Opposition Brief — Wheeling & Lake Erie Railway Co. v. Bonacorsi

No. 02-362

In the 1 ssidoee

Aupreme Court of the nited States

WHEELING & LAKE ERIE RAILWAY COMPANY,

Petitioner,

CRIS BONACORSI,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME CourRT OF OHIO

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Allen Schulman, Jr. Robert F. Linton, Jr.

ALLEN SCHULMAN & Counsel of Record

ASSOCIATES CoO., L.P.A. Mark W. Ruf

236 Third St., SW Stephen T. Keefe, Jr.

Canton, OH 44702 LINTON & HIRSHMAN

(330) 456-4400 700 West St. Clair Avenue

Suite 300

Cleveland, OH 44113

(216) 771-5800

Attorneys for Respondent

Curry & Tayior ¢ (202) 392-41 416 HTTPY/UssCINFO.coM

i

QUESTIONS PRESENTED

The Ohio Supreme Court issues a decision holding

that a party is not entitled to summary judgment under

Ohio Rule of Civil Procedure 56(E), Ohio Rule of

Evidence 602 and Ohio case law, because it relied on

an affidavit based on hearsay, rather than personal

knowledge. Should this Court now exercise its

discretionary review over that state law decision?

Both this Court and the Tenth Circuit Court of

Appeals hold that federal preemption is triggered by

proof of actual federal funding, i.e. expenditure of

federal funds. Is a motion for summary judgment

based on preemption properly denied when the

movant fails to support it with competent, undisputed

evidence of the expenditure of federal funds?

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TABLE OF CONTENTS :

Page |

SP THD FTI ais iindis pv oncoiiciccewdenctanssveasesecucessc: 1

Seer CE isa iiiadasss ie usenet ee il

Be Or Fi is indentations ics ches li

ere CP TE i hice l

REASONS FOR DENYING THE PETITION .............0.eceeeeeees 6

oR. SR MRE Pee TORY a er A) Hanae Nad QS ot, 21

APPENDIX

STATUTE.AND OTHER AUTHORITIES...........0.c0ceeeeeees la

a aa rr

iil

TABLE OF AUTHORITIES

CASES

ARMUJO V. ATCHISON, TOPEKA & SANTA FE. R. Co.,

87 F.3D 1188, 1193 (LOTH CiR. 1996) ........... 18, 19, 20

BECKER V. BANCOHIO NATIONAL BANK, 17 OHIO

ST.3D 158 (1985)............ccccececececeeeeeeeseeeeeensneeee es 3

BONACORSI V. WHEELING & LAKE ERIE RY. CO., 95

OHIO ST.3D 314 (2OOZ)........ccccrrcccccvcccccseveserccsesovess 6

BRYAN V. NORFOLK & W. RY., 154 F.3D 899 (8TH

hig cavyiscseunsbbannobesesttaasssna sine enen ene 17, 18

CARPENTER V. CONSOLIDATED RAIL CorP., 69 OHIO

ST.3D 259 (1994).........ccccececererscecenesseceseeeneneeeees 15

COCHRAN V. CSX TRANSP., INC., 112 F. SUPP. 2D

733, 737-38 (N.D. IND. 2000)............:ecee cence eee eee 19

COLEMAN V. THOMPSON, 501 U.S. 722, 729 (1991) ...... 12

CSX TRANSP., INC. V. EASTERWOOD, 507 U.S. 658,

circ nshsn kek sdukuneversesasesiinecksienssssenns 11, 15

DUNCAN V. KANSAS CITY SOUTHERN RAILWAY, 773

So.2D 670, 680 (LA. 2000), CERT. DENIED 532

BE CIED ovvcssswecsenscsesesssecercnyrectessesveeesses 13

DUNCAN V. TENNESSEE, 405 U.S. 127 (1972).............. 12

GRIFFEN V. UNITED STATES, 336 U.S. 704, 709

CRE cicabivcnsssncsscsoncesecsscoverssereccsaccsvoensnesbonseees 11

iV

HATFIELD V. BURLINGTON N. R.R. Co., 64 F.3D

Be, CU EI Rs. I icc dakandskiccacscvs cadcesoeiens 18

HESTER V. CSX TRANSP., INC., 61 F.3D 382 (STH

CirR. 1995), CERT. DENIED, 516 U.S. 1093 (1996)...... 17

ISRAEL V. MCMorris, 455 U.S. 967 (1982) ................ 11

KANSAS CITY SOUTHERN RAILWAY V. JOHNSON, 798

SO.2D 374, 379 (MISS. 2001), CERT. DENIED 122

Be. et ee ET Sa cca vec paheeachusnesee wedeenbexavensnarsbins 13

KLEVER V. REID BROS. EXPRESS, INC., 151 OHIO ST.

eT 5 OE CE wtb ndac nvinndadvidstersceacsseloncelatnioasenion 3

MCDANIEL V. SOUTHERN PAC. TRANSP., 932 F.

ee. Das: Wier Ges ic CD aikcw asec dctweedetncnesck 18

MICHIGAN V. TYLER, 436 U.S. 499, 512, FN. 7

CEI chins iced ite uae va canted a esa ewe aka hic an OL 12

NORFOLK & SOUTHERN RAILWAY V. SHANKLIN, 529

BF, Se I To ait oe sas cadkdendwanbaddende vena buaaumncie 4, 16

O'BANNON V. UNION PAC. R.R., 169 F.3D 1088,

ee ot 2 en a aae 17-

POWERS V. CSX TRANSP. INC., 97 F. SUPP. 2D

EAT 5 Rae es PAs BE oi cdc vweecetccssctesccdiasicier 18

SHAFFER V. MAIER, 68 OHIO ST.3D. 416, 423-424

SILKWOOD V. KERR-MCGEE CorpP., 464 U.S. 238,

Se MEG cosh hideuabarudnatvevacnna wince. tuuasdaeakes ant 11

Vv

STATE EX REL BD. OF COMMR. OF MILLCREEK

METROPOLITAN PARK DIST. V. TABLACK, 86 OHIO

SPF Fg FO CIGD wo vccsncuscenescecsosesnrassessonaesesss 10

STATE EX REL CASSELS V. DAYTON CITY SCHOOL

DIST. BD. OF EDN., 69 OHIO ST.3D 217, 223

ERGIGE iis ccusuinecersaxcivesconseasseussaskennoveananecaivonntnen 10

STATE EX REL CORRIGAN V. SEMINATORE, 66 OHIO

BF Fay BO CII vin savin inkevscauseccdinvicistnanteseensariekewaes g

TURNER V. TURNER, 67 OHIO ST.3D 337...........000eeeeee: 10

VIOCK V. STOWE-WOODWARD Co., 13 OHIO APP.3D,

TTF CIDE) «0 cscssccvesscunaccunsascenissnenssunscaeesegesmies 10

WILLIAMS V. CSX TRANSP., INC., 925 F. SupPP. 447,

451 (S.D. MISS. 1996), AFF'D WITHOUT OPINION,

139 F. 3D 899 (STH CIR. 1998) ...........cccccecsescesceese 19

STATUTES

OHIO REVISED CODE §4999.04 ............ cece cece ee ence e eee 2

OTHER AUTHORITIES

OHIO RULE OF CIVIL PROCEDURE, RULE 56...........:::0eeceeeeeeees

7

OHIO RULE OF EVIDENCE, RULE 602................cccceeeeeseeeeeeeeeees

—--- -*”””

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STATEMENT OF THE CASE

A. Statement of Facts

Petitioner Wheeling & Lake Erie Railway Company

(“the Railroad”) seeks to have this Court set aside a jury

verdict and finding of negligence against it for Respondent

Cris Bonacorsi’s life threatening injuries, including the loss

of his leg. Bonacorsi sustained these injuries on July 13,

1996, when his motorcycle collided with the Railroad's

speeding locomotive at a rural crossing near Kent, Ohio,

where dense trees and shrubbery blocked the view of

approaching trains (the “Howe Road crossing”).

The Howe Road crossing was marked with a yield sign

and a $135 crossbuck sign installed as part of an

experimental research project involving passive grade

crossings throughout Ohio. The research was undertaken to

compare the effectiveness of an experimental red and white

crossbuck with a reflectorized yield sign, originally

designed by Conrail, but now known as the "Buckeye"

crossbuck, against a standard crossbuck with reflectorized

tape on the pole. The signs were installed randomly and

without regard to crossing conditions, so as to eliminate all

variables other than the design of the sign. Even numbered

crossings received the experimental Buckeye crossbuck, and

odd numbered crossings -- including the Howe Road

crossing -- received a standard crossbuck. As of the filing

date of this Brief, the research has yet to be completed.

At the point of approach along Howe Road where

drivers should be able to see 260 feet of unobstructed track,

according to traffic safety engineering guidelines, only 28

feet of track was visible to approaching motorists because of

the obstructing vegetation. Because of these sight

2

obstructions, Cris Bonacorsi approached the Petitioner’s

Howe Road crossing unable to see a coming train. Nor

could he hear the train because Petitioner’s engineer failed

to sound the horn in the time, manner and distance required

by Ohio statute and Petitioner's own operating procedures. '

When Bonacorsi first became aware of the train, it was

less than an engine length from the crossing, traveling in

excess of the federal track speed limit. (Had the train not

been speeding, the accident would never have occurred).’

Bonacorsi had insufficient warning of the train to avoid

sliding into one of the front wheels of the locomotive as it

entered the crossing. The locomotive tore off his leg,

dragged him 100 yards down the tracks and caused his near

fatal injuries.

Less than a month later, another accident occurred at the

crossing, the fourth in less than two years. The Ohio Public

Utilities Commission ordered the Howe Road crossing

upgraded, and flashing lights and gates were installed at the

crossing.

‘Under Ohio Law, engineers are required to sound the train horn at least

1320 feet from the crossing and continued to sound it at frequent

intervals until the locomotive has passed through the crossing. Ohio

Revised Code §4999.04. App. 4a. Here, the conductor testified that

the horn may not have been sounded until the train was 880 feet from

the crossing. The evidence further showed, as confirmed by the train’s

event recorder, that the crew failed to provide the required 4 second

blast of the horn as they entered the final approach to the crossing when

the train was still hidden behind the trees, a violation of Petitioner's

operating procedures.

According to the train’s event recorder, the train was traveling 26 mph

instead of the 25 mph posted speed limit as it approached and entered

the hazardous crossing. By contrast, Bonacorsi’s speed was 10 mph

under the speed limit at the point of impact.

TEBE SR te #

3

At trial, multiple claims were submitted to the jury. In

addition to a claim based on the failure to install lights and

gates at an ultra hazardous crossing, separate state law

claims were presented based on negligent train operation for

Petitioner's failure to exercise ordinary care, specifically,

(1) its failure to maintain a lawful speed, (2) failure to

maintain a proper lookout and (3) failure to properly sound

the horn. Any or all of these claims may have formed the

basis for the jury’s verdict.

B. Petitioner’s Failure to Prove Preemption

Petitioner was provided three separate opportunities to

move for summary judgment or reconsideration of summary

judgment on the issue of preemption of Respondent's claims

based on the failure to install lights and gates. (It was

undisputed that these motions did not address the negligent

train operation claims which would remain for trial.) In

addition, the trial court gave Petitioner the opportunity to

present evidence of federal funding at a preemption hearing

held shortly before trial. But Petitioner's trial counsel

admitted he had none:

‘When asked for the basis of its finding of negligence against the

railroad, the jury wrote in its interrogatory answer: “two prior

accidents: railroad did not initiate change in signals and signs. Proving

la lack of] ordinary care. Plaintiff unable to see train.” (Emphasis

added). Under Ohio law, jury interrogatories are to be construed in

favor of upholding the verdict. Becker v. BancOhio National Bank, 17

Ohio St.3d 158 (1985); Klever v. Reid Bros. Express, Inc., 151 Ohio St.

467, 474 (1949); A verdict may be set aside and judgment entered on

the interrogatory only when it is “impossible” to reconcile the

interrogatory with the general verdict. Shaffer v. Maier, 68 Ohio St.3d.

416, 423-424 (1994)J. Ford, Moyer and Wright, dissenting )(Emphasis

by the Court).

4

Now as I stand here today, I am not prepared

to present evidence to show that the dollars

that were spent at Howe Road, in fact flowed

from the federal government other than the

fact that by implication of everything that’s

here, that’s what happened.

(Tr. of Proceedings, June 3, 1999, pp. 80-90). Summary

judgment “by implication” is not the standard under Ohio

law.

This admission stands in stark contrast to the record

before this Court in Norfolk & Southern Railway v.

Shanklin, 529 U.S. 344 (2000). First, in Shanklin, there

was an agreement between the State of Tennessee and the

railroad, which had been approved and executed by the

FHWA. Here, only a contract between the State of Ohio

and Petitioner was introduced below. In addition, the Court

in Shanklin relied on the application for funding and

documents entitled "Federal-Aid Project," "Final Inspection

of Federal-Aid Project," and "Certification Acceptance

Final Inspection Report." (Ohio S.Ct. Supp., pp. 154,

157). Most importantly, the "Final Inspection" showed the

date of actual disbursement of FHWA funds to the TDOT

long before Shanklin’s accident. The lower right hand

corner of the FHWA Final Inspection form was also marked

“Paid,” indicating that the project had been completed and

federally funded. (Ohio S.Ct. Supp., p.155).

Petitioner produced no such evidence in this case.

Instead, it offered an affidavit of a railroad employee,

whose testimony was based on a contract attached to and

incorporated into his affidavit between the Railroad and the

state. However, the applicability of that contract to the

Howe Road crossing was disputed by the terms of the

oN # CN Mla bin ole

ee ee yee eT ee ee

5

contract itself; the contract applied to work completed by

1993, and the crossbuck was not installed at the Howe Road

crossing until 1995. | The Railroad then relied on the

affidavit of a state employee, Susan Kirkland, which

purportedly was based on personal knowledge, but which

she later conceded at deposition was based on what others

told her. Petitioner’s characterization of the Kirkland

affidavit as being “uncontradicted” is not true. It was

contradicted by Kirkland’s own deposition.’

After Petitioner’s motions for partial summary judgment

were denied, and the case proceeded to trial, Petitioner

abandoned its preemption defense. Petitioner failed to

present any witnesses on the issue, and failed to introduce

into evidence any admissible documents on preemption or

federal funding. The Railroad never moved for directed

verdict on federal preemption, nor did it request any jury

charges on the issue.

Eight months after the verdict, while this case was on

appeal, Shanklin was decided. Petitioner tried to resurrect a

preemption defense. But by then, the paucity of the record

was apparent: there was no competent evidence on which a

finding of federal funding could be made to support

summary judgment based on federal preemption.

‘Petitioner is also incorrect in stating that the trial court denied

Respondent’s motion to strike Kirkland’s affidavit. It was never ruled

on, and instead the trial court granted leave for Respondent to take

Kirkland’s deposition. Once that deposition was taken and filed, the

court then denied summary judgment.

:

REASONS FOR DENYING THE PETITION

I. A STATE COURT DECISION THAT AN

AFFIDAVIT MUST BE BASED ON

PERSONAL KNOWLEDGE, RATHER THAN

HEARSAY, UNDER STATE EVIDENCE

RULES AND £STATE RULES '- OF

PROCEDURE DOES NOT WARRANT THIS

COURT?’S REVIEW.

In ruling on Petitioner's motion for summary

judgment, the Ohio Supreme Court did not impose any

“special” or “heightened evidentiary standards.” Rather, it

applied well-settled rules of Ohio civil procedure and Ohio

evidence that uniformly govern summary judgment practice

in Ohio state courts. Bonacorsi v. Wheeling & Lake Erie

Ry. Co., 95 Ohio St.3d 314 (2002). Since the case was

decided solely on state grounds, the federal issue was never

decided.” Id., Pet. App. A, lla, Par. 29. The Ohio

Supreme Court did not reach the issue of federal

preemption, nor any other federal issue. The decision is

therefore not subject to review by this Court.

In reaching its decision, the Ohio Supreme Court set |

forth the applicable state procedural and evidentiary

standards as follows:

Civ R. 56(E) requires that affidavits

supporting motions for summary judgment be

‘Bonacorsi argued that while Shanklin allowed for preemption under the

Crossings Program, because crossing conditions under that program are

specifically to be considered as part of the funding and approval

process, those same considerations do not apply to an experimental

research program, like the present one, where signs were randomly

placed at crossings without consideration of specific crossing conditions.

fe eieiniasiaiiiaiiaiie,

7

made on personal knowledge. State ex. rel.

Cassels v. Dayton City School Dist. Bd. Of

Ed., 69 Ohio St. 3d 217, 223, 631 N.E. 2d.

150 (1994). For obvious reasons, this is the

same standard as applied to lay witness

testimony in a court of law. Id.; Evid. R.

602. “Personal knowledge” is “[k]nowledge

gained though first-hand observation or

experience, as distinguished from a belief

based on what someone else has said.”

Black’s Law Dictionary (7" Ed. Rev. 1999)

875. See, also, Weissenberger’s Ohio

Evidence (2002) 213, Section 602.1 (“The

subject of a witness’s testimony must have

been perceived through one or more of the

sense of the witness. * * * [A] witness is

‘incompetent’ to testify to any fact unless he

or she possesses firsthand knowledge of that

fact.”) (Emphasis added).

Pet. App. A, 10a, Par. 26.

These standards are similar to their federal counterparts.

Ohio Civ. R. 56(C) provides that summary judgment will

only be granted when depositions and affidavits show that

there are no genuine issue as to any material fact, and the

moving party is entitled to judgment as a matter of law.

Ohio Evid. Rule 602 provides that a witness may only

testify to matters of personal knowledge.° The Ohio

Supreme Court found that these requirements were not met

due to a conflict between Susan Kirkland’s affidavit and her

later deposition testimony on the dispositive issue of federal

funding:

‘Ohio Rule of Civil Procedure, Rule 56, and Ohio Rule of Evidence,

Rule 602, are reprinted in App. la, 3a.

Kirkland explicitly states in her affidavit that

she had ‘personal knowledge’ that federal

funds were used to install crossbuck signs at

all Ohio railroad crossings marked with

passive warning devices. In her deposition,

however, Kirkland testified that ODOT [Ohio |

Department of Transportation] § was

responsible for handling federal funds, that

she did not work for ODOT, and that her

knowledge that federal funds were used to

install signs at railroad crossings came from

other people. .

After reviewing Kirkland’s deposition

testimony we find that she clearly lacked the

personal knowledge required by Civ. R.

56(E) to support the statements in her

affidavit regarding federal funding.

Consequently, we find that W&LE failed to

prove that federal funds paid for the

installation of the Howe Road crossbuck sign.

Because, at a minimum, federal funding is

required to trigger preemption, we hold that

W&LE’s motion for partial summary

judgment should not have been granted.”

(Emphasis added).’

fh Na Ag a Ne eR BI TaN aa

Contrary to her affidavit, Kirkland testified at deposition that she had

no personal knowledge regarding the receipt of federal funding for the

Buckeye Crossbuck Program. (Kirkland Depo., p. 26, lines 12-16; p.

30, lines 9-12; p. 31, lines 15-18, S. 128, 132, 133). She admitted her

knowledge regarding the receipt of federal funding for the project was

based on second-hand hearsay, not personal knowledge. (/d., p. 26,

lines 12-16; p. 30, lines 9-12; p. 31, lines 15-18). At her deposition she

conceded her “knowledge of funds spent at that location would come

from other people who actually handled the funds.” (/d., pp. 13-15).

9

Pet. App. A, 10a-1la, Pars. 27-28.

The court further noted that Petitioner failed to offer any

documentary evidence of federal funding. This included

Petitioner’s failure to produce the alleged agreement with

the federal government requiring the use of federal funds

for the crossbucks. Pet. App. A., lla, fn.10. The contract

that provided for the installation of the Buckeye Crossbuck

was a contract between a state agency, the Ohio Department

of Transportation, and the Railroad. It provided that the

state was to reimburse the Railroad. No branch of the

federal government was a party to the agreement. Thus, the

contract also established that employees of ODOT would be

the ones knowledgeable of the nature of funds used to install

crossbucks under the agreement, not an employee of the

Ohio Rail Commission like Kirkland. The Railroad failed

to provide any evidence from an ODOT employee or from

the federal government on the issue of federal funding.

Petitioner Railroad continues to argue that Kirkland’s

affidavit is governed by the law in State ex rel Corrigan v.

Seminatore, 66 Ohio St.2d 459 (1981), but ignores the first

words of the syllabus:

Unless controverted by other evidence, a

specific averment that an affidavit pertaining

to a business of a board is made upon

personal knowledge of the affiant or

chairman satisfies the Civ. R. 56 (E)

requirements that the affidavit supporting an

Opposing motion for summary judgment

showed that the affiant is competent to testify

to the matters stated. (Emphasis added.)

10

Unlike the situation in Seminatore, the Bonacorsi case

involved a conflict between an affidavit and deposition

testimony.” The subsequent deposition testimony of

Kirkland discredits and impeaches her affidavit.

When there is a conflict between an affidavit and

deposition testimony, a party is unable to establish the

absence of genuine issues of material fact. The Ohio

Supreme Court’s ruling is consistent with its prior ruling in

Turner v. Turner, 67 Ohio St.3d 337, Syllabus, Par. 1

(1993), that summary judgment is improper where an

affidavit in support of a motion for summary judgment is

inconsistent with deposition testimony, as well as

established Ohio precedent on Civ. R. 56 and affidavits.

See e.g., State ex rel Seminatore, supra.; Turner v. Turner,

supra; State ex rel Bd. of Commr. of Millcreek Metropolitan

Park Dist. v. Tablack, 86 Ohio St.3d 293, 297 (1999) (a

party erroneously relies on affidavits not based on personal

knowledge); State ex rel Cassels v. Dayton City School Dist.

Bd. of Edn., 69 Ohio St.3d 217, 223 (1994) (a witness may

not testify to a matter unless evidence is introduced

sufficient to support a finding that Re has personal

knowledge of the matter).

PA DRLS ALT ES

Morever, in considering summary judgment, an Ohio

state trial court must resolve all doubts and construe the

evidence against the moving party. Viock v. Stowe-

Woodward Co., 13 Ohio App.3d, 7-12 (1983). This is

exactly what the Ohio Supreme Court did. The Ohio

Supreme Court’s decision is also consistent with this Court’s

*This case is therefore distinguishable from Flood v. CSX Transp., Inc.,

No. C-2-99-1186, slip op. (S.D. Ohio July 12, 2001), cited by

Petitioner (Petition, p.16). In Flood, unlike the situation here, Kirkland

was not deposed and therefore her affidavit was not controverted by her

deposition testimony.

——

1]

precedents which acknowledge the stringent standard for

finding preemption and the presumption against it. CSX

Transp., Inc. v. Easterwood, 507 U.S. 658, 668 (1993);

Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 251 (1984).

It also is consistent with this Court’s requirement that the

party claiming preemption has the burden of demonstrating

its existence. Silkwood, 464 U.S. at 255.

Kirkland’s deposition testimony established that the

assertion of personal knowledge of federal spending in her

affidavit was not true. Based on Petitioner’s failure to set

forth competent, undisputed evidence, summary judgment

was properly denied. Once summary judgment is denied,

the party then proceeds to trial with the issue still in the

case. At trial, Petitioner was obligated to produce

competent evidence of federal funding. Unable to garnish

the evidence it needed, or believing the issue was one it

could not win, Petitioner abandoned its preemption defense

at trial, and offered no such evidence. Indeed, Petitioner's

counsel conceded it lacked such evidence at the hearing held

shortly before trial on preemption. (“I am not prepared to

present evidence to show that the dollars that were spent at

Howe Road, in fact flowed from the federal government.”)

(Tr., June 3, 1999, pp. 80-90).

Issues involving local state rules of evidence and

procedure are outside this Court’s review. Thus, a petition

for certiorari will not be granted to review a determination

that is a matter of local law such as rules of evidence

prevailing in state courts. Griffen v. United States, 336

U.S. 704, 709 (1949). Formation of rules of evidence is a

matter purely of local law to be determined by the highest

local appellate court. Griffen, 336 U.S. at 717. See also,

Israel v. McMorris, 455 U.S. 967 (1982) (petition for writ

of certiorari denied when issue involves a state rule of

12

evidence).

Nor will this Court grant certiorari when state

procedural rules are the basis for the state court’s decision.

Duncan v. Tennessee, 405 U.S. 127 (1972). The failure to

present a federal question in conformance with state

procedure constitutes an adequate and independent ground

for this Court to deny review, so long as the state has a

legitimate interest in enforcing its procedural rule.

Michigan v. Tyler, 436 U.S. 499, 512, fn. 7 (1978). The

Railroad in this case does not claim that Ohio Civ. R. 56

fails to serve a legitimate purpose. Moreover, this Court

has held that it will not entertain a claim when the state has

a legitimate interest in performing its procedural rule. Jd.

This Court will not review a question of federal law

decided by a state court if the decision of that court rests on

a state law ground that is independent of the federal question

and adequate to support the judgment. Coleman v.

Thompson, 501 U.S. 722, 729 (1991). This rule applies

whether the state law ground is substantive or procedural.

Id. In the context of the direct review of a state court

judgment, the independent and adequate state ground

doctrine is jurisdictional. Jd. When this Court has no

power to review a State law determination that is sufficient

to support the judgment, resolution of any independent

federal ground for the decision could not effect the judgment

and would therefore be advisory. Jd. This Court is not

permitted to render an advisory opinion, and if the same

judgment would be rendered by the state court after this

Court corrected its views of federal laws, this Court’s

review amounts to nothing more than an advisory opinion.

Id.

se a ace

SRD e ARDEA paleo Bette in “ - fe ALN Rts aay OO “ ee Nahe dates ob

13

In this case, the Ohio Supreme Court specifically stated

that it was not addressing the merits of whether Shanklin

would apply to this case and instead found that Petitioner

had simply failed to meet state procedural and evidentiary

requirements for prevailing on summary judgment. (Pet.

App. A, lla, Par. 29). Our dual system of government

recognizes the finality of a judgment by a state’s highest

court on the interpretation of its own state rules of evidence

and procedure, and such decisions should not be disturbed

by this Court.

In similar cases, this Court has recently denied certiorari

to review other state decisions in which the railroads failed

to offer sufficient evidence of federal funding to support a

claim for preemption. See, Kansas City Southern Railway v.

Johnson, 798 So.2d 374, 379 (Miss. 2001), cert. denied 122

S. Ct. 43 (2001) and Duncan v- Kansas City Southern

Railway, 773 So.2d 670, 680 (La. 2000), cert. denied 532

U.S. 992 (2001). Those decisions, like the Ohio Supreme

Court’s decision here, were based on state court rulings that

there was a failure to meet state evidentiary requirements.

Certiorari was properly denied in those cases and should be

denied in this case as well. This Court should not become a

court of last resort for deciding if a party has met state law

evidentiary standards for summary judgment. Such

“pedestrian issue[s]} of evidentiary sufficiency,” as

Petitioner describes them (Petition, p.17), are not subject

matters for this Court’s review.

4

Il, THE OHIO SUPREME COURT’S DECISION

IS CONSISTENT WITH DECISIONS OF THIS

COURT AND THE UNITED STATES COURT

OF APPEALS FOR THE TENTH CIRCUIT

ON THE ISSUE OF FEDERAL FUNDING.

In ruling on Petitioner’s request for summary judgment,

the Ohio Supreme Court did not create a new standard for

federal preemption, but narrowly decided the case solely on

state procedure and evidence rules. Even so, its discussion

of federal preemption law was consistent with this Court’s

precedent in Shanklin and Easterwood. Indeed, Petitioner is

the one that now seeks to overturn those decisions by

adopting an unworkable rule in which the pivotal issue of

federal funding would no longer turn on evidence of actual

funding. Instead, Petitioner would have this Court adopt a

new standard where. preemption occurs prematurely -

“when the state commences work that is reimbursable with

federal funds.” (Petition, p.3).

First, this standard was already rejected by this Court in

Easterwood, where this Court found that the commitment of

federal funds alone is insufficient proof for federal

preemption. Moreover, under Petitioner’s rule, preemption

could be invoked even if committed funds are later diverted

to another project or withdrawn. It would also eliminate a

critical step in the approval process. It would no longer

ensure a certification with the final bill that the work is

“complete, acceptable and in accordance with the terms of

the agreement.” (See Petition, p.23, fn.14). Petitioner

seeks to impose immunity on negligent railroads with no

corresponding assurance that federal funds are in fact

expended or that the installed devices receive final approval.

15

In Easterwood, this Court held that the facts did not

establish that federal funds “participated in the installation

of the warning devices” when funds had been committed but

spent elsewhere. Easterwood, 507 U.S. at 672. There,

federal funds were allocated for the crossing, and

reimbursable work begun; however, the funds were later

diverted to another project when the original project was

“scotched” before it was completed. Jd. at 673-74. Thus,

in Easterwood, where federal funds had actually been

committed, but not spent, this Court held that there was

insufficient proof for preemption.

Easterwood was followed and relied upon by the Ohio

Supreme Court in the case of Carpenter v. Consolidated

Rail Corp., 69 Ohio St.3d 259 (1994). Carpenter was then

cited by the Ohio Supreme Court in the present case in

discussing the Petitioner’s failure to offer evidence of actual

participation of federal funding:

“Proof of federal funding is crucial to

W&LE’s preemption argument because the

federal regulation that covers the subject of

warning-device adequacy applies only to

warning devices installed with federal funds.

Section 646.214(b)(3)(i), Title 23, C.F.R.

(See footnote 4): Carpenter v. Consol. Rail

Corp. (1994), 69 Ohio St.3d 259, 263, 631

N.E. 2d. 607 (Before a state law governing

warning devices will be deemed preempted,

federal funds must actually have been

committed and spent)”’ (App. A., 10a, par.

In Carpenter, the Ohio Supreme Court refers to Easterwood and states:

Apparently the [Easterwood] Court concluded that

planning and preparation are insufficient to invoke

16

25).

The Ohio Supreme Court’s ruling is consistent with both

Easterwood and Shanklin. According to Shanklin,

preemption occurs when three requirements are met: (1) the

FHWA approves a crossing improvement project, (2) the

improvements are actually installed and operating, and (3)

federal funds participate in the crossing improvement

project. Norfolk Southern Railway v. Shanklin, 529 U.S.

344 (2000). As to this third element, this Court explicitly

stated that preemption arises “once the FHWA has funded

the crossing improvement and the warning devices are

actually installed and operating.” Jd. at 354. (Emphasis

added). Thus, under both Easterwood and Shanklin, actual

funding, rather than a mere commitment to fund, is required

to prove preemption.

In Shanklin, preemption was found to exist because,

unlike here, the record contained proof that the project had

been paid for with federal funds. In Shanklin, the FHWA

had approved the project and federal funds actually

accounted for 99% of the costs for the signs installed.

Shanklin, 529 U.S. at 350. The record before this Court in

Shanklin included a document that the federal funds were in

fact “paid” and disbursed before the accident and also

included a finai inspection report approving the project and

disbursement. (See "Certification Acceptance Final

preemption. Before a state law governing warning

devices will be deemed preempted, federal funds must

actually have been committed and spent, and the

“warning devices,” as defined in Sections 646.204(i)

and (j), Title 23, C.F. R. must have been installed.

Carpenter, 631 N.E. 2d at 610.

17

Inspection Report," Ohio S. Ct. Supp., pp. 154, 155, 157).

Further, in Shanklin, the railroad also produced the

agreement which the federal government executed

obligating the use of federal funds for the project.

The lower court decisions cited by the Railroad in its

Petition further support the proposition that a party must

show proof of actual expenditures of federal funds before

preemption will apply. Moreover, none of those cases

contained factual disputes between an affidavit and

deposition like that contained here that would require a

denial of summary judgment. For example, in Hester v.

CSX Transp., Inc., 61 F.3d 382 (5" Cir. 1995), cert.

denied, 516 U.S. 1093 (1996), in addressing whether

federal funds “participated” in the installation of the

warning devices under Easterwood, the court recognized

that “there must be an actual, authorized expenditure of

federal funds in the installation or placement of safety

devices at the particular crossing to trigger preemption.”

Id. at 562. (Emphasis added). There the evidence showed

that federal funds had in fact been approved and expended

years before the accident at issue.

In O’Bannon v. Union Pac. R.R., 169 F.3d 1088, 1099

(8" Cir. 1999), the court found preemption based on an

affidavit that the railroad had actually received payment for

the work performed before the accident where it was “not

disputed that federal funds were part of the payment actually

made.” (Emphasis added). In Bryan v. Norfolk & W. Ry.,

154 F.3d 899 (8" Cir. 1998), the court recognized that the

preemptive “[fjederal regulations are applicable if federal

funds have been expended for the installation of the warning

devices at the crossing.” Jd. at 903. In that case, in

support its motion for summary judgment, the railroad

presented both a deposition and an affidavit that it had been

18

reimbursed by federal monies, including those for the

crossing at issue. The court therefore found that “[t]his

uncontradicted evidence demonstrates conclusively that

federal funds were expended for the crossbucks at the

Massas crossing.” Jd. (Emphasis added). The court noted |

that once federal funds have been expended, and those |

devices are installed and operating, state law negligence

claims are preempted by federal regulations.

Likewise, in Hatfield v. Burlington N. R.R. Co., 64

F.3d 559, 562 (10" Cir. 1995), the court found that |

preemption takes place when the federal government (1) |

commits itself through a significant event to a project to |

install warning devices, and (2) expends significant federal |

resources on the project. (Emphasis added). Thus, it is |

insufficient under the second prong merely to authorize that

federal funds be spent; instead, Hatfield requires “the actual

expenditure of federal resources of more than a casual or de

minimis nature for preemption to occur.” Jd. at 562. See

Armijo v. Atchison, Topeka & Santa Fe. R. Co., 87 F.3d

1188, 1193 (10" Cir. 1996) (J. Ebel, dissenting). Further,

in Hatfield the court noted that the federal government had

actually expended funds and federal resources on the

project. Hatfield, 64 F.3d at 563."°

‘See also, Powers v. CSX Transp. Inc., 97 F. Supp. 2d 1297, 1299

(S.D. Ala. 2000) (“plaintiff concedes” that devices where installed

“with FHWA authorization and participation of federal funds, based on

an FHWA executed Federal Aid Project Agreement referencing an

authorization to proceed with the project, an obligation to pay 90% of

the costs and proof that the Alabama DOT had received nearly $25,000

from the FHWA for the project.) (Emphasis added); McDaniel v.

Southern Pac. Transp., 932 F. Supp. 163, 167 (N.D. Tex. 1995)

(Finding preemptidn based on the participation of federal funds where

the railroad “presented evidence that from 1977 to 1981 funds approved

under Section 203,of Federal Aid Highway Act of 1976 were expended”

in the upgrading tnd installation of warning devices. The evidence

eS

19

Furthermore, this Court should reject Petitioner’s

contention that there is an alleged conflict between the

Tenth Circuit’s decision in Armijo and the present case.

First, Armijo is distinguishable from the present case and

therefore not in conflict with it. In addition, this Court

granted certiorari in Shanklin to resolve a conflict among

court of appeals on the application of the Federal Railroad

Safety Act, citing to the decision Armijo v. Atchison,

Topeka & Santa Fe. R. Co., 87 F.3d 1188 (10" Cir. 1996).

Since this Court made its ruling in Shanklin after

consideration of that decision, that decision does not justify

accepting certiorari in this case.

In Armijo, the court held that the financial commitment

by the federal government must be such that it shows a clear

federal intent to require a federally approved warning

device at the crossing in question, backed up by the actual

expenditure of federal resources of more than a casual or de

minimis nature. Jd. at 1190. The Armijo court held that the

issue in the case was whether federal funds participated in

some significant way in the installation of warning devices

before the date of the accident for the crossing at issue.

Significantly, there it was “clear that the federal government

had reimbursed the state for the cost[s]...Therefore, prior to

further showed that federal funds were “approved and expended” from

1989 to the early 1990's); Cochran v. CSX Transp., Inc., 112 F. Supp.

2d 733, 737-38 (N.D. Ind. 2000) (“it is undisputed that crossbucks were

installed...almost exclusively with federal funds under a program

approved by the FHWA.”); Williams v. CSX Transp., Inc., 925 F.

Supp. 447, 451 (S.D. Miss. 1996), aff'd without opinion, 139 F. 3d

899 (5" Cir. 1998) (Railroad’s affidavit showed how federal funds were

used in upgrading crossing. Plaintiff made no attempt to discredit the

affidavit on the issue of federal funding, except to argue there existed a

“similar” crossbuck before the federally funded improvements, which

“falls short of creating an issue of fact with respect to whether federal

funds were used in the improvements”).

20

the time of this accident, the federal government’s

participation was significant enough to trigger preemption.”

Id. at 1193. Thus, there is no conflict between the Ohio

Supreme Court’s ruling in Bonacorsi and the court’s ruling

in the Armijo case.

Unlike Armijo and the other decisions Petitioner relies

on, the-Railroad here failed to prove federal funding and

expenditures before Bonacorsi’s accident. Without such

evidence, a preemption claim must fail.

Petitioner expects federal preemption without proving

federal funding. Apparently, when this case was

proceeding through the trial court, Petitioner did not

anticipate this Court’s decision in Shanklin, and therefore

failed to obtain the evidence needed to support summary

judgment under well-established Ohio rules of procedure

and evidence. Incompetent affidavits based on hearsay,

rather than personal knowledge, have routinely been

rejected by Ohio courts. There is nothing novel or unfair

about the Ohio Supreme Court’s decision to enforce these

state evidentiary requirements that apply to all summary

judgment motions filed in Ohio state courts. Preemption by

presumption has never been the standard in Ohio or

elsewhere.

Notwithstanding Petitioner’s attempts to elevate this case

into a matter of national importance, it remains a state law

decision that does not warrant further review.

Bi ta ca 2

21

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

Robert F. Linton, Jr.

Counsel of Record

Mark W. Ruf

Stephen T. Keefe, Jr.

LINTON & HIRSHMAN

700 West St. Clair Avenue

Suite 300

Cleveland, OH 44113

(216) 771-5800

Allen Schulman, Jr.

ALLEN SCHULMAN &

ASSOCIATES CoO., L.P.A.

236 Third St., SW

Canton, OH 44702

(330) 456-4400

Attorneys for Respondent

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APPENDIX

Ohio Civ. R. 56. Summary Judgment

(A) For party seeking affirmative relief.

A party seeking to recover upon a claim,

counterclaim, or cross-claim or to obtain a declaratory

judgment may move with or without supporting affidavits

for a summary judgment in the party’s favor as to all or any

part of the claim, counterclaim, cross-claim, or declaratory

judgment action. A party may move for summary judgment

at any time after the expiration of the time permitted under

these rules for a responsive motion or pleading by the

adverse party, or after service of a motion for summary

judgment by the adverse party. If the action has been set

for pretrial or trial, a motion for summary judgment may be

made only with leave of court.

(B) For defending party

A party against whom a claim, counterclaim, or

cross-claim is asserted or a declaratory judgment is sought

may, at any time, move with or without supporting

affidavits for a summary judgment in the party’s favor as to

all or any part of the claim, counterclaim, cross-claim, or

declaratory judgment action. If the action has been set for

pretrial or trial, a motion for Summary judgment may be

made only with leave of court.

(C) Motion and proceedings

The motion shall be served at least fourteen days

before the time fixed for hearing. The adverse party, prior

to the day of hearing may serve and file opposing affidavits.

Summary judgment shall be rendered forthwith if the

Pleadings, depositions, answers to interrogatories, written

admissions, affidavits, transcripts of evidence, and written

2a

Stipulations of fact, if any, timely filed in the action, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of law.

No evidence or stipulation may be considered except as

Stated in this rule. A summary judgment shall not be

rendered unless it appears from the evidence or stipulation,

and only from the evidence or stipulation, that reasonable

minds can come to but one conclusion and that conclusion is

adverse to the party against whom the motion for summary

judgment is made, that party being entitled to have the

evidence or stipulation construed most strongly in the

party’s favor. A summary judgment, interlocutory in

character, may be rendered on the issue of liability alone

although there is a genuine issue as to the amount of

damages.

(D) Case not fully adjudicated upon motion

If on motion under this rule summary judgment is

not rendered upon the whole case or for all the relief asked

and a trial is necessary, the court in deciding the motion,

shall examine the evidence or stipulation properly before it,

and shall if practicable, ascertain what material facts exist

without controversy and what material facts are actually and

in good faith controverted. The court shall thereupon make

an order on its journal specifying the facts that are without

controversy, including the extent to which the amount of

damages or other relief is not in controversy, and directing

such further proceedings in the action as are just. Upon the

trial of the action the facts so specified shall be deemed

established and the trial shall be conducted accordingly.

(E) Form of affidavits; further testimony; defense

required |

Supporting and opposing affidavits shall be made on

personal knowledge, shall set forth such facts as would be

3a

admissible in evidence, and shall show affirmatively that the

affiant is competent to testify to the matters stated in the

affidavit. Sworn or certified copies of all papers or parts of

papers referred to in an affidavit shall be attached to or

served with the affidavit. The court may permit affidavits

to be supplemented or opposed by depositions or by further

affidavits. When a motion for summary judgment is made

and supported as provided in this rule, an adverse party may

not rest upon the mere allegations or denials of the party’s

pleadings, but the party’s response, by affidavit or as

otherwise provided in this rule, must set forth specific facts

showing that there is a genuine issue for trial. If the party

does not so respond, summary judgment, if appropriate,

shall be entered against the party.

(F) When affidavits unavailable

Should it appear from the affidavits of a party

opposing the motion for summary judgment that the party

cannot for sufficient 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 discovery

to be had or may make such other order as is just.

(G) Affidavits made in bad faith

Should it appear to the satisfaction of the court at

any time that any of the affidavits presented pursuant to this

rule are presented in bad faith or solely for the purpose of

delay, the court shall forthwith order the party employing

them to pay to the other party the amount of the reasonable

expenses which the filing of the affidavits caused the other

party to incur, including reasonable attorney’s fees, and any

offending party or attorney may be adjudged guilty of

contempt.

4a

[Adopted eff. 7-1-70; amended eff. 7-1-76, 7-1-97, 7-1-99]

Ohio Evid. R. 602. Lack of Personal Knowledge

A witness may not testify to a matter unless evidence

is introduced sufficient to support a finding that he has

personal knowledge of the matter. Evidence to prove

personal knowledge may, but need not, consist of the

testimony of the witness himself. This rule is subject to the

provisions of Rule 703, relating to opinion testimony by

expert witnesses.

[Adopted eff. 7-1-80] .

OHIO REVISED CODE 4999.04. Duties of engineer

(A) No person in charge of a locomotive shall do

the following:

(1) Fail to bring the locomotive to a full stop at

least two hundred feet before arriving at a crossing with

another track, or proceed through the crossing before

signaled to do so or before the way is clear;

(2) | When approaching a grade crossing, fail to

sound the locomotive whistle at frequent intervals,

beginning no less than thirteen hundred twenty feet from

such crossing and continuing until the locomotive has passed

the crossing.

(B) Whoever violates this section is guilty of a

misdemeanor of the fourth degree. If violation of this

section causes physical harm to any person, whoever

violates this section is guilty of a misdemeanor of the third

degree.

[Effective Date: 8-26-77]

Sa