Summary Judgment for Railroad in Iowa Grade Crossing Accident

The Iowa District Court for Cass County granted the Iowa Interstate Railroad Ltd. summary judgment in a railroad grade crossing case. In the late evening of July 15, 2009, a driver was injured after he drove his vehicle into a train occupying a railroad crossing north of Atlantic, Iowa. The driver and his parents filed a petition against the railroad claiming the railroad failed to maintain the warning devices at the crossing and provide a safe crossing. The crossing was protected by unobstructed flashing lights and bells and two railroad crossbuck signs. The railroad produced evidence the warning devices were installed with federal funds, and that they were properly working at the time of the accident. The driver admitted he did not stop for the warning devices. He had no memory of the accident and could not explain his actions.

The railroad filed a motion for summary judgment arguing that all of the plaintiffs’ claims were preempted by the Federal Railway Safety Act (“FRSA”), 49 U.S.C. § 20101, et seq. In relying on Grade v. BNSF, 676 F.3d 680 (8th Cir. 2012), the court held that the plaintiffs’ inadequate warning device claims were preempted by the FRSA, because the devices were installed with federal funding and operating at the time of the accident. The plaintiffs argued that the flashing lights had previously activated when no train was present at the crossing. The false activation claims were preempted by the FRSA, because no credible reports were made under 49 CFR Part 234 regarding false activations, and no evidence was presented that the railroad failed to make any required adjustments, repairs or replacements.

The court considered the plaintiffs’ general negligence claim that the railcar struck was not reflectorized as required by federal regulations. Because the railroad was in compliance with the federal regulations in 49 CFR Part 224, requiring a percentage of IAIS’s railcars be reflectorized each year, the Court held preempted the plaintiffs’ reflectorization claims as well. Finally, the court held preempted plaintiffs’ claim that the railroad was negligent in blocking the crossing. The federal regulations issued under the FRSA including regulations regarding speed limits for various classes of track, maximum speed limits for curves, and air brake tests substantially subsumed the subject matter of track speed including stopping trains on tracks to perform railroad operations. The plaintiffs did not allege a specific length of time the railcar was present over the crossing or allege a claim based on a violation of a local law. Because no genuine issue of material fact existed on any of the plaintiffs’ claims, the railroad’s motion for summary judgment was granted.

Carlson v. Iowa Interstate Railroad Ltd., Case No. LACV 024326, Iowa District Court, Cass County (Jan. 28, 2013).  (Order).

Summary Judgment in Sexual Harassment, Hostile Work Environment and Race Discrimination Case

Five plaintiffs, first line supervisors in a railroad diesel shop, brought sexual harassment, hostile work environment and race discrimination claims against their railroad employer. They alleged that their supervisor harassed by using sexually charged and offensive language and acts over the course of several months. One of the plaintiffs also claimed the supervisor made racial charged and offensive comments to him regarding his Hispanic origin. Despite knowledge of and training in the railroad anti-harassment policies and multiple methods for reporting offensive conduct, none of the plaintiffs complained about the supervisor to railroad management until after filing their charges of discrimination with the Equal Employment Opportunity Commission (EEOC) and the Nebraska Equal Opportunity Commission (NEOC). Once the conduct was reported, the railroad immediately suspended and removed the supervisor from railroad property pending investigation. The railroad proceeded to interview the employees reporting to the supervisor and concluded that the supervisor had violated railroad policies. He resigned from his position and none of the plaintiffs were disciplined for failing to timely report the offensive conduct.

The Honorable Lyle E. Strom, U.S. Senior Judge for the U.S. District Court for the District of Nebraska granted the railroad’s motion for summary judgment. The Court held that even assuming plaintiffs offered sufficient evidence to create a genuine issue of material fact as to each element of their claims, the undisputed facts showed the railroad met the elements of the Ellerth-Faragher affirmative defense. In a lengthy and detailed opinion the U.S. Court of Appeals for the Eighth Circuit affirmed. The Ellerth-Faragher defense provides that, “[i] cases… where the employer took no tangible employment action against the plaintiff, the employer may avoid liability if it demonstrates two elements. First, the employer must show it exercised reasonable care to prevent and correct promptly any harassing behavior. Second, the employer must show the plaintiff employees unreasonably failed to take advantage of any preventive or corrective opportunities the employer provided or to avoid harm otherwise.” Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). The Court held that the railroad met the first element by having a reasonable anti-harassment policy with “multiple channels” to report harassment and prohibiting retaliation for such reporting. The railroad met the second element by taking “swift corrective action” once the offensive behavior was reported. The plaintiffs’ combined failure to withhold reporting the offensive behavior over eight months and failure to take advantage of the railroad’s policies and procedures for reporting was held as unreasonable.

Crawford v. BNSF Ry. Co., 7:10CV05000, Doc. 34 (D. Neb. Apr. 4, 2011), aff’d, 665 F.3d 978 (8th Cir.), cert. den’d, 133 S.Ct. 144 (2012).  (Opinion).

Defense Verdict in FELA Case

Following a five-day trial a federal jury in South Dakota granted the railroad a defense verdict in a FELA case. Plaintiff, a 56 year-old track inspector with 15 years of service, alleged he received extensive injuries to his shoulder, arm, and ribs when he attempted to remove a large deer carcass off the tracks, lost his balance, and slid and fell down the ballast embankment. Plaintiff claimed the railroad was negligent by: failing to provide him with adequate training, equipment and working conditions; failing to enforce reasonable rules, customs, practices, policies and procedures for his protection; failing to provide him with adequate work support from other employees; and requiring him to perform the tasks when the railroad knew or had reason to know that such tasks were likely to cause him injury.  The employee required surgical intervention for his injuries and did not return to work. He sought damages for past wage loss, loss of future earning capacity and reduced work-life expectancy.

At trial, defense counsel focused on the proper body mechanics and lifting techniques provided to plaintiff and the lack of notice to the railroad of prior falls or incidents to suggest a need to modify the railroad’s practice or provide special tools for the task of removing deer carcasses from railroad tracks. The evidence at trial showed that plaintiff likely lost his balance and fell in the process of a routine work task undertaken by him and others hundreds of times without incident and could be performed safely.

Although plaintiff filed a motion for new trial, the United States District Court for the District of South Dakota, Western Division, upheld the jury’s verdict. Subsequently, plaintiff was ordered to pay for the railroad’s expenses and fees after its motion was granted in full.

Order Denying Plaintiff’s Motion for New Trial

Varner v. BNSF Ry. Co., CIV. 09-5076-JLV (D.S.D. Jul. 5, 2011), judgment affirmed.

‘Clarifying’ the Impact of the 2007 FRSA Amendment – Summary Judgment Granted to Railroad, 8th Circuit Affirms

After plaintiff drove his car into the side of a railcar stopped at an intersection, he filed a common law negligence claim in state court against the railroad alleging the warning signs at the intersection were inadequate, and alleging the railroad violated a city ordinance and state law prohibiting blocking the crossing for more than ten minutes. The railroad removed the case to federal court, and moved for and was granted summary judgment by the Honorable Richard G. Kopf, U.S. District Judge for the District of Nebraska.

The U.S. Court of Appeals for the Eighth Circuit reviewing de novo, affirmed. The railroad successfully argued that the plaintiff’s inadequacy-of-warning claims were preempted by the Federal Railroad Safety Act (“FRSA”) and no exceptions to FRSA preemption applied. The Court held that the 2007 Amendment to the FRSA applied to negligence claims alleging a railroad failed to comply with an ongoing, federal standard of care and had no effect on inadequacy-of-warning claims, including the lack of a flagman claim, where the warning devices present at the crossing were operational and funded, at least in part, by federal funds. Moreover, the Court agreed that weather conditions are statewide conditions that could be anticipated by federal regulators, and thus, did not meet the exception to preemption as an “essentially local safety hazard.” The driver’s claims related to the failure to reflectorize the railcars was preempted by federal regulations covering the subject matter of reflectorization. 49 C.F.R. §§ 224.1 through 224.111. Finally, the Court also held that the undisputed facts showed that no reasonable jury could find that the accident would not have occurred “but for” the railroad’s alleged negligence in allowing the train to block the crossing, or find that plaintiff’s injuries were a natural and probable result of such negligence. It found the facts did not establish a breach of duty on the part of the railroad and the plaintiff failed to prove causation.

Grade v. BNSF Ry. Co., 4:09CV3162, 2010 WL 4386490 (D. Neb. Oct. 28, 2010) aff’d, 676 F.3d 680 (8th Cir. 2012).

Summary Judgment Granted to Railroad in Grade Crossing Collision Claim

The railroad successfully moved for and was granted summary judgment on plaintiff’s state common law negligence claims. On dark, moonless January 6, 2008 night, the plaintiff drove his pickup into the side of a low profile flatbed railcar parked at a rural South Dakota crossbucks only crossing causing the plaintiff severe injuries. He alleged the railroad was negligence for parking the railcar at the crossing without reflective devices or providing additional warning devices or flagman at the crossing.

After removing the case to federal court, the railroad moved for summary judgment claiming that plaintiff’s claims were preempted by federal law under the Federal Railroad Safety Act (FRSA). The U.S. District Court for the District of South Dakota agreed and held that plaintiff’s claims of lack of lighting, failure to provide sufficient signs, warning signals, or automatic gates, and negligence resulting from temporarily blocked crossing were preempted. It further held that the physical qualities of the railcar, i.e. low profile, and environmental factors, i.e. dark and moonless night, were not local hazards, but statewide in character, and thus the “essentially local safety hazard” exception to FRSA preemption did not apply.

Jacob Z. Jacobson v. BNSF Ry. Co., 1:11-CV-01003, 2011 WL 6099389 (D.S.D. Dec. 7, 2011