United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY
WALTON PRATT, JUDGE
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
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).
Factual and Procedural Background
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”). 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.
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.
The Act's Background and Legal Standard
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
49 U.S.C. § 20106(a).
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
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
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 ...