Opinion
Nos. 1:00-cv-133 (lead case), 1:00-cv-134, 1:00-cv-135, 1:00-cv-167, 1:00-cv-189.
November 27, 2002
MEMORANDUM
This case is before the Court on the motion of the defendants, CSX Transportation, Inc. ("CSX"), and Asplundh Tree Expert Co. ("Asplundh"), for summary judgment [Court File No. 69]. The plaintiffs allege, on behalf of themselves and their injured or deceased children, that the defendants negligently caused the collision at the Liberty Church Road railway crossing in Conasauga, Tennessee, on March 28, 2000. Because the plaintiffs are all citizens of Georgia, CSX is a Virginia corporation, Asplundh is a Pennsylvania corporation, and the amount in controversy exceeds $75,000, this Court has jurisdiction pursuant to 28 U.S.C. § 1332. The defendants' motion for summary judgment will be GRANTED.
I. Standard of Review
Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c). In ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); National Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To refute such a showing, the non-moving party must present some significant, probative evidence indicating the necessity of a trial for resolving a material factual dispute. Celotex Corp., 477 U.S. at 322. A mere scintilla of evidence is not enough. Anderson, 477 U.S. at 252; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The Court's role is limited to determining whether the case contains sufficient evidence from which a jury could reasonably find for the non-moving party. Anderson, 477 U.S. at 248, 249; National Satellite Sports, 253 F.3d at 907.
II. Facts
This case arises out of a tragic collision between a school bus from the Murray County, Georgia, School District and a CSX freight train at the Liberty Church Road railway crossing in Conasauga, Tennessee. The collision occurred at approximately 6:40 a.m. on March 28, 2000. Rhonda Cloer was driving her daily bus route with seven children on board as she proceeded west on Liberty Church Road. At the same time, a southbound CXS train was approaching the crossing. The train consisted of a locomotive and thirty-three train cars loaded with automobiles. The train personnel included an engineer, Roger C. Farley, and a conductor, Kendrick B. Perry, both traveling in the locomotive.
A National Transportation Safety Board ("NTSB") Highway Accident Report states that, on the date in question, the weather was clear with light winds and sunrise occurred at 6:33 a.m. The NTSB noted that the sun did not obstruct the driver's view because she was traveling west and the train was heading south.
The intersection of Liberty Church Road and the tracks was marked by a railroad crossing sign ("crossbucks"), placed there by the Tennessee Department of Transportation ("TDOT") in conjunction with a funding program operated by the Federal Highway Administration. Traveling west, Liberty Church Road approaches the crossing on a downhill grade, but levels and is a flat surface crossing the tracks. Two additional signs appear as a driver approaches the crossing: first, a circular sign warning of a railroad crossing; next, a diamond shaped sign that stated "limited sight distance" with a small "10 MPH" sign attached. A view of the crossing is attached as Appendix No. 1. The tracks that cross Liberty Church Road at the sight of the collision are rated as Class 4 for the purpose of establishing the maximum operating speed of 60 miles per hour.
The Court relies on the NTSB Highway Accident Report [Court File No. 69 P] statement of the wording of the diamond shaped sign, because the photographs showing this sign are taken from a distance such that the wording is not legible in the photograph.
The train approached the intersection at a speed of 51 miles per hour. The train's throttle was in its highest position because the train was ascending a hill. The train's lights were on. As the train reached the whistle post, the engineer began to blow a cadence on his horn. The typical cadence blown by Roger Farley is two long blows, a short blow, and a long blow. As the train approached the intersection, the engineer saw a school bus also approaching the intersection. Mr. Farley watched for signs that the school bus would stop before the railway crossing to look for trains. When he realized that the school bus would not stop, he applied the train's emergency braking system. At this moment, he was blowing the second long blow of the cadence on his horn. In order to give the bus driver every opportunity to hear him, he abandoned the cadence and blew the horn continuously. The NTSB Highway Accident Report noted that in a test following the collision, the train's horn exceeded the federal requirement of 96 decibels when measured 100 feet ahead of the locomotive.
The school bus approached the crossing, did not stop, and proceeded onto the tracks traveling at a speed of approximately 15 miles per hour. The train hit the bus at a point just in front of the bus's rear axle, pushed the bus until the body of the bus (now separated from the chassis) pivoted off the front of the train and came to rest 192 feet west-southwest of the center of the crossing. The locomotive came to a stop approximately 1,990 feet beyond the crossing.
Of the seven children traveling on the bus, three died in the collision, three were seriously injured, and one received minor injuries. Two of the deceased children, Kayla Silvers and Daniel Pack, as well as three of the four injured children, Brittney A. Gaddis, Jordan Jace Manis, and Kevin Sherrill, are represented as plaintiffs in this action.
Following the collision, investigators were able to retrieve the bus video recorder. The purpose of such recorders is to monitor the behavior of the children on the bus. The videotape recovered is not of a high quality; however, the viewer is able to see most of the passenger area of the bus and observe the motion of the bus by watching the rate at which the landscape passes outside the windows. The video shows that the bus did not stop between the last time children were picked up and the collision. Specifically, the bus did not stop prior to crossing the train tracks. On the video country music is audible for the duration of the bus ride.
The day after the collision, CSX sent a photographer to the site of the collision to document the view of the tracks that the driver would have had as she approached the railroad crossing. The photographer took pictures from the road, at a point 25 feet from the near rail of the tracks with a train approaching. Photographs were also taken two days later showing a driver's view from a bus, identical to the one in the collision, stopped with the front bumper 15 feet from with near rail with the bus doors open and with the front bumper 35 feet from the near rail with the bus doors closed. The train appears at a distance of 200, 300, and 500 feet. The relevant photographs taken on March 31, 2000, are attached to this memorandum as Appendix No. 2.
III. Analysis A. Preemption by Federal Law
In 1970, the Federal Railroad Safety Act ("FSRA") was enacted to authorize the Secretary of Transportation to promulgate regulations regarding railroad safety. 49 U.S.C. § 20103(a). The FSRA contains a 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. A State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety when the law, regulation, or order — (1) is necessary to eliminate or reduce an essentially local safety hazard; (2) is not incompatible with a law, regulation, or order of the United States Government; and (3) does not unreasonably burden interstate commerce.
Section 20106. Several years later, Congress enacted the Highway Safety Act of 1973 which created the Federal Railway-Highway Crossings Program. See 23 U.S.C. § 130. Through the Federal Highway Administration ("FHWA"), the Secretary of Transportation has promulgated additional regulations regarding the warning signals at crossings.
The defendants assert that the negligence claims based on the signalization at the crossing, the speed of the train, and the vegetation at the crossing are preempted by federal law. The plaintiffs acknowledge that recent Supreme Court decisions have held that claims based on the speed of the train and the signalization are preempted, but argue that claims for negligence based on vegetation at the crossing are not preempted [Court File No. 76]. See, e.g., Norfolk Southern Ry. Co. v. Shanklin, 529 U.S. 344 (2000), and CSX Transp., Inc. v. Easterwood, 507 U.S. 658 (1993).
The plaintiffs do not challenge any of the facts that establish the preemption for the warning signal or the speed claims. The defendant has established, through the affidavit of a transportation manager for TDOT, that the signs warning of a railroad crossing were placed under a program funded by the federal government and that a FHWA inspection of the site was conducted after the signs were placed [Court File No. 69 I]. Funding through this program has been held by the Supreme Court to be grounds for preemption of state law tort claims regarding the adequacy of warning devices at a railway crossing. Shanklin, 529 U.S. at 357. The preemption is based on the regulations found in 23 C.F.R. § 646.214(b)(3) and (4) which address the adequacy of crossing warning devices. This regulation was promulgated under Federal Railway-Highway Crossing Program established by 23 U.S.C. § 130.
The defendant has also established by affidavit that the track in question was designated as a "Class 4" track for which 49 C.F.R. § 213.9(a) sets the freight train speed limit of 60 miles per hour. The event recorder for the train reveals that the train was traveling at a speed of 51 miles per hour at the time of the collision [Court File No. 69 K]. The plaintiff has not shown any facts that suggest the track in question was not a Class 4 track or that the speed of the train was not correctly reported by the event recorder. The Supreme Court has held that federal regulations establishing speed limits for track classes preempt state law claims of negligence based on the operating speed of a train when the train's speed is within those limits. See, Easterwood, 507 U.S. at 673.
The plaintiffs claim that vegetation growing on the railroad's right-of-way created a limited sight distance at the crossing and that failure to maintain the right-of-way supports a state law negligence claim. The defendants contend that any claim regarding limited sight distance due to vegetation is preempted by federal regulation. The defendants point to 49 C.F.R. § 213.37, which addresses vegetation on or immediately adjacent to the roadbed, as the source of the preemption. The regulation provides that vegetation:
on or immediately adjacent to roadbed shall be controlled so that it does not —
(a) Become a fire hazard to track-carrying structures;
(b) Obstruct visibility of railroad signs and signals:
(1) Alongthe right-of-way, and
(2) At highway-rail crossings; . . .
(c) Interfere with railroad employees performing normal trackside duties;
(d) Prevent proper function of signal and communications lines; or
(e) Prevent railroad employees from visually inspecting moving equipment from their normal duty stations.49 C.F.R. § 213.37 (2001).
This federal regulation, however, only partially preempts the plaintiffs' claims. Faced with a similar question of preemption for negligence claims based on vegetation near a crossing, the United States Courts of Appeals for the Fifth and Eleventh Circuits have found that all land within the right-of-way of the railroad is not necessarily within the area "immediately adjacent to the roadbed." Missouri Pacific R.R. Co. v. Railroad Comm'n of Texas, 833 F.2d 570, 577 (5th Cir. 1987); Easterwood v. CSX Transp., Inc., 933 F.2d 1548, 1555 (1991), affirmed 507 U.S. 658 (1993). Because the "federal regulation does not `cover the subject matter' of vegetation that is on the right-of-way but not immediately next to the roadbed," a state tort law claim may be maintained regarding vegetation that is not immediately adjacent to the roadbed. Missouri Pacific R.R. Co., 833 F.2d at 577. Thus, while the plaintiffs' negligence claims based on warning signals and the speed of the train are preempted by federal law, to the extent that the plaintiffs claim the defendants negligently failed to remove vegetation not immediately adjacent to the roadbed, but in the right-of-way, and that the vegetation obstructed the bus driver's view at the Liberty Church Road railway crossing, the claim is not preempted by federal law.
B. Tennessee Central Railway Co. v. Hayes
The defendants state that an obstruction of visibility at the railway crossing cannot stand as an independent ground for tort recovery under Tennessee law. The defendants rely on a 1928 decision of the Court of Appeals of Tennessee. See Tennessee Central Ry. Co. v. Hayes, 9 Tenn. App. 116 (Tenn.Ct.App. 1928). Hayes involved a collision between an automobile and a train at a crossing where the automobile driver's view of the tracks was obstructed by box cars and buildings. The Hayes court held that "obstructions to vision are not an independent ground of recovery . . . but they must be considered upon the question of the proper degree of care and vigilance which the railroad company is bound to exercise in the running and management of its train and in giving warnings of its approach." Id. at 122. Hayes has been cited as recently as 1991 by the United States District Court for the Eastern District of Tennessee and remains good law. See John R. Dycus v. C.E. Miller, No. 3-91-0341 Memorandum Opinion (E.D. Tenn. Nov. 25, 1991).
The plaintiffs' response to the defendants' motion for summary judgment relies solely on the presence of vegetation on the railroad right-of-way to argue the claim of negligence. The plaintiffs also have not offered any arguments, in response to the defendants' motion for summary judgment, suggestive of negligence under any other theory.
In their arguments that Hayes does not apply to prevent recovery on a negligence claim based solely on obstruction of sight distance at the crossing, the plaintiffs rely on the language of TENN. CODE ANN. § 65-11-101(a) and an argument that the application of the holding in Hayes would offend modern notions of Tennessee negligence law [Court File No. 76]. Section 65-11-101(a) states that: "all persons, or corporations, owning or operating a railroad in this state, are required to make and furnish good and sufficient crossing on the public highways crossed by them and keep such crossings in lawful repair at their own expense."
The plaintiffs' reliance on this statute is misplaced. The statute, on its face, does not refer to the sight distance at such crossings, nor does it appear to refer to any area other than the intersection of the road and the tracks. To the extent that the code section could be read as applying to limited sight distance at the railway tracks caused by vegetation, its application would be preempted for the area immediately adjacent to the railroad tracks because this area is covered by the regulations found in 49 C.F.R. § 213.37. The language of the statute would be severely stretched to apply to the area that was not the actual crossing and could not be considered to be immediately adjacent to the crossing. The Court also sees no reason to reevaluate the decision in Hayes in light of "modern notions" of tort liability because even absent the application of the Hayes holding, the plaintiffs' prima facie negligence claim fails.
C. Prima Facie Case for a Negligence Claim
To bring a negligence claim, Tennessee law requires that the plaintiff establish the following elements: "1) a duty of care owed by the defendant to the plaintiff; 2) conduct by the defendant falling below the applicable standard of care that amounts to a breach of that duty, 3) an injury or loss; 4) causation in fact; and 5) proximate, or legal, causation." Staples v. CBL Associates, Inc., 15 S.W.3d 83, 89 (Tenn. 2000). The defendants argue that Hayes prevents the Court from finding the railroad had a duty regarding sight distance that would support a cause of action absent any other negligent acts. However, even if the Court assumes the railroad has a duty to remove vegetation at crossings that grows on the right-of-way, but not immediately adjacent to the roadbed, the plaintiffs' negligence claim fails because in this case vegetation was neither the cause in fact, nor the proximate cause of the collision, and any duty to remove vegetation was not breached.
School buses drivers are required to stop the bus between 50 feet and 15 feet from the near rail of the tracks at a railroad crossing and must look and listen in both directions for an approaching train under both Tennessee and Georgia law. TENN. CODE ANN. § 55-8-147 (1998); GA. CODE ANN. § 40-6-142 (2001). Photographs were taken three days after the collision from the vantage point of a school bus driver in a bus identical to the one in the collision. The photographs show the view of a driver stopped with the front bumper of the bus 15 feet from the near rail of the tracks with the bus door open and the view with the front bumper of the bus 35 feet from the near rail of the tracks and the bus door closed. From both positions, the train was clearly visible 500 feet before the crossing. The photographs show that from 35 feet before the crossing with the door closed, the bus driver can see the train engine and three cars which demonstrates that the visibility was actually much greater than 500 feet. The NTSB highway accident report calculated that the distance at which the bus driver would first be able to see the train is 1,268 feet before the crossing if the bus was stopped 15 feet from the crossing [Court File No. 69 P]. The NTSB further calculated that a school bus stopped 15 feet from the crossings would need a sight distance of 960 feet to safely cross the tracks [Court File No. 69 P]. This suggests that if the defendants had a duty to remove vegetation not immediately adjacent to the roadbed, that duty was not breached. Simply put, vegetation did not block the bus driver's view of the approaching train.
Photographs of a train approaching the crossing were taken both on March 29, 2000 (the day after the collision) and March 31, 2002. The photos taken on March 31 are taken from the vantage point of a bus driver and are included in Appendix 2. Comparison of the two groups of photographs show no change to vegetation between the day after the collision and the third day after the collision.
The sight distance at the crossing remains, however, somewhat irrelevant because the driver did not stop, as required by law, prior to passing onto the railroad crossing. To find liability under a theory of negligence, the plaintiff must demonstrate both causation in fact and proximate causation. See Staples, 15 S.W.3d at 89. "Causation refers to the cause and effect relationship between the tortious conduct and the injury." Ridings v. Ralph M. Parsons Co. 914 S.W.2d 79, 83 (Tenn. 1996). Conduct constitutes a proximate cause of an injury under Tennessee law if "(1) the tortfeasor's conduct must have been a "substantial factor" in bringing about the harm being complained of; and (2) there is no rule or policy that should relieve the wrongdoer from liability because of the manner in which the negligence has resulted in the harm; and (3) the harm giving rise to the action could have reasonably been foreseen or anticipated by a person of ordinary intelligence and prudence." McClenahan v. Cooley, 806 S.W.2d 767, 775 (Tenn. 1991).
Approaching the Liberty Church Road railway crossing, a driver sees first a circular sign warning of a railroad crossing, next a diamond shaped sign that stated "limited sight distance" with an attached small "10 MPH" sign, and finally, the traditional crossbucks sign at the crossing. The videotape recovered from the school bus clearly shows that the bus never stopped prior to the impact. It is also clear from the videotape that the driver did not listen for a train because she did not even turn down a radio which was playing country music. The conclusion that the school bus did not stop at the crossing prior to the collision was also reached by the NTSB Highway Accident Report [Court File No. 69 P]. The NTSB further calculated from the videotape that the speed of the bus crossing the railroad tracks was 15 miles per hour and that the radio contributed to the bus driver not being able to hear the approaching train [Court File No. 69 P]. In order for the defendants to be the cause in fact and proximate cause of the injury, plaintiffs must here be able to offer some connection between the presence of vegetation and the occurrence of the collision. To achieve even an inference that the elements of causation were satisfied, the plaintiffs would need to show that Rhonda Cloer looked and listened for a train and that the vegetation obstructed her view.
The plaintiffs do not offer proof that contradicts the bus videotape showing that the bus failed to stop prior to proceeding onto the railway crossing. The plaintiffs argue instead that Tennessee law allows that multiple factors can be the actual and proximate cause of a plaintiffs injuries. See Carroll v. Whitney, 29 S.W.3d 14, 20-21 (Tenn. 2000). Among the documents submitted in support of the plaintiffs claim that the railroad was negligent in failing to remove the vegetation that was not immediately adjacent to the road`bed, but still within the right-of-way of the train, are the affidavits of a consulting engineer and the train conductor. The consulting engineer identified a number of factors as contributing to the collision and states that the time for the bus driver to react would have been increased if the vegetation had been cleared for 425 feet in either direction from the crossing and the "likelihood of the collision occurring would have been dramatically reduced" [Court File No. 76 C]. The consulting engineer also states, however, that "had the school bus driver stopped for the grade crossing with the front of the bus about 15 ft from the centerline of the tracks, the collision probably would not have occurred." The plaintiffs also produce the deposition of the train conductor who also maintains a lawsuit against CSX based on vegetation at the Liberty Church Road crossing. Kendrick Perry's testimony states, however, that when he saw the bus, the train horn was blowing and the bus was traveling in the direction of the crossing. Perry's testimony simply confirms that the bus was visible from the train (and likely the train from the bus) at a point before it reached the crossing. The testimony of the consulting engineer and Perry raise no genuine issues of material fact with regard to causation, either cause in fact or proximate cause, because each identifies the bus driver's failure to stop as a cause of the collision, and neither suggests that she actually looked for a train, but was prevented from seeing it due to vegetation.
D. Plaintiffs' Rule 56(f) Request
The plaintiffs have argued that the Court should use its discretion to delay ruling on defendants' motion for summary judgement as permitted by FED.R.CIV.P. 56(f) until such time as the testimony of Rhonda Cloer, the school bus driver, becomes available. Rule 56(f) provides:
(f) When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing . . . [summary judgment] that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
Rhonda Cloer is not a party to this case. The plaintiffs submit an affidavit stating that due to her involvement in proceedings in Tennessee's criminal courts, Rhonda Cloer asserts her Fifth Amendment privilege against self-incrimination in response to inquiries regarding her availability for a deposition in this case.
Based on the evidence in the record, the Court has found no genuine issue of material fact regarding whether Rhonda Cloer stopped the school bus or turned off the bus radio to listen for a train at the crossing as required by state law. The videotape clearly shows that Rhonda Cloer did not stop the school bus before crossing the tracks. The photographs show that Rhonda Cloer would have seen the train had she stopped the bus before the crossing and looked down the tracks. The deposition testimony of Rhonda Cloer, therefore, could not create a genuine issue of material fact as to these issues. The Court finds that further discovery is not necessary for the determination of the summary judgment motion. See Good v. Ohio Edison Co., 149 F.3d 413, 422 (6th Cir. 1998) (finding no error in denial of Rule 56(f) request for discovery where discovery would not affect resolution of legal issue on summary judgment); DeGrassi v. City of Glendora, 207 F.3d 636, 643 (9th Cir. 2000) (same).
IV. Conclusion
For the reasons stated above, the defendants' motion for summary judgment [Court File No. 69] will be GRANTED. The defendants will be awarded costs. An order will enter.
JUDGMENT
In accordance with the accompanying memorandum, it is hereby ORDERED that the defendants' motion for summary judgment [Court File No. 69] is GRANTED. Plaintiffs' claims are DISMISSED WITH PREJUDICE.
All claims having been finally adjudicated, the Clerk of Court shall close the record in this case. Costs are awarded to the defendants.