Opposition Brief — Norfolk Southern R. Co. v. Shanklin

No. 99-312 toon Ok TE GLERK

In The

Supreme Court of the United States

°

NORFOLK SOUTHERN RAILWAY COMPANY,

Petitioner,

DEDRA SHANKLIN, Individually and as

Next Friend of Jessie Guy Shanklin,

Respondent.

—-—___—_ —— -- ¢ ——_______—_-

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

¢ —---—_--——_

BRIEF FOR RESPONDENT IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

.

PAMELA R. O’Dwyer*

Paty, Rymer & Utuin, P.C.

19 Patten Parkway

Chattanooga, TN 37402

(423) 756-6770

Counsel for Respondent

*Counsel of Record

September 17, 1999

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether the court of appeals properly applied this

Court’s decision in CSX Transp., Inc. v. Easterwood, 507

U.S. 658 (1993), when it held that claims of negligence

based on inadequate warning devices installed at a rail-

highway grade crossing are not preempted solely because

the warning devices at the crossing were paid for with

federal funds.

il

TABLE OF CONTENTS

Page

QUESTION PRESENTE. ...cccosvcconssdususaueens i

TABLE OF AUTROOREEEES oo ccccccsccsveneuabesenes iii

STATEMENT OF THER CAGE... ccccocvcccsscnccnen 1

1. Statutory and Regulatory Background........ 2

2. Sentemnent of Facts ....cscvcosissbesssaswacuen 4

REASONS FOR DENYING THE WRIT............. 6

A. Under the specific facts of this case, the deci-

sion by the Sixth Circuit does not conflict with

Easterwood or the decisions in other courts... 6

B. This case is a poof vehicle for deciding any

unresolved post-Easterwood preemption ques-

tions because the petitioner’s liability hinges

only in small part on the matters claimed to be

a SEPT 8

ee ee ss Perrier 9

TABLE OF AUTHORITIES

Page

Cases

Armijo v. Atchison, Topeka & Santa Fe Ry. Co., 87

rt PE cccccscccccoccesesccecees 7

Bock v. St. Louis Southwestern Ry. Co., No. 97-4076,

1999 WL, 437240 (8th Cir. June 30, 1999)...... 7, 8,9

Bryan v. Norfolk & W. Ry. Co., 154 F.3d 899 (8th Cir.

1998), cert. dismissed, 119 S. Ct. 921 (1999) ........ 7

CSX Transp., Inc. v. Easterwood, 507 U.S. 658 (1993)

SUPP EREEREEENSESSECEEECSCEbcoecceccceceeceenes 1, 6, 7, 8

Elrod v. Burlington N. R.R. Co, 68 F.3d 241 (8th Cir,

EEE ELSE SPP E TT TE TT TTT TTETTETETTTTTe 7,8

Hester v. CSX Transp., Inc., 61 F.3d 382 (5th Cir.

NC ckt ee eedeenenversdecceeoncccccesce]ses 7

Ingram v. CSX Transp., Inc., 146 F.3d 858 (11th Cir.

SUPERP RCERRSSSESGeCEEOCCecccecceecocceseeceees 7

Lubben v. Chicago Cent. & Pac. R.R. Co., 563 N.W.2d

OEE 7

Shots v. CSX Transp., Inc., 38 F.3d 304 (7th Cir.

EEE EP e PETE TeT TTT ETT TTT ETT TTT 1,2

Union Pac. R.R. Co. v. Sharp, 952 S.W.2d 658 (Ark.

CEs eeUEehhonesesésseedccccccoascceccececes 7

Feperat Statutes, REGULATIONS

Federal Railroad Safety Act of 1970, Pub. L. No.

i MMe katnecascssccocesecccescecesces 2

i Teun cag enecesébecedcocvcccecccsccceeses 4

TT SecCedencceseseessccocscccccceccceeses 3

BRIEF IN OPPOSITION

Respondent Dedra Shanklin, the widow of Eddie

Shanklin who was killed at the unprotected rail grade

highway crossing in Tennessee asks this Court to deny

the Petition. Under the specific facts of this case, the

decision by the Sixth Circuit does not conflict with East-

erwood or the decisions in other courts and because the

petitioner’s liability hinges only in small part on the

matters claimed to be preempted this case is a poor

vehicle for deciding any unresolved post-Easterwood pre-

emption questions.

STATEMENT OF THE CASE

Petitioner Norfolk Southern Railway Company

(“Norfolk Southern”) maintains that this Court held in

CSX Transp., Inc. v. Easterwood, 507 U.S. 658 (1993), that

mere federal spending for the installation of warning

devices at rail-highway grade crossings preempts all state

tort claims that the devices installed are inadequate. Pet.

at 2. Respondent Dedra Shanklin, the widow of Eddie

Shanklin who was killed by a Norfolk Southern train at a

crossing in Tennessee, disagrees with the petitione:’s

description of the Easterwood holding.

The appellate court here, relying on Judge Posner's

opinion in Shots v. CSX Transp., Inc., 38 F.3d 304 (7th Cir.

1994), ruled that Easterwood should not be interpreted as

Norfolk Southern suggests. According to the court,

the preemption analysis begins, but does not

end, with the federal funding issue . . . [T]he

Easterwood Court never got around to enumerat-

ing additional requirements for preemption,

because the threshold requirement, federal

funding, was absent in that case. Judge Posner

correctly noted in the Shots opinion there is a

difference in holding that federal funding is a

necessary condition to preemption and holding

that federal funding is a sufficient condition.

Pet. App. 10a.

The Seventh Circuit in Shots and the Sixth Circuit

here refused to accept the legal fiction that federal fund-

ing is equivalent to a federal determination that the

devices being funded provide adequate protection for

motorists at a particular crossing. Both circuits concluded

that federal preemption of state law should be limited to

only those instances where federal regulatory authority

has actually been exercised. See Shots, 38 F.3d at 309 and

Shanklin at Pet. App. 13a. This approach advances the

goals in the Federal Railroad Safety Act of 1970

(“AFRSA”), Pub. L. No. 91-458, 84 Stat. 971, of promoting

railroad safety by requiring that the warning devices paid

for with federal funds be installed in compliance with the

federal regulatory scheme without interfering with the

states’ historic powers to regulate matters of health and

safety.

1. Statutory and Regulatory Background.

The relationship between 23 C.F.R. § 646.214(b)(3)

and (b)(4), the federal regulations that govern the process

for selecting the devices that the Secretary of Transporta-

tion (“Secretary”) has determined are necessary to pro-

vide an adequate warning to motorists at a particular

crossing, is at the heart of this case. Section 646.214(b)

provides, in pertinent part,

(3)(i) Adequate warning devices . . . on any pro-

ject where Federal-aid funds participate in the

installation of the devices are to include auto-

matic 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 traf-

fic, high number of train movements,

substantial numbers of school buses or

trucks carrying hazardous materials,

unusually restricted sight distance,

continuing accident occurrences, or

any combination of these conditions.

(F) A diagnostic team recommends them.!

(ii) In individual cases where a diagnostic

team justifies that gates are not appropriate,

' For definition of “diagnostic team,” see 23 C.F.R.

§ 646.204(g) (1992).

FHWA may find that the above requirements are

not applicable.

(4) For crossings where the requirements of

§ 646.214(b)(3) are not applicable, the type of

warning device to be installed, whether the

determination is made by a State regulatory

agency, State highway agency, and/or the rail-

road, is subject to the approval of FHWA.

In general, the flashing lights and gates required

under (b)(3) are called active devices and the crossbucks

allowed by (b)(4) are called passive devices.

2. Statement of Facts.

Shanklin relies on the statement of facts in the deci-

sion of the Sixth Circuit, Pet. App. 2a-5a, and in particular

notes the following. In 1987, the Tennessee Department of

Transportation (“TDOT”) installed reflectorized cross-

bucks at the Oakwood Church Road Crossing, where the

accident occurred, as part of a “mop-up” detail under the

“minimum protection” program that included the instal-

lation of passive warning devices at 196 crossings in 11

West Tennessee counties. The improvements were under-

taken to bring the crossing into compliance with 23 C.F.R.

§ 130(d), which mandates that a state establish a schedule

of crossing safety projects and that “[a]t a minimum such

schedule shall provide signs for all railway-highway

crossings.” Pet. App. at 3a.

Because the upgrade was not done under the state’s

“priority program,” no diagnostic team examined the

Oakwood Church Road Crossing to determine what

warning devices were necessary to provide an adequate

warning to motorists. Pet. App. 35a-36a. There was no

oversight by the federal government which “merely

funded, funneled and signed off on this project.” C.A.

App. 322-23. As Petitioner admits, the Oakwood Church

Road Crossing was not even one of the few crossings of

the 196 crossings under this contract viewed in the ran-

dom drive-by conducted by an FHWA employee. Pet. at

9-10.

Contrary to the Petitioner’s assertion that the Oak-

wood Church Road Crossing is governed by section

(b)(4), the District Court noted,

[T]he record in this case shows that at least

some of the (b)(3) conditions appear to exist at

the Oakwood Church Road Crossing. These con-

ditions include high speed train operations com-

bined with limited sight distance, moderately

high railroad and highway traffic, trucks carry-

ing hazardous materials, and a prior collision at

the crossing.

Pet. at 14; Pet. App. 3a, 35a-36a.

The Sixth Circuit was also mindful that a diagnostic

team did not evaluate whether active warning devices

should have been installed at the Oakwood Church Road

Crossing. Pet. App. 13a, 19a. According to the court, “[I]t

makes no sense to find that the railroad has been excused

from its common law duty to maintain safe crossings

simply because without any analysis by anyone regarding

what devices are required at [the particular crossing]

under the federal regulatory scheme, FHWA signed off

on a request for funds.” Pet. App. 13a-14a. The appellate

court concluded that either subsection (b)(3) was applica-

ble, in which case active warnings are required, or it was

not applicable, in which case FHWA approval of the type

of devices to be installed was required under (b)(4).

In addition to her inadequate warning device claim,

Shanklin also alleged that Norfolk Southern was negli-

gent under Tennessee law for failing to give adequate

sound warning by the locomotive horn, to apply the

brakes, and to remove vegetation from the area surround-

ing the crossing. The Sixth Circuit noted that “there was

extensive expert testimony that the limited sight distance

caused by vegetation, terrain, and the proximity of a

house created a “trap” which made it impossible for

Shanklin to see the train in time to avoid the collision.”

Pet. App 23a. Moreover, experts also testified that the

train’s headlamp was inadequate because it pointed

straight down the track, rather than at an angle, and that

Eddie Shanklin could not have heard the train’s horn. Pet.

App. 23a-24a. The jury returned a general verdict; Nor-

folk Southern did not ask for any special verdict form or

interrogatory that would have reflected which of Shan-

klin’s claims provided the basis for its decision.

¢

REASONS FOR DENYING THE WRIT

A. UNDER THE SPECIFIC FACTS OF THIS CASE,

THE DECISION BY THE SIXTH CIRCUIT DOES

NOT CONFLICT WITH EASTERWOOD OR THE

DECISIONS IN OTHER COURTS.

The Sixth Circuit decision is consistent, not only with

federal regulations and Easterwood, but also with the deci-

sions of the other circuits and the state supreme courts. In

that regard, in Easterwood, this Court stated, “States must

employ automatic gates with flashing light signals as part

of any improvement project that concerns a crossing that

features, inter alia, multiple tracks, high speed trains

operating in areas of limited visibility, heavy vehicle or

train traffic, or if a diagnostic team made up of ‘represen-

tatives of the parties of interest in [the crossing],

§ 646.204(g), recommends them.” Easterwood, 507 U.S. at

666 (emphasis added). Not a single court — with the

exception of the Eighth Circuit in Bock v. Si. Louis South-

western Ry. Co., 181 F.3d 920 (8th Cir. 1999) (cert. petition

is expected to be filed within the month) — has held that

the installation of passive warning devices (i.e. cross-

bucks), paid for with federal funds at a crossing that has

the conditions described in section (b)(3) where no diag-

nostic team has justified the absence of automatic gates,

preempts state inadequate warning device claims.

Instead, the rulings of courts of appeal and state supreme

courts relied upon by the petitioner noted that no (b)(3)

conditions existed at the crossing at issue or refused to

consider the presence of (b)(3) conditions.

2 See, e.g., Hester v. CSX Transportation, Inc., 61 F.3d 382, 386

FN 6 (5th Cir. 1995), where the Fifth Circuit stated, “Of course

passive warning devices are not adequate where section 646.214

(b)(3) applies, but it seems clear on the facts before us that the

applicable provision is section 646.214 (b)(4).” Bryan v. Norfolk

and Western Ry. Co., 154 F.3d 899, 903-04 (8th Cir. 1998); Elrod v.

Burlington N. RR. Co., 68 F.3d 241, 243 FN 5 (8th Cir. 1995);

Armijo v. Atchison, Topeka and Santa Fe Ry. Co., 87 F.3d 1188, 11°90

(10th Cir. 1996); Ingram v. CSX Transp., Inc., 146 F.3d 858, 865

(11th Cir. 1998); Union Pacific v. Sharp, 952 S.W.2d 658, 665 (Ark.

1997); and Lubben v. Chicago Central & Pac. R.R. Co., 563 N.W.2d

596, 598 (lowa 1997), there was no question but that (b)(4)

crossing devices were appropriate.

In Bock, the Eighth Circuit referred to Elrod in holding

that “once a federally funded warning device is installed

and operational — the crossbucks in this case - preemp-

tion occurs,” 181 F.3d at 923, but the facts in Bock are

quite different from those in Elrod. In Elrod there was no

question but that the crossing was a (b)(4) crossing

requiring a passive sign only, and therefore, Elrod con-

cerned an issue not presently before this Court. Moreover,

Bock involved a crossing that had been designated a (b)(3)

crossing, but the accident in that case occurred before a

gate with flashing lights was installed. The court in Bock,

held that the earlier installation of crossbucks with fed-

eral funds barred the plaintiff’s claim despite the fact that

a diagnostic team had, at a later time, diagnosed the

crossing as a (b)(3) crossing requiring active warning

devices and ordered them to be installed. At the time of

Elmer Bock’s death the warning devices had not yet been

installed.

As we explain below, if this Court is to grant cer-

tiorari on the (b)(3) issue, Bock is the appropriate case for

review.

B. THIS CASE IS A POOR VEHICLE FOR DECIDING

ANY UNRESOLVED POST-EASTERWOOD PRE-

EMPTION QUESTIONS BECAUSE THE PETI-

TIONER’S LIABILITY HINGES ONLY IN SMALL

PART ON THE MATTERS CLAIMED TO BE PRE-

EMPTED.

Petitioner’s characterization of the preemption issue

as a “principal issue” at trial and on appeal is inaccurate.

Although the issue was argued in pre-trial motions,

bench conferences and the appellate briefs, the jury heard

little beyond Norfolk Southern’s assertion that the

responsibility for signalization rested with the govern-

ment. Norfolk Southern did not request a special verdict

form to allow the jury to explain the basis for the deci-

sion. The Sixth Circuit rejected Norfolk Southern’s claim

that there was no other evidence on which a reasonable

jury could base its verdict. Pet. App. 24a. For the above

reasons, the result in this case cannot be changed by this

Court’s grant of further review.

Moreover, a petition for certiorari review is expected

to be filed in Bock, and the Eighth Circuit’s decision in

that case would provide a better vehicle to address the

question of whether claims of negligence based on inade-

quate warning devices at a railway grade crossing are

preempted because the devices were paid for with federal

funds. Bock was decided on a motion for summary judg-

ment that addressed the preemption issue only; whereas

here, the jury may have based its decision on any one of

several negligence claims unrelated to the inadequate

warning devices claim.

10

CONCLUSION

Norfolk Southern’s petition for certiorari should be

denied.

Respectively submitted,

PAMELA R. O’Dwyer*

Paty, Rymer & ULIn, P.C.

19 Patten Parkway

Chattanooga, TN 37402

(423) 756-6770

Counsel for Respondent

*Counsel of Record

September 17, 1999