstructed any view of Mr. Brown's car for a few seconds,
but then Engineer Coak observed him once more west and to the
right of the shed-structure, approximately 3-4 seconds before
the accident occurred.
at approximately 11:20 a.m., Mr. Brown's car and the
Defendant's train collided at the High Street crossing.
Engineer Coak applied the train's emergency brake, but
Ms. Janero and her son were thrown from the car upon impact
and died from the injuries that they sustained in the
Plaintiff was Ms. Janero's husband and Xander's
father. On April 29, 2013, he instituted this negligence
action in Blackford County Superior Court against the
Defendant and CSX Transportation, Inc., for wrongful death.
He claimed that the Defendant “was negligent in
operating its passenger train at a speed too fast for
conditions, ” in “failing to sound its horn
warning motor vehicle traffic . . . that it was approaching
the crossing, ” “failing to operate its passenger
train in a reasonably safe manner, ” and “failing
to keep a proper lookout for vehicles approaching and
crossing the tracks.” (Compl. ¶ 10, ECF No. 1.) As
to CSX Transportation, the Plaintiff claimed that it
“owned and had a duty to maintain the railroad right of
way on High Street, ” but that it failed “to
maintain the railroad right of way” and “to
maintain good visibility” at the crossing.
(Id. ¶ 11.) A Notice of Removal [ECF No. 2] was
filed on May 10, 2013, pursuant to 28 U.S.C. § 1441. On
June 10, 2013, the Plaintiff and the Defendant jointly
stipulated to dismiss CSX Transportation from the lawsuit,
leaving only the present parties. [ECF No. 15.]
the close of discovery, both parties filed for partial
summary judgment. On October 28, 2015, the Defendant filed a
Motion for Partial Summary Judgment accompanied by a
Supporting Brief [ECF No. 80]. The Plaintiff responded to the
Defendant's Motion on April 11, 2016 [ECF No. 91], and
included a Brief [ECF No. 92] and Supplemental Brief [ECF No.
93]. The Defendant's Reply [ECF No. 101] was entered on
May 11, 2016. Also on October 28, 2015, the Plaintiff filed
his Motion for Partial Summary Judgment with an accompanying
Supporting Brief [ECF No. 77]. The Defendant's Response
[ECF No. 87] was filed on April 11, 2016. And on May 11,
2016, the Plaintiff's Reply [ECF No. 98] was filed.
the parties moved to strike parts of their opposing
parties' Summary Judgment Motions. On April 11, 2016, the
Defendant filed a Motion to Strike [ECF No. 88], seeking to
exclude portions of the testimony of the Plaintiff's
expert audiologist. On April 27, 2016, the Plaintiff filed
his Response , and the Defendant's Reply [ECF No. 95]
was entered on May 2, 2016. Then, on May 11, 2016, the
Plaintiff filed a Rule 12(f) Motion to Strike [ECF No. 97],
asking the Court to strike statements from the
Defendant's Response to the Plaintiff's Motion for
Partial Summary Judgment that implicated Federal Rule of
Evidence 609. The Defendant responded on May 19, 2016 [ECF
No. 103], and the Plaintiff replied on May 31, 2016 [ECF No.
104]. Finally, the Defendant filed a Motion to Strike [ECF
No. 102] arguments first raised in the Plaintiff's Reply
in Support of his Motion for Partial Summary Judgment, or
alternatively for leave to file a surreply. The Plaintiff
filed a Response [ECF No. 105] on May 31, 2016. The time for
the Defendant to file a Reply has elapsed. On February 14,
2017, the Court termed these Motions to Strike because it
determined that it would consider them in conjunction with
the parties' Motions for Partial Summary Judgment.
judgment is warranted when “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). Summary judgment is the moment in
litigation where the nonmoving party is required to marshal
and present the court with evidence on which a reasonable
jury could rely to find in that party's favor.
Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d
651, 654 (7th Cir. 2010). A court should only deny a motion
for summary judgment when the nonmoving party presents
admissible evidence that creates a genuine issue of material
fact. Luster v. Ill. Dep't of Corrs., 652 F.3d
726, 731 (7th Cir. 2011) (first citing United States v.
5443 Suffield Terrace, 607 F.3d 504, 510 (7th Cir.
2010); then citing Swearnigen-El v. Cook Cty.
Sheriff's Dep't, 602 F.3d 852, 859 (7th Cir.
2010)). A court's role in deciding a motion for summary
judgment “is not to sift through the evidence,
pondering the nuances and inconsistencies, and decide whom to
believe. [A] court has one task and one task only: to decide,
based on the evidence of record, whether there is any
material dispute of fact that requires a trial.”
Waldridge v. Am. Heochst Corp., 24 F.3d 918, 920
(7th Cir. 1994). Material facts are those that are outcome
determinative under the applicable law. Smith v.
Severn, 129 F.3d 419, 427 (7th Cir. 1997). Although a
bare contention that an issue of material fact exists is
insufficient to create a factual dispute, a court must
construe all facts in a light most favorable to the nonmoving
party, view all reasonable inferences in that party's
favor, Bellaver v. Quanex Corp., 200 F.3d 485,
491-92 (7th Cir. 2000), and avoid “the temptation to
decide which party's version of the facts is more likely
true, ” Payne v. Pauley, 337 F.3d 767, 770
(7th Cir. 2003).
Court has diversity jurisdiction over this suit. 28 U.S.C.
§ 1332. The parties are completely diverse. For purposes
of diversity jurisdiction, the Plaintiff is a citizen of
Indiana and the Defendant is a corporation incorporated in
Virginia, as well as with its principal place of business in
Virginia. The injuries suffered in this case exceed the
amount in controversy threshold of $75, 000. The matter was
properly removed from state court pursuant to 28 U.S.C.
§§ 1441 & 1446.
a defendant liable for negligence, a plaintiff must prove
“(1) the defendant has a duty to conform its conduct to
a standard of care arising from its relationship with the
plaintiff, (2) the defendant failed to conform its conduct to
that standard of care, and (3) an injury to the plaintiff was
proximately caused by the breach.”
Indianapolis-Marion Cty. Pub. Library v. Charlier Clark
& Linard, P.C., 929 N.E.2d 722, 726 (Ind. 2010).
“Summary judgment is rarely appropriate in negligence
cases because they are particularly fact sensitive and are
governed by a standard of the objective reasonable person,
which is best applied by a jury after hearing all the
evidence.” Winfrey v. NLMP, Inc., 963 N.E.2d
609, 612 (Ind.Ct.App. 2012). “Nevertheless, summary
judgment may be granted to a defendant if the undisputed
material evidence negates one element of a negligence
claim.” Nagel v. N. Ind. Pub. Serv. Co., 26
N.E.3d 30, 43 (Ind.Ct.App. 2015).
ease of organization, the Court will assess each theory of
negligence individually, but will also consider whether these
theories, as a whole, sufficiently state a claim for
negligence. See J.B. Hunt Transp., Inc. v. Guardianship
of Zak, 58 N.E.3d 956, 972 (Ind.Ct.App. 2016) (citing
Hellums v. Raber, 853 N.E.2d 143, 146 (Ind.Ct.App.
2006) (“It is well established that an injury may have
more than one proximate cause.”). Finally, the Court
does not include a formal analysis of the parties'
various Motions to Strike, as they are unnecessary for the
Court to render its ruling.
The Defendant's Motion for Partial Summary
Defendant moves for summary judgment on the following
grounds. First, that the warning devices at the High Street
crossing were installed with federal funds under a federally
approved project, and thus federal law preempts any claim
that the devices were inadequate or that the Defendant should
have closed or petitioned for closure of the High Street
crossing. Absent a finding of federal preemption, the
Defendant asserts that it did not have a duty under Indiana
law to close or petition to close the High Street crossing.
that the Defendant did not have a duty under Indiana law to
paint pavement markings, and that the absence of any pavement
markings did not cause the accident. Third, that the train
was traveling within the federally mandated speed limit,
thereby preempting any claim for excessive speeding.
Alternatively, that if the train was speeding, it was not a
proximate cause of the accident. Fourth, that the horn was
sounded according to federal regulations, which preempts any
claim that the Defendant should have sounded the train horn
differently or louder. Additionally, that sounding the horn
in a different fashion or at an earlier time was not a
proximate cause of the accident. Finally, that the High
Street crossing did not obstruct Mr. Brown's view down
enacted the Federal Railroad Safety Act (FRSA) in 1970
"to promote safety in every area of railroad
operations" and to "reduce railroad-related
accidents and incidents." 49 U.S.C. § 20101. Under
the FRSA, the Secretary of Transportation may "prescribe
regulations and issue orders for every area of railroad
safety, " id. § 20103(a), who is directed
to "maintain a coordinated effort to develop and carry
out solutions to the railroad grade crossing problem, "
id. § 20134(a). The FRSA also contains an
express preemption provision, which states:
Laws, regulations, and orders related to railroad safety
shall be nationally uniform to the extent practicable. A
State may adopt or continue in force a law, regulation, or
order related to railroad safety until the Secretary of
Transportation prescribes a regulation or issues an order
covering the subject matter of the State requirement.
Id. § 20106.
years later, Congress enacted the Highway Safety Act of 1973,
which, through its Federal Railway-Highway Crossings Program,
makes funds available to states for the "cost of
construction of projects for the elimination of hazards of
railway-highway crossings." 23 U.S.C. § 130(a). In
that Program, "[e]ach State shall conduct and
systematically maintain a survey of all highways to identify
those railroad crossings which may require separation,
relocation, or protective devices, and establish and
implement a schedule of projects for this purpose. At a
minimum, such a schedule shall provide signs for all
railway-highway crossings." Id. § 130(d).
Secretary has instituted certain regulations related to the
Highway Crossings Program. Those relevant here regulate the
adequacy of warning devices installed under the Program.
See 23 C.F.R. § 646.214(b)(3)-(4).
"Adequate warning devices ... on any project where
Federal-aid funds participate in the installation of the
devices are to include automatic gates with flashing light
signals" if any of several conditions are present.
Id. § 646.214(b)(3). However, when "the
requirements of § 646.214(b)(3) are not applicable"
to a crossing, "the type of warning device to be
installed, whether the determination is made by a State
regulatory agency, State highway agency, and/or the railroad,
is subject to the approval of the Federal Highway
Administration (FHWA). Id. § 646.214(b)(4). The
Supreme Court has stated that these two subsections
establish a standard of adequacy that determines the devices
to be installed when federal funds participate in the
crossing improvement project. ... If a crossing presents
those conditions listed in (b)(3), the State must install
automatic gates and flashing lights; if the (b)(3) factors
are absent, (b)(4) dictates that the decision as to what
devices to install is subject to FHWA approval. ... In either
case, § 646.214(b)(3) or (4) is applicable and
determines the type of warning device that is
'adequate' under federal law.
Norfolk S Ry. Co. v. Shanklin, 529 U.S. 344, 354
federal funds are expended to install warning devices at a
crossing and those devices are installed and operating, these
regulations apply and “state tort law is
preempted.” CSX Transp., Inc. v. Easterwood,
507 U.S. 658, 670 (1993). A state may use its “own
funds or . . . additional funding from the FHWA” to
install “more protective devices at such
crossings.” Shanklin, 529 U.S. at 357-58. But
questioning the wisdom of a state's
choices-“different or additional devices” should
have been originally installed, “automatic gates and
flashing lights would be appropriate” in light of
changed “conditions at the crossing”-does not
impact the preemption inquiry. Id. Once “
federally funded devices at a particular crossing” are
installed, a state cannot “hold the railroad
responsible for the adequacy of those devices.”
preemption is an affirmative defense, and therefore the
Defendant bears the burden of proof. See Russian Media
Grp., LLC v. Cable Am., Inc., 598 F.3d 302, 309 (7th
Cir. 2010). The Defendant offers the following evidence in
support of preemption: In 1975, the Defendant's
predecessor, Norfolk and Western Railway Company, entered
into an agreement with the State of Indiana whereby it would
install “new reflectorized crossbuck signs” at
public crossings throughout the State using federal funds
made available through the Highway Safety Act. (Bradley Decl.
¶¶ 3-9, ECF No. 80-3.) The project received initial
FHWA approval on December 10, 1975, and $801, 684.00 in
federal funds were obligated for 90% of the project's
estimated costs. (Id. ¶¶ 11-13, Ex. 1.)
Some of these federal funds were allocated for the High
Street crossing. (Id. ¶¶ 14-16.) One of
the Defendant's employees stated that from the late 1970s
into the early 1980s, he helped install the “new
standard reflectorized crossbucks” at the High Street
Crossing, which were placed on both the east and west sides
of the crossing. (Blanton Decl. ¶¶ 3, 5-6, ECF No.
80-4.) “On January 29, 1988, the FHWA issued its Final
Acceptance Report regarding [Norfolk and Western's]
installation of new crossbucks at all public at-grade
crossings" in Indiana. (Bradley Decl. ¶ 18, Ex. 8.)
This evidence is sufficient to show federal preemption
applies to the High Street crossing. 23 C.F.R. §
646.214(b)(3)-(4); Shanklin, 529 U.S. at 354;
Easterwood, 507 U.S. at 670.
the Plaintiff disputes that federal preemption applies to the
High Street crossing. First, the Plaintiff proposes that
federal preemption only exists when 100% of the funds used in
the installation of warning devices were federal funds, or
when less than 100% of the funds came from the federal
government but there was federal oversight of the project.
Furthermore, any later installations or replacements that the
Defendant made to the High Street crossing were not approved
by the federal government and solely involved the use of the
Defendant's own funds. Second, the Plaintiff attacks certain
of the Defendant's proffered Declarations as lacking
personal knowledge and foundation. Third, the Plaintiff
contends that, even if the devices installed utilized federal
funds, they were not operating at the time the accident
Plaintiff misunderstands the law regarding federal preemption
under the FRSA and its implementing regulations. "Once
the FHWA has funded the crossing improvement and the warning
devices are actually installed and operating, " federal
preemption applies and displaces state law.
Shanklin, 529 U.S. at 354. There is no requirement
that 100% of the funds allocated to safety devices must be
federal funds in order for preemption to attach. See
Cochran v. CSX Tramp., Inc., 112 F.Supp.2d 733, 738
(N.D. Ind. 2000) (finding preemption after safety devices
"were installed almost exclusively with federal
funds under a program approved by the FHWA") (emphasis
addition, there is no requirement that the federal government
must make an individualized inspection of or accept any
safety devices later installed to replace any originals.
Shanklin, 529 U.S. at 356; Fifth Third Bank v.
CSX Corp., 415 F.3d 741, 747 (7th Cir. 2005). Preemption
occurs when the FHWA funds a warning device project and
“is not . . . turned on and off simply because a later
decision is made to upgrade a crossing.” Bock v.
St. Louis Sw. Ry. Co., 181 F.3d 920, 923 (8th Cir.
1999). Indeed, requiring railroads to stick with the same
devices initially installed, and revoking preemption were
they to seek to maintain or upgrade those devices without the
federal government's approval again, would conflict with
the very purpose of the FRSA. Cochran, 112 F.Supp.2d
at 738 (whether or not a crossbuck that is similar to, but
not the exact same as, the crossbuck originally installed
with federal funds is “immaterial to the preemption
question”); see also Hesling v. CSX Transp.,
Inc., 396 F.3d 632, 645-46 (5th Cir. 2005);
Armijo v. Atchison, Topeka & Santa Fe Ry. Co.,
87 F.3d 1188, 1192 (10th Cir. 1996).
cases upon which the Plaintiff relies do not persuade this
Court that a railroad's use of its own funds to maintain
and upgrade a crossing revoke federal preemption. See
Ind. R.R. Co. v. Davidson, 983 N.E.2d 145, 146-47
(Ind.Ct.App. 2012); Boomsma v. Dakota, Minn. & E.
R.R. Co., 651 N.W.2d 238, 243-44 (S.D. 2002); Union
Pac. R.R. Co. v. Cezar, 293 S.W.3d 800, 815-16 (Tex. Ct.
App. 2009). In Davidson, federal funds
“participated in the installment of the original
crossbucks, ” but newer ones were installed with
“only state funds” and “not placed in the
exact same location at the crossing as their
predecessors.” 983 N.E.2d at 152. This evidence
necessitated a question of fact as to “whether the
federal government affirmatively abandoned the project and
federal preemption no longer applie[d].” Id.
Here, the Plaintiff has designated no facts to show that only
state funds were used for improvements or that any subsequent
installations were not located in exactly the same place. And
both Boomsma and Cezar did not involve
federally funded warning devices, so neither is directly on
point here. 651 N.W.2d at 243-44; 293 S.W.3d at 815-16.
Despite the Plaintiff submitting lots of evidence that only
the Defendant's funds participated in the 1988 High
Street crossing upgrade, (see, e.g., Barringer Dep.
187:15-19, ECF No. 93-4; BlaschkeDep. 124:25-125:3, ECF No.
92-5; RFP-5, ECF No. 92-2; Document, ECF No. 92-1), such
evidence is "immaterial to the preemption question,
" Cochran, 112 F.Supp.2d at 738.
Plaintiffs attacks on the Declarations of Cheri Bradley and
Calvin Blanton also fail. According to the Plaintiff, Bradley
began working for the Defendant in 1992 and thus did not have
personal knowledge of the installation project. See
Fed R. Civ. P. 56(c)(4) (requiring "personal knowledge,
" the use of "facts that would be admissible in
evidence, " and "competen[ce] to testify" for
a Court to properly consider a declarant's statements at
summary judgment). However, as the Defendant correctly points
out, a witness need not have personal knowledge of the
entries in records when the business records exception is
applicable. United States v. Wables, 731 F.2d 440,
449 (7th Cir. 1984) ("The witness need only have
knowledge of the procedures under which the records were
created."). Bradley states in her Declaration that it
was a regular practice of both Norfolk and Western and the
Defendant "to make and keep such records in the course
of its regularly scheduled business activities."
(Bradley Decl. ¶ 20; see also Fed. R. Evid.
803(6).) This is sufficient for the Court to properly
consider the business records at summary judgment. Similarly,
the Plaintiff argues that Blanton lacked personal knowledge
of the federal funding for the statewide project and the
funding for the upgrades in 1988. "It is true that
'personal knowledge' includes inferences .... But the
inferences and opinions must be grounded in observation or
other first-hand personal experience." Visser v.
Packer Eng'g Assocs., Inc., 924 F.2d 655, 659 (7th
Cir. 1991) (citations omitted). While it is unclear that
Blanton had personal knowledge of the project upgrades, the
Plaintiffs attack does not raise a genuine issue of material
fact for purposes of summary judgment because he has not
offered evidence to "contradict the facts averred by
[the party] moving for summary judgment." See
Payne, 337 F.3d at 773. Even without the Blanton
Declaration, the remainder of the Defendant's evidence
shows that federal funds participated in the statewide safety
device project and its subsequent upgrades.
the Plaintiff argues that, whether or not federal funds
participated in the installation of warning devices at the
High Street crossing, none of those devices were properly
operating at the time of the accident. (See
Pl.'s Resp. 11 n.4.) However, the Plaintiffs cited
authority does not support such a requirement. See Thiele
v. Norfolk & W. Ry. Co., 68 F.3d 179, 181, 183 (7th
Cir. 1995). In Thiele, a motorist and a train
collided at a crossing that had received federal funding for
warning devices but, at the time of the accident, those
devices were not yet physically installed and operational.
Id. That court stated that preemption of state law
did not occur "until the warning devices [we]re
installed and fully operational." Id.
Thiele'?, phrase "fully operational" is
temporal, as it refers to the fact that preemption is only
triggered after warning devices are actually installed.
Id.; see also Shanklin, 529 U.S. at 354 (holding that
federal preemption applies "[o]nce the FHWA has funded
the crossing improvement and the warning devices are
actually installed and operating") (emphasis
added). The phrase "fully operational" does not
mean preemption disappears if warning devices fail to
function properly on a given occasion. See Michael v.
Norfolk S. Ry. Co., 74 F.3d 271, 273 (11th Cir. 1996)
(noting that 23 CFR § 646.214(b)(3)-(4) "deal with
the design and installation of new warning devices, not the
maintenance of those devices or the failure to warn the
public of defective devices").Rather, it is ongoing once
the initial requirements for warning devices are met.
the Defendant has offered sufficient evidence that "the
FHWA has funded the crossing improvement and the warning
devices [we]re actually installed and operating, "
Shanklin, 529 U.S. at 354, federal law preempts the
Plaintiffs state law negligence claim premised upon the
inadequacy of the warning devices. 23 C.F.R. §
Extra-Hazardous Crossing, Failure to Petition for Closure
of the Crossing
alternative theory of liability, the Plaintiff argues that
the High Street crossing was "extra-hazardous, due to
its skewed angle crossing and other factors." (Pl.'s
Resp. 21-24.)Under Indiana law, a railroad operator must
install crossbucks "at each grade crossing of its
railroad with any public highway." Ind. Code. §
8-6-6-1. Additional duties exist for railways beyond section
8-6-6-1 when a crossing is "extra-hazardous."
Johnson v. Consolidated Rail Corp., 797 F.2d 1440,
1444-45 (7th Cir. 1986). A grade crossing is a hazardous,
"known place of danger, " Bailey v. Martz,
488 N.E.2d 716, 721 (Ind.Ct.App. 1986), but it is a question
of fact whether a crossing is extra-hazardous, Cent. Ind.
Ry. v. Anderson Banking Co., 247 N.E.2d 208, 211 (1969).
Defendant points out that when a crossing receives federally
funded warning devices under a project approved by the FHWA,
federal law preempts any claim that the crossing is
“extra-hazardous.” Randall v. Norfolk S. Ry.
Co., 800 N.E.2d 951, 956 (Ind.Ct.App. 2003). This is a
correct statement of the law. Norfolk received federal
funding for warning devices and used those funds to install
warning devices at the High Street crossing, as discussed
above. Again, federal law preempts any consideration of the
Plaintiff's arguments that the High Street crossing was
“extra-hazardous” and that the crossing should
have been closed. See Id. (holding that the
plaintiff's “attempt to avoid preemption by casting