Opinion
No. 19-CV-2070-CJW-MAR
2021-09-17
Hannah JESSKI, as Executrix and Personal Representative of the Estate of Dixie Blazier; Glenda Mundis; and Robert Mundis, Plaintiffs, v. DAKOTA, MINNESOTA & EASTERN RAILROAD CORPORATION, Defendant.
Larry Bendesky, Pro Hac Vice, Robert William Zimmerman, Pro Hac Vice, Scott A. Fellmeth, Pro Hac Vice, Saltz Mongeluzzi Barrett & Bendesky PC, Philadelphia, PA, Steven V. Lawyer, Des Moines, IA, for Plaintiffs. James D. Helenhouse, Stephen Joseph Rynn, Thomas C. Paschalis, Fletcher & Sippel LLC, Chicago, IL, for Defendant.
Larry Bendesky, Pro Hac Vice, Robert William Zimmerman, Pro Hac Vice, Scott A. Fellmeth, Pro Hac Vice, Saltz Mongeluzzi Barrett & Bendesky PC, Philadelphia, PA, Steven V. Lawyer, Des Moines, IA, for Plaintiffs.
James D. Helenhouse, Stephen Joseph Rynn, Thomas C. Paschalis, Fletcher & Sippel LLC, Chicago, IL, for Defendant.
ORDER
C.J. Williams, United States District Judge
TABLE OF CONTENTS
I. FACTUAL BACKGROUND...1258
II. SUMMARY JUDGMENT STANDARD...1260
III. DISCUSSION...1261
A. Preemption...1261
B. Adequacy of Warning Devices...1263
1. Warning Signal Activation, Operation, and Sufficiency...1263
2. Signal Maintenance...1266
3. Signal Alignment...1266
C. Operation of the Locomotive by Defendant's Crew...1267
1. Excessive Speed and Non-Operative Lights...1267
2. Audible Warnings...1269
3. Duty to Avoid Vehicle/Proper Lookout...1269
a. Mr. C...1270
b. Mr. E...1271
i. Specific Individual Hazard...1271
ii. Proper Lookout...1272
4. Design...1273
D. Negligent Training and Fitness to Operate...1273
1. Untrained on Proper Lookout...1274
2. Fitness to Operate...1274
a. Hearing and Vision Defects...1274
b. Drug Testing...1275
c. Rules on Prohibited Substances...1275
E. Remaining Theories...1275
IV. CONCLUSION...1276
This matter is before the Court on defendant's Motion for Summary Judgment. (Doc. 102). Plaintiffs timely filed a resistance, (Doc. 115), and defendant timely filed a reply (Doc. 118).
For the following reasons, defendant's motion for summary judgment is granted .
I. FACTUAL BACKGROUND
This matter arises out of vehicle-locomotive collision (the "collision") that occurred on December 1, 2017, in Nora Springs, Iowa. (Docs. 102-1, at 1; 115-3, at 1). The following background facts are undisputed unless otherwise indicated. The Court will discuss additional facts below as they become relevant to the Court's analysis.
Dakota, Minnesota & Eastern Railroad Corporation ("defendant" or "DM&E") is a Delaware corporation with its principal place of business in Minneapolis, Minnesota. (Doc. 31, at 3). James Blazier was the driver of the Chevrolet Equinox ("Blazier vehicle") that was involved in the vehicle-locomotive collision. (Docs. 102-1, at 1; 115-3, at 1). Mr. Blazier's wife, Dixie Blazier, was in the front passenger seat of the vehicle. (Docs. 102-1, at 1; 115-3, at 1). Mr. Blazier's sister-in-law, Glenda Mundis, was also a passenger and was seated in the rear seat of the vehicle. (Docs. 102-1, at 1; 115-3, at 1). Robert Mundis is married to Glenda Mundis and was not a passenger in the vehicle on the day of the collision.
On December 1, 2017, Mr. Blazier, along with the two passengers, was driving northbound on Zinnia Avenue near Nora Springs, Iowa. (Docs. 102-1, at 2; 115-3, at 1). It was a sunny day with good visibility, no roadway precipitation, and overall suitable driving conditions. (Docs. 102-1, at 2; 115-3, at 1). Zinnia Avenue crosses over defendant's main line railroad track at U.S. Department of Transportation grade crossing number 385-463L. (Docs. 102-1, at 1; 115-3, at 1). The parties agree the crossing was not equipped with gate arms, cantilevered flashing light signals, or an event recorder. (Doc. 118-2, at 2). The parties also agree, however, that the road leading up to the crossing had a yellow railroad advance warning sight with an X and two Rs located 713 feet south of the crossing, white pavement markings consisting of a white X with two white Rs located 715 feet south of the crossing, a railroad crossbuck sign located just south of the crossing, and a white stop line for northbound motorists located 24.8 feet south of the crossing. (Docs. 102-1, at 2–3; 115-3, at 2). There were also two sets of flashing lights on each side of the tracks, but the parties disagree whether the lights were working properly on the day of the collision. (Doc. 118-2, 21–22).
At the same time the Blaziers’ vehicle was driving north, a locomotive owned by defendant was traveling westbound on the tracks. The locomotive did not have any cars or cargo attached and was being operated by an engineer ("Mr. E") and a conductor ("Mr. C"). (Doc. 118-2, at 4). As the locomotive approached the Zinnia Avenue crossing it was travelling at 22.1 miles per hour. (Id. ). According to defendant, the locomotive's headlights and front ditch lights were on and functioning. (Doc. 102-1, at 17). Defendant also notes Mr. E engaged the locomotive's warning bells and sounded the locomotive's horn in a long-long-short-long pattern beginning 27 seconds before the locomotive reached the crossing. (Id. , at 13). The locomotive's event data recorder confirmed this. (Doc. 102-1, at 14). Mrs. Mundis, however, testified she did not hear the horn or bells. (Doc. 115-4, at 191). Both Mr. E and Mr. C had a clear line of the Blaziers’ vehicle when the locomotive was about 308 feet from the crossing and the vehicle was about 735 feet from the crossing. (Doc. 118-2, at 4–5). At some point, Mr. E lost sight of the vehicle and Mr. C looked away from the vehicle to look for southbound traffic on the opposite side of the highway. (Id. , at 7–8). The vehicle and the locomotive then collided; specifically, the right-front of the vehicle struck the left side of the locomotive at approximately the same time the front of the locomotive struck the front passenger side of the vehicle. (Id. , at 10). Mr. E engaged the emergency brakes, although the parties disagree whether he did that before the collision or after the collision. (Id. , at 11). Mr. and Mrs. Blazier died as a result of the collision and Mrs. Mundis sustained significant physical and mental injuries. (Id. , at 14).
The maximum speed for this portion of the track was 40 miles per hour. (Docs. 102-5, at 89).
It is generally undisputed that a highway-rail grade crossing warning system must be maintained to activate in accordance with the design of the warning system, and the warning system must, at a minimum, provide 20 seconds warning time before the train arrives at the crossing. (Id. , at 18). In its simplest terms, the warning system at the crossing is connected to the rails by wires and a frequency is sent through the rails to a point 1,727 feet east of the crossing. (Doc. 102-1, at 5). When a train arrives within 1,727 feet of the crossing it crosses over the rails it shorts the circuit, which in turn activates the warning system. (Id. ). The system is powered by constantly charged batteries and if the batteries go out, the warning system will active continuously to call attention to the required maintenance. (Id. ). In the months leading up to the collision, the track and crossing were inspected multiple times—including an inspection two weeks before the collision—and were found to be operating properly. (Doc. 102-1, at 6–7). Plaintiffs, however, argue the testing was not performed properly. (Doc. 115-3, at 5).
An investigation and additional testing also occurred after the collision. First, the Iowa State Patrol investigated after the collision. (Doc. 118-2, at 11). The State Patrol Officer investigating the collision walked and photographed the roadway south of the crossing, but did not access the locomotive, the operator's cab of the locomotive, the complete data printout from the locomotive's event recorder, or information on when and how the locomotive's brakes were activated. (Docs. 102-1, at 16; 118-2, at 12). The officers did observe the signals activate properly, however, after the collision. (Doc. 102-1, at 8). Second, representatives for defendant also conducted their own post-collision investigation. (Doc. 102-1, at 7-8). The investigation included testing the signal system, visually observing the signal system as another train went passed the intersection, and downloading information from the locomotive's data recording system. (Doc. 102-1, at 7–8, 14). Investigators for both the Iowa State Patrol and defendant spoke with Mr. C and Mr. E and determined drug testing and sobriety testing was not necessary as neither was exhibiting symptoms that would have triggered the need for a test. (Doc. 102-1, at 22).
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). When asserting that a fact is undisputed or is genuinely disputed, a party must support the assertion by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials." FED. R. CIV. P. 56(c)(1)(A) ; see Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Alternatively, a party may show that "the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." FED. R. CIV. P. 56(c)(1)(B). More specifically, a "party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." FED. R. CIV. P. 56(c)(2).
A fact is "material" if it "might affect the outcome of the suit under the governing law[.]" Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citation omitted). "An issue of material fact is genuine if it has a real basis in the record," Hartnagel v. Norman , 953 F.2d 394, 395 (8th Cir. 1992) (citation omitted), or "when a reasonable jury could return a verdict for the nonmoving party on the question," Woods v. DaimlerChrysler Corp. , 409 F.3d 984, 990 (8th Cir. 2005) (internal quotation marks and citation omitted). Evidence that presents only "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), or evidence that is "merely colorable" or "not significantly probative," Anderson , 477 U.S. at 249–50, 106 S.Ct. 2505, does not make an issue of fact genuine. In sum, a genuine issue of material fact requires "sufficient evidence supporting the claimed factual dispute" that it requires "a jury or judge to resolve the parties’ differing versions of the truth at trial." Id. at 249, 106 S.Ct. 2505 (citation and internal quotation marks omitted).
The party moving for summary judgment bears "the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show a lack of a genuine issue." Hartnagel , 953 F.2d at 395 (citation omitted). Once the moving party has met this burden, the nonmoving party must go beyond the pleadings and by depositions, affidavits, or other evidence designate specific facts showing that there is a genuine issue for trial. See Mosley v. City of Northwoods , 415 F.3d 908, 910 (8th Cir. 2005).
In determining whether a genuine issue of material fact exists, courts must view the evidence in the light most favorable to the nonmoving party, giving that party the benefit of all reasonable inferences that can be drawn from the facts. Tolan v. Cotton , 572 U.S. 650, 651, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014) ; Matsushita , 475 U.S. at 587–88, 106 S.Ct. 1348 (citation omitted); see also Reed v. City of St. Charles , 561 F.3d 788, 790 (8th Cir. 2009) (stating that in ruling on a motion for summary judgment, a court must view the facts "in a light most favorable to the non-moving party—as long as those facts are not so ‘blatantly contradicted by the record ... that no reasonable jury could believe’ them") (alteration in original) (quoting Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ). A court does "not weigh the evidence or attempt to determine the credibility of the witnesses." Kammueller v. Loomis, Fargo & Co. , 383 F.3d 779, 784 (8th Cir. 2004) (citation omitted). Rather, a "court's function is to determine whether a dispute about a material fact is genuine[.]" Quick v. Donaldson Co. , 90 F.3d 1372, 1376-77 (8th Cir. 1996). When considering a motion for summary judgment, the court "need consider only the cited materials, but it may consider other materials in the record." FED. R. CIV. P. 56(c)(3).
III. DISCUSSION
This case has a long and complicated procedural history involving several motions to dismiss, third-party claims, and voluntary dismissals, which the Court need not recap in its entirety here. For purposes of the summary judgment motion, it is useful to understand that plaintiffs first filed their complaint on November 18, 2019, and their First Amended Complaint on January 24, 2020. (Docs. 1 & 17). On February 20, 2020, plaintiffs filed their Second Amended Complaint and jury demand, which is the controlling complaint here, for their "wrongful death and negligence" claims. (Doc. 25). The complaint consists of two counts of negligence and one count of loss of consortium against defendant. (Docs. 25, at 8–20; 53). Defendant moves for summary judgment on the claims here.
Plaintiffs also named DM&E's parent company, Canadian Pacific Railway Company ("CPRC"), as a defendant. (Doc. 25). CPRC moved to dismiss for lack of personal jurisdiction. (Doc. 41) and the Court granted CPRC's motion. (Doc. 52). Thus, CPRC is no longer a party to this case.
Although plaintiffs’ Second Amended Complaint only claims of negligence (and a single loss of consortium claim stemming from the negligence claim), plaintiffs assert 18 theories in support of these claims. (Doc. 25, at 10–11). For example, plaintiffs assert defendant was negligent in failing to provide a reasonably safe railroad track, failing to perform required inspections of tracks and track systems, and failing to provide any audible warnings of any kind. (Id. ). The parties group these theories into four categories: (1) claims as to the adequacy of the warning devices, (2) claims related to the crew's operation of the locomotive, (3) claims that the crew was not qualified or fit to work, and (4) the remaining allegations that do not fit clearly into the other categories. (See generally Docs. 106, 115). The Court will follow the parties’ organization and will consider each theory in turn after first addressing preemption.
A. Preemption
Before delving into the substance of plaintiffs’ arguments, the Court must first address the impact of preemption. Preemption predominates, and ultimately forecloses, nearly every theory plaintiffs raise in support of their negligence claim.
The Supremacy Clause of the United States Constitution states: "This Constitution, and the Laws of the United States ... shall be the supreme Law of the Land." U.S. CONST. art. VI. "Consideration of issues arising under the Supremacy Clause starts with the assumption that the historic police powers of the States are not to be superseded by Federal Act unless that is the clear and manifest purpose of Congress." Cipollone v. Liggett Grp., Inc. , 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (internal alterations and quotation marks omitted). There are three circumstances when state law is preempted by federal law under the Supremacy Clause. English v. Gen. Elec. Co. , 496 U.S. 72, 78, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990). "First, Congress can define explicitly the extent to which its enactments pre-empt state law." Id. "Second, in the absence of explicit statutory language, state law is pre-empted where it regulates conduct in a field that Congress intended the Federal Government to occupy exclusively." Id. at 79, 110 S.Ct. 2270. "Finally, state law is pre-empted to the extent it actually conflicts with federal law." Id. Defendant asserts the Federal Railroad Safety Act ("FRSA") preempts state law, including tort law. (Doc. 106, at 22). Thus, the Court need not consider field or conflict preemption.
Title 49, United States Code, Section 20106(a) states, in pertinent part:
Laws, regulations, and orders related to railroad safety ... shall be nationally uniform to the extent practicable. A State may adopt or continue in force a law, regulation, or order related to railroad safety ... until the Secretary of Transportation ... prescribes a regulation or issues an order covering the subject matter of the State requirement.
49 U.S.C. § 20106(a)(1)–(2). Although the provision expressly preempts state railroad law, the preemption is not limitless. For example, a state may adopt or enforce a law until the Secretary of Transportation prescribes a rule covering the subject matter or when a more stringent state law is necessary to eliminate a local safety or security hazard. Id. § 20106(a)(2), 20106(a)(2)(A) ; see also Zimmerman v. Norfolk S. Corp. , 706 F.3d 170, 177 (3d Cir. 2013).
In 2007, Congress amended Section 20106 to further clarify preemption for state law causes of action. Section 20106(b), the clarification provision, states:
(1) Nothing in this section shall be construed to preempt an action under State law seeking damages for personal injury, death, or property damage alleging that a party—
(A) has failed to comply with the Federal standard of care established by a regulation or order issued by the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), covering the subject matter as provided in subsection (a) of this section;
(B) has failed to comply with its own plan, rule, or standard that it created pursuant to a regulation or order issued by either side of the Secretaries; or
(C) has failed to comply with a State law, regulation, or order that is not incompatible with subsection (a)(2).
Other courts that have interpreted Section 20106 after the 2007 amendment have found the amendment does not change the statute's earlier language or overrule pre-2007 interpretations, but is nevertheless significant because it "clarifies that even when a regulation covers the subject matter of a claim, the claim can avoid preemption if the railroad violated a federal standard of care or its internal rule." Zimmerman , 706 F.3d at 177. The amended FRSA then requires a two-step process that requires a court to "first ask whether the defendant allegedly violated either a federal standard of care or an internal rule that was created pursuant to a federal regulation." Id. at 178. Relevant federal standards of care are found in Federal Railroad Administration ("FRA") regulations at Title 49, Code of Federal Regulations, Chapter II. If defendant did violate the standard of care or internal rule, then the claim avoids preemption. Id. "Otherwise, we move to the second step and ask whether any federal regulation covers the plaintiff's claim." Id. In other words, the amendment means a defendant cannot commit a violation and then assert preemption automatically precludes a claim.
As a general matter, the Court finds that the 2007 amendment requires the Court to determine whether defendant "compl[ied] with the Federal standard of care[.]" 49 U.S.C. § 20106(b). Thus, the Court will determine defendant's compliance wherever defendant argues plaintiffs’ claim is preempted.
B. Adequacy of Warning Devices
The first grouping of theories in plaintiffs’ negligence claim involves the warning devices at the crossing. Specifically, plaintiffs argue defendant failed to provide a reasonably safe railroad track, failed to maintain the railroad and track system, and failed to properly inspect the rail system. (Doc. 25, at 10). The collision happened at the rail crossing and thus the negligence claims only reasonably apply to the portion of the track around the crossing and related to the warning system serving the crossing.
As described above, if defendant violated the federal standard, the claim is not preempted. Thus, the Court will determine defendant's compliance with the relevant regulation. In doing so, the Court agrees to some extent with both parties. Specifically, the Court finds that federal regulations apply and preempt the state law claims.
Defendant argues summary judgment should be granted on all claims related to the warning devices. Defendant argues state law claims based on the adequacy of warnings are preempted by federal law. (Doc. 106, at 23–27). In support of this argument defendant claims that 90% of the installation costs of the warning devices at the crossing were paid for using federal funds. (Doc. 106, at 24).
Plaintiffs agree that "federal law mandates that any ‘adequacy’ argument of the warning signals at the subject crossing is preempted." (Doc. 115-1, at 18 n.7). Plaintiffs argue, however, that there is a genuine issue of material fact about whether the warnings activated and provided the necessary warnings and whether the warning systems were adequately maintained. In other words, plaintiffs argue there is a genuine issue of material fact relating to the first question in the two-step analysis, namely, "whether the defendant ... violated either a federal standard of care or an internal rule that was created pursuant to federal regulation." Zimmerman , 706 F.3d at 177. Defendant responds that there is no evidence that it violated a federal standard of care or an internal rule created under federal regulation. (Doc. 106, at 27–30). Defendant argues there is no evidence the warning signals were not functioning properly at the time of the collision. (Id. , at 29). Defendant also argues there is no evidence the signals were improperly maintained. (Id. , at 31–32). Finally, defendant argues there is no evidence the warning lights were misaligned. (Id. , at 33–35).
1. Warning Signal Activation, Operation, and Sufficiency
Federal regulations state:
A highway-rail grade crossing warning system shall be maintained to activate in accordance with the design of the warning system, but in no event shall it provide less than 20 seconds warning time for the normal operation of through trains before the grade crossing is occupied by rail traffic.
49 C.F.R. § 234.225. Further, Section 234.5 states: "Activation failure means the failure of an active highway-rail grade crossing warning system to indicate the approach of a train at least 20 seconds prior to the train's arrival at the crossing[.]" Thus, so long as defendant did not violate the regulations, plaintiffs’ theory based on the signals working improperly is preempted.
Defendant argues plaintiffs have not provided any evidence that the signals did not "activate properly, operate properly, or give a sufficiently long warning." (Doc. 106, at 27). Defendant first asserts plaintiffs are attempting to impermissibly shift the burden to defendant to show the signals were working. (Id. , at 28). Defendant then asserts there is no evidence the signals were not working and in fact, the evidence overwhelmingly shows the warning signals were working. (Id. , at 28–30).
The Court agrees with defendant that plaintiffs cannot shift the burden onto defendant to show the warnings were working when the basis of their theory is that the signals were not working. See, e.g., Cornelison v. Tambrands, Inc. , 710 F. Supp. 706, 710 (D. Minn. 1989) (holding that "plaintiff cannot shift the burden to defendant[ ] to disprove her claim" when the best evidence of the claim is in defendant's possession). Also, when a party has moved for summary judgment based on a lack of evidence, the Court looks to the nonmovant to show there is a genuine issue for trial "through affidavits, depositions, documents, and the like." Flowers v. Schliesing , No. 15-3015 (RHK/HB), 2016 WL 7031858, at *2 (D. Minn. Dec. 1, 2016). Thus, if there is an issue of material fact that precludes entry of summary judgment, it must be because plaintiffs have produced some evidence that the warnings were not working properly.
It is true plaintiffs make burden shifting arguments, including "no objective, data-driven evidence exists that the light signals or the bell were activated in the way they were designed to activate." (Doc. 115-1, at 19). Plaintiffs, however, also point to several pieces of evidence they claim show the signals were not working, including: the fact defendant intended to, but never installed, an event recorder at the crossing; Mrs. Mundis’ testimony that she never heard a train horn or warning bells; the fact Mr. Blazier took action to avoid the collision at the last second; an expert report authored by James Loumiet opining that warning systems can malfunction or provide short warning times; and Mr. C and Mr. E's testimony that they saw the warning lights activate but not until they were close to the intersection. (Id. , at 18–21). If any of these create a fact issue on whether the warning system failed, summary judgment is unwarranted.
First, plaintiffs do not cite, and the Court is not aware, of any statute, regulation, or caselaw that requires a railroad to install an event recorder at a crossing. Plaintiff does not appear to argue that an event recorder was necessary or affected the usability or efficacy of the warning system. Instead, plaintiffs cite the lack of a recording device to show defendant was generally irresponsible and negligent. (Id. at 18–19). The lack of a recording device does nothing to show the warning devices were not working and the Court declines to consider it as evidence that creates a fact issue.
Second, Mrs. Mundis testified at her deposition that she did not hear a train horn or warning bells at any point before the collision. (Doc. 115-4, at 191). Mrs. Mundis also testified, however, that she was not listening for those things and that she did not actually know whether they were sounding. (Id. ). On the one hand, it is significant that the only surviving victim from the vehicle testified that she did not hear any warnings, including a train horn or bells. On the other hand, she admits she was not listening for the warnings and does not know whether they were sounding or not. Had Mrs. Mundis only testified that she did not hear the warnings even though she was not listening for them, the Court might be able to consider this as evidence that the warnings did not sound because it would not be unreasonable to find the warnings should be audible whether or not one was paying attention and her not hearing anything thus makes it more likely the warnings were not sounding. But Mrs. Mundis also testified that she did not know whether they were sounding. Her admission that she does not know if the warnings sounded demonstrates a lack of personal knowledge about whether there were warnings. To then conclude that because she did not know if the warnings had sounded means the warnings did not sound amounts to speculation. Mrs. Mundis's lack of knowledge does not amount to evidence that the warnings were not working.
Third, James Loumiet authored an expert report based on his review of the accident. (Id. , at 112). In his report, Mr. Loumiet stated that "[i]t is possible for grade crossing warning systems to malfunction and not activate or to provide short warning times." (Id. , at 118). Mr. Loumiet also states that defendant did not produce "any objective electronic data or evidence ... to indicate whether or not the signals were functioning and provided the proper warning time." (Id. , at 117). Again, this appears to be a burden shifting attempt that requires defendant to produce evidence the signals were working. Further, a statement that it is possible for a warning system to fail is not evidence that the warning system failed. Without evidence that there was a failure, the mere possibility that a warning system could fail is not evidence that a failure occurred here.
Plaintiffs also argue that Mr. Blazier's last-second attempt to avoid the collision and Mr. C and Mr. E's testimony that they saw the warning lights activate but not until close to the intersection shows the warning system did not work. Plaintiffs’ attempt to use these two facts as evidence that the warning system did not work also amounts to speculation. There is no evidence Mr. C and Mr. E's statements were made to cover up their mistakes or previous admissions. Nor does the fact that they did not notice the lights until close to the intersection mean that the lights were not working when the train was farther from the intersection. Further, there is also no evidence that the last-minute swerve was because the warnings were not working in the first place.
Defendant also states there is objective evidence that the signals were working. (Doc. 106, at 27–28). Two weeks before the collision, on November 17, 2017, the lights were tested and found to be working properly. (Id. , at 28). Following the collision, DM&E signal maintainer Dylan Deford tested the lights at law enforcement's request and confirmed the lights and bells were working properly. (Id. , at 10, 29). Trooper Miller, lead investigator for the Iowa State Patrol, also reported the lights were working during this test. (Id. , at 28–29). DM&E maintenance manager Shaun Bailey oversaw further post-collision testing and again confirmed the lights were working properly. (Id. , at 11, 29). Finally, defendant's signal expert Richard Campbell, assessing this evidence in the context of defendant's fail-safe signal design, concluded he had no reason to doubt the signals were working properly at the time of collision. (Id. , at 29). Accordingly, defendant's affirmative evidence further supports the Court's conclusion that plaintiffs failed to show that defendant's signals were not working. Thus, plaintiffs’ claim based on their theory that the signals were not working properly is preempted, and summary judgment is granted.
2. Signal Maintenance
Part 234 sets regulations on the timing and nature of railroad signal inspections at grade crossings. For example, Section 234.257(a) states: "Each highway-rail crossing warning system shall be tested to determine that it functions as intended when it is placed in service. Thereafter, it shall be tested at least once each month and whenever modified or disarranged." Other sections of the regulations also cover the inspection requirements for more specific inspections. See, e.g. , 49 C.F.R. § 234.253 ("Each flashing light unit shall be inspected when installed and at least once every twelve months for proper alignment and frequency of flashes in accordance with installation specifications."). Tort claims based on theories that railroads negligently maintained signals are preempted when railroads comply with the inspection and maintenance regulations. See generally, e.g., Fed. Ins. Co. v. Burlington N. and Santa Fe Ry. Co. , 270 F. Supp. 2d 1183 (C.D. Cal. 2003). Thus, if defendant complied with the federal regulations, judgment must be granted in its favor on this theory.
Plaintiffs argue that there is a genuine issue of material fact "as to whether [defendant] conducted proper maintenance of the warning signals to ensure that the signals were properly aligned." (Doc. 115-1, at 24). Yet, aside from the alignment testing, plaintiffs do not argue that defendant did not adequately test or maintain the signal system in other respects, such as failing to inspect the tracks or track system. Plaintiffs present no evidence that defendant violated federal regulations for signal maintenance. The Court will consider whether the alignment was adequately tested in the following section when it considers the other alignment issues.
Thus, plaintiffs’ claim based on their theory that the signals were not maintained properly is preempted, and summary judgment is granted.
3. Signal Alignment
Section 234.217 sets maintenance standards for flashing light units in grade crossing signals. See 49 C.F.R. § 234.217. Each light must "be properly positioned and aligned" and "visible to a highway user approaching the crossing." Id. Section 234.253 requires railroads to inspect flashing lights for alignment issues annually. 49 C.F.R. § 234.253.
Plaintiffs do not question that defendant complied with annual alignment assessment. (See Doc. 115-1, 24–28). Instead, plaintiffs argue the lights in defendant's grade crossing signal were misaligned by taking issue with the alignment regulation and interpretations thereof. (Id. ). In their briefing, plaintiffs discuss several alternative standards for alignment based on sight distances and sun positioning but present no evidence that the relevant regulation embraces such standards. See id. Even if plaintiffs were correct that existing regulatory guidance should outline clear parameters for what constitutes proper alignment, it does not. See 49 C.F.R. § 234.217. Importantly, although plaintiffs’ expert Dr. Ellie Francis opines that the alignment led to insufficient illumination, she did not assess the railroad crossing until three years after the accident and did not view the lights illuminated during their visit. (Doc. 115-4, 38–39). As such, plaintiffs’ expert opinion is merely speculative. In sum, plaintiffs have provided no evidence that the flashing lights were not visible to approaching highway users.
Thus, plaintiffs’ claim based on their theory that the signals were misaligned is preempted, and summary judgment is granted.
C. Operation of the Locomotive by Defendant's Crew
The next grouping of theories in plaintiffs’ negligence claim involves the locomotive's operation by defendant's crew. Specifically, plaintiffs argue defendant's crew operated at an excessive speed; defendant failed to provide audible warnings of the approaching locomotive; defendant's crew failed to keep a proper lookout; and the crew failed to yield to the vehicle despite having a duty to avoid it. (Docs. 25, at 10–11; 106, at 35).
Defendant argues summary judgment should be granted on all theories related to the crew's operation of the locomotive. First, defendant argues plaintiffs’ excessive speed theory is preempted and baseless. (Doc. 106, at 35). Second, defendant argues there is no evidence the horn was not sounded, and that federal regulations preempt any horn argument. (Id. , at 39). Third, defendant argues the crew kept a proper lookout, and even if they did not it was not the cause of the accident. (Id. , at 41–48). Fourth, defendant argues any claim involving the locomotive design is preempted. (Id. , at 48–49).
Defendant conflates plaintiffs’ duty to avoid and proper lookout arguments into a single argument. (See Doc. 106, 41–48).
According to plaintiffs, defendant misinterprets an extension of plaintiffs’ proper lookout argument as a design claim. (Doc. 115-1, at 63–64). See Section III.E.4.
1. Excessive Speed and Non-Operative Lights
Section 213.9 states the maximum train speed for each class of track and, despite plaintiffs’ protestations, preempts plaintiffs’ claim. The crossing's track designation is Class 3. (Doc. 102-1, at 17). Under Section 213.9, locomotives can operate up to 40 miles per hour on Class 3 track. Locomotives with at least one non-operative auxiliary light, including ditch lights, are permitted to move under certain circumstances but may not travel above 20 miles per hour. See 49 C.F.R. § 229.125(a,d). It is undisputed that defendant's locomotive was travelling at approximately 22 miles per hour when the collision occurred. It is also undisputed that after the collision occurred, one headlight and one ditch light were non-operative.
Defendant and plaintiffs disagree, however, on whether these lights were operative before the collision. Plaintiffs assert both a headlight and a ditch light were out before the collision, and thus the locomotive's speed of 22 miles per hour was excessive and in violation of Section 229.125. (Doc. 115-1, at 29–30). Defendants assert both lights were operative before the collision, (Doc. 102-1, at 37), though its experts vary in their interpretation of how many ditch lights needed to be out to trigger the 20 mile per hour speed limit required under subsection 229.125(d). (Doc. 115-1, at 30–33). Citing Rule 5.9.5 of its General Code of Operating Rules ("GCOR"), defendant argues that even if a ditch light goes out while the locomotive is en route, movement may continue. (Doc. 106-1, at 38). According to defendant, this rule is dispositive because it was properly filed under Sections 229.125(f) and 217.7, and FRA has yet to disapprove of it. (Id. ). Thus, defendants argue plaintiffs’ claim is preempted as long as defendant was not in violation of the relevant GCOR rule.
Plaintiffs assert the locomotive's speed in excess of 20 miles per hour while moving with a non-operative ditch light was a but-for and proximate cause of the collision. (See Doc. 115-1, at 37–38, 40). But plaintiffs present no evidence that the ditch light was non-operative before the locomotive and the Blazier vehicle collided. Instead, they merely suggest it could have been non-operative. For example, plaintiffs infer from the lights’ outward appearance after the collision and the distance between the lights and point of impact that the lights must have already been non-operative when the collision occurred. (Doc. 115-1, at 33). But such observations are merely speculative, especially considering the delicate innerworkings of lightbulbs.
Plaintiffs have not shown evidence that the locomotive's single operative headlight in the dual lamp failed to provide sufficient illumination as required by subsections 229.125(a)(1–2). Thus, the dispositive issue is whether the ditch light was operative, unless defendant's rules properly allowed the locomotive to operate without it.
Rather than asserting evidence in support of their own arguments, plaintiffs’ focus on defendant's evidence and thereby continue to attempt to shift the burden of proof. First, plaintiffs argue that defendant provides insufficient evidence that the locomotive's headlights produced 200,000 candela each, thereby making 229.125(a)(12)(i) the relevant regulation. (Doc. 115-1, at 38). Second, plaintiffs argue that the crew's reports asserting that the lights were operative during daily inspection cannot be trusted because they are "self-serving." (Id. , at 39). Third, plaintiffs argue that defendant's GCOR rule is not dispositive because it is not more stringent than the requirements in 229.125(d). (Id. , at 38–39). These arguments are unpersuasive. First, it is not defendant's burden to prove the locomotive's headlights produced a certain intensity. This argument amounts to burden-shifting by plaintiffs. Second, plaintiffs’ claim that the crew's reports are self-serving is unavailing. Each party presents evidence in support of their claims. Evidence from one party cannot be disregarded simply because it supports that party's position. Third, defendant argues its GCOR rule was properly filed under Sections 229.125(f) and 217.7, and though plaintiffs point out that defendant's employees differ on their interpretation of when Section 229.125(d) and the GCOR should apply, (Doc. 115-1, at 27–30), they cite no evidence showing the FRA disapproves of it. Thus, under the plain language of Section 20106(b), preemption forecloses plaintiffs’ claim unless defendant fails to follow its own rules.
Plaintiffs also suggest that defendant's record keeping is at best negligent and at worst fraudulent. (See Doc. 115-1, 35–38). First, plaintiffs question DM&E employee Mark Clarstrom's report and deposition testimony claiming the headlight and ditch light were both operable at the time of the collision, according to an event recorder report. (See Docs. 115-1, at 36–38; 118-1, at 68). Second, plaintiffs suggest that defendant purposely destroyed the non-operative ditch light and headlight after the collision, despite the implication that litigation would follow such a serious, deadly crash. (See Doc. 115-1, at 35). Regardless of defendant's actions, however, plaintiffs present no evidence that defendant or its employees falsified or destroyed evidence. Most importantly, plaintiffs point to no evidence the lights were out before the collision.
Ultimately, plaintiffs’ arguments that defendant destroyed or otherwise manipulated evidence of whether the ditch light was operative are inconsequential because plaintiffs’ excessive speed theory is preempted. Plaintiffs raise no evidence showing that defendant violated its GCOR rule, which Section 229.125 authorized to supersede its requirements, including the 20 mile per hour speed limit. Accordingly, the locomotive could lawfully operate without one of its ditch lights above the 20 mile per hour speed limit imposed by subsection (d).
Thus, plaintiffs’ claim based on their theory that the locomotive's speed was excessive is preempted, and summary judgment is granted.
2. Audible Warnings
Part 222 sets standards for railroad safety at highway crossings and requires the engineer to sound the locomotive's horn before entering the crossing. Plaintiffs present no evidence that the locomotive's engineer, Mr. E, failed to sound the horn appropriately and do not oppose defendant's argument that the horn was sounded appropriately. (Doc. 102-1, at 13–14; Doc. 115-1, at 16 n.6 (noting that plaintiffs oppose all arguments in defendant's brief except the arguments about whether the horn sounded and whether the crew took prohibited substances)). Accordingly, no dispute exists about the locomotive's audible warnings.
Thus, summary judgment is granted on plaintiffs’ claim based on their theory that defendant failed to provide audible warnings.
3. Duty to Avoid Vehicle/Proper Lookout
Even when a train crew complies with federal regulations pertaining to speed, a tort claim is not preempted and may nevertheless prevail when the crew has a duty to avoid a specific individual hazard. See CSX Transp., Inc. v. Easterwood , 507 U.S. 658, 675 n. 15, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). Federal regulations do not describe how a train crew should properly avoid a vehicle or keep proper lookout. For this reason, both parties rely on common law for their arguments about defendant's duties to avoid the Blazier vehicle and keep proper lookout. (See Docs. 106, at 41–48; 115-1, at 40–59; 118, 8–15).
Plaintiffs allege the crew's negligence approaching the crossing resulted in the collision. First, plaintiffs argue that the crew had a duty to avoid the Blazier vehicle even though the locomotive had the right-of-way because the vehicle's unwavering approach, witnessed by Mr. E, and the vehicle's swerving movement, witnessed by Mr. C., both evidenced a "specific individual hazard." (Doc. 115-1, 40–49). Second, plaintiffs argue the crew failed to keep proper lookout because Mr. E failed to follow the vehicle, communicate to Mr. C that it was not slowing down, or stop the locomotive, and Mr. C failed to communicate to Mr. E about the vehicle swerving so he would stop the locomotive. (Id. at 49–58). Plaintiffs argue reasonable people keeping proper lookout would have realized the vehicle was in imminent danger and engaged the emergency brakes earlier. (See id. at 49–58). Though plaintiffs do not pinpoint when exactly the crew should have braked, plaintiffs argue the crew's failure to brake earlier was a proximate cause of the collision. (Id. at 58–62).
Plaintiffs’ proper lookout argument also discusses Mr. C's inaction. As described above, however, plaintiffs imply Mr. C should have taken action after seeing the Blazier vehicle swerve. (See Doc. 115-1, 43, 58). But plaintiffs cannot prove such action would have prevented the collision. Thus, their arguments about Mr. C fail to show causation. See Section III.E.3.a.
Defendant argues the crew properly observed the Blazier vehicle on its approach and took appropriate action to avoid a collision. (Doc. 106, at 41–44). Defendant argues because trains have the right-of-way under Iowa law, a crew can rightfully assume that an oncoming vehicle will stop in the zone of safety. (Id. ) (citing Garcia v. Iowa Interstate R.R., Ltd. , 2013 WL 988635, at 6 (Iowa Ct. App. 2013) ). According to defendant, a reasonable person would stop the locomotive only when a vehicle is in peril—that is, when it is in the zone of danger. (Id. , at 42–43). The Court infers that defendant considers a vehicle to be in the zone of danger when it is on the tracks, or at least travelling past the white stop line. (See id. , at 44). Defendant argues because the vehicle was not in the zone of danger when the crew members saw it and because the vehicle had ample time and space to stop, the crew owed no duty to the avoid the vehicle. (Id. ). For the same reasons, defendant argues, the crew's lookout was proper. (Id. ). Alternatively, defendant argues that even if the crew did not keep proper lookout, plaintiffs cannot prove proximate cause. (Doc. 106, at 44–48).
Proper lookout and duty to avoid are often fact-intensive questions proper for a jury. See, e.g., Stewart v. Madison , 278 N.W.2d 284, 287 (Iowa 1979) ("In determining issues of lookout, precedents are of little value and each case must be viewed in light of the circumstances."). Here, however, plaintiffs’ arguments about Mr. C fail for causation, and there is no dispute of material facts about Mr. E.
a. Mr. C
Plaintiffs’ argument based on Mr. C's actions after seeing the Blazier vehicle swerve is unavailing because they have raised no genuine dispute that the crew could have avoided the collision had it taken immediate action. Plaintiffs and their experts focus on showing the crew had a duty to avoid the Blazier vehicle which arose once Mr. C saw it swerve. (Doc. 115-1, at 58; Doc. 102-5, at 145). Viewing the evidence in the light most favorable to the plaintiffs, reasonable minds could differ about whether a vehicle swerving means it is trying to stop but cannot, or whether the driver was no longer in control of the vehicle, and whether either would provoke a reasonable person to stop the locomotive. Thus, plaintiffs have raised some evidence that Mr. C should have known the vehicle was not going to stop because it was swerving. As such, were causation not an issue, plaintiffs’ contention might survive summary judgment.
Plaintiffs argue that had the crew applied the brakes 3.9 seconds before the crossing, the locomotive and vehicle would not have collided. (Doc. 115-1, at 56). But plaintiffs’ evidence fails to account for human perception-reaction time. The crew could not instantaneously apply the brakes upon the realization that the Blazier vehicle was not stopping. Instead, it would take time for a crew member to recognize the danger, process the information, and apply the brakes. Defendant's experts estimate this perception-reaction time at 1.5 seconds. (Doc. 102-3, at 51; Doc. 102-6, at 62). Plaintiffs do not dispute this estimate. Defendant's expert Mr. Loumiet reports that 1.50 seconds is a standard "often used to evaluate the performance of train crews in accident situations." (Doc. 102-3, at 51).
In light of perception-reaction time, the crew would have needed to perceive the need to brake 5.4 seconds before arriving at the crossing to initiate braking at 3.9 seconds before arrival. (Doc. 102-3, at 51; Doc. 102-6, at 62). At 5.4 seconds before impact at the crossing, the vehicle was 404 feet south of the crossing. (Doc. 102–3, at 50). Mr. C, however, did not see the vehicle at all until approximately 5 seconds before impact. (Doc. 115-4, at 103–104). He did not observe the vehicle swerving until a split second later. (Id. at 106). Thus, plaintiffs present no evidence in light of perception-reaction time that the collision could have been avoided had the crew braked 5.4 seconds before impact, and do not refute that Mr. C first saw the vehicle swerve with even less time before the collision. Ultimately, plaintiffs’ theories fail because Mr. C could not have avoided the accident even if he acted as plaintiffs say he should have.
Mr. C puts the car at approximately the same spot ("250 to 300 feet") when he first saw it and when he looked back and sees it swerving. (Doc. 115-4, at 104–105). He did, however, clarify that he looked away for only "a split second" after first seeing the car. (Id. at 105).
Thus, summary judgment is granted on plaintiffs’ claim based on their theories about Mr. C.
b. Mr. E
Plaintiffs’ argument as applied to Mr. E is a closer call, but it still fails. As a preliminary matter, causation does not immediately foreclose this argument as it did with Mr. C. Mr. E first saw the Blazier vehicle more than nine seconds before impact. (Docs. 115-4, at 77 (Mr. E stating he first saw the car when the locomotive was 100 yards from the crossing); 102-6, at 62 (approximating the corresponding time as between 9 and 10 seconds to impact at this point)). He watched the vehicle for approximately five seconds before losing sight of it. (Doc. 102-5, at 106).
Plaintiffs argue a reasonable person in Mr. E's position would have viewed the vehicle's "unwavering approach" between 5 seconds and 10 seconds before the collision as a "specific individual hazard." (Doc. 115-1, 40–46). Plaintiffs assert that a reasonable person would have realized the vehicle was in imminent danger and slowed or stopped the locomotive in response. (Id. at 49–55). Plaintiffs do not dispute that the locomotive had right-of-way and, as such, absent signs the vehicle was in imminent danger, the crew could lawfully assume it would stop.
Thus, to survive summary judgment, plaintiffs must show evidence that a reasonable jury could find that a reasonable person in Mr. E's circumstances would have (1) recognized the Blazier vehicle as a specific individual hazard such that Mr. E had a duty to avoid it, or (2) taken additional actions to keep proper lookout that would have resulted in viewing the Blazier vehicle as in imminent danger and prevented the collision.
i. Specific Individual Hazard
As discussed above, even if a plaintiff's excessive speed claim is preempted, a plaintiff may nevertheless recover in tort when a train crew has a duty to slow or stop the train to avoid a specific individual hazard. See Easterwood , 507 U.S. at 675 n.15, 113 S.Ct. 1732. The definition of a "specific individual hazard" continues to develop. Some guide posts, however, have emerged through case law. Generally, children and disabled vehicles stuck on the tracks are specific individual hazards; local traffic and weather conditions are not. See, e.g., Wermerskirchen v. Canadian National Railroad , 955 N.W.2d 822 (Iowa 2021) (discussing "specific individual hazard" definition based on case precedent). This Court has held that unwavering approach of a vehicle to a railroad crossing might constitute a specific individual hazard, but only if the crew should know by the approach that a collision is imminent. See Driesen v. Iowa, Chi. & E. R.R. Corp. , 777 F. Supp. 2d 1143, 1156 (N.D. Iowa 2011). In Tilghman v. Chicago & N.W. Ry. Co. , for instance, the Iowa Supreme Court held a jury could properly find that a duty to avoid an oncoming vehicle existed when crew members could tell that the driver did not see the train and told the engineer to keep blowing the whistle when the train and vehicle were each several hundred feet from the crossing, and then told him to apply the emergency brake when the vehicle was 69.5 feet from the crossing. 253 Iowa 1339, 115 N.W.2d 165, 169 (1962).
Plaintiffs have presented no evidence showing that Mr. E should have known the Blazier vehicle's unwavering approach was a specific individual hazard. They present no evidence showing that Mr. E should have known Mr. Blazier could not see the locomotive or was otherwise oblivious to the oncoming crossing. Nor do they show any reason Mr. E should have viewed the vehicle as helpless, like a child in the tracks or a vehicle stuck on the rails. To the contrary, when Mr. E could see it at 5.4 seconds before impact and before, the Blazier vehicle was travelling at a steady rate of 52 miles per hour, and was at least 404 feet away south of the railroad crossing. The locomotive was travelling at a steady rate of 22.1 miles per hour and had the right-of-way. The Blazier vehicle was capable of making an aggressive stop in 111 feet. (See Doc. 102-6, at 62). At the very last second that Mr. E could have acted to prevent the collision—5.4 seconds before impact—the Blazier vehicle was still 404 feet away. At this time, the Blazier vehicle had over three times the amount of space necessary to stop safely. Mr. E lost sight of the vehicle approximately 5 seconds before impact. At that time, the Blazier vehicle still had over twice the amount of space necessary to stop safely. The Court declines to extend the understanding of a specific individual hazard to include oncoming vehicles with such abundant time and space to avoid a collision. If every such vehicle were a specific individual hazard, the specific individual hazard exception would swallow the preemption rule.
Ultimately, plaintiffs have presented no evidence that Mr. E should have realized the Blazier vehicle would fail to stop before the crossing, particularly in light of the locomotive's right-of-way. With no evidence to the contrary, this Court finds no genuine dispute of material fact about whether Mr. E, and therefore defendant, owed a duty to avoid the Blazier vehicle based on it being a specific individual hazard. The Court finds that the Blazier vehicle was not a specific individual hazard.
Thus, summary judgment is granted on plaintiffs’ claim based on their theory that Mr. E had a duty to avoid the Blazier vehicle.
ii. Proper Lookout
As described above in the discussion about Mr. C, plaintiffs’ theory can only prevail if they present evidence that the collision would not have happened had Mr. E kept proper lookout. Plaintiffs do not point to a specific moment when proper lookout would have prevented the collision. In light of perception-reaction time, however, the crew needed at least 5.4 seconds to avoid the collision, so proper lookout would have needed to prompt Mr. E to act before then. Thus, for plaintiffs’ lookout theory to succeed, a reasonable jury would need to find that a vehicle making an unwavering approach at 52 miles per hour at least 404 feet from a railroad crossing, as the Blazier vehicle was here, should have alerted the crew the vehicle was in imminent danger. Mr. E. first saw the vehicle between nine and ten seconds before impact, when the vehicle was somewhere between 676 and 752 feet from the crossing. (See Doc. 102-6, at 62). At that point, experts estimate the vehicle could have stopped at least six times over. (See, e.g., id. (estimating Blazier vehicle needed 111 feet to aggressively stop)). Mr. E watched the vehicle for five seconds, losing sight of the vehicle between four and five seconds before impact. (Doc. 102-5, at 106). Again, at four seconds before impact, the Blazier vehicle could have easily stopped twice.
As a matter of common sense, an unwavering approach cannot, in and of itself, indicate the vehicle is in imminent danger when a vehicle has a statutory duty to stop and both the time and space necessary to do so. Other than the vehicle's unwavering approach, plaintiffs raise no evidence in support of their theory that Mr. E would have known the vehicle was in imminent danger had he kept proper lookout. Also, plaintiffs’ reliance on case law is inapposite. For instance, plaintiff relies on Stewart v. Madison as analogous here because the engineer looked away from the car, failed to communicate its presence to his crew, and attended to other duties. (Doc. 115-1, 60–61) (citing Stewart v. Madison , 278 N.W.2d 284 (Iowa 1979) ). But plaintiffs fail to address significant factual differences in that case. In Stewart , the engineer admitted that he knew the car was not going to stop and that he nevertheless failed to communicate that fact and attended to other duties. 278 N.W.2d at 289. Here, Mr. E makes no such admission. In Stewart , the engineer also saw the vehicle speed up to beat the train. See id. at 288. Here, Mr. E did not see the Blazier vehicle speed up, nor do plaintiffs present evidence that they did. Instead, as the plaintiffs stress, the vehicle maintained an unwavering approach at a steady speed.
Plaintiffs make a smattering of other arguments and observations tangential to Mr. E's acts and omissions, including defendant's "last clear chance" to avoid the accident, comments about Mr. C and Mr. E's misunderstanding of the term "lookout," and a semantic discrepancy between defendant's expert testimony and its internal rules. (Doc. 115-1, 55–56, 62). But these arguments raise no evidence showing that proper lookout would have alerted the crew that the Blazier vehicle was in imminent danger and therefore prevented the collision. In sum, reviewing plaintiffs’ evidence, the Court finds plaintiffs present no genuine issue of material fact such that a reasonable person could find Mr. E would have viewed the vehicle to be in imminent danger had he kept proper lookout.
Thus, summary judgment is granted on plaintiffs’ claim based on their theory that Mr. E failed to keep proper lookout.
4. Design
Defendant interprets plaintiffs’ argument about Mr. E's distorted view from his cab window as an argument that defendant's locomotive was improperly designed. (Doc. 106, at 48). According to defendant, such a claim would be preempted by the Locomotive Inspection Act. (See id. ). Plaintiffs, however, clarify that their theory is not one of improper design but rather an exemplar of Mr. E's failure to keep proper lookout. (Doc. 115-1, at 63–64). When Mr. E lost sight of the Blazier vehicle, it is undisputed that something in the locomotive's structure blocked his view from his position in the cab such that he could not see the Blazier vehicle for at least a few seconds. (Doc. 115-4, at 79–80). Despite losing sight of the vehicle, Mr. E did not get up from his seat or lean to the side to see where the vehicle was. (Id. ).
The Court has already held, however, that plaintiffs failed to present evidence that Mr. E would have viewed the Blazier vehicle as in imminent danger had he been able to maintain view of the vehicle. Also, as above, plaintiffs show no evidence that proper lookout would have prevented the collision.
Thus, summary judgment is granted on plaintiffs’ claim based on their theory that Mr. E failed to keep proper lookout based on his position in the cab because this theory has already been foreclosed above.
D. Negligent Training and Fitness to Operate
The third category of plaintiffs’ theories in support of their negligence claims involves the crew themselves. Namely, plaintiffs argue the crew was not qualified, trained, or properly supervised and was not fit to operate the locomotive on the day of the accident. (Doc. 115-1, at 16 n.6, 64–71). Defendant argues summary judgment should be granted on all theories related to negligent training and fitness to operate. (Doc. 106, 50–56). First, defendant argues plaintiffs lack sufficient evidence the crew was untrained on proper lookout. (Id. at 50–51). Second, defendant argues there is no evidence the crew was not fit to operate a locomotive on the day of the collision or that defendant's representative was required to drug test the crew under the circumstances. (Id. at 51–56).
1. Untrained on Proper Lookout
Parts 240 and 242 set minimum federal safety standards for qualifications and training of locomotive engineers and conductors, among other standards. It is undisputed that Mr. C was a conductor and Mr. E was an engineer. As such, their qualifications and training are governed by these regulations. Defendant argues that it complied with regulations when training Messrs. C and E and that both crew members met all certification requirements. (Doc. 106, 50–51). Thus, defendant argues, plaintiffs’ claim is preempted. (Id. ).
Plaintiffs argue that defendant violated its own rules, policies, and/or procedures in training Messrs. C and E and ensuring each met the pertinent qualifications for his position. (Doc. 115-1, 61). They point to evidence supporting discrepancies between defendant's lookout protocol and the crew's understanding of proper lookout. (Id. ). Specifically, plaintiffs emphasize defendant's focus on safety and communication in its GCOR. (Id. ). According to plaintiffs, either defendant violated its duty to properly train the crew, or the crew willfully disregarded their training by failing to realize the Blazier vehicle was not stopping and in turn, failing to stop the locomotive. (Id. ). Plaintiffs argue that if the crew were trained according to defendant's own procedures, they should have "(i) ke[pt] a proper lookout for vehicles approaching an unguarded crossing; (ii) be[en] ready to brake when approaching an unguarded crossing; (iii) constantly communicate[d] with each other as the locomotive approached the crossing; and (iv) not hesitate[d] to slow down a single engine locomotive when approaching an unguarded crossing." (Id. at 65).
But plaintiffs point to no evidence other than the crew's actions that defendant failed to train them. Also, as described above, plaintiffs fail to present evidence that improper lookout was a proximate cause of the collision or that lookout was improper in the first place. As such, defendant's allegedly improper training is immaterial and this Court need not rule on the issue of whether the federal regulations preempt plaintiffs’ claim.
Thus, summary judgment is granted on plaintiffs’ claim based on their theory that defendant was negligent in training the crew.
2. Fitness to Operate
Plaintiffs argue the crew was not fit to operate the locomotive on the day of the collision. (Doc. 115-1, at 16 n.6, 70–71). Plaintiffs argue the crew suffered from hearing and vision defects. (Id. , at 16 n.6). Plaintiffs also argue the crew should have been drug tested following the collision. (Id. , at 70–71). Though plaintiffs claimed the crew violated defendant's rules on prohibited substances, they no longer oppose defendant's argument to the contrary. (Id. , at 16 n.6).
a. Hearing and Vision Defects
Plaintiffs offer no evidence the crew suffered from hearing and vision defects. They do not respond to defendant's arguments, though they generally state their opposition. (Doc. 115-1, at 16 n.6). As such, plaintiffs have not raised a genuine issue of material fact. Thus, summary judgment is granted on plaintiffs’ claim based on their theory that the crew was not fit to operate the locomotive because of hearing and vision defects.
b. Drug Testing
Section 219.201 expressly describes circumstances under which crew members must be tested for drugs. 49 C.F.R. § 219.201(a). One such situation is a major train accident when "[a] regulated employee who violated an FRA regulation or railroad operating rule and whose actions may have played a role in the cause or severity of the accident/incident." Id. at (a)(v). An exception in subsection 219.201(b), however, applies when the collision occurs at a highway/railgrade crossing, such as the collision that occurred here. Id. at § 219.201(b). Further, even if a drug test should have been performed, the railroad representative responding to the accident is deemed to have complied with regulatory requirements if the representative makes a reasonable inquiry and exercises good faith judgment in determining whether the circumstances fall within subsection (a), when drug testing is required, or subsection (b), when it is not. Id. at § 219.201(c)(1)(i). Even if the representative errs in this determination, the "railroad is not in violation" of the regulation so long as the representative made a reasonable inquiry and acted in good faith. Id. at (c)(3). Thus, if evidence supports compliance with Section 219.201(c)(3), then the issue of whether a drug test was required under Section 219.201(a) is ultimately immaterial.
Defendant argues its representative, trainmaster Eric Bauer, acted in good faith when he determined that the crew members did not need to be tested following the collision, thereby precluding any finding that defendant was in violation of federal drug testing regulations. (Doc. 106, at 56). Indeed, his conclusion that the crew members showed no signs of impairment were consistent with those of the trained Iowa State Trooper who investigated the collision. Plaintiffs present no evidence that defendant's representative did not conduct a reasonable inquiry or acted without good faith. (See Doc. 115-1, at 16 n.6, 70–71). Further, the failure to test the crew members for prohibited substances, even if in violation of Section 219.201(a), does not establish that the crew members were under the influence of prohibited substances or that it had any connection to the collision. Plaintiffs have presented no evidence the crew members were under the influence of any prohibited substances. As such, any dispute about drug testing is immaterial to the outcome of the case.
Thus, plaintiffs’ claim based on their theory that the crew should have been drug tested following the collision is preempted, and summary judgment is granted.
c. Rules on Prohibited Substances
Plaintiffs present no evidence that the crew violated defendant's rules on prohibited substances and do not oppose defendant's argument that the crew was not fit to operate the locomotive on the day of the collision based on defendant's rules on prohibited substances. (Id. ) (noting that plaintiffs oppose all arguments in defendant's brief except the arguments about whether the horn sounded and whether the crew took prohibited substances). Accordingly, no dispute exists on this subject.
Thus, summary judgment is granted on plaintiffs’ claim based on their theory that the crew was not fit to operate the locomotive because they violated defendant's rules on prohibited substances.
E. Remaining Theories
In their Second Amended complaint, plaintiffs claimed that defendant (1) was negligent in failing to maintain and inspect the railroad track or the crossing surface and (2) failed to comply with safety requirements of the Rail Safety Improvement Act ("RSIA") and Federal Locomotive Inspection Act ("FLIA"). (Doc. 25). Defendant argues that no facts indicate that the track or the crossing surface were causally related to the collision and even if they were, defendant's compliance with federal track maintenance regulations would preempt plaintiffs’ claim. (Doc. 106, at 56–57). Plaintiffs offer no evidence to support their assertions and do not respond to defendant's arguments, though they generally state their opposition. (Doc. 115-1, at 16 n.6). Accordingly, plaintiffs have not raised a genuine issue of material fact as to these remaining theories.
Thus, summary judgment is granted on plaintiffs’ claim based on their remaining theories.
IV. CONCLUSION
For these reasons, defendant's Motion for Summary Judgment is granted and this case is dismissed.
IT IS SO ORDERED this 17th day of September, 2021.