recognizing that “self-serving and, to an extent, conclusional” attestations may support a denial of summary judgment where such evidence proffers “potential explanations, based on their personal observations” and other specific facts
How later courts described this case
- recognizing that “self-serving and, to an extent, conclusional” attestations may support a denial of summary judgment where such evidence proffers “potential explanations, based on their personal observations” and other specific facts
- explaining that once there exists “reasonable indication of qualifications,” those qualifications then “become an issue for the trier of fact rather than for the court in its gate- keeping capacity”
- concluding “the non-moving party may not rest on the mere allegations or denials of its pleadings, but must respond by setting forth specific facts indicating a genuine issue for trial”
- noting that courts interpreting federal statutes pertaining to subjects traditionally governed by state law are reluctant to find preemption and that "state common law traditionally 17 governs nuisances"
Written by the judges who cited it.
Later courts went against this
Superseded by statute, as recognized in Mathis v. Exxon Corporation
185 F.3d 496, 507 (5th Cir. 1999), superseded by statute on other grounds. The Supreme Court in Kumho, 526 U.S. at 148–49, 156, and Daubert, 509 U.S. at 592
The opinion
KING, Chief Judge,
concurring in part and dissenting in part:
While I concur in much of the majority opinion, I disagree on some crucial points. First, I cannot conclude that the Rushings’ testimony that the noises emanating from KCS’s railyard on the night that Seide-mann took his measurements were substantially quieter than the sounds they typically endure raises a genuine issue of fact as to KCS’s compliance with the federal regulations. The Noise Control Act of 1972 provides:
[Ajfter the effective date of a regulation under this section applicable to noise emissions resulting from the operation of any equipment or facility of a surface carrier engaged in interstate commerce by railroad, no State or political subdivision thereof may adopt or enforce any standard applicable to noise emissions resulting from the operation of the same equipment or facility of such carrier unless such standard is identical to a standard applicable to noise emissions resulting from such operation prescribed by any regulation under this section.
42 U.S.C. § 4916 (c)(1). The federal regulations promulgated under this statute set out permissible sound emission levels as measured from properties affected by noise from railyard operations. See 40 C.F.R. § 201.11 (standard for locomotive operation under stationary conditions); id. § 201.12 (standard for locomotive operation under moving conditions); id. § 201.13 (standard for rail car operations); id. § 201.14 (standard for retarders); id. § 201.15 (standard for car coupling operations); id. § 201.16 (standard for locomotive load cell test stands). The regulations also specify measurement criteria that “contain the necessary parameters and procedures for the measurement of the noise emission levels prescribed .... ” Id. § 201.20; see id. §§ 201.21-.27. Thus, sound emission levels within the limits set out in the regulations, as measured in accordance with the procedures prescribed thereby, comply with federal law. Under the Noise Control Act, a state may not adopt or enforce a different standard for noise emissions. See 42 U.S.C. § 4916 (c)(1).
In this case, it is undisputed that Seide-mann complied with the federal regulations in taking his measurements and that the measurements showed sound levels well within the limits prescribed by the regulations. While the Rushings insist that the noises emanating from the switch-yard during the night that Seidemann took his measurements were not representative of the conditions in which they usually live, the regulations do not require that the sound emission measured be “typical,” whatever that may mean. They do specify certain instruments, locations, lengths of *519 time, and weather conditions for measurement. I cannot imagine that compliance with the Noise Control Act and its regulations requires that a railroad go beyond the dictates of those documents to ensure that measurements are “representative” or “typical.” Such a rule would run directly counter to the Act’s prohibition on any standards for railroad noise emissions that are not identical to those in the regulations. Indeed, the majority’s reasoning guts the preemptive effect of the federal regulations: No matter what sound emission measurements show, a plaintiff will be able to obtain a trial on her nuisance claim simply by claiming that the noises measured were not typical. Therefore, I do not believe that the Rushings’ testimony suffices to raise a genuine issue of fact as to KCS’s compliance with the Act and the regulations. I would hold that, insofar as it is based on noise, the Rushings’ nuisance claim is preempted.
Subject to the discussion below, I agree with the majority that federal law does not preempt the Rushings’ nuisance suit insofar as it is based on vibrations, shocks, and excessive train whistling. In my view, however, the viability of these claims depends on whether the railyard’s activities are public acts exempted from private nuisance suits. I cannot join the majority’s characterization of KCS’s argument in this regard as lacking in merit. Two decisions of the Mississippi Supreme Court, Robertson and Dean, are central. In Robertson v. New Orleans & G.N.R. Co., 158 Miss. 24 , 129 So. 100 (1930), the plaintiff filed a nuisance suit alleging that the defendant railroad had “erected and constructed and is now maintaining certain railroad tracks, including six private switch tracks, each about one mile in length, yards, railroad work shops, wye, terminals, a place for refueling, firing and watering, and a place for the switching, storing and cleaning of engines, coaches and cars” that produced excessive noise, vibrations, and filth. Id. at 101 . The lower court dismissed the suit. See id. at 102 . The Mississippi Supreme Court ruled:
A railroad serves both the public and itself. As to all those functions which are exercised in the direct or immediate service of the public in the carrying of passengers and in the transportation and handling of freight, these are public, and, so long as exercised without negligence and in the customary manner with appropriate instrumentalities, are within the protection of the public franchise granted to that end. But all those permanent features of the service which appertain merely to the means of the supply of those instrumentalities, and in keeping them in order and making them available for said direct service, they belong to the private part, and, although incidental, are not things with which the public is directly concerned; they are things which the railroad manages for its own interest ....
The result is that for the normal operations, however heavy this may be between station and station, or from station to a local shipping or loading point, or point of unloading, and whatever the number of tracks or trains, including all station or interstation switching, there is no liability for consequential damages. But, to quote the language of the Dean Case [Dean v. Southern Ry. Co., 112 Miss. 333 , 73 So. 55 (1916) ], the railroad “cannot locate its machine shops, roundhouses, coal chutes, water tanks, or private stvitchyards ” and those other permanent things which belong to its private concerns “near or adjacent to private property under such circumstances as to create a private nuisance and thereby depreciate or damage private property.” The pleadings make in part, therefore, a case which falls within this rule, and the cause should not have been luholly dismissed.
Id. at 102. Contrary to the majority’s assertion, Robertson neither holds that a railroad may be liable for “the placement of a switchyard near private property so as to create a nuisance” nor “allows a nuisance action complaining of noise and vi *520 brations from a railroad’s switchyard that had been constructed next to the plaintiffs home to proceed.” Rather, Robertson permits nuisance suits against private switch-yards. Moreover, while the Robertson court held that not all of the plaintiffs’ case should have been dismissed, it clearly viewed the lower court’s dismissal as partially correct, and it did not specify which railroad facilities among the many the plaintiffs named could give rise to nuisance liability.-
Like Robertson, Dean provides some guidance as to the public function-private function distinction but does not ultimately control the case at bar. In Dean, the plaintiff filed a nuisance suit alleging excessive noise from a spur track near his home that ran from the railroad’s main line to a cotton compress. See Dean, 73 So. at 56 . The Mississippi Supreme Court noted that
[pjlaintiff does not complain of private switchyards installed by the railroad company. The spur track here complained of is a service track, made necessary for the depositing and taking aboard of large quantities of cotton handled by a large compress — the legitimate railroad business required by a legitimate compress business. There is no contention by appellant that this service track is unnecessary, or that there is any negligence by the railroad company, either in the selection of its engines and cars or in the way they are handled and switched at this point. The compress company had the right to call for the installation of this service track, and, if the railroad company should decline to install or furnish it, it could be compelled to do so by the Railroad Commission. The business done over this spur track therefore is the same character of business done at the regular freight depots. The spur track was installed to serve the public generally, and the act of installation must be characterized as a public and not a private act of the railway company. The noise produced by the defendant’s trains over and upon this spur track falls in the same class as the noise produced by the operation of trains over the main line of railway.
Id. at 56. Later, the court distinguished “machine shops, roundhouses, coal chutes, water tanks, or private switchyards,” whose activities can give rise to nuisance liability, on the grounds that “[i]n the placing or construction of these conveniences the railroad company has the power of selection .... But in the installation of a spur track like the one here complained of the railroad company has no option. It must afford the service, and in doing so it is serving the public generally.” Id. at 56-57.
KCS argues that under the principles enunciated in Dean and Robertson , the switchyard at issue in this case cannot give rise to nuisance liability. KCS contends that its railyard, like Dean’s spur track, is a public necessity, not a convenience: “[T]he rail yard, which includes the KCS main line, is a hub of interstate commerce used to sequence and build up trains to be sent to different destinations. The beneficiaries are the public in general that transport loads over KCS’s interstate line, a function that would not be possible without the yard.” In support of this assertion, KCS cites the affidavit of Andy Martin, the railyard’s trainmaster, who averred that the yard “consists of several switching tracks, which run off of the main line” and “is in essence an interstation switching point, or hub, wherein trains drop off and pickup railcars and deliver them to various locations in the country.” In my view, KCS’s argument that the railyard performs public functions is not frivolous. The district court did not address its merits, 1 however, and because I think that the *521 district court is better suited than the court of appeals to make a first determination of whether the activities taking place at the yard in question were public functions, I would remand for such findings.
Accordingly, I would AFFIRM the district court’s holding that federal law preempts the Rushings’ nuisance claim insofar as it complains of excessive noise other than train whistling, and I respectfully dissent from the majority’s decision to reverse on this portion of the Rushings’ claim. I would REVERSE AND REMAND the district court’s ruling on the vibration and train whistling issues with instructions to (1) decide whether the rail-yard’s activities are public acts exempt from private nuisance suits under Mississippi law; (2) dismiss the lawsuit if it finds that the railyard’s activities are, in fact, public acts; and (3) address the vibration and train whistling claims in light of our unanimous conclusion that these are not preempted by federal law if it finds that the railyard’s activities are private acts. 2 Accordingly, while I concur in the majority’s decision to reverse and remand on these issues, I differ strongly with the majority’s rationale for so doing.
. In its August 26, 1998 Opinion and Order on the Rushings’ Second Motion to Supplement Response to Motion for Summary Judgment and Motion to Reconsider and Reverse the Court's Opinion and Order Filed July 29, 1998, the district court said: “In granting *521 Defendant's Motion for Summaty Judgment on July 29, this court found that (1) Plaintiffs’ allegations are preempted by the Noise Control Act of 1972, 42 U.S.C. § 4916 and (2) the switching activities at the rail yard are in the public interest and cannot be the subject of a claim for private nuisance.” The July 29, 1998 Opinion and Order does not, however, so find; it merely recognizes that KCS claimed that it was entitled to summary judgment because “the switching activities conducted at the rail yard are in the public inter-esl and cannot be the subject of a claim for private nuisance.” Like the majority, I read the district court’s August 1998 statement as a mischaracterization of its earlier opinion and conclude that it did not, in fact, address the merits of KCS’s argument that its switching activities are public functions.
. I have no quarrel with the majority's evi-dentiary and procedural holdings.