Opinion
No. 2:19-cv-02807-TLP-cgc
2021-09-15
Jacob R. ELLIOTT, et al., Plaintiffs, v. ILLINOIS CENTRAL RAILROAD COMPANY, Defendant.
Autumn B. Chastain, Law Office of Autumn Chastain, Stephen R. Leffler, Leffler Law Office, Memphis, TN, for Plaintiffs. Charles H. Russell, III, James E. Graves, III, Victoria Bradshaw, Dennis Jason Childress, Wise Carter Child & Caraway, P.A., Jackson, MS, for Defendant.
Autumn B. Chastain, Law Office of Autumn Chastain, Stephen R. Leffler, Leffler Law Office, Memphis, TN, for Plaintiffs.
Charles H. Russell, III, James E. Graves, III, Victoria Bradshaw, Dennis Jason Childress, Wise Carter Child & Caraway, P.A., Jackson, MS, for Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
THOMAS L. PARKER, UNITED STATES DISTRICT JUDGE
Plaintiffs are Jacob R. Elliott, John E. Shannon, Jr., Joshua T. Leggett, Donald W. Boxx, and Benjamin Miller, who are all electrical linemen for Memphis, Light, Gas, and Water ("MLGW"). (ECF No. 1-1.) They sue Illinois Central Railroad Company ("ICR") over an accident in which an ICR locomotive collided with two MLGW maintenance trucks in October 2018. (Id. ) In short, Plaintiffs claim ICR was negligent for failing to warn Plaintiffs of rail traffic, for failing to prevent rail traffic where Plaintiffs were working, for operating the train at an excessive speed, and for failing to display blue light signals. (Id. at PageID 6–7.)
ICR now moves for summary judgment. (ECF No. 170.) Plaintiffs have responded (ECF No. 182), and ICR has replied. (ECF No. 185.) For the reasons below, the Court GRANTS Defendant's motion for summary judgment.
FACTUAL BACKGROUND
The parties dispute some, but not all, of the facts. (See ECF No. 182-1.) This incident began around 5:00 p.m. when the Shelby County Tennessee Sherriff's Department called MLGW to inform it that a utility pole had broken and was on fire with electrical wires lying across ICR's railroad track near Millington, Tennessee. (Id. at PageID 1622.) The utility pole and railroad track are located on ICR's right-of-way. (Id. ) MLGW assigned a lineman crew to repair the line. (Id. at PageID 1623.) And Plaintiffs here were part of that crew. (Id. ) The crew worked under the leadership of Plaintiff Shannon, who was the crew leader, and Jeff Farrell, the MLGW Station C Dispatcher. (Id. )
And ICR gave written notice to MLGW before this repair job, that MLGW:
shall not commence, or carry on, any work for installation, maintenance, repair, changing or renewal of any facility, under, over or on railroad property at any location without giving notice to the railroad authorized representative ... A flagman is required anytime a utility ... does work on or near railroad property within twenty-five (25) feet horizontally of the centerline [of a railroad track] or any work over any railroad track. The railroad, however, also reserves the right to require a flagman for work on railroad property, which is more than twenty-five (25) feet from the centerline of a railroad track when there are other conditions, or considerations that would dictate the need for a flagman to safeguard the railroad's operations, property and safety of working personnel.
(Id. at PageID 1623; ECF No. 170-7; ECF No. 170-10.) And Plaintiff Shannon has known since 2001 that MLGW required employees to contact ICR to gain clearance before working near railroad tracks. (ECF No. 182-1 at PageID 1624.)
So around 8:50 p.m., MLGW Dispatcher Farrell contacted Tony Hardy, an ICR maintenance employee, to discuss whether the crew would need a flagman. (Id. ) Farrell then called Shannon back to determine how close to the track the lineman crew would be. (Id. ) Shannon responded that they were so close to the track that he "could reach out and touch it." (Id. ) Farrell then called ICR employee Hardy again, and they agreed that ICR needed to send a flagman. (Id. ) Hardy told Farrell that he would send a flagman to the site, and he then sent Bradley Burnham to act as a flagman and to provide track protection for Plaintiffs’ crew. (Id. at PageID 1624–25.)
The parties dispute what happened next. Defendant claims Plaintiffs did not wait for Burnham to arrive before parking the crane and bucket truck on ICR's right-of-way and beginning work. (Id. ) And Defendant asserts that no ICR employee ever told Plaintiffs that they could begin work without a flagman. (Id. PageID 1626.)
On the other hand, Plaintiffs contend that no one informed them that Burnham was on his way to act as a flagman. (Id. at PageID 1625.) What is more, Plaintiffs claim that ICR had Burnham providing track protection in Kerrville, Tennessee, but that ICR also has a railyard in Memphis, Tennessee. (Id. ) If ICR had dispatched a worker from the Memphis railyard, the flagman would have arrived much sooner because he would have had a shorter commute to where Plaintiffs were working. (Id. )
Most importantly though, Plaintiffs argue that MLGW Dispatcher Farrell told Plaintiff Shannon that the crew had clearance to go ahead and replace the pole without waiting on a flagman. (Id. ) Shannon testified that Farrell told him the crew only needed a flagman to rehang the wires over the track. (Id. ) On the other hand, Defendant points out that Farrell lacked the authority to give Plaintiffs permission to work on the pole without ICR approval and a flagman present. (Id. at PageID 1626.) And the parties do not dispute that "[a]ny ‘clearance’ or permission for the crew to perform work on the pole would have had to come from Illinois Central." (Id. at PageID 1627.)
Either way, what happened next is undisputed. Before Burnham arrived on the scene, Plaintiffs parked a crane and bucket truck next to the railroad track with the front ends of the trucks sitting just outside the railroad crossties. (Id. ; ECF No. 170-6; ECF No. 170-2 at PageID 1291.) And the crew began replacing the damaged pole. (ECF No. 182-1 at PageID 1627.)
Around 9:45 p.m., as Plaintiffs were repairing the pole, an ICR train approached going about 55 m.p.h. with its headlights on and horns sounding. (Id. )
Plaintiffs Shannon and Boxx noticed the oncoming train and told the other crew members to "get in the clear." (ECF No. 169 at PageID 1238.) But Plaintiff Elliott was working in the bucket of the bucket truck, and Plaintiff Leggett was operating the crane of the crane truck. (Id. ) So Plaintiffs Leggett and Elliott had to jump from the trucks to the ground. (Id. at PageID 1238–39.) All the crew members ran away from the immediate area before the train struck the front ends of both the trucks. (Id. at PageID 1239.)
In their complaint, Plaintiffs claim that the accident (and ICR's negligence) physically and emotionally injured them. (ECF No. 1-1 at PageID 7.) In particular, Plaintiffs Elliott and Leggett allegedly suffered physical injuries when they jumped from the maintenance trucks. (Id. at PageID 6.) And Plaintiffs assert they all now suffer from post-traumatic stress disorder ("PTSD"). (Id. at PageID 7.) Plaintiffs claim that Defendant was negligent by failing to warn them of the oncoming train and failing to stop the train. (Id. at PageID 6–7.) Plaintiffs also allege Defendant was negligent for not providing a flagman and for the train traveling at a high speed. (Id. ) What is more, Plaintiffs assert that Defendant was negligent for failing to set a blue signal display in violation of 49 C.F.R. § 218.23. (Id. )
ICR now moves for summary judgment arguing three main points: (1) Plaintiffs were trespassers; (2) Plaintiffs have no evidence of negligence; and (3) Plaintiffs have no admissible medical testimony to establish that the incident caused their injuries. (ECF No. 169 at PageID 1233–34.)
For the reasons below, the Court GRANTS Defendant's Motion for Summary Judgment.
LEGAL STANDARD
The Court begins its analysis by explaining the rules governing motions for summary judgment.
Federal Rule of Civil Procedure 56 governs summary judgment practice in federal court, even where the claims arise under state law. Schultz v. Newsweek, Inc. , 668 F.2d 911, 917 (6th Cir. 1982). Under that Rule, a party is entitled to summary judgment "if 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). "A fact is ‘material’ for purposes of summary judgment if proof of that fact would establish or refute an essential element of the cause of action or defense." Bruederle v. Louisville Metro Gov't , 687 F.3d 771, 776 (6th Cir. 2012).
And "[i]n considering a motion for summary judgment, [the] court construes all reasonable inferences in favor of the nonmoving party." Robertson v. Lucas , 753 F.3d 606, 614 (6th Cir. 2014) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ). And "[t]he moving party bears the initial burden of demonstrating the absence of any genuine issue of material fact." Mosholder v. Barnhardt , 679 F.3d 443, 448 (6th Cir. 2012) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ).
"Once the moving party satisfies its initial burden, the burden shifts to the nonmoving party to set forth specific facts showing a triable issue of material fact." Mosholder , 679 F.3d at 448–49 ; see also Fed. R. Civ. P. 56(e) ; Matsushita , 475 U.S. at 587, 106 S.Ct. 1348. "When the non-moving party fails to make a sufficient showing of an essential element of his case on which he bears the burden of proof, the moving parties are entitled to judgment as a matter of law and summary judgment is proper." Martinez v. Cracker Barrel Old Country Store, Inc. , 703 F.3d 911, 914 (6th Cir. 2013) (quoting Chapman v. UAW Local 1005 , 670 F.3d 677, 680 (6th Cir. 2012) (en banc)) (internal quotation marks omitted).
"To show that a fact is, or is not, genuinely disputed, both parties are required to either cite to particular parts of materials in the record or show that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Bruederle , 687 F.3d at 776 (alterations in original) (internal quotation marks omitted) (quoting Fed. R. Civ. P. 56(c)(1) ).
"Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge[.]" Martinez , 703 F.3d at 914 (alteration in original) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). "The court need consider only the cited materials, but it may consider other materials in the record." Fed. R. Civ. P. 56(c)(3).
Ultimately, the "question is whether ‘the evidence presents a sufficient disagreement to require submission to a [fact finder] or whether it is so one-sided that one party must prevail as a matter of law.’ " Johnson v. Memphis Light Gas & Water Div. , 777 F.3d 838, 843 (6th Cir. 2015) (quoting Liberty Lobby , 477 U.S. at 251–52, 106 S.Ct. 2505 ). Summary judgment " ‘shall be entered’ against the nonmoving party unless affidavits or other evidence ‘set forth specific facts showing that there is a genuine issue for trial.’ " Rachells v. Cingular Wireless Emp. Servs., LLC , No. 1:08 CV 02815, 2012 WL 3648835, at *2 (N.D. Ohio Aug. 23, 2012) (quoting Lujan v. Nat'l Wildlife Fed'n , 497 U.S. 871, 884, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) ).
"[A] mere ‘scintilla’ of evidence in support of the non-moving party's position is insufficient to defeat summary judgment; rather, the non-moving party must present evidence upon which a reasonable jury could find in her favor." Tingle v. Arbors at Hilliard , 692 F.3d 523, 529 (6th Cir. 2012) (quoting Liberty Lobby , 477 U.S. at 251, 106 S.Ct. 2505 ). "[T]o withstand a motion for summary judgment, the party opposing the motion must present ‘affirmative evidence’ to support his/her position." Mitchell v. Toledo Hosp. , 964 F.2d 577, 584 (6th Cir. 1992) (citing Liberty Lobby , 477 U.S. at 247–54, 106 S.Ct. 2505 ). "[C]onclusory assertions, unsupported by specific facts made in affidavits opposing a motion for summary judgment, are not sufficient to defeat a motion for summary judgment." Rachells , 2012 WL 3648835, at *2 (quoting Thomas v. Christ Hosp. and Med. Ctr. , 328 F.3d 890, 894 (7th Cir. 2003) ). Statements in affidavits that are "nothing more than rumors, conclusory allegations and subjective beliefs" are insufficient. See Mitchell , 964 F.2d at 584–85.
With these standards in mind, the Court will now turn to the merits of Defendant's summary judgment motion.
ANALYSIS
I. Plaintiffs’ Status as Trespassers
First, Defendant argues that Plaintiffs trespassed on ICR's right-of-way, because ICR did not give them permission to work there without a flagman. (ECF No. 169 at PageID 1240.) As a result, Defendant argues that it owed a duty only to refrain from wantonly and willfully injuring Plaintiffs—a duty it met. (Id. at PageID 1242.) Plaintiffs counter that MLGW Dispatcher Jeff Farrell "passed on" ICR's permission to begin work without a railroad flagman, and so, Plaintiffs were not trespassing. (ECF No. 182 at PageID 1616.)
A. Trespasser Defined
The Court first looks at whether Plaintiffs were trespassers under Tenn. Code Ann. § 29-34-208 and Tennessee common law.
To begin, § 29-34-208 defines "trespasser" and explains that property owners have no duty of care towards trespassers. It states,
(a)(2) "Trespasser" means a person who enters or remains on the real property of another without actual or implied permission ...
(b) A possessor of real property owes no duty of care to a trespasser except to refrain from willfully, with negligence so gross as to amount to willfully, intentionally, or wantonly causing injury ...
§ 29-34-208(b). Tennessee common law also defines a trespasser as " ‘a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor's consent or otherwise.’ " Page v. Davenport , No. 87-263-II, 1988 WL 7417, at *2 (Tenn. Ct. App. 1988) (citing Restatement (Second) of Torts, § 329 (1965) ). To be sure, Tennessee courts have long found that property owners owe no duty of care to trespassers on their land, except to not subject them to willful or wantonly negligent acts. Id. ; Kelley v. Tenn. Elec. Power Co. , 7 Tenn. App. 555, 559 (1928) ; see also Lucas v. Schneider Nat. Carriers, Inc. , 953 F.2d 644 (table), 1992 WL 9027, *3 (6th Cir. 1992) (finding that truck owners owe no special duty of care towards trespassing passengers).
And this rule applies in the railroad context as well. White v. Ala. Great S. Ry. Co. , No. 03A01-9405-CV-00181, 1994 WL 587708, at *4 (Tenn. Ct. App. Oct. 27, 1994) ("[T]he railroad's duty [is] to refrain from willfully, intentionally, or recklessly injuring a person."); Birdsong v. City of Chattanooga , 204 Tenn. 264, 319 S.W.2d 233 (1958). Cases addressing a railroad's duty to trespassers have analyzed whether the train operator maintained an adequate lookout, sounded the emergency horn, and used flashing lights. See White , 1994 WL 587708, at *3–4 (analyzing whether engineer should have seen trespasser on track before it was too late to stop the train); Belcher v. Tenn. Cent. Ry. Co. , 214 Tenn. 74, 377 S.W.2d 928, 931–32 (1964) (explaining that even when a plaintiff trespasses on a railroad track, the train operators should keep a lookout ahead, sound their alarm, and try to stop the train). And "[w]anton negligence is heedless and reckless disregard for another's rights," so that the defendant is conscious that his act may injure another. Louisville & N.R. Co. v. Hadley , 11 Tenn. App. 642, 648 (Tenn. Ct. App. 1930).
With these standards in mind, the Court will now analyze whether Plaintiffs trespassed on ICR's right-of-way.
B. Analysis of Whether Plaintiffs Trespassed
Under Tennessee law, a trespasser enters another's property without actual or implied permission. See § 29-34-208(b) (defining "trespasser"). Thus, the first question is whether Defendant gave Plaintiffs express or implied permission to work near the tracks. The undisputed evidence shows that it did not. There is no dispute that ICR owned the right-of-way where Plaintiffs parked the trucks. (See ECF No. 182-1.) And "[a] railroad company has exclusive use and right of control over its right of way and may occupy and use it at any time against all persons." Harrison v. S. Ry. Co. , 31 Tenn.App. 377, 215 S.W.2d 31, 35 (1948).
The parties also agree that ICR provided written instructions to MLGW stating, "[a] flagman is required anytime a utility ... does any work on or near railroad property within twenty-five (25) feet horizontally of the centerline" of a track. (ECF No. 182-1 at PageID 1623; ECF No. 170-7; ECF No. 170-10.) In fact, the parties do not dispute that Plaintiff Shannon knew that MLGW employees have to contact the railroad and "obtain clearance" before starting work. (ECF No. 182-1 at PageID 1624 ("Plaintiff John Shannon had been aware since 2001 that MLGW had a rule that employees are required to contact the railroad before working near railroad tracks to ‘obtain clearance for us to be out there working.’ ").)
And MLGW dispatcher Farrell testified that the railroad did not give Plaintiffs clearance or permission to begin work without a flagman. (ECF No. 170-1 at PageID 1273–76.) Indeed, Farrell testified that he talked with Plaintiff Shannon on the phone and that Shannon claimed he was close enough to the railroad track "to reach out and touch it." (Id. ) In response, Farrell told Shannon he would get the railroad to send a flagman. (Id. ) Farrell then called ICR employee Tony Hardy, and they agreed that Plaintiffs needed a flagman. (Id. ) Hardy agreed he would send one. (Id. ) Based on the record, the Court finds no point in which an ICR employee gave Plaintiffs permission to begin work without a flagman.
Plaintiffs point out that Plaintiff Shannon claims Dispatcher Farrell gave him permission to begin repair work without a flagman. (ECF No. 170-4 at PageID 1348; ECF No. 182 at PageID 1616.) But Dispatcher Farrell does not work for Defendant ICR and could not give permission on behalf of ICR. He admits so himself. (ECF No. 170-1 at PageID 1276.) That Plaintiff Shannon and Dispatcher Farrell disagree over whether ICR gave permission is a dispute between MLGW employees—not between Plaintiffs and Defendant ICR. The Defendant here is ICR, not MLGW. And the record here does not dispute that ICR communicated to MLGW that a flagman had to be present before Plaintiffs began their work. This is clear from ICR's written directive (ECF No. 182-1 at PageID 1623), and the conversation between Hardy and Farrell (ECF No. 170-1 at PageID 1273–76).
And Plaintiffs put forth no evidence to show that Defendant ICR gave them the needed permission to begin working. (See ECF No. 182.) Again, Plaintiffs argue that Plaintiff Shannon believed he had permission. (Id. at PageID 1616.) But simply because one believes he has permission to be on another's property, does not make it so. "Trespass to real property does not require proof that a person entered property with the intent to commit trespass." 75 Am. Jur. 2d Trespass § 23 ; see City of Townsend v. Damico , No. E2013-01778-COA-R3-CV, 2014 WL 2194453 at *3 (Tenn. Ct. App. May 27, 2014).
Plaintiffs also try to analogize their position to that of a police officer going onto someone's property to ask about an investigation, despite "No Trespassing" signs. (ECF No. 182 at PageID 1615–16.) Plaintiffs argue that Plaintiff Shannon, "was no more a trespasser than a police officer would be who was on private property for a legitimate business reason." (Id. at PageID 1616.) If Plaintiffs argue that they were not trespassers because they had a job to do, the Court disagrees. Of course, MLGW and ICR had a relationship that allowed for the utility company to repair electrical lines located near a train track. (ECF No. 170-10.) And so, it follows that MLGW employees would have license to work near the tracks at times. But that relationship had explicitly defined parameters—MLGW could not repair lines without getting clearance or permission from ICR. (See id. ) To be sure, if Plaintiffs had waited on ICR's flagman before starting their work, they would have been on "legitimate business" and would have been licensees instead of trespassers. See Davenport , 1988 WL 7417, at *4 ("A licensee is a person who is privileged to enter or remain on land only by virtue of the possessor's consent.").
But that is not what happened. Instead, Plaintiffs started working before ICR's flagman arrived and without ICR's clearance.
Plaintiff argues that Farrell "passed on" permission to Shannon. Plaintiff maintains that, because Shannon testified that Farrell told him that he could begin work, there is a material fact in dispute. But ICR employee, Hardy, and MLGW employee, Farrell, both testified that Hardy said to wait for the flagman. In other words, as an employee of MLGW, Farrell was not in a place to "pass on" permission that he or MLGW did not have. See Lucas , 1992 WL 9027, at *3 (finding that summary judgment appropriate for Defendant truck company, where truck passenger failed to show that truck driver had authority to give passenger permission to ride). What is more, MLGW's position is that ICR did not, in fact, "pass on" permission. Even MLGW manager Brad Gates admits that Plaintiffs violated policy and were trespassing on the railroad by working without a flagman. (ECF No. 170-7 at PageID 1379, 1383.) And Plaintiffs fail to present evidence to show otherwise.
Given that the undisputed evidence shows that Defendant ICR did not give Plaintiffs permission to begin working near the tracks without a flagman present, Plaintiffs were trespassers when they parked the trucks beside the tracks and began the repairs.
C. Analysis of Whether ICR Was Wantonly or Willfully Negligent
For that reason, Defendant must prove only that it was not willfully or wantonly negligent in operating its train. See § 29-34-208(b). If so, ICR is not liable for any injuries that Plaintiffs sustained. See id.
Here, the record makes clear that Defendant was not willfully or wantonly negligent in operating its train. (ECF No. 169 at PageID 1242–46.) Defendant provides unrefuted evidence that it was operating its train at a normal rate of speed, at the normally scheduled time, and was properly using its flashing safety lights when the train approached the improperly parked trucks. (Id. at PageID 1239.)
To that end, Defendant hired expert Foster J. Peterson to prepare an investigative report about the accident. (ECF No. 170-2 at PageID 1288.) Peterson works as a Principal with Engineering Systems, Inc., has a mechanical engineering degree, and has worked in the railroad industry for more than twenty-five years. (Id. ) Peterson explained that ICR's lead locomotive had an event recorder, which captured the incident and the train's speed, horn, and braking functions. (Id. at PageID 1292.) Peterson testified that the train was going between 55–56 m.p.h. as the train approached the MLGW trucks; the train never exceeded 60 m.p.h.—the maximum allowable operating speed under federal law. (Id. ) The event recorder shows that the train operators started continually sounding the train's bell twenty-one seconds before the collision, and the train's headlights were on bright as the train approached the MLGW trucks. (Id. at PageID 1300.)
The train operators also started the emergency braking system. (Id. at PageID 1297.) Based on the video, the MLGW trucks had headlights that were visible only twenty-four seconds before the impact. (Id. ) But at that time, "there was insufficient information for the train crew to determine what the lights were related to and where they were." (Id. ) Peterson explained that even if the train operators had applied the emergency brake as soon as they saw those distant lights, the train would have still made impact with the trucks. (Id. ) Even still, the train operators applied the emergency brake only a few seconds after the MLGW lights were first visible. (See id. ) Peterson concluded his report stating, "[t]he fact that the MLGW crew fouled the track caused this collision." (Id. at PageID 1306.)
Given Peterson's expert report, Defendant has shown that it reacted to the MLGW trucks with as much care as the situation called for—the train operators maintained a lookout, sounded the bells and horns, had the train's headlights engaged, and applied the emergency brake as soon as practicable. (ECF No. 170-2.)
Plaintiffs do not offer any evidence or testimony to rebut that ICR did not wantonly and willfully operate its train negligently. (ECF No. 182.) Instead, they argue that under a reasonable duty of care, ICR's flagman should have telephoned Plaintiffs to let them know he was on his way to the repair site. (ECF No. 182.) But to be clear, Plaintiffs were trespassers, and ICR did not owe them a duty of reasonable care. Instead, ICR had only to refrain from willful or wanton negligence in operating its train. See § 29-34-208(b). Defendant has shown that it met its duty.
In the end, the Court finds that Plaintiffs fall under the definition of trespassers, and that Plaintiff cannot show that Defendant wantonly or willfully injured them. For this reason alone, the Court could grant Defendant's summary judgment motion. But there is more.
II. The Undisputed Facts Show that ICR Did Not Breach a Duty
Even if the Court were to assume that Plaintiffs were licensees or invitees instead of trespassers, the undisputed facts still show that Defendant did not breach a duty of reasonable care. See Lunsford v. K-VA-T Food Stores, Inc. , No. E2019-01272-COA-R3-CV, 2020 WL 1527002, at *3 (Tenn. Ct. App. Mar. 31, 2020) (stating, "premises liability cases present the owner or occupier of the premises with a duty to exercise reasonable care with regard to those legally on the premises." (internal alterations and quotation marks omitted)).
A. Failure to Warn Claims
For starters, Plaintiffs claim ICR was negligent for failing to warn them that the tracks were active where Plaintiffs were repairing the pole and for failing to prevent rail traffic. (ECF No. 1-1 at PageID 6.) And Plaintiffs claim that Defendant failed to provide a flagman for track protection. (Id. )
The undisputed testimony shows that these claims fail. Defendant provided written and verbal notice (through Hardy) that Plaintiffs needed a flagman before starting their work, because the track was active and because Plaintiffs were so close to the tracks. (See ECF No. 182-1 at PageID 1624.) Plaintiffs do not dispute that they knew they needed ICR's permission and that they knew the flagman policy. (See id. ) And under Tennessee law, a landowner "will not be held liable if the dangerous or defective condition is obvious, reasonably apparent, or as well known to the invitee as to the owner." McCormick v. Waters , 594 S.W.2d 385, 387 (Tenn. 1980). We know that Plaintiffs parked their trucks next to an active rail at night, even though they knew they were within twenty-five feet of the track. And under ICR's written directive, that constituted a situation requiring a flagman. (See ECF No. 182-1 at PageID 1623.) Such circumstances were obviously dangerous without the flagman.
Again, whether MLGW Dispatcher Farrell gave Shannon clearance to begin working is a dispute between MLGW representatives—not between Plaintiffs and Defendant. (See id. at PageID 1625–26.) Shannon's testimony that Farrell told him they could begin without a flagman does not create a genuine issue of material fact over whether ICR noticed them that a flagman was required. And Plaintiffs do not even attempt to rebut Defendant's arguments in their response. (See ECF No. 182.)
Instead, Plaintiffs claim that ICR should have sent a flagman from a location closer to the repair site. (Id. at PageID 1617–18.) But they provide no evidence that their suggestion was even a feasible option. (See id. ) And again, their argument does not dispute that ICR did in fact warn them that they needed a flagman and that ICR dispatched a flagman. (See ECF No. 182-1 at PageID 1623–25.) Given Farrell and Hardy's communications, there was no reason for ICR to believe that Plaintiffs would begin working without a flagman and thus be so near the tracks. (See id. at PageID 1624.) That the flagman had to travel to the worksite is not a sufficient argument to create a genuine dispute over whether ICR breached a duty of reasonable care. And Plaintiffs claim that ICR failed to clear the tracks so that they could safely work. (ECF No. 1-1.) But there is no dispute that ICR sent a flagman, who would have provided exactly this type of track protection—had Plaintiffs waited for him. (See ECF No. 182-2 at PageID 1625.)
The undisputed evidence shows that Plaintiffs’ failure to warn arguments fail.
B. Excessive Speed Claim
Plaintiffs also claim that ICR allowed the train to travel at an excessive speed. (ECF No. 1-1 at PageID 6.) This claim also fails, because Defendant ICR has shown that the train operators did not exceed the federally mandated speed limit. (ECF No. 170-2 at PageID 1292; see ECF No. 182-1 at PageID 1628.) Defendant included an expert report explaining that the train camera definitively showed that the train was not going over the allowable speed under the Federal Rail Safety Act ("FRSA"). (ECF No. 170-2 at PageID 1292.) And when a train travels below the FRSA mandated maximum, the FRSA preempts any state law claim based on excessive speed. Emery v. S. Ry. Co. , 866 S.W.2d 557, 560–61 (Tenn. Ct. App. 1993) (explaining how the FRSA preempts state law and stating "[s]ince [the train] was going below the federal train speed limit, any tort claim based on excessive speed is pre-empted by the FRSA.") Again, the record makes clear that Defendant's locomotive travelled at most 56 m.p.h. in a 60-m.p.h. zone. (ECF No. 170-2 at PageID 1292.) Thus, the FRSA preempts Plaintiffs’ excessive speed claim, because ICR's train did not speed under federal law. And Plaintiffs do not even attempt to argue otherwise. (See ECF No. 182.) Plaintiffs’ excessive speed claim fails as a matter of law.
C. Blue Signal Display Claim
Finally, Plaintiffs claim that ICR committed negligence per se by not using blue signals as required by 49 C.F.R. § 218.23. (ECF No. 1-1.) But that regulation requires that when a railroad worker services rolling equipment that the railroad display blue lights. 49 C.F.R. § 218.23 ; see 49 C.F.R. § 218.5 (defining "worker"). Here, the undisputed facts show that Plaintiffs were not railroad employees and were not servicing rolling equipment. (ECF No. 182-1 at PageID 1623 (describing Plaintiffs as MLGW employees who were sent to replace a damaged light pole).) And Plaintiffs again do nothing to refute this argument. (See ECF No. 182.) Their negligence per se claim fails.
In sum, the point here is that even if ICR owed Plaintiffs a duty of reasonable care (which it does not), the record does not create a genuine issue of material fact over whether Defendant breached that duty. So again, Defendant is entitled to summary judgment here.
III. Admissible Medical Expert Testimony
Finally, in its motion for summary judgment, Defendant argues that Plaintiffs do not have any admissible medical expert testimony required to prove causation. (ECF No. 169 at PageID 1248–51.) Defendant also filed a separate motion asking the Court to exclude testimony from Plaintiffs’ expert psychologist Megan Avery. (ECF No. 166.) And even though the Court has already found summary judgment appropriate here, the Court will still address Defendant's argument.
In short, Defendant contends that Plaintiffs’ only designated expert is Dr. Avery, who is a psychologist—but not a medical doctor. (ECF No. 167 at PageID 1072–73.) Defendant argues that under Tennessee law (which applies here), Plaintiffs must have a medical doctor to testify as to causation. (ECF No. 169 at PageID 1249–50.) Plaintiffs have not designated a medical doctor to testify about the cause of Plaintiffs’ alleged physical injuries. (Id. ) And so, Defendant argues that those claims fail, because Plaintiffs’ do not have the needed causation evidence. (Id. ) As for Plaintiffs’ psychological injuries, Defendant argues that the Court should exclude Dr. Avery's testimony about causation since she is not a medical doctor. (Id. at PageID 1250–51.)
Interestingly, Plaintiffs do not dispute that under Tennessee law they need a medical doctor to provide testimony as to causation. (ECF No. 175.) They argue, however, that Tennessee law does not apply here. (Id. ) They argue that the Federal Rules of Evidence apply, and that under Fed. R. Evid. 702 (" Rule 702"), Dr. Avery's testimony is admissible. (Id. ) But there is more to the analysis than that.
Earlier here, Plaintiffs moved for an order allowing them to designate Dr. Avery as an expert, after their deadline to do so had expired. (ECF No. 113.) In briefing that motion, Plaintiffs stated that "counsel knew that Plaintiffs would need a medical doctor to prove P.T.S.D. causation." (ECF No. 119.) But no medical doctors had treated Plaintiffs—only psychologists. (Id. ) And even though counsel searched for an expert psychiatrist, he was unable to find one. (Id. ) But Plaintiffs’ counsel then realized that "the interpretation of Rule 702 in the Sixth Circuit was not limited by any artificial restraints on psychologist opinion testimony such as exists under Tennessee law." (Id. ) In other words, Plaintiffs’ counsel concluded that Tennessee law does not govern here. But the bottom line is that Plaintiffs agree with Defendant that if Tennessee law does govern here, it requires a medical doctor to testify as to causation.
A. Applicable Evidentiary Rule
Under Fed. R. Evid. 601 (" Rule 601"), "in a civil case, state law governs a witness's competency regarding a claim or defense for which state law supplies the rule of decision." West v. United States , 502 F. Supp. 3d 1243, 1250 (M.D. Tenn. 2020) (citing Fed. R. Evid. 601 ). And Fed. R. Evid. 702 governs witness qualification. See Fed. R. Evid. 702. The Sixth Circuit has noted that the Supreme Court has not yet spoken about how Rules 601 and 702 interact with the Erie doctrine. Bock v. Univ. Of Tenn. Med. Grp., Inc. , 471 F. App'x 459, 461 (6th Cir. 2012). But the Sixth Circuit differentiates the two rules by using Rule 601 to determine competency , under whichever law supplies the rule of decision, and using Rule 702 to consider witness qualification using the Daubert standard and its successors. Id. Thus, the court goes through two separate inquiries to determine whether a witness is competent to testify. See id.
First, the Court considers witness competency under Rule 601, usually a substantive consideration under applicable state law. Id. (citing Legg v. Chopra , 286 F.3d 286, 291 (6th Cir. 2002) ). And second, the Court determines a witness's qualifications under Rule 702 and the Daubert rule, a "procedural" gatekeeping consideration and a question of "scientific qualification." See id. at 461–62 ; Legg , 286 F.3d at 291–92. As the Court set out in Legg , "if a witness is deemed competent to testify to the substantive issue in the case, such as the standard of care, his or her testimony should then be screened by Rule 702 to determine if it is otherwise admissible expert testimony." 286 F.3d at 291–92. And "[c]ompetency under Rule 601 is a necessary, but not a sufficient, condition for qualification under Rule 702." Bock , 471 F. App'x at 463. So the Court has to first find the witness competent under Rule 601 (which applies Tennessee law), and then conduct a witness qualification analysis under Rule 702 and Daubert. See id.
B. Analysis of Plaintiffs Expert Under Tennessee Law
Plaintiffs are suing Defendants for tort damages under Tennessee state law. (ECF No. 1 at PageID 3.) And under Tennessee law, the plaintiff must prove these elements for negligence claims: (1) duty, (2) breach, (3) damages, (4) cause-in-fact, (5) legal causation. Giggers v. Memphis Hous. Auth. , 277 S.W.3d 359, 364 (Tenn. 2009). Thus, because causation is one of the elements of the common law state negligence claim, it is a "rule of decision" here. See Fed. R. Evid. 601.
What is more, Plaintiffs even concede that a Tennessee statute supplies the rule of decision for the common law elements of negligence, causation, and damages. (ECF No. 175 at PageID 1528.) And so, as Rule 601 articulates, Tennessee state law controls whether this medical expert can testify on matters involving causation.
This leaves the Court to decide the next inquiry—does Tennessee law require Plaintiffs to have a medical doctor to testify as to causation? Both Plaintiffs and Defendant seem to agree that under Tennessee law Plaintiffs need a medical doctor to testify as to causation. (See ECF Nos. 119 & 167.) And for Plaintiffs’ physical injury claims, the Court agrees that Tennessee law clearly requires Plaintiffs to have a medical doctor to testify about causation. Thomas v. Aetna Life & Cas. Co. , 812 S.W.2d 278, 283 (Tenn. 1991) ; Brown v. Echols , 585 S.W.3d 424, 429 (Tenn. Ct. App. 2019). Plaintiffs have not designated a medical doctor to offer testimony about Plaintiffs Elliott and Leggett's alleged physical injuries. As a result, these Plaintiffs cannot prove causation an element for proving their negligence claim. Thus, the physical injury claims fail as a matter of law.
But what about Plaintiffs alleged psychological injuries? They have designated Dr. Megan Avery, a psychologist, to testify as to the cause of Plaintiffs’ psychological injuries. (ECF Nos. 163-2 &163-3; see ECF No. 175.) To be clear, she is not a medical doctor. (ECF No. 163-2.) And Defendant cites a line of cases explaining that "psychologists, who are not medical doctors, are not competent as a matter of law to offer opinion testimony on medical causation." (ECF No. 167 at PageID 1073. (listing cases).) The Court notes that these cases are all worker's compensation cases, so it is not clear that this rule applies outside the context of worker's compensation. (See id. ) Even so, the Court found this rule to at least apply to medical malpractice cases. See Cooper v. Memphis Area Med. Ctr. for Women, Inc. , No. 04-2806 MA/V, 2005 WL 5985551, at *3 (W.D. Tenn. Dec. 29, 2005) (finding that a psychologist could not testify about causation and injury permanence but could testify on other matters). Yet this Court recognizes that both worker's compensation and medical malpractice cases are specialized areas of law.
Even so, in Camper v. Minor , the Tennessee Supreme Court explained that a plaintiff claiming Negligent Infliction of Emotion Distress ("NIED") must support the claimed injury or impairment with "expert medical or scientific proof." 915 S.W.2d 437, 446 (Tenn. 1996). But Camper specifically addressed stand-alone claims for NIED. Est. of Amos v. Vanderbilt Univ. , 62 S.W.3d 133, 136–37 (Tenn. 2001). And even then, psychologists have since testified as "experts" in NIED cases. See Lingerfelt v. Barriere , No. 2:04-CV-245, 2007 WL 9734458, at *2–3 (E.D. Tenn. Mar. 13, 2007). That seems to signify that, in at least some contexts, courts will recognize a psychologist an expert qualified to testify about causation. The bottom line is that Tennessee law is not clear over whether a psychologist is an expert qualified to testify as to causation here.
In the end, Plaintiffs lack the needed expert testimony to pursue their physical injury claims any more. And there is doubt about whether their expert psychologist could testify about PTSD causation. But this Court need not decide that particular issue today, because summary judgment is appropriate given that the undisputed facts do not create a genuine issue.
CONCLUSION
To conclude, for the reasons stated above, the Court GRANTS Defendant's Motion for Summary Judgment.
SO ORDERED , this 15th day of September, 2021.