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Janero v. Norfolk Southern Railway Co.

United States District Court, N.D. Indiana, Fort Wayne Division

March 15, 2017

THOMAS A. JANERO, individually and as Personal Representative of the Estate of Kristen M. Janero and the Estate of Xander D. Janero, Plaintiffs,



         This 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 Court's review.


         On 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:

         (Image Omitted)

         (Brach Decl. Ex. 2, ECF No. 80-5.)

         The 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.

         Rodney 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.

         As Mr. 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.

         Roughly 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.

         Then, 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 collision.


         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.]

         After 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.

         Separately, 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 [94], 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.


         Summary 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).


         This 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.


         To hold 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).

         For 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.

         A. The Defendant's Motion for Partial Summary Judgment

         The 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.

         Second, 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.[1] 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 the right-of-way.

         1.Inadequate Warning Devices

         a. Federal Preemption

         Congress 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.

         Three 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).

         The 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).[2] 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 (2000).

         Once 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.” Id.

         Federal 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.

         Nevertheless, 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.[3] 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 occurred.

         The 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 added).

         In 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).

         Those 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.

         The 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.[4] "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.

         Finally, 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").[5]Rather, it is ongoing once the initial requirements for warning devices are met.

         Because 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. § 646.214(b)(3)-(4).

         b. Extra-Hazardous Crossing, Failure to Petition for Closure of the Crossing

         As an 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.)[6]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).

         The 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 ...

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