Opposition Brief — Baker v. Canadian National (No. 08-649)

reme Court, U.S.

or ¢ _ FILED

Na

\ No. 08-649 | JAN 4 § 2003

, Office Ue

a

In The

Supreme Court of the Anited States

¢

CHARLES E. BAKER,

Petitioner,

CANADIAN NATIONAL/ILLINOIS

CENTRAL RAILROAD,

Respondent

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

BRIEF IN OPPOSITION

GEORGE H. RITTER

Counsel of Record

CHARLES H. RUSSELL, II]

WISE CARTER CHILD &

CARAWAY, P.A.

401 East Capitol Street,

Suite 600

Jackson, Mississippi 39201

601) 968-5500

TSE

Il.

ITT.

QUESTIONS PRESENTED

Whether a compelling reason exists to justify

certiorari where the Petition fails to identify any

conflict among the circuits or with a decision of

a state court of last resort and where the circuit

court’s holding that Baker did not “foul” the

tracks, as defined in 49 C.F.R. §214.7, was sup-

ported by ample evidence that his work on Illi-

nois Central’s right-of-way did not require any

worker to be within twenty-five (25) feet of the

tracks.

Whether a compelling reason exists to grant

certiorari to review the jury’s factual finding

that Baker’s work did not require him to

“foul” the tracks within the meaning of the

Federal Railroad Administration (“FRA”) Road-

way Worker Protection Regulations, 49 C.FR.

§214.303.

Whether a circuit court’s interpretation of

federal safety regulations adversely to an in-

jured worker, without more, is sufficient to com-

pel certiorari

ll

CORPORATE DISCLOSURE STATEMENT

PURSUANT TO SUPREME COURT RULE 29.6

Illinois Central Railroad Company is a wholly-

owned subsidiary of Illinois Central Corporation.

Illinois Central Corporation is a wholly-owned indi-

rect subsidiary of Canadian National Railway Com-

pany, which is a publically-owned company traded on

the New York and Toronto Stock Exchanges. No

single entity owns as much as 10% of the stock of

Canadian National.

111

TABLE OF CONTENTS

Page

ee eg ee eT i

Corporate Disclosure Statement Pursuant to

supreme Court Rule 29.6..............0<..ccsccccescssoees 1

Table of Contents....... SISTANCE a Pen este tee ear ern AU ili

ee iV

ae in esdeaetcetaasgers oie

EE TI GI oon isis nade hens

Reasons for Denying the Petition...............00...00..

| EE enced ie eey Rear ku aL enon Aad Damour 14

1V

TABLE OF AUTHORITIES

Page

CASES

Baker v. Canadian Nat’l/Ill. Cent. R.R., 536

F.00 307 (6th Cir. 2008) .............cececeos. 4,5, 10, 13, 14

NLRB v. Hendricks Co. Rural Elec. Corp., 454

Re. I TE iit: pcats-iaie bien tncnincapiathatoniborentiestowinans 12

Rogers v. United States, 522 U.S. 252 (1998) .............. 7

Rudolph v. United States, 370 U.S. 269 (1962)......... 12

South Dakota v. Kansas City S. Indus., Ince.,

880 F.2d 40 (8th Cir. 1988), cert. denied, 493

I alain k fi dah vslietadicans ley envoy staan 14

STATUTES

ee eT ae Es S| | ee 9

Be, OE IE, Ee FI occas vcncesusnvncawevevecesraceveateceds 9

Pe SI BL, BE EE Soi cicncinwe recites esivensinstenaveveunsis 9

REGULATIONS

By NT i cacsivins cxsencorenaesnasiupevensshanracens 1, 4, 10, 13

pen ee Le hacdesenuraorael poeehncuaeaen 6

OTHER AUTHORITIES

Federal Railroad Administration, Railroad

Workplace Safety: Adjacent-Track On-Track

Safety for Roadway Workers, Notice of Pro-

posed Rulemaking, 73 Fed. Reg. 41214 (Jul.

Be. MII baaccccocenasavdsusdeccorskechousvenetaausaeueneaceassnciel 8

TABLE OF AUTHORITIES — Continued

Page

Neen eciaininininanhonsnenies 12, 14

Sup. Ct. R. 10(a)

Sup. Ct. R. 10(c)

61 Fed. Reg. 65959, 65961 (Dec. 16, 1996)

INTRODUCTION

Baker has shown no conflicting jurisprudence

and no important question of federal law compelling

immediate review by this Court of the Fifth Circuit

Court of Appeals’ fact-specific decision that Baker,

while driving across a public railroad grade crossing

in the same manner as any other motorist, was not a

“roadway worker,” as defined in the Roadway Worker

Protection Regulations (“RWPR”). 49 C.F.R. §214.7.

Even if this Court were to reverse the Fifth Circuit’s

holding that Baker was not a roadway worker while

on the worksite, Baker is still left with the jury’s

determination that he lost that status once he was

traveling on Green’s Crossing Road just like any

other motorist.

While working on Illinois Central’s right-of-way,

neither Baker nor his co-workers came _ within

twenty-five feet of the tracks. Consequently, Baker

had no potential to “foul the tracks” and he did not

meet the definition of “roadway worker.” If Baker was

not a “roadway worker” while on Illinois Central’s

right-of-way, he could not become one simply by

exiting the worksite onto a public highway. Once

Baker left the worksite, he was in the same position

and subject to the same laws as any other motorist.

Baker’s claim to the contrary stretches the RWPR

well beyond the language or intent of the regulations.

The Fifth Circuit’s decision is not only consistent

with the RWPR, it is an application of those regula-

tions to a unique set of facts. While Baker claims

2

review is necessary to improve worker safety, he has

failed to support this argument with any evidence

that the Fifth Circuit’s decision will adversely impact

worker safety. For these reasons, the Petition should

be denied.

STATEMENT OF THE CASE

This case arises from a rather routine railroad

grade crossing accident in which the jury resolved all

relevant fact issues in favor of Illinois Central. The

pertinent facts show not only that this case is singu-

larly inappropriate for certiorari, but also that the

jury and Fifth Circuit Court of Appeals reached the

correct conclusions and properly followed the law.

On the day of the accident, Baker was working as

an employee of Hancock Construction, a contractor

hired by Illinois Central to remove dirt from an area

of land on Illinois Central’s right-of-way. Tr. 473-75.

The worksite consisted of a roughly rectangular area

paralleling the railroad tracks. Adjacent to the north

end of the worksite ran a public thoroughfare known

as Green’s Crossing Road. At the intersection of

Green’s Crossing Road and Illinois Central’s tracks

was a public grade crossing. The undisputed evidence

showed that neither Baker nor any other worker

came within twenty-five feet of the near rail of the

railroad tracks while on [Illinois Central’s right-of-

way. Tr. 475-77, 490-92.

_ The railroad crossing had a visibility to the south

of at least 2,000 feet and was equipped with standard

stop signs and crossbuck signs. Tr. 210-20, 478-86,

503-505, 537-38, 572-73. The turnout from the work-

site onto Green’s Crossing Road was slightly less than

86 feet from the railroad tracks, Tr. 569, and Baker’s

truck was approximately 50 feet long, Tr. 254. Baker’s

co-worker Kenneth Henderson, who drove a truck

with the same dimensions as Baker’s truck, testified

that he was able to pull his truck off the worksite,

onto Green’s Crossing Road, and straighten the cab of

his truck at the stop sign such that he could see down

the tracks like any other eastbound motorist. Tr. 512-

15, 525. Three eye-witnesses testified that, in fact,

Baker’s truck was straight and perpendicular to the

tracks before Baker ran the stop sign and drove in

front of the approaching train. Tr. 219-20, 482-85,

490-92, 551. According to these witnesses, Baker

approached the crossing just as any other motorist

and had the same opportunity to observe the crossing

and approaching trains. /d. Unfortunately, and

undisputed in the record, Baker ran the stop sign

without stopping, looking or listening for approaching

trains, while the train was sounding its horn and

plainly visible. Tr. 210, 215, 220. Based upon these

facts, the jury correctly found that Baker’s own

negligence was the sole cause of the collision.

Under the RWPR, a railroad is required to pro-

vide “on-track safety” to “roadway workers.” To be

a road worker, the employee must, among other

things, be “on or near track or with the potential of

4

following a track.” 49 C.F.R. §214.7. “Following a

track” is defined as:

The placement of an individual or an item of

equipment in such proximity to a _ track

where the individual equipment could be

struck by a moving train or on-track equip-

ment, or in any case is within four feet of the

field site of the near running rail. Jd.

The trial court’s instruction to the jury on the plain-

tiff’s RWPR claim specifically quoted the definition of

“following the track” stated in 49 C.F.R. §214.7. Tr.

655. The trial court further instructed the jury that

the RWPR did not apply once Baker had “left the

worksite and was traveling on a public highway and

approaching a public railroad crossing, with the same

opportunity as other motorists to see and comprehend

the crossing.” Tr. 654-57. On a special verdict form,

the jury answered both “No” to the question of

whether Baker’s work required him to “foul the track”

as explained in the court’s instructions.

On appeal, the circuit court took a slightly differ-

ent approach but reached the same conclusion. Baker

v. Canadian Nat/Ill. Cent. R.R., 536 F.3d 357 (5th

Cir. 2008). After noting that the jury specifically

found that Baker's work did not require him to “foul

the tracks,” Baker, 536 F.3d at 362, the circuit court

held that because Baker’s work on Illinois Central’s

right-of-way did not place him any nearer than

“twenty to thirty feet from the closest rai],” “Baker

did not, as a matter of law, have the potential to

follow the track, nor was he on or near the track.” /d.,

D

at 365. Therefore, Baker was never a “roadway

worker” and the protections specified in the RWPR

were not required. Id.

Baker’s statement of the case contains several

factual inaccuracies that should be noted. Like the

Fifth Circuit, Baker states that the “work site was

twenty to thirty feet from the closest rail.” In fact, the

evidence showed that no worker came less than

twenty-five feet from the nearest rail. Tr. 475-77, 490-

92. Baker states that the last wheels of his trailer

“were still on or had barely cleared the work site.” In

fact, the train engineer testified that Baker’s truck

was “Squared up with the railroad tracks” and “all in

his lane.” Tr. 551. Three of Baker’s co-workers who

witnessed the accident testified that Baker’s truck

was straight when it reached the stop sign and that

Baker had the same view as any other eastbound

motorist. Tr. 219-20, 482-85, 490-92, 551. The Petition

also states that “not all the sight obstructions had

been removed.” However, ample evidence was intro-

duced to show that Baker had an unobstructed view

to the south of over 2,000 feet. Tr. 478-86. Finally,

Baker states as fact that Illinois Central was ac-

quired by “Canadian National” on July 1, 1999, and

that “Canadian National requires railroad worker

protections whenever work would occur within 25 feet

of the rail.” In fact, Canadian National Railway has

never been a party to this lawsuit and the trial court

properly excluded evidence of Canadian National’s

6

policies. Supp. Tr. 381-82. In compliance with 49

C.F.R. §214.303, Illinois Central had its own “On

Track Safety Rules,” which meet the requirements of

the RWPR. Tr. 566, 577-78. Illinois Central’s risk

mitigation officer, H.J. Freeman, Jr., testified that

under Illinois Central’s policy, a flagman was not

required because Baker did not work within four feet

of the tracks and did not have the potential to foul the

tracks. Id.

The eye-witnesses agreed Baker was _ looking

back over his shoulder at his co-workers when he ran

the stop sign and never looked for approaching trains,

while the train was plainly visible, sounding its horn,

and travelling within the FRA speed limit. Tr. 210,

215, 220, 484-87, 536-38, 545, 547, 549, 553.

+

REASONS FOR DENYING THE PETITION

For several rather obvious reasons the Court

should deny Baker’s Petition.

' Baker’s cumplaint referred to the defendant as “Canadian

NationaVIllinois Central Railroad,” a name by which Illinois

Central previously did business. Prior to trial, this moniker was

corrected and the case went to trial solely against Illinois

Centra]. Illinois Central and Canadian National Railway are

separate corporations. Supp. Tr. 381-82.

7

A. No Conflicting Jurisprudence.

Baker has not identified any conflicting decision

of this Court, the circuit courts of appeals, or any

state appellate court of last resort. To the best of

Illinois Central’s knowledge, the decisions of the

Circuit Court and District Court below are the only

published decisions to address whether merely trav-

ersing a public railroad grade crossing constitutes

“fouling the tracks” under the RWPR. By its nature,

lower court decisions are limited to the specific facts

of this case. Consequently, whether other courts will

agree or disagree with the Circuit Court’s decision, or

whether similar cases will even be litigated, is en-

tirely speculative. Certiorari should be denied unless

and until a significant conflict in the decisional law

arises. Sup. Ct. R. 10(a); see Rogers v. United States,

522 U.S. 252 (1998) (writ of certiorari dismissed

where conflict among courts did not exist).

B. Absence of a Sufficiently Important Ques-

tion of Federal Law.

With no obvious justification for certiorari, Baker

argues that the Fifth Circuit decision has “signifi-

cantly increased the possibility that other persons

doing construction or maintenance work for railroads

or their contractors will be injured or killed.” Cert.

Pet., at 9-10. Citing statistics on fatalities and inju-

ries among roadway workers since the adoption of the

RWPR in 1997, id., at 10-12, Baker argues that

certiorari should be granted in order to reduce the

8

risk of injury which, Baker contends, was created by

the Fifth Circuit decision.

Baker’s “worker safety” argument is entirely

speculative and insufficient to justify certiorari.

Nowhere has Baker submitted any evidence that the

Fifth Circuit decision will reduce the effectiveness of

the RWPR. The statistics cited by Baker are not

categorized by incident type, equipment involved, or

any other distinguishing factor. Consequently, the

Petition fails to show a factual nexus between the

statistics cited and the instant case. Moreover, the

most recent publication cited by Baker — Railroad

Workplace Safety: Adjacent-Track On-Track Safety for

Roadway Workers, Notice of Proposed Rulemaking, 73

Fed. Reg. 41214 (Jul. 17, 2008), was published only

one day after the Fifth Circuit entered judgment for

Illinois Central in this case. Thus, these statistics

cannot possibly show an impact of the Fifth Circuit’s

decision on roadway worker safety.

Without doubt, the RWPR was adopted by the

FRA for the laudable purpose of reducing the risk of

injury and death to railroad roadway workers. Merely

because the regulations concern worker safety, how-

ever, does not mean that a decision denying a plaintiff

relief under those regulations is sufficiently impor-

tant to justify certiorari. If this were so, then any

time a circuit court of appeals interpreted federal

safety regulations in favor of a defendant, then cer-

tiorari would be appropriate.

9

Baker further argues that the FRA has recog-

nized that the RWPR “need to be strengthened, not

weakened, in order to ‘reduce further the risk of

serious injury or death to roadway workers.’” Cert.

Pet., at 11. The problem with this argument is that,

on its face, it recognizes that the decision of whether

to further strengthen these regulations is currently

before the FRA. If Baker is correct and the RWPR do

need strengthening, then the FRA is well-suited to

make this decision. Moreover, this argument pre-

sumes Baker was a “roadway worker” — a fact re-

solved adversely to Baker by the jury.

More pertinent to this case, the jury expressly

found as a matter of fact that Baker was not due the

protections provided under the RWPR and was pro-

vided all the protections due under state statutory

and common law. These protections included required

railroad crossbuck signs, Miss. Code Ann. §77-9-247;

stop signs, Miss. Code Ann. $63-3-1009; the iocomo-

tive horn and bell sounded for over 900 feet, Miss.

Code Ann. §77-9-225; and an unrestricted view of

over 2,000 feet. Baker’s argument that certiorari is

required to protect worker safety is ironic given that

the jury found his own unsafe conduct to be the sole

cause of the accident.

Neither the statistics cited by Baker nor the facts

of this case reveal a sufficiently important question of

federal law to justify certiorari. Sup. Ct. R. 10(c).

10

C. Propriety of the Decision Below.

The Fifth Circuit's decision was proper and

consistent with the RWPR. The Court properly recog-

nized that “fouling the tracks ... means the place-

ment of an adividual ...in such proximity to a track

that the individual ... could be struck by a moving

train or on-track equipment, or in any case within

four feet of the field side of the near running rail.” 49

C.F.R. §214.7. The Court properly recognized that

there was no evidence that Baker’s work required

him to be less than “twenty to thirty” feet from the

tracks. In fact, the undisputed evidence showed that

at no time was any worker less than twenty-five feet

from the nearest rail of the track. Tr. 447. Baker

introduced no evidence that he was struck, or in

danger of being struck, by a train while on Illinois

Central’s right-of-way. Rather, he was struck while

driving on a public street with the same opportunity

to see and hear the approaching train as any other

motorist. Consequently, Baker was not a “roadway

worker” while on Illinois Central’s right-of-way. The

Fifth Circuit did not reach the issue of whether he

became a roadway worker by driving on to the public

road but noted that the jury found against Baker on

this issue. Baker, 536 F.3d at 363.

The Advisory Committee’s comments establish

that the RWPR was promulgated for limited purposes

and based on specific accident data:

The Advisory Committee purposely chose not

to address all conceivable hazards, but stud-

ied available data regarding safety issues

11

ana selected those circumstances presenting

the greatest risk to roadway workers.

61 Fed. Reg. 65959, 65961 (Dec. 16, 1996). The com-

ments make clear that “FRA believes that adequate

voluntary measures are being taken to protect road-

way workers at highway-rail crossings.” “The acci-

dent data studied does not provide information

regarding this type of hazard.” Jd. If the FRA in-

tended the RWPR to apply to the ordinary use of

public grade crossings by railroad employees, it would

have said so in the regulations or comments.

Under Baker’s interpretation of the RWPR, a

railroad worker would be entitled to on-track safety

whenever his duties require him or her to traverse a

railroad grade crossing in the performance of his or

her duties. The fallacy of this argument is illustrated

by the facts of this case. When Baker left the work-

site, he had the option ‘o turn right toward the rail-

road crossing or left away from the railroad crossing.

Had he chosen to turn left, he had the option of

driving to the next railroad crossing or elsewhere to

cross the railroad tracks. Under Baker’s interpreta-

tion, he would be entitled to flag protection anywhere

he chose to traverse a public railroad crossing regard-

less of the type of warning devices at the crossing. But

the RWPR was not intended to address “all conceiv-

able hazards” and the FRA chose not to address

“roadway workers at highway-rail crossings.” Jd.

Baker argues that because the RWPR defines

“adjacent tracks” as “two or more tracks with track

iz

centers spaced less than twenty-five feet apart,” then

the phrase “on or near track” in the definition of

“fouling the track” must mean anything less than

twenty-five feet. This argument is unavailing for

three reasons. First, it cannot be found in the lan-

guage of the regulations. Second, neither Baker nor

his co-workers ever came within twenty-five feet of

the nearest rail while on []linois Central’s property.

Third, Baker was not working between two or more

tracks. Consequently, the Fifth Circuit correctly

determined that as a matter of law Baker was not a

roadway worker.

D. Certiorari Is Inappropriate to Address

Asserted Factual Errors or the Misapplica-

tion of Law to Fact.

In reality, Baker is unhappy with the jury’s

factual finding that his work did not require him to

“foul the track” and the Fifth Circuit’s application of

the RWPR to the evidence introduced at trial. How-

ever, a petition for certiorari “is rarely granted when

the asserted error consists of erroneous factual find-

ings or the misapplication of a properly stated rule of

law.” Sup. Ct. R. 10; NLRB v. Hendricks Co. Rural

Elec. Corp., 454 U.S. 170 (1981); Rudolph v. United

States, 370 U.S. 269 (1962).

13

Quoting the regulations verbatim, the trial court

instructed the jury —

“Fouling a track” is defined as “the place-

ment of an individual or an item of equip-

ment in such proximity to a track that the

individual or equipment could be struck by a

moving train or on-track equipment, or in

any case within four feet of the field side of

the near running rail.”

The trial court further instructed the jury that —

When a roadway worker such as the plaintiff

has left the work site and is traveling on a

public highway and approaching a public

railroad crossing, with the same opportunity

as other motorists to see and comprehend a

crossing, he is at that point treated as any

other member of the motoring public and is

no longer in need of the special protections

afforded to him in his capacity as a roadway

worker.

Tr. 654-57. The jury then found, based on the evi-

dence, that Baker’s work did not cause him to “foul

the track” within the meaning of the RWPR. Baker,

536 F.3d at 363.

Baker now attempts to convert the jury’s factual

finding — which was not addressed by the Fifth Cir-

cuit — into the legal issue of what is meant by the

word “near” in 49 C.F.R. §214.7. Unfortunately for

Baker, the jury has spoken to this issue and found

that the worksite was such that Baker could turn

onto the Green’s Crossing Road and approach the

14

railroad crossing just as any other motorist. Jd. The

Fifth Circuit found that while on Illinois Central’s

right-of-way, as a matter of law, Baker was not close

enough to the tracks to be considered “on or near a

track or with the potential of fouling a track.” Jd.

Even if this Court were to reverse the Fifth Circuit’s

holding that Baker was not a roadway worker while

on the worksite, Baker is still left with the jury’s

determination that he lost that status once he was

traveling on Green’s Crossing Road just like any

other motorist. See South Dakota v. Kansas City S.

Indus., Inc., 880 F.2d 40 (8th Cir. 1988), cert. denied,

493 U.S. 1023 (1990) (certiorari denied where Court

able to decide case on another ground). Whether

another court or jury could disagree with these find-

ings does not alter the fact that the error asserted by

Baker is one “of [either] erroneous factual findings or

the misapplication of a properly stated rule of law.”

Sup. Ct. R. 10. Consequently, this case is not suited

for certiorari.

CONCLUSION

The RWPR were not created to address every

conceivable hazard to railroad roadway workers and

the FRA expressly chose not to address the risks

roadway workers face at public grade crossings.

Baker has failed to show any conflicting decision of a

federal or state court and has failed to show why the

issue presented is sufficiently important to justify

certiorari. Contrary to Baker’s assertion, the Fifth

15

Circuit’s decision does not severely reduce the protec-

tions offered by the RWPR. Rather, the Fifth Circuit

has simply applied those regulations to a unique set

of facts in this particular case. According to every eye-

witness, and as determined by the jury, Baker was

struck by a train solely because he ran the crossbuck

and stop signs, failed to yield the right-of-way, and

failed to look or listen for the approaching train.

Accordingly, the petition for writ of certiorari should

be denied.

Respectfully submitted,

GEORGE H. RITTER

Counsel of Record

CHARLES H. RUSSELL, III

WISE CARTER CHILD & CARAWAY, P.A.

600 Heritage Building

401 Capitol Street

Jackson, Mississippi 39205

(601) 968-5500