Long Ex Rel. Estate of Long v. CSX Transportation, Inc. , 635 F. App'x 724 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-11994
Non-Argument Calendar
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D.C. Docket No. 1:13-cv-00990-ODE
DANIEL HOWARD LONG,
Individually, as Surviving Spouse and
Personal Representative for the Estate of Linda E. Long,
Plaintiff - Appellant,
versus
CSX TRANSPORTATION, INC.,
a foreign corporation,
Defendant - Appellee,
J. F. WILLIAMS, et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(December 23, 2015)
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Before HULL, MARCUS, and EDMONDSON, Circuit Judges.
PER CURIAM:
In this state-law civil action, Plaintiff Daniel Long appeals the district
court’s grant of summary judgment in favor of Defendant CSX Transportation, Inc.
(“CSXT”) on Plaintiff’s negligence claim. This case arises out of a collision
between a car driven by Plaintiff’s wife -- a car in which Plaintiff was also a
passenger -- and a CSXT train at a railway crossing in Covington, Georgia
(“Emory Street Crossing”). No reversible error has been shown; we affirm.
The Emory Street Crossing consists of a two-lane road that runs in a north-
south direction across the CSXT rail lines. Before 1974, the Emory Street
Crossing was comprised of four railroad tracks (from north to south: the northern
track, the pass track, the main line, and the house track) and was equipped with
flashing lights and bells. In 1974, CSXT’s predecessor and the Georgia
Department of Transportation entered into an agreement (“1974 Agreement”) to
remove the unused northern track and to install new crossing signals and automatic
gates on either side of the Emory Street Crossing. In conformance with the design
specifications attached to the 1974 Agreement, the new protective devices were
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installed 15 feet north of the pass track (then northern-most track) and 15 feet
south of the house track (the southern-most track).
Sometime before the mid-1980’s CSXT removed the house track: the
southern-most track. No corresponding change was made to the location of the
protective devices south of the Emory Street Crossing. As a result, at the time of
the collision, the protective devices -- which included flashing lights, bells, and an
automatic gate -- were located 36 feet south of the then southern-most track: the
main line.
On the day of the collision, a westbound train activated the protective
devices at the Emory Street Crossing just as Plaintiff’s wife approached the
crossing from the south. Plaintiff’s wife slowed down in response to the flashing
lights and bells but came to a full stop only after she had already driven past the
automatic gate. The automatic gate then lowered directly behind Plaintiff’s car.
The car’s front bumper was 17 feet from the nearest track. After remaining
stopped for about 30 seconds, Plaintiff’s wife began driving forward across the
track and was struck by the oncoming train. As a result of the collision, Plaintiff’s
wife died; and Plaintiff suffered severe injuries.
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Plaintiff filed this civil action against CSXT 1 in state court, alleging, in
pertinent part, that CSXT was negligent for failing to relocate the protective
devices after taking away the house track.2 CSXT removed the case to federal
court. The district court granted CSXT’s motion for summary judgment,
concluding that CSXT owed no duty to relocate the protective devices at the
Emory Street Crossing.
We review a district court’s grant of summary judgment de novo, viewing
all evidence and drawing all reasonable inferences in favor of the non-moving
party. Holloman v. Mail-Well Corp., 443 F.3d 832, 836-37 (11th Cir. 2006).
Summary judgment is appropriate where the record presents no genuine issue of
material fact and where the moving party is entitled to judgment as a matter of law.
Id.Plaintiff contends that CSXT had a contractual duty, pursuant to the 1974
Agreement, to relocate the protective devices south of the Emory Street Crossing
after removing the house track. Plaintiff relies on the design specifications
attached to the 1974 Agreement, which specify, among other things, that the
protective devices were to be constructed 15 feet from the center of each of the
1
Defendants Georgia Department of Transportation and J.F. Williams were dismissed in the
district court and are not parties to this appeal.
2
On appeal, Plaintiff raises no challenge to the district court’s determination that Plaintiff
abandoned the remaining claims in Plaintiff’s complaint.
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then-contemplated northern-most (the pass track) and southern-most (the house
track) tracks.
Under Georgia law, “the cardinal rule of contract construction is to ascertain
the parties’ intent, and where the contract terms are clear and unambiguous, the
court will look to that alone to find the true intent of the parties.” Parris Props.,
LLC v. Nichols, 700 S.E.2d 848, 853 (Ga. Ct. App. 2010).
The 1974 Agreement provides that, after the protective devices are installed
and “found to be in satisfactory working order,” the devices “shall be immediately
put into service, operated and maintained by [CSXT] so long as [CSXT] operate[s]
trains across” the Emory Street Crossing, or until the parties agree that the signals
are no longer necessary, the crossing is abandoned, or until “other legal
requirements necessitate cessation of operation and maintenance of signals
thereat.” In addition, CSXT “will operate and maintain at its sole expense any
grade crossing protective devices that are installed or modified pursuant to this
agreement.” (emphasis added).
In determining the parties’ intent, we look first to the plain meaning of the
terms used in the contract. In this context, the term “operate” means “to cause or
direct the functioning of; to control the working of”; and the term “maintain”
means “to take action to preserve in working order.” See operate, v., Oxford
English Dictionary, http://www.oed.com/view/Entry/131741 (2015); maintain, v.,
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Oxford English Dictionary, http://www.oed.com/view/Entry/112562 (2015).
Given these definitions, and considering the phrase “operate and maintain” in
context, the 1974 Agreement imposes unambiguously a duty on CSXT to control
the working of, and to keep in working order, the protective devices.
We reject Plaintiff’s contention that CSXT’s contractual duty to “operate
and maintain” the protective devices also encompasses an additional duty: a duty
to “maintain” at all times the 15-foot distance between the protective devices and
whatever might become in the future the presently existing nearest track. Nothing
in the 1974 Agreement or the attached design specifications can be interpreted
reasonably as imposing such ongoing duty. Nor does the plain language of the
1974 Agreement or the attached design specifications require CSXT to relocate the
protective devices upon future removal of a track or for any other reason. The
contract terms in the 1974 Agreement are clear and unambiguous, imposing no
duty on CSXT to keep on relocating protective devices.
Plaintiff also argues that CSXT had a common law duty to relocate the
protective devices. Even if we assume -- without deciding -- that CSXT had a duty
at common law related to the installation of protective devices at railroad
crossings, we have accepted that the common law duty has been preempted by the
Georgia Code of Public Transportation (“GCPT”), O.C.G.A. § 32-1-1 et seq.
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In CSX Transp., Inc. v. Trism Specialized Carriers, Inc., 182 F.3d 788 (11th
Cir. 1999), we addressed the effect of the GCPT on a railroad’s common law duty
to install protective devices at a railroad crossing. We concluded -- based on the
Georgia Court of Appeals’s decision in Evans Timber Co., Inc. v. Cent. of Ga.
R.R. Co., 519 S.E.2d 706 (Ga. Ct. App. 1999) -- that the GCPT “overrule[s] the
state common law cause of action against railroads for negligent failure to install
adequate warning devices at public grade crossings.” Trism, 182 F.3d at 792; see
Evans Timber, 519 S.E.2d at 709 (“The GCPT precludes a common-law cause of
action against a railroad for the failure to install adequate protective devices at a
grade crossing on a public road where the railroad has not been requested to do so
by the appropriate governmental entity.”). Because the Georgia Supreme Court
had not yet decided the issue and because no “persuasive indication [existed] that
the state’s highest court would rule otherwise,” we determined that we were
“bound to apply the law as decided by the Georgia Court of Appeals” in Evans
Timber. Trism, 182 F.3d at 792.
Plaintiff contends that the Georgia Supreme Court’s decision in Fortner v.
Town of Register, 604 S.E.2d 175 (Ga. 2004), must alter our conclusions. We
disagree. Fortner overruled Evans Timber only “[t]o the extent that the holding of
Evans Timber is based on . . . dicta [in the Georgia Supreme Court’s decision in
Kitchen v. CSX Transp., 453 S.E.2d 712 (Ga. 1995)].” Fortner, 604 S.E.2d at 178.
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But the Georgia Court of Appeals did not see itself as bound by dicta in the
Kitchen opinion; the decision about protective devices in Evans Timber is based on
a number of other factors, including the statutory language, trial testimony, and the
legislative intent. See Evans Timber, 519 S.E.2d at 709-10. Furthermore, the
Georgia Supreme Court in Fortner never says it overruled the ultimate conclusion
about protective devices in Evans Timber (that the GCPT preempted the railroad’s
common law duty to install protective devices). Thus, Evans Timber and Trism
remain good law to us.
In addition, to the extent that Fortner speaks about a railroad’s common law
duty to install protective devices, that language in the Fortner opinion is itself non-
binding dicta. The issue before the state court in Fortner was whether the GCPT
preempts a railroad’s common law duty “to prevent vegetation from obstructing
vision at a railroad crossing”: an issue that the Georgia Supreme Court
distinguished expressly from the issue raised in this appeal. See Fortner, 604
S.E.2d at 177-78.
Evans Timber is like this case and is the only Georgia state appellate
decision to address directly the issue presented in this appeal. And nothing in
Fortner which is not like this case persuades us it is reasonably certain that the
Georgia Supreme Court would reach a different decision. Thus, we conclude --
consistent with Evans Timber and with our decision in Trism -- that the GCPT
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preempted the common law duty CSXT might have had to relocate the protective
devices at the Emory Street Crossing.
Plaintiff has failed to demonstrate that CSXT owed a duty to relocate the
protective devices, as track was removed. Plaintiff’s claim for negligence fails as a
matter of law. See Johnson v. Am. Nat’l Red Cross, 578 S.E.2d 106, 108 (Ga.
2003) (To recover for negligence, a plaintiff must show, among other things, that
defendant owed plaintiff a duty).
AFFIRMED.
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