Opinion
No. 1:03-cv-02032-SEB-VSS.
August 27, 2004
ENTRY GRANTING DEFENDANT UNITED STATES OF AMERICA'S MOTION TO DISMISS
This matter comes before the Court on Defendant United States' Motion to Dismiss Plaintiffs Mark Goodman, Karen Goodman, and L.G.'s ("the Goodmans") claims alleging that the Federal Highway Administration ("FHWA") negligently and in violation of statutes and regulations approved an Indiana Department of Transportation ("INDOT") project that installed warning signs at railroad grade crossings under 23 C.F.R. §§ 646.214(b)(3) and (4). The Goodmans filed suit against the United States for damages in tort related to an accident allegedly caused by inadequate warning signs at a railroad grade crossing which had been approved by FHWA and installed by INDOT. The United States, however, contends that it is not a proper defendant to this lawsuit as it has not waived sovereign immunity under the Federal Tort Claims Act (FTCA). For the reasons explained below, we agree and therefore GRANT Defendant's Motion to Dismiss.
Factual Background
On the morning of December 20, 2001, Plaintiff L.G., a minor, was injured in an automobile-train accident at the Hillcrest Road grade crossing in Vincennes, Indiana. Compl. ¶ 5, 14. At the time of the accident, L.G. was a passenger in the car of J.J., a minor. Id. ¶ 5.
L.G. and J.J. were traveling south on Hillcrest Road when they arrived at the railroad tracks and, after failing to see or hear an approaching train, J.J. proceeded onto the tracks. Unfortunately, J.J. was forced to wait on the tracks because of traffic stopped immediately south on Hillcrest Road. Id. ¶¶ 6-11.
While J.J. and L.G. were stopped on the railroad tracks, a CSX train approached the Hillcrest Road grade crossing from the west and struck J.J.'s vehicle. Despite the train's blowing whistle, J.J. was not aware of its approach and did not have an opportunity to remove his vehicle from the railroad tracks, nor, apparently, was an effort made to stop or slow the train before the impact. Id. ¶¶ 13-14.
As a result of the severe injuries L.G. suffered in the accident, she has been partially paralyzed, unable to talk, and reduced to a vegetative state. Since the crash, L.G. has been in and out of hospitals and remains completely dependent on other people for her care and survival. As a result of these injuries, the Goodmans have incurred and will continue to incur substantial medical bills, estimated to be in excess of $11 million over the course of L.G.'s life. Id. ¶¶ 48-65.
The Hillcrest Road grade crossing is marked by warning signs and reflectorized crossbucks ("crossbucks") that were installed in 1976 by the INDOT as part of a state-wide plan to install crossbucks at all grade crossings of the Baltimore and Ohio Railroad (now CSX) in Indiana. Id. ¶ 24-25. The FHWA approved the INDOT project and provided federal funds to cover 90% of the project's cost, pursuant to 23 U.S.C. § 130(a) and 23 C.F.R. § 646.214(b). Id. ¶¶ 17-23, 27. Although the crossbucks were fully compliant with the federal standards for such devices when installed, at the time of the FHWA approval no diagnostic team review or engineering study had been conducted at the Hillcrest Road grade crossing to determine the appropriate type of warning system that should be installed. Id. ¶¶ 27, 37-38.
The following statutes and regulations governing the selection and approval of warning apparatus at railroad grade crossings provide, in relevant parts, that:
(1) Title 23 U.S.C. § 130(d):
Survey and Schedule of Projects. Each State shall conduct and systematically maintain a survey of all highways to identify those railroad crossings which may require separation, relocation, or protective devices, and establish and implement a schedule of projects for this purpose. At a minimum, such a schedule shall provide signs for all railway-highway crossings.
(2) Title 23 C.F.R. § 626.214(b):
Grade crossing improvements.
. . .
(3) (i) Adequate warning devices, under § 646.214(b)(2) or on any project where Federal-aid funds participate in the installation of the devices are to include automatic gates with flashing light signals when one or more of the following conditions exist:
. . .
(F) A diagnostic team recommends them.
(ii) In individual cases where a diagnostic team justifies that gates are not appropriate, FHWA may find that the above requirements are not applicable.
(4) For crossings where the requirements of § 646.214(b)(3) are not applicable, the type of warning device to be installed, whether the determination is made by a State regulatory agency, State highway agency, and/or the railroad, is subject to the approval of FHWA.
(3) Title 23 C.F.R. § 646.216(b):Preliminary engineering and engineering services.
(1) As mutually agreed to by the State highway agency and railroad, and subject to the provisions of § 646.216(b)(2), preliminary engineering work on railroad-highway projects may be accomplished by one of the following methods:
(i) The State or railroad's engineering forces;
(ii) An engineering consultant selected by the State after consultation with the railroad, and with the State administering the contract; or
(iii) An engineering consultant selected by the railroad, with the approval of the State and with the railroad administering the contract.
On December 23, 2003, the Goodmans brought suit against the United States of America under section 1346 of the FTCA, entitledUnited States as defendant, which, in relevant part, provides:
. . . the district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b)(1)
Claims against the United States under section 1346 of the FTCA are limited by section 2680, entitled Exceptions, which states, in part, that:
The provisions of this chapter and section 1346(b) of this title shall not apply to —
(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. 28 U.S.C. § 2680(a)
The Goodmans' choice of the United States as Defendant is based on the fact that their state tort claims against CSX for inadequate warning signs are pre-empted by 23 C.F.R. §§ 646.214(b)(3) and (4). Compl. ¶¶ 28-36. See also Norfolk Southern Ry. Co. v. Shanklin, 529 U.S. 344, 352-55 (2000); CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 668 (1993).
Legal Analysis Motion to Dismiss Standard of Review
Pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6), the United States moves to dismiss this action for lack of subject mater jurisdiction and failure to state a claim upon which relief may be granted. A party moving to dismiss bears a weighty burden. It must show that the pleadings themselves fail to provide a basis for any claim for relief under any set of facts. Ed Miniat, Inc. v. Globe Life Ins. Group Inc., 805 F.2d 732, 733 (7th Cir. 1986), cert. denied, 482 U.S. 915 (1987).
As a practical matter, a dismissal under Rule 12(b)(6) is likely to be granted only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief.Owner-Operator Indep. Drivers Ass'n v. Mayflower Transit, Inc., 161 F. Supp. 2d 948, 950-51 (S.D. Ind. 2001) (quoting 5A Charles A. Wright and Arthur R. Miller, Federal Practice Procedure: Civil § 1357). On a Rule 12(b)(6) motion, we treat all well-pleaded factual allegations as true, and we construe all inferences that reasonably may be drawn from those facts in a light most favorable to the party opposing the motion, in this case the Goodmans. Lee v. City of Chicago, 330 F.3d 456, 459 (7th Cir. 2003); Szumny v. Am. Gen. Fin., 246 F.3d 1065, 1067 (7th Cir. 2001).
In ruling on a motion to dismiss for lack of jurisdiction under Rule 12(b)(1), we must accept as true all material allegations of the complaint and draw all reasonable inferences in the plaintiff's favor. Retired Chicago Police Assoc. v. City of Chicago, 76 F.3d 856, 862 (7th Cir. 1996). In order to avoid the discretionary function exception in the FTCA, contained in 28 U.S.C. § 2680, and survive a motion to dismiss under 12(b)(1), the complaint must allege facts demonstrating the challenged actions are "not the kind of conduct that can be said to be grounded in the policy of the regulatory regime." United States v. Gaubert, 499 U.S. 315, 324-25 (1991). The central question in this case is whether the discretionary function exception to the United States' waiver of sovereign immunity in the FTCA applies so as to bar subject matter jurisdiction. See Rothrock v. United States, 62 F.3d 198 (7th Cir. 1995).
Claims Based on Federal Statutes and Regulations
The Goodmans ask the Court to find that: (1) the warning signs posted at the Hillcrest Road grade crossing were inadequate and that train activated flashers and gates should have been installed instead; (2) the FHWA approval of the warning signs without having a diagnostic team review or engineering study conducted to evaluate the grade crossings was negligent and contrary to statute and regulation; (3) federal statutes and regulations left the FHWA no room to exercise policy judgment in the approval of the warning signs at the Hillcrest Road grade crossing; and (4) the FHWA, having decided to pay for warning signs at the Hillcrest Road grade crossing, had no discretion to approve negligent or inadequate warning signs.
Plaintiffs allege that the FHWA was negligent and violated federal regulations when it approved the INDOT project without conducting an engineering study or diagnostic team review of the grade crossings to determine the appropriate types of warning devices to install, and that FHWA's negligence was the proximate cause of the train accident and L.G.'s subsequent injuries. The Goodmans also assert that federal statutes and regulations required the FHWA to conduct a diagnostic team review of the relevant grade crossings before approving the INDOT project. The Goodmans claim this alleged duty to conduct a diagnostic team review arises under 23 C.F.R. §§ 646.216(b), 646.214(b)(3) and (4), and unspecified provisions of the Federal Railroad Safety Act of 1970 and the Highway Safety Act of 1973.
The United States first argues that the Goodmans asserted a tort claim based upon a violation of federal statutes and regulations and that there has not been a waiver of sovereign immunity for such claims. The FTCA waives the immunity of the United States only so far as a private person in the same situation could be found liable under state tort law. See Art Metal-U.S.A., Inc. v. United States, 753 F.2d 1151, 1157 (D.C. Cir. 1985). Claims can be based upon negligent performance of duties under federal statutes and regulations, but only if there are analogous duties under state tort law. Id. In the present case, there is no analogous state law concerning appropriate warning signs at federally funded grade crossings because 23 C.F.R. §§ 646.214(b) (3) and (4) "substantially subsume the subject matter of the relevant state law." Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344, 356 (2000) (quotation omitted). The Goodmans advance several state law theories, including Indiana statutes and common law, to support their contention that FHWA was negligent in approving the INDOT project to install warning signs. However, these theories must fail, since 23 C.F.R. §§ 646.214(b)(3) and (4) preempt all state law claims regarding inadequate warning signs at grade crossings, regardless of whether the provisions of the regulations were properly followed or if different devices originally should have been installed. Id. at 358-59. Because the Goodmans' claims rely entirely on alleged violations of Federal statutes and regulations, and such actions are barred by the FTCA, we GRANT the United States' Motion to Dismiss this case.
23 C.F.R. §§ 646.214(b)(3) and (4) do not preempt all state tort claims that the Goodmans may have. State tort claims against CSX which are not based upon a claim of inadequate warning signs are not necessarily preempted by 23 C.F.R. § 646.214(b). See, e.g., Shanklin v. Norfolk Southern Ry. Co., 369 F.3d 978, 988 (6th Cir. 2004) (holding that 23 C.F.R. § 646.214(b) does not preempt state common law claims respecting vegetation or sight distance requirements at grade crossings).
Discretionary Function Exception to the FTCA
The United States also maintains that the actions of the FHWA fall within the discretionary function exception to the general waiver of sovereign immunity in the FTCA. The Goodmans present two primary theories to avoid the discretionary function exception to the FTCA: first, that the FHWA had no discretion to disregard a statutory/regulatory requirement to conduct a diagnostic team review or engineering study; and, second, that the decision by the FHWA to become involved in railway crossing safety issues was discretionary, but once that decision was made the FHWA had to exercise due care in carrying out its duties. Neither contention is persuasive.
The Goodmans assert that federal statutes and regulations mandate that the FHWA conduct a diagnostic team review of relevant grade crossings before approving a State project. The Goodmans claim this nondiscretionary duty of the FHWA to conduct a diagnostic team review arises under 23 C.F.R. §§ 646.214(b)(3) and (4), 646.216(b), and unspecified provisions of the Federal Railroad Safety Act of 1970 and the Highway Safety Act of 1973. We find no provision in the regulations that the Goodmans rely on that mandates or requires that a diagnostic team review or engineering study be conducted before the FHWA approves a state project or provides funding. In fact, Justice O'Connor, writing for the Supreme Court, in a similar situation to ours, rejected the contention that 23 C.F.R. §§ 646.214(b)(3) and (4) require a diagnostic team review before FHWA approves a project, and implied that if a duty to conduct a diagnostic team review exists, then such duty lies with the state agency applying for federal funds. Norfolk Southern Ry. Co. v. Shanklin, 529 U.S. 344, 356-57 (2000).
The most likely other provision that the Goodmans were referring to would be 23 U.S.C. § 130(d).
This interpretation appears to be implicit in the language of 23 C.F.R. § 646.214(b)(4) which lists the parties who could determine the type of warning device to be installed as "a State regulatory agency, State highway agency, and/or the railroad".
The Goodmans also argue that once the FHWA exercised its discretionary power to fund the INDOT grade crossing project, it had a duty to exercise due care in carrying out its duties. The Goodmans cite several cases supporting this cause of action; however, all of those cases predate the Supreme Court's decision in United States v. S.A. Empresa de Viacao Aerea Rio Grandense, 467 U.S. 797 (1984) ("Varig Airlines").Varig Airlines directs the focus of our inquiry to the nature of the challenged governmental activity, and it is irrelevant to our analysis whether the government was in fact negligent. Hylin v. United States, 755 F.2d 551, 553 (7th Cir. 1985). AfterVarig Airlines, we merely need to determine if the regulatory responsibilities of an agency "require its employees to exercise discretion in performing their duties," and, if so, then the discretionary function exception protects the United States from tort claims based upon the employees' performance. Id.
Estate of Callas v. United States, 682 F.2d 613 (7th Cir. 1982) (finding that once the Federal government voluntarily performed a safety function it was obligated to do so without negligence); Eastern Air Lines v. Union Trust Co., 221 F.2d 62 (D.C. Cir. 1955) (finding the decision to operate a traffic control tower was discretionary, but Federal employees had no discretion to operate the tower negligently); Hylin v. United States, 715 F. 1206 (7th Cir. 1983) (finding the discretionary function exception to the FTCA does not apply to conduct that merely enforces mandatory regulations); Indian Towing Co. v. United States, 350 U.S. 61 (1955) (finding that once the government voluntarily assumed a safety duty it was obligated to use due care in carrying out that duty).
In the present case, the INDOT project that installed the warning signs at the Hillcrest Road crossing was approved by the FHWA, pursuant to 23 C.F.R. § 646.214(b)(4). The FHWA approval was neither mandated nor required by the regulations, which provide no standards to guide such approval and instead leave the decision to the discretion of the FHWA. In this regard, the Goodmans' contention is substantially similar to the alleged basis for liability raised in Rothrock v. United States, in which the plaintiffs argued the United States should be liable for failing to ensure as a condition for funding that a bridge be constructed in accordance with its referenced safety standards. 62 F.3d 196, 197 (7th Cir. 1995). In Rothrock, the Seventh Circuit found that the discretionary function exception in 28 U.S.C. § 2680(a) barred such a claim. Id. at 200. We find no reason to find otherwise in this case. Because the United States has not waived sovereign immunity for claims based upon the performance by its employees' of discretionary duties, we GRANT the United States' Motion to Dismiss.
The Goodmans cite one final case, Central Rivers Towing v. City of Beardstown, 750 F.2d 565 (7th Cir. 1984) to support their contention that negligent performance of a discretionary duty is not protected by the discretionary function exception to the FCTA. Although Central River Towing was decided afterVarig Airlines, its reasoning parallels the reasoning of the other cases cited by the Goodmans, see supra note 3, which has been cast into doubt by the holdings of Hylin andRothrock. Moreover, in Central River Towing the Federal government was directly responsible for maintaining the warning signs at issue, not merely approving a state project, as was the case in Rothrock.
Conclusion
As explained above, the United States is not a proper defendant from whom the Goodmans may recover damages under tort law for their injuries. Accordingly, we GRANT the United States' Motion to Dismiss without prejudice.
It is so ORDERED.