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Jenkinson v. Norfolk Southern Railway Co.

United States District Court, S.D. Indiana, Indianapolis Division

April 11, 2017




         This matter is before the Court on a Motion for Summary Judgment filed pursuant to Federal Rule of Civil Procedure 56 by Defendant Norfolk Southern Railway Co. (“Norfolk”) (Filing No. 65), and a Motion for Leave to File Surreply filed by Plaintiffs Ruth Ann Jenkinson (“Mrs. Jenkinson”) and her husband, Joe Jenkinson (collectively, “Plaintiffs”). (Filing No. 82.) On October 21, 2013, at approximately 11:30 p.m., Mrs. Jenkinson struck the side of a stationary Norfolk train. Following the collision, Plaintiffs filed this negligence suit against Norfolk seeking compensatory damages. (Filing No. 1; Filing No. 59.) For the following reasons, the Court GRANTS in part and DENIES in part Norfolk's Motion for Summary Judgment and the Court DENIES Plaintiffs' Motion for Leave to File Surreply.

         I. BACKGROUND

         The following facts are not necessarily objectively true, but as required by Federal Rule of Civil Procedure 56, the facts are presented in the light most favorable to Plaintiffs as the non-moving parties. See Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

         A. Factual and Procedural Background

         Mrs. Jenkinson is an Indiana resident who previously worked at Community Hospital Anderson. On October 21, 2013, at approximately 11:00 p.m., Mrs. Jenkinson drove her normal route home from work-northbound on County Rd. 100W in Lafayette Township, Madison County, Indiana. At the time that Mrs. Jenkinson was driving home, a Norfolk freight train was stopped on a railroad grade crossing intersection at Madison Avenue (“the Crossing”).[1] Norfolk's crew members, Andrew J. Bragg and Thomas E. Abrell, parked the train at the Crossing in order to conduct a mandatory air brake test. At approximately 11:30 p.m., Mrs. Jenkinson approached the Crossing and, because it was quiet and completely dark, Mrs. Jenkinson struck the side of a non-reflectorized Norfolk rail car. Mrs. Jenkinson suffered severe debilitating, permanent injuries that ended her career.

         Thereafter, Plaintiffs filed a Complaint against Norfolk, alleging Norfolk acted with negligence by: 1) failing to train its crew on proper crossing safety; 2) parking the train across the Crossing; 3) failing to notify the law enforcement agency in order to control traffic; 4) failing to place flaggers to provide warning for each direction of traffic; 5) failing to have a uniformed law enforcement officer at the Crossing; 6) failing to have a crew member flag the train through the Crossing; 7) failing to provide an alternative route or detour; 8) failing to make the train visible to the public at night, specifically with streetlights; 9) failing to visibly warn motorists of the presence of the stopped train; 10) failing to warn motorists with certain lightning devices; and 11) failing to comply with 49 C.F.R. 232. (Filing No. 59.) Norfolk moves for summary judgment as to all allegations, arguing that Plaintiffs' claims are preempted by the Federal Railroad Safety Act (“the Act”), as well as Indiana state law. (Filing No. 66.)

         B. The Act's Background and Legal Standard

         In 1970, Congress enacted the Act “to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.” 49 U.S.C. § 20101. The Act directs the Secretary of Transportation (“the Secretary”) to “prescribe regulations and issue orders for every area of railroad safety.” 49 U.S.C. § 20103(a). The Act also tasks the Secretary with maintaining “a coordinated effort to develop and carry out solutions to the railroad grade crossing problem.” 49 U.S.C. § 20134. The Act contains an express preemption clause that states:

Laws, regulations, and orders related to railroad safety and laws, regulations, and orders related to railroad security 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 or security until the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), prescribes a regulation or issues an order covering the subject matter of the State requirement.

49 U.S.C. § 20106(a).

         In 1973, Congress enacted the Highway Safety Act of 1973, which created the Federal Railway-Highway Crossing Program (“Crossing Program”). See 23 U.S.C. § 130. The Crossing Program makes federal funds available to the States to improve railway-highway crossings. To carry out its duty of improving railway-highway crossings, the Secretary promulgated several regulations, including 23 C.F.R. § 646.214. Section 646.214 addresses the adequacy of warning devices installed under the Crossing Program. This section specifically states:

Adequate warning devices, under § 646.214(b)(2) or on any project where Federal-aid funds participate in the installation of the devices are to include automatic gates with flashing light signals when one or more of the following conditions exist:
A. Multiple main line railroad tracks.
B. Multiple tracks at or in the vicinity of the crossing which may be occupied by a train or locomotive so as to obscure the movement of another train approaching the crossing.
C. High Speed train operation combined with limited sight distance at either single or multiple track crossings.
D. A combination of high speeds and moderately high volumes of highway and railroad traffic.
E. Either a high volume of vehicular traffic, high number of train movements, substantial numbers of schoolbuses or trucks carrying hazardous materials, unusually restricted sight distance, continuing accident occurrences, or any combination of these conditions.
F. A diagnostic team recommends ...

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