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.
Court of Appeals of Indiana | Opinion 06A01-1407-CT-276 | September 30, 2015 Page 2 of 31
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.
Court of Appeals of Indiana | Opinion 06A01-1407-CT-276 | September 30, 2015 Page 3 of 31
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.
Court of Appeals of Indiana | Opinion 06A01-1407-CT-276 | September 30, 2015 Page 4 of 31
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].
Court of Appeals of Indiana | Opinion 06A01-1407-CT-276 | September 30, 2015 Page 5 of 31
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.
Court of Appeals of Indiana | Opinion 06A01-1407-CT-276 | September 30, 2015 Page 6 of 31
[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
Court of Appeals of Indiana | Opinion 06A01-1407-CT-276 | September 30, 2015 Page 7 of 31
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
Court of Appeals of Indiana | Opinion 06A01-1407-CT-276 | September 30, 2015 Page 8 of 31
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.
Court of Appeals of Indiana | Opinion 06A01-1407-CT-276 | September 30, 2015 Page 9 of 31
[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).
Court of Appeals of Indiana | Opinion 06A01-1407-CT-276 | September 30, 2015 Page 10 of 31
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—
Court of Appeals of Indiana | Opinion 06A01-1407-CT-276 | September 30, 2015 Page 11 of 31
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
Court of Appeals of Indiana | Opinion 06A01-1407-CT-276 | September 30, 2015 Page 12 of 31
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.
Court of Appeals of Indiana | Opinion 06A01-1407-CT-276 | September 30, 2015 Page 13 of 31
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
Court of Appeals of Indiana | Opinion 06A01-1407-CT-276 | September 30, 2015 Page 14 of 31
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.
Court of Appeals of Indiana | Opinion 06A01-1407-CT-276 | September 30, 2015 Page 15 of 31
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).
Court of Appeals of Indiana | Opinion 06A01-1407-CT-276 | September 30, 2015 Page 16 of 31
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.
Court of Appeals of Indiana | Opinion 06A01-1407-CT-276 | September 30, 2015 Page 17 of 31
[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.
Court of Appeals of Indiana | Opinion 06A01-1407-CT-276 | September 30, 2015 Page 18 of 31
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
Court of Appeals of Indiana | Opinion 06A01-1407-CT-276 | September 30, 2015 Page 20 of 31
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.
Court of Appeals of Indiana | Opinion 06A01-1407-CT-276 | September 30, 2015 Page 24 of 31
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.
Court of Appeals of Indiana | Opinion 06A01-1407-CT-276 | September 30, 2015 Page 25 of 31
[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.
Court of Appeals of Indiana | Opinion 06A01-1407-CT-276 | September 30, 2015 Page 26 of 31
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.
Court of Appeals of Indiana | Opinion 06A01-1407-CT-276 | September 30, 2015 Page 27 of 31
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.
Court of Appeals of Indiana | Opinion 06A01-1407-CT-276 | September 30, 2015 Page 31 of 31
Joan E. Gochenour and James E. Gochenour v. CSX Transportation, Inc. Gerald Konz, Cody Cooper
Combined Opinion