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

Supreme Court, U.S.

FILED

a ‘FEB 2 3 2000

No. 99-312 +

EER

IN THE

Supreme Court of the United States

NORFOLK SOUTHERN RAILWAY COMPANY,

Petitioner,

Vv.

DEDRA SHANKLIN, Individually and as

Next Friend of Jessie Guy Shanklin,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

SUPPLEMENTAL BRIEF FOR RESPONDENT

BRIAN WOLFMAN PAMELA R. O'DWYER

PUBLIC CITIZEN LITIGATION (Counsel of Record)

GROUP PATY, RYMER & ULIN, P.C.

1600 20 Street, NW 19 Patten Parkway

Washington, DC 20009 Chattanooga, TN 37402

(202) 588-1000 (423) 756-6770

ELIZABETH S. HARDY THOMAS C. GOLDSTEIN

THOMAS AND HARDY LAW FIRM THOMAS C. GOLDSTEIN, P.C.

2380 Lake Street 4607 Asbury Place, NW

Lake Charles, LA 70601 Washington, DC 20016

(337) 433-4903 (202) 237-7543

February 23, 2000

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Respondent respectfully submits this Supplemental

Brief to address a new argument and a new piece of non-record

material raised for the first time in Petitioner’s Reply Brief. See

S. Ct. R. 25.5.

**_*# * *

Petitioner contends for the first time in its Reply Brief

that “it is often the case that a diagnostic team has studied a

crossing in prior years and determined that active devices are

unnecessary,” citing as supposed support for this proposition a

letter written by the Tennessee Department of Transportation

(“TDOT”) in 1983 (Petr’s Supp. Lodg. Tab C, Exh. 6)

regarding the Oakwood Church Crossing. Reply Br. 10.

Petitioner never made this argument, or cited to this document,

at any time in this litigation prior to filing its Reply Brief. Nor

is that surprising. The letter provides no support for the claim

that diagnostic teams regularly study crossings other than under

the hazard program, and the testimony in this case (which

Petitioner fails to discuss) proves exactly the opposite. See

Resp. Br. 31-36.

Moreover, contrary to Petitioner’s representation in its

Reply Brief, this letter is not even part of the record in this case.

Petitioner cites the letter correctly as an exhibit (No. 6) to the

second day of the deposition of Terry Cantrell, but is wrong in

representing that the exhibit or this portion of the Cantrell

deposition is part of the record. Except for isolated excerpts not

relevant here, only the transcript of the first day of the

deposition (May 3, 1995) and exhibits from that day were made

part of the record. See JA 7 (docket entry no. 52 (record also on

file with this Court)). The evidentiary status of the letter is

important because Petitioner may be attempting obliquely to

challenge the district court’s finding that “there is no evidence

in the record that the Oakwood Road crossing was the subject

of a study by a diagnostic team” and that “there is no evidence

in the record that there were specific determinations that such

passive warning devices were adequate for particular

crossings.” Cert. App. 35a, 36a. Presumably, Petitioner never

attempted to prove the contrary through this letter because, as

the Solicitor General’s brief explains, States act as the federal

government’s agent only when upgrading crossings to include

active warning devices under the hazard program. Br. of

United States 11 (installation of active devices under hazard

program “supplant[s] with a federally prescribed decisional

process the crossing-specific determinations of adequacy

normally made by a state official or a jury in a state-law tort

suit” (emphasis added)), 21 (same). The diagnostic team

evaluation referenced by the letter, by contrast, was done solely

by TDOT at the request of a Congressman, and thus does not

represent a federal action of any kind.

Even if the Court were to consider this non-record

material, it supports Respondent's description of the hazard and

minimum protection programs. The letter is a response to a

April 27, 1983, inquiry from a Congressman (also not part of

the record but nonetheless lodged by Petitioner, see Petr’s Supp.

Lodg. Tab C, Exh. 5) stating that the railroad that owned the

crossing at the time wished to install lights but would not do so

because of the cost. The railroad had asked the Congressman

to contact the TDOT “to see if the crossing light could be

funded through the grade crossing program,” i.e., the hazard

program. Jones specifically recognized “that the installation of

crossing lights are [sic] funded on a priority basis,” and asked

TDOT to “please review this particular crossing to determine its

priority.” TDOT responded not that the crossing did not merit

high enough on the priority list to qualify for the limited

available federal funding. The “diagnostic team investigation”

revealed that “[t]his crossing does not have sufficient

train/vehicle exposure to qualify for active warning devices

(lights, bells, etc.), nor is there a sight-distance problem at the

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crossing” (emphasis added). Instead, “[t]he crossing will be

upgraded with passive ‘Railroad Advance Warning’ signs,

pavement markings, etc. in the Department’s ongoing program

for minimum grade crossing protection which is underway

state-wide” (emphasis added).

This exchange of letters is proof of Respondent’s

description of the hazard and minimum protection programs in

several respects.

1. The letters establish that States upgrade crossings

under the hazard program based on the availability of limited

federal funds, not based on a determination that the crossings

not to be upgraded are adequately protected with minimum

protection devices. TDOT’s response explains that federal

funds were being allocated to crossings that the State’s

computer ranking indicated were more dangerous, not that the

Oakwood Church Crossing did not need lights and gates or that,

if more funds were available, the State would not install

advanced protection. See also Affidavit of Alvin Zager, Exh.

3 to May 3, 1995, deposition of Terry Cantrell (docket entry no.

52) (explaining that it was the limited amount of federal funds

that determined the number of crossings upgraded each year

under the hazard program).

2. Railroads remained free to install advanced devices

with their own funds at crossings not upgraded under the hazard

program, as Petitioner’s predecessor considered doing at the

Oakwood Church Crossing. (Indeed, the letter strongly

suggests that the railroad that owned the crossing at the time,

Petitioner’s predecessor in interest, recognized that the crossing

was dangerous and merited advanced protection.)

3. The minimum protection program is a separate

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initiative under which no determination of adequacy was made.

TDOT’s letter clearly distinguishes between the hazard program

under which crossings were upgraded through the use of limited

federal funds (which was the subject of the Congressman’s

inquiry) and the minimum protection program (which TDOT

stated would be utilized in installing passive warning devices).

4. To the extent the letter does set forth what is

necessary to protect the crossing, it identifies a warning device

— “pavement markings” — that, as discussed in Respondent’s

Brief at 20-22, were required but not installed.

5. The letters demonstrate that the mere installation of

minimum protection devices does not give rise to preemption

because changed conditions, such as increased traffic volumes

and reduced sight distances as a result of construction or the

growth of vegetation, can render a crossing substantially more

hazardous over time. Notwithstanding TDOT’s representations

in the 1983 letter, minimum protection devices were not

installed at the Oakwood Church Crossing until 1987 (except

for pavement markings which were never installed), and the

accident in this case did not occur until 1993. It is not

surprising that in the decade between the State’s review of the

crossing and the accident, conditions at the crossing became

“ultrahazardous,” as the trial testimony established. See Resp.

Br. 12.

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CONCLUSION

The judgment of the court of appeais should be

affirmed.

Respectfully submitted,

BRIAN WOLFMAN PAMELA R. O'DWYER

PUBLIC CITIZEN LITIGATION (Counsel of Record)

GROUP PaTy, RYMER & ULIN, P.C.

1600 20" Street, NW 19 Patten Parkway

Washington, DC 20009 Chattanooga, TN 37402

(202) 588-1000 (423) 756-6770

THOMAS C. GOLDSTEIN ELIZABETH S. HARDY

THOMAS C. GOLDSTEIN, P.C. THOMAS AND HARDY LAW FIRM

4607 Asbury Place, NW 2380 Lake Street

Washington, DC 20016 Lake Charles, LA 70601

(202) 237-7543 (337) 433-4903

February 23, 2000