United States Court of Appeals, Eleventh Circuit.
Nos. 94-9373, 94-9374.
Reba MICHAEL, Individually, and as Parent and Executrix of the
Estate of Keith Lane Michael; Kenneth Michael, Individually and as
Parent of Keith Lane Michael, Plaintiffs-Appellants,
v.
NORFOLK SOUTHERN RAILWAY COMPANY, a Virginia Corporation doing
business in Georgia, Defendant-Appellee.
Linda STEWART, Individually; Terry L. Weaver, Individually, and
as Parent of Angelia L. Weaver, Plaintiffs-Appellants,
v.
NORFOLK SOUTHERN RAILWAY COMPANY, a Virginia Corporation doing
business in Georgia, Defendant-Appellee.
Feb. 6, 1996.
Appeals from the United States District Court for the Northern
District of Georgia. (No. 1:93-00086-CV-ODE), Orinda D. Evans,
Judge.
Before TJOFLAT, Chief Judge, CARNES, Circuit Judge, and FAY, Senior
Circuit Judge.
FAY, Senior Circuit Judge:
This appeal arises from a summary judgment in favor of the
defendant, Norfolk Southern Railway Company. Norfolk was sued by
representatives of an automobile driver and passenger who were
killed in a collision with a Norfolk train. The District Court
ruled that the automobile driver was the sole proximate cause of
the accident, and that the plaintiffs' state law negligence claims
were preempted by federal law. We REVERSE and REMAND for further
proceedings consistent with this opinion.
I. BACKGROUND
On December 23, 1990, a train owned and operated by Norfolk
collided with an automobile driven by Angelia Weaver. Ms. Weaver
and her passenger, Keith Michael, died as a result of injuries
sustained in the accident. The defendant contends that Ms.
Weaver's automobile was travelling at a high rate of speed prior to
the collision, but the plaintiffs presented evidence that the she
was travelling at five to ten miles per hour. The defendant
contends that at the time of the accident visibility was clear, but
there is some evidence that the weather was extremely foggy. An
employee of the defendant testified in his deposition that Ms.
Weaver drove around the lowered warning gate on the wrong side of
the road, but the plaintiffs presented evidence that this gate did
not extend very far into Ms. Weaver's lane and that she entered the
crossing in the proper lane of traffic.1
The defendants contend that Ms. Weaver may have been impaired
at the time of the accident, primarily due to a blood-alcohol level
of .05%. The plaintiffs argue that she was not impaired, that she
drank part of a single cocktail on the night of the accident, and
that a blood-alcohol level of .05% raises no legal presumption of
impairment. It is undisputed that the train crew sounded the
train's horn and bell, that the train's headlight was working prior
to the collision, and that the crossing warning devices were
working immediately after the collision.
The plaintiffs contend that the warning devices at the
Mulberry Street crossing have malfunctioned on a continuous and
chronic basis. The plaintiffs presented witnesses who testified to
the activation of the crossing gate and warning devices for long
1
There were two lanes for traffic travelling in the
direction of the Weaver automobile.
periods when there was no train approaching, to instances when the
gate arms did not come down until the train was almost at the
crossing, and to instances when the gate arms went up and down in
a hatchet fashion or came down only half way. Two witnesses saw
the warning devices at the crossing malfunction on separate
occasions several hours prior to the accident, and another saw them
malfunction the morning after. The Mayor of Austell, the City
Council, a State Representative, and numerous private citizens
complained to Norfolk about the warning devices at the crossing for
many years, but the malfunctions continued.
II. STANDARD OF REVIEW
Summary judgment is proper if the pleadings, depositions, and
affidavits show that there is no genuine issue of material fact and
that the moving party is entitled to judgment as a matter of law.
Celotex Corporation v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548,
2552, 91 L.Ed.2d 265 (1986). The evidence must be viewed in the
light most favorable to the non-moving party. Augusta Iron and
Steel Works, Inc. v. Employers Insurance of Wausau, 835 F.2d 855,
856 (11th Cir.1988).
III. ANALYSIS
A. Federal Preemption
i. Defective Design
The provisions of 23 C.F.R. §§ 646.214(b)(3) and (4), where
applicable, preempt state tort law. CSX Transportation Company v.
Easterwood, 507 U.S. 658, ---- - ----, 113 S.Ct. 1732, 1740-41, 123
L.Ed.2d 387 (1993). For railroad crossing projects "in which
federal funds participate in the installation of warning devices,
the Secretary has determined the devices to be installed and the
means by which railroads are to participate in their selection."
Id. at ----, 113 S.Ct. at 1741. Thus there can be no state law
claim against the railroad for defective design. Id. The crossing
devices at issue in this case were federally funded, and so the
state tort claim for defective design is preempted, so long as the
railroad complied with the federal regulations.
However, the plaintiffs contend that Norfolk violated federal
regulations by installing a gate arm shorter than the one called
for in the design.2 Norfolk contends that it had Federal Highway
Administration Approval for the shorter arm after it was installed,
but the record only reflects an inspection by the Georgia
Department of Transportation. We leave it to the District Court on
remand to determine whether Norfolk complied with the federal
regulations in this regard. If not, then the plaintiffs do have a
state law tort claim for negligent design or construction, based on
the violation of the federal regulations.
ii. Negligent Maintenance and Failure to Warn
The District Court ruled that the plaintiffs' claims for
negligent maintenance of the crossing and for failure to warn the
public of the defective nature of the crossing were also preempted
by 23 C.F.R. § 646.214. We disagree. The Supreme Court in
Easterwood held that 23 C.F.R. §§ 646.214(b)(3) and (4), where
applicable, preempt state tort law. However, those regulations
2
The design called for a gate arm extending 28 feet
completely across the two lanes for southbound traffic. The arm
installed blocked only one lane and some three feet of the
second.
deal with the design and installation of new warning devices, not
the maintenance of those devices or the failure to warn the public
of defective devices.3 Thus 23 C.F.R. §§ 646.214(b)(3) and (4) are
not applicable to a claim for negligent maintenance or for failure
to warn, and do not preempt such claims.4
iii. Excessive Speed
Any state law claim based on the train's alleged excessive
speed is preempted by federal law, specifically the train speed
regulations set out in 49 C.F.R. § 213.9. Easterwood, 507 U.S. at
----, 113 S.Ct. at 1742-43. The track at the Mulberry Street
crossing is classified as class 4, with a national speed limit of
60 miles per hour for freight trains. There is no indication that
the Norfolk train was travelling over 60 miles per hour.
The plaintiffs also argue that the train crew was negligent
for exceeding the railroad's own self-imposed speed limit.
Violation of the railroad's own speed regulations may be evidence
of negligence in a state tort claim for excessive speed; however,
such a state tort claim is preempted by federal law, and the
internal railroad regulations would be irrelevant under federal
law. 49 C.F.R. § 213.9 sets out specific speed limits for
different types of tracks and trains; those limits are not
3
In the Easterwood case, the plaintiff brought suit against
the railroad for "failing to maintain adequate warning devices at
the crossing." Easterwood, 507 U.S. at ----, 113 S.Ct. at 1736.
That language should not be misinterpreted. It was not a suit
for negligent maintenance of the warning devices installed at the
crossing, but rather for "the absence of proper warning devices."
Id.
4
We express no opinion as to whether other provisions of
federal law would serve to preempt such a claim. No other
provisions were raised on appeal or briefed by the parties.
affected by internal railroad policies.
We note, however, that while state law tort claims for
excessive speed are preempted, the Supreme Court specifically left
open the question of whether federal law bars suit for "breach of
related tort law duties, such as the duty to slow or stop a train
to avoid a specific, individual hazard." Easterwood, 507 U.S. at
----, 113 S.Ct. at 1743. Nor has this Court decided the issue.
The opinion in Mahoney v. CSX Transportation, Inc., 966 F.2d 644
(11th Cir.1992), which was first vacated and then reinstated in its
entirety by the court of appeals en banc at 993 F.2d 211 (1993),
merely holds that pure excessive speed claims are preempted, not
that all related claims are as well. We leave it to the District
Court on remand to decide whether the plaintiffs have established
a violation of such a related tort law duty, and whether they have
presented sufficient evidence to make this a jury issue.
B. Sole Proximate Cause
The District Court held that Ms. Weaver reasonably should
have been aware of the oncoming train and that she was the sole
proximate cause of the accident. Thus, her representatives could
not recover from the railroad. The District Court went on to deny
recovery to the representatives of Mr. Michael, the passenger.
Under Georgia law, a driver's negligence cannot be imputed to a
passenger; if the Norfolk was only 1% responsible, then Mr.
Michael could recover from the railroad. See Central of Georgia
Railway Company v. Luther, 128 Ga.App. 178, 182, 196 S.E.2d 149,
153 (1973); Isom v. Schettino, 129 Ga.App. 73, 76, 199 S.E.2d 89,
93 (1973). However, if the driver is the sole proximate cause of
the accident because she knew or should have known of the
approaching train, then the railroad cannot be liable (even to the
passenger) for failing to provide adequate warning of the
approaching train. See Southern Ry. Co. v. Blake, 101 Ga. 217, 29
S.E. 288 (1897); Seaboard Coast Line R.R. Co. v. Mitcham, 127
Ga.App. 102, 192 S.E.2d 549 (1972). The District Court ruled as a
matter of law that Ms. Weaver should have known of the approaching
train. Under the circumstances of this accident, we hold that this
is a question for the jury.
It is true, as the District Court noted, that Norfolk
presented undisputed evidence that the train crew sounded the
train's horn and bell, that the train's headlight was working prior
to the collision, and that the crossing warning devises were
working immediately after the collision. Norfolk also presented an
affidavit from Mr. Aaron Morris, the train's brakeman, stating that
Ms. Weaver was travelling at a high rate of speed, and that she
drove around the gate on the wrong side of the road, in an effort
to beat the train.
However, other evidence contradicted Mr. Morris's affidavit.
First, an expert in accident reconstruction opined that Ms. Weaver
was travelling at only five to ten miles per hour, making it
unlikely that she was trying to beat the train. Second, the gate
arm did not extend more than three feet into Weaver's lane, making
it unnecessary for her to go around the gate onto the wrong side of
the road even if the gate was down. Third, Mr. Morris never
activated the train's brakes; the engineer activated the brakes
after the impact. Last, the train's engineer stated in a
deposition that he and Mr. Morris discovered that they had hit a
car only after the impact.
The plaintiffs also presented evidence that the weather was
extremely foggy and that visibility was limited, making it more
likely that Weaver would not have seen the train even if she had
been exercising due care. Moreover, the windows were up in
Weaver's car because of the cold, making it more likely that she
might not have heard the train even though exercising due care.5
In addition, the plaintiffs presented evidence that the
warning devices at the Mulberry Street crossing have malfunctioned
on a continuous and chronic basis. The plaintiffs presented
witnesses who testified to the activation of the crossing gates and
warning devices for long periods when there was no train
approaching, to instances when the gate arms did not come down
until the train was almost at the crossing, and to instances when
the gate arms went up and down in a hatchet fashion or came down
only half way. Two witnesses saw the warning devices at the
crossing malfunction on separate occasions several hours prior to
the accident, and another saw them malfunction the morning after.
The Mayor of Austell, the City Council, a State Representative, and
numerous private citizens complained to Norfolk about the warning
5
As noted in Easterwood v. CSX Transportation, Inc., 933
F.2d 1548, 1560 (11th Cir.1991), aff'd, 507 U.S. 658, 113 S.Ct.
1732, 123 L.Ed.2d 387 (1993), a driver would be contributorily
negligent as a matter of law if she violated Ga.Code Ann. § 40-6-
140, which requires a motorist to stop at all grade crossings
when a "clearly visible ... signal device gives warning of the
immediate approach of a train." See Atlantic Coast Line R.R. Co.
v. Hall Livestock Co., 116 Ga.App. 227, 156 S.E.2d 396 (1967).
However, if the driver was actually unaware of the approaching
train, then a common-law reasonableness standard applies, not the
Georgia statute. Id. 156 S.E.2d at 398.
devices at the crossing for many years, but the malfunctions
continued.6 Under these circumstances, it seems to us that a jury
could conclude that Norfolk was guilty of negligence that
proximately contributed to this tragic accident.
Viewing this evidence in the light most favorable to the
plaintiffs, as we must, and considering that matters of
contributory negligence are almost invariably a question for the
jury on which the defendant bears the burden of proof at trial, we
hold that summary judgment was not warranted.
IV. CONCLUSION
We REVERSE the District Court's summary judgment and REMAND
for further proceedings consistent with this opinion.
6
Norfolk cites Iler v. Seaboard Air Line R. Co., 214 F.2d
385 (5th Cir.1954) for the proposition that evidence of
unreliable warning equipment is irrelevant because ordinary care
demands that a driver look before crossing, even if the equipment
routinely gives false warnings. While that proposition is true,
the evidence of unreliable equipment becomes relevant where the
jury could conclude that the driver was not aware of the train
even though she exercised ordinary care (for example, because of
the fog), or that the equipment was not working when the driver
approached the crossing (for example, because the warning devices
sometimes began to operate only seconds before the train arrived
and the gates sometimes did not lower all the way).