Joan E. Gochenour and James E. Gochenour v. CSX Transportation, Inc. Gerald Konz, Cody Cooper

Sep 30 2015, 9:31 am

ATTORNEYS FOR APPELLANTS ATTORNEY FOR APPELLEES:
Robert W. Johnson CSX TRANSPORTATION, INC.,
Travis N. Jensen GERALD KONZ, AND CODY COOPER
Johnson Jensen LLP Sarah N. Snoeberger
Indianapolis, Indiana Stuart & Branigin LLP
Anthony W. Patterson Lafayette, Indiana
Parr Richey Obremskey Frandsen ATTORNEY FOR APPELLEES:
Lebanon, Indiana BOONE COUNTY COMMISSIONERS
AND BOONE COUNTY HIGHWAY
DEPARTMENT
Paul T. Belch
Travelers Staff Counsel
Indianapolis, Indiana
ATTORNEYS FOR APPELLEES:
STATE OF INDIANA AND THE INDIANA
DEPARTMENT OF TRANSPORTATION
Gregory F. Zoeller
Attorney General of Indiana
Kristin Garn
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Joan E. Gochenour and September 30, 2015
James E. Gochenour, Court of Appeals Case No.
06A01-1407-CT-276
Appellants-Plaintiffs,
Appeal from the Boone Superior
v. Court
The Honorable Matthew C. Kincaid,
Judge
CSX Transportation, Inc., Trial Court Cause No.
Gerald Konz, Cody Cooper, 06D01-1112-CT-639

Court of Appeals of Indiana | Opinion 06A01-1407-CT-276 | September 30, 2015 Page 1 of 31
 Boone County Commissioners,
Boone County Highway Dept.,
State of Indiana, and the Indiana
Department of Transportation,
Appellees-Defendants

Robb, Judge.

Case Summary and Issues
[1] Defendants CSX Transportation, Inc., Gerald Konz, and Cody Cooper

(collectively, “CSXT”); the Boone County Commissioners and Boone County

Highway Department (collectively, “Boone County”); and the State of Indiana

and Indiana Department of Transportation (collectively, “the State”), moved

for summary judgment on Joan and James Gochenour’s complaint for damages

for injuries Joan sustained in a car versus train accident. The trial court

ultimately granted summary judgment on all claims to all defendants,1 and the

Gochenours appeal, raising the sole issue of whether summary judgment was

proper. We conclude the Gochenours’ inadequate warning device claims, in all

their iterations, are preempted by federal law. We also conclude that a genuine

issue of material fact exists regarding whether CSXT failed to provide an

1
The trial court issued three separate summary judgment orders as to the three defendants on three different
dates, and the Gochenours filed a Notice of Appeal as to each. At the Gochenours’ request, this court
consolidated the three appeals under this single cause number.

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 unobstructed view at the crossing as required by law due to lack of vegetation

control. Therefore, we affirm the trial court’s grant of summary judgment to

Boone County and the State in full. We affirm the trial court’s grant of

summary judgment to CSXT in part, and reverse and remand for further

proceedings in part.

Facts and Procedural History
[2] On the afternoon of August 2, 2011, Joan was a passenger in a vehicle driven

by Alice Schooler. The vehicle was traveling eastbound on the

Boone/Hendricks County Line Road which intersects a single track grade

crossing at an angle (“County Line Crossing”).2 The railroad crossing is

marked by standard reflectorized crossbuck signs.3 As the vehicle crossed the

railroad track, it collided with a southbound train operated by CSXT. Konz

and Cooper are employees of CSXT. Schooler and another passenger were

killed, and Joan was seriously injured.

[3] On December 6, 2011, the Gochenours filed a complaint against the Estate of

Alice Schooler alleging negligence in the operation of the vehicle.4 On January

2
The Boone/Hendricks County Line Road is an east/west road. The railroad track runs more or less
northwest/southeast.
3
As described by the Supreme Court, crossbucks are the “familiar black-and-white, X-shaped signs that read
‘RAILROAD CROSSING.’” Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344, 350 (2000).
4
On November 8, 2013, the trial court approved a joint stipulation dismissing the Estate of Alice Schooler
from the action.

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 11, 2013, the complaint was amended to add CSXT, Boone County, and the

State as defendants5 and to allege additional causes of action. Relevant to this

appeal, the Gochenours alleged as to CSXT that the County Line Crossing

“was and is extra-hazardous and [CSXT was] careless and negligent in failing

to provide and maintain appropriate warnings, signals, automatic gates, sight

distance, vegetation control, and other protective devices for the safety of the

traveling public.” Appendix of Appellants at 83.6 As to Boone County and the

State, the Gochenours alleged that the County Line Crossing “was and is extra-

hazardous” and Boone County and the State were careless and negligent “in

failing to provide appropriate design, warnings, signals, automatic gates, sight

distance, vegetation control, and other protective devices at the [County Line

Crossing] and/or to close the crossing” and were further careless and negligent

“in failing to maintain and repair appropriate design, warnings, signs, sight

distance, vegetation control, and pavement markings at or near the [County

Line Crossing], and in failing to properly maintain the roadway at the

crossing.” Id. at 84-85.

[4] On June 4, 2013, CSXT filed a motion for summary judgment on each of these

claims. Boone County and the State eventually joined in CSXT’s motion for

5
The Gochenours also sued the Town of Jamestown and Hendricks County. The trial court granted
summary judgment to these defendants, and the Gochenours do not appeal that summary judgment order.
6
The Gochenours alleged three additional theories of liability against CSXT: failure to sound the train’s
horn as it approached the crossing, operating at too fast a speed, and failing to slow or stop to avoid a hazard.
As evidence on each point was designated during the summary judgment proceedings, the Gochenours
conceded CSXT was not liable under any of these theories, and they are not at issue herein.

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summary judgment. Several rounds of summary judgment briefing and

designation of evidence by both sides followed. After a hearing, the trial court

entered the following order on June 4, 2014, granting CSXT’s motion for

summary judgment:

1. There is no genuine issue of material fact and [CSXT is] entitled to
judgment as a matter of law, on all theories [the Gochenours] have
advanced.
2. In particular, prior to the accident, reflectorized crossbucks had
been installed with federal funds under a project approved by the
Federal Highway Administration. Accordingly, federal law preempts
[the Gochenours’] claims that negligence on the part of [CSXT] can be
predicated on the failure to install additional traffic warning devices,
i.e., that the crossing was “extrahazardous,” “ultra-hazardous,” and
“unusually dangerous,” and therefore needed automatic gates and
flashing light signals. CSX Transp., Inc. v. Easterwood, 507 U.S. 658
(1993); Norfolk Southern Ry. Co. v. Shanklin, 529 U.S. 344 (2000);
Randall v. Norfolk S. Ry. Co., 800 N.E.2d 951 (Ind. Ct. App. 2003),
trans. denied.
3. Further, the undisputed evidence establishes that no failure to
provide adequate sight distance/vegetation control caused the
accident.
4. Further, the undisputed evidence shows that [CSXT] did not
gratuitously assume a duty of care for the safety of the crossing.
IT IS THEREFORE ORDERED by the Court that summary
judgment be, and hereby is, GRANTED in favor of [CSXT].
THE COURT FURTHER FINDS, pursuant to Ind. Trial Rule 54(B),
that there is no just reason for delay and HEREBY DIRECTS
ENTRY OF JUDGMENT in favor of [CSXT] and against [the
Gochenours].

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 App. of Appellants at 16-17. An order granting summary judgment for the

State followed on June 23, 2014,7 and an order granting summary judgment in

favor of Boone County was entered on July 23, 2014. 8 The Gochenours appeal

the grant of summary judgment to these remaining defendants.

Discussion and Decision
I. Summary Judgment Standard of Review
[5] The party moving for summary judgment must “affirmatively negate an

opponent’s claim” by demonstrating that the designated evidence raises no

genuine issue of material fact and that the moving party is entitled to judgment

as a matter of law. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (internal

quotation marks and citation omitted); see also Ind. Trial Rule 56(C). Summary

judgment is improper if the moving party fails to carry its burden, but if it

succeeds, then the nonmoving party must come forward with evidence

establishing the existence of a genuine issue of material fact in order to preclude

summary judgment. Gill v. Evansville Sheet Metal Works, Inc., 970 N.E.2d 633,

637 (Ind. 2012).

7
This order is nearly identical to the order granting summary judgment to CSXT. Id. at 18-19.
8
This order is slightly different from the orders granting summary judgment to CSXT and the State, but is
essentially the same in substance, finding “there is no genuine issue of material fact but that federal funds
participated in the installation of the allegedly inadequate crossbuck warning devices where the accident
occurred, [and the Gochenours’] claim is preempted and [Boone County] cannot be held liable as a matter of
law for injuries arising from the devices[’] claimed inadequacy.” Id. at 20-21.

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[6] We review an order for summary judgment de novo, which is the same

standard of review applied by the trial court. Hughley, 15 N.E.3d at 1003.

When the trial court has granted summary judgment to the moving party, the

nonmoving party has the burden on appeal of persuading us that the grant of

summary judgment was in error. Id. However, “we carefully assess the trial

court’s decision to ensure that [the nonmoving party] was not improperly

denied his day in court.” Id. In reviewing the record, we consider only the

evidentiary matter the parties have designated to the trial court, see T.R. 56(C),

(H), and we construe all reasonable inferences in favor of the nonmoving party,

Hughley, 15 N.E.3d at 1003. “A fact is ‘material’ if its resolution would affect

the outcome of the case, and an issue is ‘genuine’ if a trier of fact is required to

resolve the parties’ differing accounts of the truth, or if the undisputed material

facts support conflicting reasonable inferences.” Id. (quoting Williams v. Tharp,

914 N.E.2d 756, 761 (Ind. 2009)).

[7] Indiana’s heightened summary judgment standard “consciously errs on the side

of letting marginal cases proceed to trial on the merits, rather than risk short-

circuiting meritorious claims.” Id. at 1004.

II. Inadequate Warning Devices Claims
[8] The Gochenours assert the trial court erred in finding there was no genuine

issue of material fact regarding whether the warning devices at the County Line

Crossing were installed with federal funds and determining as a matter of law

that their inadequate warning device claims against CSXT, the State, and

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 Boone County were preempted by federal law. They also assert that even if the

trial court did not err in this finding, a jury should be allowed to determine

whether CSXT gratuitously “assumed a duty of safety” to provide additional

warning devices at the County Line Crossing, precluding its federal preemption

affirmative defense. Brief of Appellants at 13-14.

A. Federal Preemption of State Negligence Claims
[9] In 1970, Congress enacted the Federal Railroad Safety Act (“FRSA”) “to

promote safety in every area of railroad operations and reduce railroad-related

accidents and incidents.” 49 U.S.C. § 20101. To aid in developing solutions to

railroad grade crossing safety problems, the FRSA provides that the Secretary

of Transportation “as necessary, shall prescribe regulations and issue orders for

every area of railroad safety supplementing [existing] laws and regulations

. . . .” 49 U.S.C. § 20103(a).

[10] In 1973, Congress enacted the Highway Safety Act, which in part made federal

funds available to the states to eliminate the hazards at railroad-highway

crossings. See 23 U.S.C. § 130 (the “Crossings Program”). As a prerequisite to

receiving federal funds under the Crossings Program, the states must “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.” 23 U.S.C. §

130(d). The schedule must at a minimum provide signs for all crossings. Id.

Additional conditions on the states’ use of federal funds to improve crossings

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 are set out in regulations promulgated by the Secretary through the Federal

Highway Administration (“FHWA”). See 23 C.F.R. §§ 646, 655, 924, 1204.

[11] The FRSA contains an explicit preemption clause:

(1) Laws, regulations, and orders related to railroad safety . . . shall be
nationally uniform to the extent practicable.
(2) 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). Courts are reluctant to find preemption unless “it is the

clear and manifest purpose of Congress.” CSX Transp., Inc. v. Easterwood, 507

U.S. 658, 664 (1993) (internal quotation marks and citation omitted). The

restrictive language of the FRSA preemption clause dictates that, to preempt

state law, the federal regulation must “cover” the same subject matter, and not

merely “‘touch upon’ or ‘relate to’ that subject matter.” Id.; cf. Morales v. Trans

World Airlines, Inc., 504 U.S. 374, 383-84 (1992) (preemption clause in Airline

Deregulation Act using the term “relating to” has broad preemptive scope). In

Easterwood, the Supreme Court determined that, of the regulations promulgated

to address railroad crossing safety, only the regulations found at 23 C.F.R. §§

646.214(b)(3) and (b)(4) (“subsections (b)(3) and (b)(4)”) preempt state law.

Those regulations displace state and private decision-making authority by

establishing a mandatory federal law requirement that particular warning

devices be installed or federal approval obtained when federal funds participate

in the installation of the warning devices, “effectively set[ting] the terms under

which railroads are to participate in the improvement of crossings.” Id. at 670.

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[12] Subsections (b)(3) and (b)(4) address the adequacy of warning devices installed

under the Crossings Program. Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344, 348-

49 (2000). If certain conditions exist, such as multiple main line railroad tracks

or high speed trains, the warning devices are deemed adequate if they “include

automatic gates with flashing light signals . . . .” 23 C.F.R. § 646.214(b)(3)(i).9

When none of those conditions exist, a warning device is deemed adequate if it

has been approved by the FHWA. 23 C.F.R. § 646.214(b)(4). In short:

[A]t crossings where any of the conditions listed in (b)(3) exist,
adequate warning devices, if installed using federal funds, are
automatic gates and flashing lights. And where the (b)(3) conditions
are not present, the decision of what devices to install is subject to
FHWA approval.
Shanklin, 529 N.E.2d at 349. In sum, “state law is preempted only if either

subsection (b)(3) or (b)(4) applies, and those subsections apply only if federal

funds participated in the installation of traffic warning devices at a particular

crossing.” Ind. R.R. Co. v. Davidson, 983 N.E.2d 145, 149 (Ind. Ct. App. 2012),

trans. denied.

[13] Despite establishing that when subsections (b)(3) and (b)(4) apply, they “cover

the subject matter of state law which . . . seeks to impose an independent duty

on a railroad to identify and/or repair dangerous crossings,” Easterwood

ultimately concluded that the plaintiff’s state law claim in that case was not

9
“In individual cases where a diagnostic team justifies that gates are not appropriate, FHWA may find that
the . . . requirements [of § 214(b)(3)(i)] are not applicable.” 23 C.F.R. § 646.214(b)(ii).

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preempted because the railroad had failed to prove that the preconditions for

application of either subsection (b)(3) or (b)(4) had been met. 507 U.S. at 671-

72. Thereafter, a conflict among the United States Courts of Appeal arose as to

when subsections (b)(3) and (b)(4) are applicable. Compare, e.g., Ingram v. CSX

Transp., Inc., 146 F.3d 858, 865 (11th Cir. 1998) (holding that federal funding of

railroad crossing improvement triggers preemption under FRSA), with Shots v.

CSX Transp., Inc., 38 F.3d 304, 308-09 (7th Cir. 1994) (holding that

participation of federal funds in railroad crossing improvement project was

insufficient to trigger preemption; instead, there must also be some evidence

that the Secretary actually approved the specific warning devices that were

installed). The Supreme Court answered that question in Shanklin, holding that

subsections (b)(3) and (b)(4) are applicable to all warning devices installed with

federal funds:

When the FHWA approves a crossing improvement project and the
State installs the warning devices using federal funds, §§ 646.214(b)(3)
and (4) establish a federal standard for the adequacy of those devices
that displaces state tort law addressing the same subject. At that point,
the regulation dictates “the devices to be installed and the means by
which railroads are to participate in their selection.” It is this
displacement of state law concerning the devices’ adequacy, and not
the State’s or the FHWA’s adherence to the standard set out in §§
646.214(b)(3) and (4) . . . that pre-empts state tort actions. Whether
the State should have originally installed different or additional
devices, or whether the conditions at the crossing have since changed
such that automatic gates and flashing lights would be appropriate, is
immaterial to the pre-emption question.
It should be noted that nothing prevents a State from revisiting the
adequacy of devices installed using federal funds. States are free to
install more protective devices at such crossings with their own funds
or with additional funding from the FWHA. What States cannot do—
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 once they have installed federally funded devices at a particular
crossing—is hold the railroad responsible for the adequacy of those
devices.
529 U.S. at 357-58 (citations omitted). Our court has summarized the Shanklin

decision as standing for “the broader proposition that preemption attaches

when federal funds are spent on any of the traffic control devices at the grade

crossing. Once preemption attaches, a plaintiff’s inadequate warning device

claim against the railroad must be dismissed.” Davidson, 983 N.E.2d at 150.

B. Summary Judgment
1. Federal Funding

[14] Federal preemption is an affirmative defense, and therefore CSXT bears the

burden of proof.10 See Caesars Riverboat Casino, LLC v. Kephart, 934 N.E.2d 1120,

1125 (Ind. 2010); see also Russian Media Grp., LLC v. Cable Am., Inc., 598 F.3d

302, 309 (7th Cir. 2010). The Gochenours contend that CSXT’s designated

evidence fails to prove that federal funds participated in the installation of the

crossbuck warning signs at the County Line Crossing.11 As federal funding is

10
CSXT took the lead in the summary judgment proceedings, with Boone County and the State merely
joining in CSXT’s motion. If the Gochenours’ inadequate warning device claims are preempted, they are
preempted as to all state law tort claims against all defendants because final authority for the warning devices
rests solely with the federal government. See Fifth Third Bank ex rel. Trust Officer v. CSX Corp., 415 F.3d 741,
747 (7th Cir. 2005) (affirming grant of summary judgment to railroad and county defendants upon finding
preemption). Because all three judgments rest on the evidence designated by CSXT, for clarity, we will refer
only to CSXT throughout this discussion.
11
Throughout their brief, the Gochenours refer to CSXT’s obligation to meet a “4-Part Test” for preemption.
See, e.g., Br. of Appellants at 19 (“The crystal clear, incontrovertible and essential first test—that must be
satisfied before any further analysis of whether or not FRSA preempts state law is necessary—is a 4-Part Test:
State Law is preempted only if: 1. Federal Funds participated in the; 2. Installation of; 3. Traffic Warning
Devices at a; 4. Particular Crossing.”). Although we do not disagree with the general statement of when

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 the touchstone of preemption, the Gochenours contend that the trial court erred

in granting summary judgment to CSXT on the basis that their inadequate

warning devices claim was preempted.

[15] The evidence CSXT designated in support of its motion for summary

judgment—over the course of its original and several supplemental

designations—included: the affidavit of Thomas Rueschhoff, the Senior Rail

Projects Engineer for the Indiana Department of Transportation (“INDOT”),

which is the successor to the Indiana State Highway Commission. In his

position, Rueschhoff is the custodian of documents retained by INDOT relating

to a passive protection program that was initiated in the late 1970s.12 As part of

that program, the State and CSXT13 entered into an agreement (the

“State/CSXT Agreement”) to install new crossbuck signs at CSXT railroad

crossings throughout the state. These documents “are records of acts or events

made at or near the time by a person with knowledge thereof[, and] [i]t was the

regular practice of these agencies to make and keep such records in the course

of their regularly scheduled business activities.” App. of Appellants at 109.

preemption attaches, the Gochenours appear to have phrased it in a way to make it seem more onerous and
complicated than it is.
12
Traffic control devices may be active or passive. Active warning devices are those “activated by the
approach or presence of a train, such as flashing light signals, automatic gates and similar devices, as well as
manually operated devices and crossing watchmen, all of which display to motorists positive warning of the
approach or presence of a train.” 23 C.F.R. § 646.204. Passive warning devices include “signs, markings
and other devices, located at or in advance of grade crossings to indicate the presence of a crossing but which
do not change aspect upon the approach or presence of a train.” Id.
13
At the time, CSXT was Consolidated Rail Corporation (“Conrail”). For ease of reference, we will refer to
all iterations of the railroad as CSXT throughout this opinion.

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Attached to the Rueschhoff affidavit are two exhibits attested to be true and

complete copies of certain documents retained by INDOT with respect to this

program. Id. Exhibit 1 is a copy of the State/CSXT Agreement that begins:

WHEREAS, the Highway Safety Act of 1973 requires that the State
conduct and maintain a survey to identify problem rail-highway
crossing locations on all highways and establish and implement a
priority schedule of improvements, and
WHEREAS, this Act also requires, as a minimum, that all railroad
crossings be properly signed and marked, and authorizes Federal
funding for such program, and
WHEREAS, the State and the Railroad, in the interest of public safety,
desire to participate in this program to upgrade the passive warning
devices at the Railroad’s public rail-highway crossings in Indiana to
minimum standards . . . , and
WHEREAS, under [Indiana law], the Indiana State Highway
Commission is authorized, “to cooperate with the United States
Government under any Federal law in any manner necessary to secure
for the State of Indiana the proportion of any Federal appropriation
which may be made in the future”.
Id. at 112 (citation omitted). Pursuant to this agreement, CSXT was to install

crossbucks at its crossings, and the State was to reimburse the railroad for

ninety percent of its cost: “Upon receipt of the final bill, the State shall

promptly reimburse the Railroad for such items of work and expense, in such

amounts as are proper and eligible for payment from Federal funds . . . .” Id. at

114. The agreement concludes that it “shall be binding upon the parties hereto,

their successors or assigns, and shall not be effective unless and until approved

by the Division Engineer of the Federal Highway Administration.” Id. at 117.

The agreement was signed by the Division Engineer on behalf of the FHWA on

September 26, 1979. Documents attached to the agreement estimating the

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 supplies and cost to implement the program show the installation was to be

done under “W. O. #42468.” Id. at 124-25.

[16] Exhibit 2 to Rueschhoff’s affidavit is a form titled “Letter of Approval and/or

Authorization” from the U.S. Department of Transportation – Federal

Highway Administration for Federal Aid Project No. RRP-000S(26), addressed

to the Chief Highway Engineer of the Indiana State Highway Commission and

dated November 2, 1979. Id. at 133. The form authorizes the acquisition of

crossbuck and multiple track signs and the installation of those signs by CSXT

at “[a]ll public rail-highway at-grade crossings on the [CSXT] system.” Id. The

form specifically references the State/CSXT Agreement that was approved by

the FHWA on September 26, 1979. Id.

[17] CSXT also designated the affidavit of Ralph Whitaker, a CSXT employee of at

least fourteen years at the time of his affidavit. In his positions as Track

Supervisor, Roadmaster, and Engineer of Track, Whitaker “became familiar

with the record-keeping practices” of CSXT. Id. at 134. Attached to

Whitaker’s affidavit are two exhibits which he averred were exact copies of

documents retrieved from CSXT’s permanent records and which were made in

the regular course of business at or near the time of the events recorded.

Exhibit 1 is a copy of the State/CSXT Agreement described above. Exhibit 2 is

a CSXT “Daily Participation Project Report” which shows that on July 26,

1982, three CSXT employees installed road crossing posts and signs under work

order number 42468 at four crossings, including crossing 543038W. Id. at 153.

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 Crossing 543038W is commonly known as the County Line Crossing. Id. at

135.14

[18] CSXT subsequently supplemented its designation of evidence with the affidavit

of Milton Vermillion, who retired from CSXT with thirty years of railroad

experience with CSXT and its predecessors. Vermillion was a member of the

“‘Crossbuck Gang,’ responsible for installing the new crossbuck signs and posts

under the State project.” Id. at 313. Vermillion worked on the Crossbuck Gang

for the entire two and one-half years it took to complete the installations.

Attached to his affidavit is the “Daily Participation Project Report” previously

attached to Whitaker’s affidavit. Vermillion noted that he had personally

participated in the installation of crossbuck signs at the County Line Crossing

on July 26, 1982, and had signed the report on that date.

[19] Finally, CSXT designated the affidavit of Carl Sanders, the former

Administrative Manager for the Indiana division of the FHWA. Attached to

14
The Gochenours filed a Motion to Strike portions of the Rueschhoff and Whitaker affidavits for lack of
personal knowledge. It does not appear that the motion was ever ruled on by the trial court. The
Gochenours challenge the personal knowledge supporting these two affidavits on appeal as well, claiming the
affiants “lack the requisite personal knowledge to make the key statements contained in their affidavits.” Br.
of Appellants at 27. Specifically, the Gochenours challenge the conclusions the affiants made based on their
own review of the documents rather than on any personal knowledge of what happened in 1979 through
1982. The Gochenours’ own designated evidence—the deposition testimony of Rueschhoff and Whitaker—
was directed to this lack of personal knowledge. However, as proponents of the documents attached to their
affidavits, both affiants affirmed their familiarity with the recordkeeping practices of their respective
employers and the authenticity of the documents. We can rely on the content of the documents themselves
and need not consider the affiants’ factual statements about what the documents purport to show. See Ind.
Evidence Rules 803(6), (8), and (16) (exceptions to the hearsay rule for records of regularly conducted
activity, public records, and statements in ancient documents), and 902(4) and (11) (self-authenticating
evidence).

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his affidavit are several documents which he had obtained from the FHWA

archives and which he averred were true and accurate copies of reports of a

public office setting forth its regularly conducted and recorded activities. Id. at

341. Exhibit 2 is a “Final Voucher for Work Performed Under Provisions of

the Federal Aid and Federal Highway Acts, as Amended,” referencing “Project

No. RRO-RRP-000S(026).” Id. at 344.15 The voucher was submitted by

INDOT on July 18, 1991, and signed by an authorized state officer certifying

“that the costs shown in this voucher have been incurred in accordance with

terms of project agreements . . . .” Id. The voucher was signed on September 9,

1991, by Sanders as the “Authorized FHWA Representative” certifying “that

supporting records for costs claimed, and the referenced project (if applicable),

have been subjected to required reviews, approvals and inspections by the

Federal Highway Administration and that the amount approved is justly due.”

Id. Sanders averred that his signature on the voucher “is evidence of the fact

that the FHWA had given its Final Acceptance of the work done under the

Project” and showed that “federal funds in the amount of $1,911,780.28 were

paid to Indiana” under the project. Id. at 342. That amount represents ninety

percent of the “total participating cost.” Id. at 344.16

15
Sanders explained that Project RRP-RRO 000S(026) was also sometimes referred to as RRO-RRP
000S(026). Id. at 341. “RRO” stands for off system roads and “RRP” stands for primary system roads. Id. at
341 n.1.
16
No funds were actually paid pursuant to the voucher because the amounts had previously been paid.

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[20] Exhibit 3 to Sanders’s affidavit is a U.S. Department of Transportation

“Inspection Report” dated October 27, 1987, for Project No. RRP-RRO-

000S(26) describing the project being inspected as “consist[ing] of the

installation and upgrading of the passive warning devices at the public rail-

highway crossing[s] in Indiana by [CSXT] under work order No. 42468.” Id. at

347. The report indicates a “15% random sample” of crossings in the

Crawfordsville and Greenfield Districts was inspected, and “[a]ll crossbucks

were generally found to be installed satisfactorily.” Id.17 Attached to the

inspection report was a list of the crossings inspected on that date and the

condition of the crossbucks and posts. One of the crossings inspected was the

County Line Road crossing in Jamestown, which was found to be “o.k.” Id. at

348.

[21] The Gochenours strongly dispute that this designated evidence comes

“anywhere close” to proving that federal funds participated in the installation of

the crossbucks at the County Line Crossing. Br. of Appellants at 31. They

argue the evidence is “woefully inadequate” because there is no evidence that

the federal funds referenced by the voucher were “specifically expended to

install specific warning devices at the County [Line] Crossing” and therefore a

“necessary link” is missing. Id. at 12, 31. We do not believe the level of

specificity the Gochenours advocate is required. The Gochenours “suggest”

17
The report indicates any crossings not included in this random sample inspected by the federal area
engineer would be visited by staff of the Crawfordsville and Greenfield Districts “within the next few weeks.”
Id.

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evidence CSXT could have produced to meet the burden of establishing that

federal funds participated in the installation of the County Line Crossing

warning signs: proof that federal funds were received by the State and placed

into a special account, the State issued a check or made some other transfer of

funds to pay for a specific traffic warning device, and that specific traffic

warning device was installed at a specific location. See id. at 22-23. That other

evidence might be available does not necessarily mean the designated evidence

is insufficient. CSXT installed passive warning signs at hundreds of crossings

as part of the passive protection project undertaken pursuant to the State/CSXT

Agreement. See App. of Appellants at 123 (estimate attached to State/CSXT

Agreement that “871 [n]ew posts and crossbucks to be installed at locations

where none presently exist. 2759 [n]onstandard existing posts and crossbucks

installations to be removed and replaced with new posts and crossbucks.”). It is

unlikely funds in a project of this scope would be earmarked to pay for each

specific sign and post that would then be tracked to a specific crossing. If

CSXT—or any railroad—were required to prove the use of federal funds at the

micro level the Gochenours contend is necessary, federal funding could

basically never be proved. The Gochenours cite to Easterwood as support for the

“high level of specificity with which federal funds must be tracked to specific

expenditures on specific items.” Br. of Appellants at 24. They read Easterwood

too narrowly. Easterwood decided that subsections (b)(3) and (b)(4) “were not

applicable because the warning devices for which federal funds had been

obtained were never actually installed at the crossing,” rather than because of a

failure to specifically prove federal funding. Shanklin, 529 U.S. at 353.
Court of Appeals of Indiana | Opinion 06A01-1407-CT-276 | September 30, 2015 Page 19 of 31
 Easterwood does not support the Gochenours’ argument that funds must be

tracked to a specific installed device.

[22] The Gochenours also seem to imply that because they designated evidence in

response to CSXT’s motion, summary judgment is inappropriate, citing to

Hughley, 15 N.E.3d at 1005-06. See Br. of Appellants at 15 n.13 (quoting

Hughley: “Because [the nonmoving party] designated competent evidence in

response to the [moving party]’s motion for summary judgment, weighing it—

no matter how decisively the scales may seem to tip—was a matter for trial, not

summary judgment.”). In Hughley, the State sought summary judgment in a

forfeiture proceeding, designating evidence that when defendant was arrested

for dealing cocaine, he had over $3,000 in his pocket. By statute, that makes a

prima facie case for forfeiture of the cash. The defendant then designated his

own “perfunctory and self-serving” affidavit in which he stated that the cash

was neither the proceeds of criminal activity nor intended to be used in

furtherance of drug crimes. 15 N.E.3d at 1004. Our supreme court held that

because the defendant had designated evidence aside from his pleadings that

specifically controverted the State’s prima facie case, he had at least minimally

raised a genuine factual issue, and a trier of fact should resolve the differing

accounts of the truth at trial. Id. The Gochenours’ designated evidence is the

deposition testimony of Whitaker and Rueschhoff in which they each

acknowledge they have no personal knowledge of the actual installation of the

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 crossbucks at the County Line Crossing or of the transfer of federal funds.18

This evidence does not, however, challenge their competence as proponents of

the documentary evidence upon which CSXT relies to prove the participation

of federal funds in the project that led to the installation of the crossbucks at the

County Line Crossing, nor does it challenge the truthfulness or authenticity of

those documents. The Gochenours’ evidence, therefore, does not raise a

genuine issue as to the material fact of federal funding because it does not

specifically controvert CSXT’s designated evidence and require the resolution

of differing accounts of the truth.

[23] According to CSXT’s designated evidence, the State of Indiana and CSXT

entered into a joint agreement in 1979 to install or upgrade warning devices at

CSXT’s passive railroad crossings in Indiana. The agreement was approved by

the FHWA in 1979, and the project was assigned a federal aid project number

and a work order number. CSXT installed reflectorized crossbucks at the

County Line Crossing on July 26, 1982, under the same work order number. In

1987, certain crossings—including the County Line Crossing—were randomly

inspected by the U.S. Department of Transportation in conjunction with the

same federal aid project and work order numbers and determined to be

satisfactory. In 1991, the FHWA reviewed and approved the State of Indiana’s

18
The Gochenours designated the depositions of Rueschhoff and Whitaker in full, which does not meet the
specificity requirements of Trial Rule 56(C). See Filip v. Block, 879 N.E.2d 1076, 1081 (Ind. 2008) (“Trial
Rule 56(C) does compel parties to identify the ‘parts’ of any document upon which they rely. The Rule thus
requires sufficient specificity to identify the relevant portions of a document, and so, for example, the
designation of an entire deposition is inadequate.”).

Court of Appeals of Indiana | Opinion 06A01-1407-CT-276 | September 30, 2015 Page 21 of 31
 voucher for costs incurred under the same federal aid project number assigned

to the State/CSXT project and paid nearly two million dollars to the State of

Indiana, which represented ninety percent of the total cost of the project. It is

clear from this evidence that federal funds participated in the installation of

crossbucks at the County Line Crossing. In addition, even though this is not

required to prove the defense of preemption, CSXT’s evidence shows the

FHWA actually approved the warning devices at issue.

[24] The Gochenours have not offered any evidence in opposition to CSXT’s

motion for summary judgment that would so much as suggest that the County

Line Crossing crossbucks were not federally funded. Although they assert that

CSXT’s evidence alone creates the conflicting inferences that either some of the

federal funds paid to the State were expended to install crossbucks at the

County Line Crossing or none of them were, Br. of Appellants at 29, the latter

inference falls into the category of practically anything being possible rather

than being a reasonable inference from the evidence. As there is no factual

dispute nor are there conflicting reasonable inferences to be drawn from

CSXT’s designated evidence, the Gochenours’ claim regarding inadequate

warning devices is preempted as a matter of law, and the trial court properly

granted summary judgment to CSXT, Boone County, and the State on this

claim.

2. Assumption of Duty

[25] The Gochenours also contend that the trial court erred in granting summary

judgment to CSXT on the basis of preemption because CSXT “assumed a duty
Court of Appeals of Indiana | Opinion 06A01-1407-CT-276 | September 30, 2015 Page 22 of 31
 of safety” at the County Line Crossing and has therefore waived the preemption

defense. Id. at 38.

[26] Indiana recognizes that a duty of care may arise where one would not otherwise

exist if a party gratuitously or voluntarily assumes such a duty by affirmative,

deliberate conduct. Yost v. Wabash Coll., 3 N.E.3d 509, 517 (Ind. 2014). To

impose liability for breach of an assumed duty, “it is essential to identify and

focus on the specific services undertaken. Liability attaches only for the failure

to exercise reasonable care in conducting the undertaking.” Id. (internal

quotation marks omitted). If the record contains insufficient evidence

establishing such a duty, the court decides the issue as a matter of law. Id.

[27] The Gochenours contend their designated evidence raises at least an inference

that CSXT undertook a duty to assure the safety of the County Line Crossing

when it interacted with various local officials regarding a plan to increase train

speeds in the area. The Gochenours point to evidence that CSXT appeared

before the Jamestown Town Council, the Hendricks County Commissioners,

and the Boone County Commissioners and discussed the possibilities for

upgrading the County Line Crossing in conjunction with INDOT. Even if the

evidence the Gochenours rely on could otherwise show that by appearing at

these meetings, CSXT specifically and deliberately undertook the duty of safety,

Court of Appeals of Indiana | Opinion 06A01-1407-CT-276 | September 30, 2015 Page 23 of 31
 maintenance, and operation at the County Line Crossing, 19 there is no merit to

this argument.

[28] First, the case on which the Gochenours rely to support their claim that

preemption protection can be lost by assuming a duty is inapposite. In

Medtronic, Inc. v. Malander, 996 N.E.2d 412, 419 (Ind. Ct. App. 2013), the court

held there was no preemption protection before examining whether the

defendant had assumed a duty to the plaintiffs. Second, Shanklin made it clear

that one of the effects of FRSA preemption is to absolve the railroad of state tort

liability, which is exactly what the Gochenours seek to impose here, regardless

of the terms in which they cast their claim. 529 U.S. at 357-58; see also Randall

v. Norfolk S. Ry. Co., 800 N.E.2d 951, 956 (Ind. Ct. App. 2003) (noting that

plaintiff’s attempt to avoid preemption by stating his negligence claims in terms

of the railroad’s duty to petition State and local authorities to upgrade warning

devices at an allegedly extra hazardous crossing was ineffective because the

claims “ultimately amount to an effort to hold the Railroad responsible for the

adequacy of the warning devices”), trans. denied. Finally, Shanklin also made it

clear that even if conditions have changed at a crossing where warning signs

were installed with federal funds, such that gates and lights would now be

appropriate, that “is immaterial to the pre-emption question.” Id. at 358. Thus,

19
Although CSXT appeared before all of these boards with a proposal to increase train speeds, our review of
the designated evidence does not support the inference that CSXT ever offered, agreed, or took deliberate
action to upgrade the County Line Crossing, instead consistently deferring to INDOT.

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 the increased train speed did nothing to alter the preemption of state law claims

pertaining to the adequacy of the warning devices at the County Line Crossing.

[29] There is also no indication that the crossbucks at the County Line Crossing had

in fact been upgraded with State or other funds since their initial installation in

1982, such that federal preemption might no longer apply and regular state tort

law might resume. Cf. Davidson, 983 N.E.2d at 152 (concluding there was a

genuine issue of fact regarding whether federal preemption continued to apply

when crossbucks which had originally been installed with federal funds in 1978

had been replaced with state funds pursuant to an application which did not

incorporate the federal plans from the earlier project and were not placed in the

exact same location as those installed with federal funds). Although CSXT sent

a letter to the Jamestown Town Council in late 2008 regarding the speed

increase and stating that the “signals at the [affected Jamestown] crossings have

been upgraded in preparation for the increase in train speeds,” App. of

Appellants at 545, the letter also indicated that the type of warning device at the

County Line Crossing remained crossbuck signs. Vermillion attested in a

second affidavit in support of CSXT’s motion for summary judgment that the

signs that were removed from the County Line Crossing after the accident were

the same signs he had personally helped install in 1982. Id. at 515. Even if

different warning devices should have been or should in the future be installed

at the County Line Crossing, CSXT cannot be held liable for the adequacy of

the existing warning devices.

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[30] For these reasons, the Gochenours’ claim that CSXT assumed a duty to provide

adequate warning devices at the County Line Crossing is preempted as a matter

of law, and the trial court did not err in granting summary judgment to CSXT

on this claim.

III. Inadequate Sightlines Claims
[31] The Gochenours’ remaining claim is that there was inadequate sight distance

and vegetation control at the County Line Crossing. Indiana Code section 8-6-

7.6-1 requires a railroad to “maintain each public crossing under its control in

such a manner that the operator of any licensed motor vehicle has an

unobstructed view for fifteen hundred (1,500) feet in both directions along the

railroad right-of-way subject only to terrain elevations or depressions, track

curvature, or permanent improvements.”

[32] In support of its motion for summary judgment on this claim, CSXT20

designated the affidavit of Gary Wolf, “an expert in analyzing locomotive event

recorder printouts . . . .” App. of Appellants at 154. Wolf visited the scene of

the accident on September 30, 2011—nearly two months after the accident

20
Again, CSXT took the lead in the summary judgment proceedings, with Boone County and the State
joining its motion, and we will again refer only to CSXT throughout this discussion. Although the
Gochenours’ brief focuses almost exclusively on CSXT with regard to these claims, they did allege in their
complaint that both Boone County and the State were negligent in failing to provide and maintain
appropriate sight distance and vegetation control at the County Line Crossing. See App. of Appellants at 84-
85. The trial court specifically granted summary judgment to the State on this claim but does not mention
this claim in the summary judgment order for Boone County. Nonetheless, there is nothing to indicate that
the trial court was granting only partial summary judgment for Boone County, so in keeping with the trial
court’s other rulings, we assume the trial court granted summary judgment to Boone County on this claim as
well.

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 occurred—and took a photograph “from the edge of [CSXT’s] right-of-way”

depicting a train 1,500 feet from the crossing. Id. at 156; see also id. at 170

(Exhibit 3, photograph). He avers he reviewed photographs taken by the

Hendricks County Sheriff’s Department on the day of the accident, and “[t]here

were no material changes in the foliage or buildings in the relevant quadrant of

the crossing” between the two dates.21 Id. at 156.

[33] In response, the Gochenours’ designated the affidavit of William D. Berg,

Ph.D., P.E., who has “knowledge, training, and experience in civil engineering

and highway-railroad crossings.” Id. at 294. Berg’s affidavit focuses on the

engineering of the County Line Crossing and concludes that “the subject grade

crossing was unduly, or more than ordinarily hazardous as of 2011 [and] the

warning devices – crossbucks only – present at the County Line Crossing on the

day of the Collision were inadequate.” Id. at 295. The Gochenours also

designated the affidavit of Frank Gentry, a resident of Boone County who is

familiar with the County Line Crossing by virtue of driving across it in both

directions approximately two to three times daily for thirty years. Gentry went

to the railroad crossing two days after the accident and cut down tree limbs he

alleges were hanging down to the rocks in the railroad bed and also removed a

vine around a utility pole. He avers they “were obstructions to a driver’s view

and ability to see a train coming eastbound on the tracks.” Id. at 289. Gentry

21
The photographs taken by the Hendricks County Sheriff’s Department do not appear in the record.

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 also reviewed Exhibit 3 to Wolf’s affidavit – the photograph Wolf took of the

view from the crossing on September 30, 2011. Gentry states it “is not a fair

and accurate depiction of the trees, foliage, and vegetation as they existed on

August 2, 2011 [because it] does not show the tree limbs [he] cut down and the

vine that [he] cut down from the utility pole.” Id. (emphasis in original).

[34] CSXT then designated the affidavit of John Trone, Road Foreman of Engines

on the day of the accident. One of his responsibilities in that job was to respond

to accidents and download data from the train’s video and event recorders.

Attached to Trone’s affidavit were several still photographs taken from the

train’s video recorder immediately before the accident. See id. at 365-75. Trone

states that the photos “show that there are no tree limbs ‘hanging down and

touching the rocks in the railroad bed[,]’” contrary to Gentry’s affidavit. Id. at

351.

[35] Based upon this evidence, the trial court found that there was no genuine issue

of material fact as to whether the failure to provide adequate sight distance

and/or vegetation control caused the accident. See id. at 17. The Gochenours

contend this was in error. First, the Gochenours point to Berg’s expert opinion

that the sight distance at the County Line Crossing was inadequate because of

the physical configuration of the crossing, and therefore regulatory stop signs or

automatic warning devices, rather than crossbucks, should have been installed.

To the extent the Gochenours contend that CSXT, Boone County, and/or the

State were negligent in failing to provide different or additional warning devices

because of the configuration of the crossing, they essentially make an

Court of Appeals of Indiana | Opinion 06A01-1407-CT-276 | September 30, 2015 Page 28 of 31
 inadequate warning device claim that is preempted by federal approval of the

decision to install federally funded crossbucks. See Shanklin, 529 U.S. at 358-59;

Part II., supra.

[36] To the extent the Gochenours rest their claim on the issue of vegetation control,

however, we agree that the trial court erred in granting summary judgment to

CSXT.22 Federal regulations dictate that “[v]egetation on railroad property

which is on or immediately adjacent to [the] roadbed shall be controlled so that

it does not ... [o]bstruct visibility of railroad signs and signals . . . .” 49 C.F.R. §

213.37(b). Although this regulation preempts “any state-law claim regarding

vegetative growth that blocks a sign immediately adjacent to a crossing,” Shanklin

v. Norfolk S. Ry. Co., 369 F.3d 978, 987 (6th Cir. 2004) (emphasis added), it does

not preempt a claim alleging negligence in allowing vegetation to otherwise

obscure safe lines of sight at a crossing, MD Mall Assocs., LLC v. CSX Transp.,

Inc., 715 F.3d 479, 490 (3d Cir. 2013), cert. denied, 134 S. Ct. 905 (2014). Thus,

the Gochenours’ negligence claim for inadequate sightlines caused by

overgrown vegetation is not preempted.

22
Although the Gochenours’ complaint alleges Boone County and the State also failed to provide and
maintain adequate vegetation control at the crossing, they proceed on appeal only as to CSXT, citing a
statute which imposes a duty only on a railroad and citing no authority imposing such a duty on a county or
the State. Any claims as to Boone County and the State with regard to this issue are therefore forfeited. See
Ind. Appellate Rule 46(A)(8)(a); Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015) (“A litigant who fails to
support his arguments with appropriate citations to legal authority and record evidence waives those
arguments for our review.”).

Court of Appeals of Indiana | Opinion 06A01-1407-CT-276 | September 30, 2015 Page 29 of 31
[37] Summary judgment is rarely appropriate in negligence cases. Sparks v. White,

899 N.E.2d 21, 23 (Ind. Ct. App. 2008). “This is because negligence cases are

particularly fact sensitive and are governed by a standard of the objective

reasonable person—one best applied by a jury after hearing all of the evidence.”

Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind. 2004). Negligence consists of three

elements: 1) a duty owed to the plaintiff by the defendant; 2) breach of that

duty; and 3) injury proximately caused by that breach. Sparks, 899 N.E.2d at

23. Here, Indiana Code section 8-6-7.6-1 sets forth the duty to maintain the

County Line Crossing such that there is a 1,500 foot unobstructed view of the

tracks in each direction. The affidavits of Gentry, Wolf, and Trone present

different versions of whether CSXT breached that duty by allowing the view of

an oncoming train to be obscured by overgrown vegetation. CSXT argues that

the photographs taken from its train’s video recorder immediately before the

accident are “unimpeachable photographic evidence” that positively contradict

Gentry’s affidavit, Brief of [CSXT] at 21, and prove that any overgrown

vegetation “could not possibly have been a but-for cause of the accident,” id. at

18. Pictures showing what those aboard the train could see do not prove what

those in a car could see—which is the material fact here. “An issue of material

fact is genuine if a trier of fact is required to resolve the parties’ differing

accounts of the truth.” Hughley, 15 N.E.3d at 1004 (internal quotation and

citation omitted). The Gochenours’ designated evidence raises a genuine issue

of material fact because the conflicting affidavits about whether and where there

were obstructions to the view of an oncoming train by an eastbound car create a

factual issue that is best resolved by the fact-finder at trial.
Court of Appeals of Indiana | Opinion 06A01-1407-CT-276 | September 30, 2015 Page 30 of 31
 Conclusion
[38] No genuine issue of material fact exists as to the participation of federal funds

in the installation of crossbuck signs at the County Line Crossing, and therefore

the Gochenours’ state law claims against CSXT, Boone County, and the State

regarding inadequate warning devices are preempted by federal law. However,

there remains a genuine issue of material fact to be resolved at trial regarding

whether the duty to maintain an unobscured view for a motorist at the County

Line Crossing has been breached by CSXT’s failure to control vegetation within

1,500 feet of the crossing. The trial court’s grant of summary judgment to

Boone County and the State is therefore affirmed in full, and the grant of

summary judgment to CSXT is affirmed in part and reversed in part. This case

is remanded to the trial court for further proceedings consistent with this

opinion.

[39] Affirmed in part, reversed in part, and remanded.

Bailey, J., and Brown, J., concur.

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