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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0366%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 1025

## Text

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?

|

ii

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

—--- -*”””

l
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

la
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0366%3A2. Public record. Not legal advice.