Kill v. CSX Transportation, Inc.

[Cite as Kill v. CSX Transp., 185 Ohio App.3d 291, 2009-Ohio-6871.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
KILL,
APPELLANT and
CROSS-APPELLEE, CASE NO. 1-09-13
v.
CSX TRANSPORTATION, INC.,
APPELLEE and
CROSS-APPELLANT;
ALLEN COUNTY BOARD OF OPINION
COMMISSIONERS ET AL.,
APPELLEES.
Appeal from Allen County Common Pleas Court
Trial Court No. CV2007 1001
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: December 28, 2009
APPEARANCES:
Henry W. Chamberlain and Paul W. Flowers, for appellant and cross-
appellee.
R. Leland Evans, for appellee and cross-appellant.
Case No. 1-09-13
ROGERS, Judge.
{¶1} Plaintiff-appellant and cross-appellee, Michael Kill, by and through
his legal guardians, Theodore and Celeste Kill, appeals the judgment of the Court
of Common Pleas of Allen County granting summary judgment to defendant-
appellee and cross-appellant, CSX Transportation, Inc. (“CSX”), and dismissing
his claim for damages resulting from inadequate signalization at a railroad
crossing. On appeal, Kill argues that the trial court erred in dismissing his claim
on summary judgment on the grounds that the Federal Railroad Safety Act
(“FRSA”), Section 20106, Title 49, U.S.Code, preempts his state-law claim.
Additionally, CSX cross-appeals the trial court’s refusal to dismiss Kill’s punitive-
damages claim. On appeal, CSX argues that the trial court erred in not dismissing
the punitive-damages claim after its dismissal of the inadequate-signalization
claim, as a claim for punitive damages cannot exist independently of its
underlying claim. Based on the following, we affirm in part and reverse in part
the judgment of the trial court.
{¶2} In September 2007, Kill filed a complaint against CSX, three
employees of CSX, the Allen County Board of Commissioners, and ten unnamed
defendants for economic and noneconomic losses suffered when he collided with a
CSX train while attempting to cross a railroad track in rural Allen County, Ohio,
resulting in severe and debilitating brain injuries. The multiple claims in the
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complaint included a negligence claim against CSX for failing to properly sound
the horn at the railroad crossing, for speeding, and for failing to remedy a
hazardous condition and provide adequate warning devices at the railroad
crossing. Additionally, Kill requested punitive damages as a result of CSX’s
willful and wanton misconduct.
{¶3} In August 2008, the trial court entered a stipulation and order,
pursuant to the agreement of the parties, in which Kill dismissed all defendants
except CSX and dismissed all claims against CSX, with prejudice, except his
claim for “inadequate crossing protection devices.” Subsequently, Kill filed an
amended complaint, stating that CSX “failed to provide adequate warning devices
at the crossing” and that “CSX failed to take precautionary steps such as: placing
automatic gates and lights.”
{¶4} In October 2008, the trial court entered an agreed scheduling order
granting the parties’ requests to file motions for and against summary judgment on
the sole issue of whether Kill’s state-law claim for inadequate signalization was
preempted by federal law.
{¶5} Subsequently, CSX filed its motion for summary judgment, asserting
that Kill’s state-law claim for inadequate warning devices at the railroad crossing
was preempted by federal law pursuant to the FRSA, and that Kill was not entitled
to punitive damages, because CSX had exercised reasonable care in maintaining
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adequate signalization at the railroad crossing and did not engage in willful and
wanton misconduct.
{¶6} In December 2008, Kill filed his brief in opposition to CSX’s motion
for summary judgment, asserting that his state-law inadequate-signalization claim
was not preempted by the FRSA because it met the preemption exceptions
contained in the statute and because the 2007 amendment to the FRSA clearly
excluded preemption under the facts of this case.
{¶7} In February 2009, the trial court granted CSX’s motion for summary
judgment, dismissing Kill’s state-law inadequate-signalization claim based on a
finding that the claim was preempted by federal law pursuant to the FRSA. The
trial court stated:
Even though it is not relevant to the disposition herein, the facts
reveal that eyewitnesses by affidavit and deposition verify that the
CSX train horn was sounding loudly and clearly; that the train could
be seen approaching the intersection with its lights on; and that
Michael Kill made no attempt to stop his vehicle, thereby running
into the side of the lead locomotive as indicated previously.
The crossing in question contained only passive warning devices,
namely two standard cross bucks, one facing south and one facing
north. Further, as part of the discussion herein, the south-facing
cross buck which was facing the direction of Plaintiff’s approach,
was missing the reflectorized tape with which it was installed.
By agreement of the parties, the issue before the court is whether
CSX failed to provide adequate warning devices at the crossing.
Said another way, Plaintiff’s claim is based upon whether alleged
inadequate warning devices at the crossing * * * is [sic] preempted
by federal law, specifically the Federal Railroad Safety Act of 1970.
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***
The Court finds after review that the case of Norfolk Southern
Railroad Company v. Shankland [sic] (2000), 529 U.S. 344 is
dispositive. Further, the Court finds that in Fifth Third Bank v. CSX
Corp. (N.D. Ind. 2004) 306 F. Supp.2d 841, the court cited
Shankland [sic] for the proposition “that changes in conditions at the
crossing are immaterial to the issue of federal preemption.” * * *
***
The Court also finds that Plaintiff can not avoid preemption under
Section 20106(a)(2)(A)-(C) since Plaintiff fails to identify an
essentially local safety hazard as required by said Section.
Finally, the Court finds that none of the exceptions in the federal
preemption statutes or its Clarification Amendment applies [sic] to
Plaintiff’s State Law Inadequate Signalization Claim.
Plaintiff’s Punitive Damage Claim
Even though the Defendant has addressed the punitive damage
claim, the Court finds that the only issue before the Court, by
agreement, is the federal preemption claim, which may make all
other claims moot. Therefore, the Court will not address the same at
this point.
{¶8} It is from this judgment that Kill appeals and CSX cross-appeals,
presenting the following assignment of error and cross-assignment of error for our
review.
Kill’s Assignment of Error
The trial court erred, as a matter of law, in granting summary
judgment in favor of defendant-appellee on the grounds that all
available Ohio common law theories of recovery are barred by
federal preemption.
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CSX’s Cross-Assignment of Error
The trial court erred in failing to dismiss cross-appellees’ claim for
punitive damages as being moot and in failing to dismiss this case in
its entirety once it granted summary judgment on the sole underlying
claim upon which the claim for punitive damages was based.
Kill’s Assignment of Error
{¶9} In Kill’s assignment of error, he asserts that the trial court erred in
dismissing his state-law claim for inadequate signalization on the grounds that it
was preempted by federal law pursuant to the FRSA. Specifically, Kill argues that
the 2007 amendment to the FRSA under Section 20106(b)(1), Title 49, U.S.Code,
providing preemption exceptions, substantially eroded prior case law and statutory
authority for preemption of state-law claims; that CSX was in violation of a state
law that meets the original preemption savings clause of Section 20106(a)(2); and
that he meets the exceptions for preemption under Section 20106(b)(1), because
CSX failed to comply with a federal regulation by neglecting to install automatic
gates and flashing light signals at the railroad crossing after repeated accidents and
failed to comply with its own rule by neglecting to repair the missing reflective
tape on the crossbuck at the railroad crossing.
{¶10} As a preliminary matter, we note that Kill asserts in his brief that
subsumed within his inadequate-signalization claim is a claim for failure to
adequately maintain the crossing, specifically a failure to replace the missing
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reflectorized tape on the crossbuck. However, the trial court’s August 2008
stipulation and order, and Kill’s amended complaint, only maintain an inadequate-
signalization claim. Kill dismissed all other claims that were contained within his
first complaint, including his claim for improper maintenance. Accordingly, the
only claim properly before this court is an inadequate-signalization claim.
I. Standard of Review
{¶11} An appellate court reviews a summary judgment order de novo.
Hillyer v. State Farm Mut. Auto. Ins. Co. (1999), 131 Ohio App.3d 172, 175.
Accordingly, a reviewing court will not reverse an otherwise correct judgment
merely because the lower court used different or erroneous reasons as the basis for
its determination. Diamond Wine & Spirits, Inc. v. Dayton Heidelberg Distrib.
Co., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶ 25, citing State ex rel. Cassels v.
Dayton City School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217, 222. Summary
judgment is appropriate when, looking at the evidence as a whole, (1) there is no
genuine issue as to any material fact, (2) reasonable minds can come to but one
conclusion and that conclusion is adverse to the party against whom the motion for
summary judgment is made; and, therefore, (3) the moving party is entitled to
judgment as a matter of law. Civ.R. 56(C); Horton v. Harwick Chem. Corp.
(1995), 73 Ohio St.3d 679, 686-687. If any doubts exist, the issue must be
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resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65
Ohio St.3d 356, 358-359.
{¶12} The party moving for summary judgment has the initial burden of
producing some evidence that demonstrates the lack of a genuine issue of material
fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. In doing so, the moving
party is not required to produce any affirmative evidence, but must identify those
portions of the record that affirmatively support his argument. Id. at 292. The
nonmoving party must then rebut with specific facts showing the existence of a
genuine triable issue; he may not rest on the mere allegations or denials of his
pleadings. Id.; Civ.R. 56(E).
II. Federal Railroad Safety Act and Preemption of State-Law Claims
{¶13} The FRSA, Section 20101 et seq., Title 49, U.S.Code, was enacted
by Congress in 1970 and granted the Secretary of Transportation “the authority to
‘prescribe regulations and issue orders for every area of railroad safety,’ * * * and
* * * to ‘maintain a coordinated effort to develop and carry out solutions to the
railroad grade crossing problem.’” Norfolk S. Ry. Co. v. Shanklin (2000), 529 U.S.
344, 347, quoting Sections 20103(a) and 20134(a), Title 49, U.S.Code. Contained
within the FRSA is a preemption provision:
(a) National uniformity of regulation.
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(1) Laws, regulations, and orders related to railroad safety and
laws, regulations, and orders related to railroad security 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 or security until the Secretary of
Transportation (with respect to railroad safety matters), or the
Secretary of Homeland Security (with respect to railroad security
matters), prescribes a regulation or issues an order covering the
subject matter of the State requirement. A State may adopt or
continue in force an additional or more stringent law, regulation, or
order related to railroad safety or security when the law, regulation,
or order--
(A) is necessary to eliminate or reduce an essentially local safety or
security hazard;
(B) is not incompatible with a law, regulation, or order of the
United States Government; and
(C) does not unreasonably burden interstate commerce.
Section 20106(a), Title 49, U.S.Code. Accordingly, under this provision, all state-
law claims are preempted when either the Secretary of Transportation or the
Secretary of Homeland Security promulgates a regulation that covers the subject
matter of the state law, unless the three preemption-avoiding conditions are
satisfied. See In re Miamisburg Train Derailment Litigation (1994), 68 Ohio
St.3d 255, 257; Wooten v. CSX RR., 164 Ohio App.3d 428, 2005-Ohio-6252, ¶ 14-
15, citing CSX Transp., Inc., v. Easterwood (1993), 507 U.S. 658.
{¶14} Subsequent to the passage of the FRSA, Congress created the
Federal Railway-Highway Crossings Program (“crossings program”) through the
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Highway Safety Act of 1973, found in Section 401 et seq., Title 23, U.S.Code.
The crossings program provided funds to states for the “cost of construction of
projects for the elimination of hazards of railway-highway crossings.” Section
130(a), Title 23, U.S.Code. The Secretary of Transportation, through the Federal
Highway Administration, issued regulations to implement the crossings program.
Shanklin, 529 U.S. at 348. Of the multiple regulations issued, one addresses the
warning devices to be installed at railroad crossings. See Section 646.214(b), Title
23, C.F.R. The regulation provides:
(2) Pursuant to 23 U.S.C. 109(e), where a railroad-highway grade
crossing is located within the limits of or near the terminus of a
Federal-aid highway project for construction of a new highway or
improvement of the existing roadway, the crossing shall not be
opened for unrestricted use by traffic or the project accepted by
FHWA until adequate warning devices for the crossing are installed
and functioning properly.
(3)(i) Adequate warning devices, under § 646.214(b)(2) or on any
project where Federal-aid funds participate in the installation of the
devices are to include automatic gates with flashing light signals
when one or more of the following conditions exist:
(A) Multiple main line railroad tracks.
(B) Multiple tracks at or in the vicinity of the crossing which may
be occupied by a train or locomotive so as to obscure the movement
of another train approaching the crossing.
(C) High Speed train operation combined with limited sight
distance at either single or multiple track crossings.
(D) A combination of high speeds and moderately high volumes of
highway and railroad traffic.
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(E) Either a high volume of vehicular traffic, high number of train
movements, substantial numbers of schoolbuses or trucks carrying
hazardous materials, unusually restricted sight distance, continuing
accident occurrences, or any combination of these conditions.
(F) A diagnostic team recommends them.
(ii) In individual cases where a diagnostic team justifies that gates
are not appropriate, FHWA may find that the above requirements are
not applicable.
(4) For crossings where the requirements of § 646.214(b)(3) are not
applicable, the type of warning device to be installed, whether the
determination is made by a State regulatory agency, State highway
agency, and/or the railroad, is subject to the approval of FHWA.
Section 646.214(b), Title 23, C.F.R. Pursuant to this regulation, when federal
funds have been used to install the warning devices, those devices must include
automatic gates and flashing light signals if any of the conditions in Sections
646.214(b)(3)(i)(A) and (F) exist; however, even if no conditions under
subsections (b)(3)(i)(A) and (F) are present, subsection (b)(4) requires the type of
device installed to be approved by the Federal Highway Administration. Shanklin,
529 U.S. at 354, citing Easterwood, 507 U.S. at 670-671. See also Nye v. CSX
Transp. (C.A.6, 2006), 437 F.3d 556, 561-562; Henning v. Union Pacific RR. Co.
(C.A.10, 2008), 530 F.3d 1206, 1212-1213.
{¶15} Accordingly, because federal preemption of state law occurs when
“federal regulations substantially subsume the subject matter of the relevant state
law,” Easterwood, 507 U.S. at 664, and because the regulations under Section
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646.214(b)(3) and (4), Title 23, C.F.R. encompass the subject matter of a tort
claim pertaining to the adequacy of railroad crossing warning signals, the United
States Supreme Court in Easterwood and Shanklin found that Section 20106(a),
Title 49, U.S.Code preempts state-law inadequate-signalization claims when
federal funding was used to install the railroad crossing warning devices, and,
consequently, the regulations under Section 646.214(b)(3) and (4), Title 23, C.F.R.
applied:
Because [Section 646.214(b)(3) and (4), Title 23, C.F.R.]
“establish requirements as to the installation of particular
warning devices,” we held that “when they are applicable, state
tort law is pre-empted.” [Easterwood, 507 U.S. at 670.] Unlike
the other regulations, “§§ 646.214(b)(3) and (4) displace state
and private decisionmaking authority by establishing a federal-
law requirement that certain protective devices be installed or
federal approval obtained.” As a result, those regulations
“effectively set the terms under which railroads are to participate
in the improvement of crossings.”
Shanklin, 529 U.S. at 352-353. See also Nye, 437 F.3d at 561-562; Lee v.
Burlington N. Santa Fe Ry. Co. (C.A.9, 2001), 245 F.3d 1102, 1106; Strozyk v.
Norfolk S. Corp. (C.A.3, 2004), 358 F.3d 268, 273-274.
{¶16} Furthermore, this court has previously found, pursuant to
Easterwood, that federal preemption of a state-law inadequate-signalization claim
occurs when federal funds were used to purchase the warning device, the warning
device was actually installed, and the warning device was approved by the Federal
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Highway Administration. Gollihue v. Consol. Rail Corp. (1997), 120 Ohio
App.3d 378, 397
{¶17} Subsequently, in 2007, Congress amended the FRSA pursuant to the
Implementing Recommendations of the 9/11 Commission Act of 2007. See
Pub.L. No. 110-53, 121 Stat. 266. Pursuant to this act, the following language was
added to Section 20106, Title 49, U.S.Code:
(b) Clarification regarding State law causes of action.--(1) Nothing
in this section shall be construed to preempt an action under State
law seeking damages for personal injury, death, or property damage
alleging that a party--
(A) has failed to comply with the Federal standard of care
established by a regulation or order issued by the Secretary of
Transportation (with respect to railroad safety matters), or the
Secretary of Homeland Security (with respect to railroad security
matters), covering the subject matter as provided in subsection (a) of
this section;
(B) has failed to comply with its own plan, rule, or standard that it
created pursuant to a regulation or order issued by either of the
Secretaries; or
(C) has failed to comply with a State law, regulation, or order that
is not incompatible with subsection (a)(2).
(2) This subsection shall apply to all pending State law causes of
action arising from events or activities occurring on or after January
18, 2002.
Although subsection (b) was added to Section 20106, subsection (a) was left
unchanged. Furthermore, the amendment was made retroactive to January 18,
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2002. The impact of the amendment and its purpose were discussed in the House
conference report as follows:
Subpart (a) of the Conference substitute * * * contains the exact text
of 49 U.S.C. §20106 as it existed prior to enactment of this Act. It is
restructured for clarification purposes; however, the restructuring is
not intended to indicate any substantive change in the meaning of
the provision.
Subpart (b) of the Conference substitute provides further
clarification of the intention of 49 U.S.C. §20106, as it was enacted
in the Federal Railroad Safety Act of 1970, to explain what State law
causes of action for personal injury, death, or property damage are
not preempted.
(Emphasis added). H.R. Conf. Rep. No. 110-259, At 351 (2007). Furthermore,
the history behind the amendment and its reasoning have been discussed in detail
by several courts:
Subsection (b) was enacted in response to and to “rectify” the
Federal court decisions in Mehl v. Canadian Pac. Ry. Ltd., 417
F.Supp.2d 1104 (D.N.D.2006) and Lundeen v. Canadian Pac. Ry.
Co., 447 F.3d 606 (8th Cir.2006). In both cases, the courts
concluded state law negligence claims were preempted by FRSA
even though defendant railroads failed to comply with the applicable
federal regulation or rule. See Mehl, 417 F.Supp.2d at 1108;
Lundeen, 447 F.3d at 611. These decisions raised great concern
among Congressional members who believed denying accident
victims legal recourse even when the railroad violated applicable
federal regulations was inconsistent with FRSA. As a result,
Congress amended FRSA's preemption clause by allowing state tort
law claims to proceed if a railroad did not comply with a railroad
safety federal regulation even if such regulation covered the subject
matter of the state requirement.
Murrell v. Union Pacific RR. Co. (D.Ore.2008), 544 F.Supp.2d 1138, 1145.
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Mehl and Lundeen brought to light an erroneous interpretation of
FRSA preemption not supported by the text of § 20106, Easterwood,
or Shanklin. Thereafter, Congress amended 49 U.S.C. § 20106 by
adding the clarification amendment, making clear that when a party
alleges a railway failed to comply with a federal standard of care
established by regulation or with its own plan, rule, or standard
created pursuant to a federal regulation, preemption will not apply.
49 U.S.C. § 20106(b)(1).
Henning, 530 F.3d at 1212-1213. See also Bates v. Missouri & N. Arkansas RR.
Co. (C.A.8, 2008), 548 F.3d 634, 637.
III. Analysis
A. Preemption under Easterwood and Shanklin
{¶18} In the case at bar, Kill sets forth multiple arguments in support of his
assignment of error that the trial court erred in dismissing his inadequate-
signalization claim against CSX on the grounds that his claim was preempted by
the FRSA. First, he contends that the trial court erred in relying upon the
preemption analysis set forth under Easterwood and Shanklin, as the 2007
amendment to the FRSA substantially eroded the precedential value of that
analysis so that it now has little application to the facts of this case.
{¶19} However, in analyzing the 2007 amendment to the FRSA, we find
that it does little to alter the preemption analysis set forth under Easterwood and
Shanklin, other than to provide additional exceptions to preemption. First, the
amendment did not alter the original language of Section 20106(a), Title 49,
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U.S.Code. This was the language relied upon by Easterwood and Shanklin, and it
remains unchanged.
{¶20} Second, the House Conference Report on the 2007 amendment
clearly states that the amendment was not intended to effect “any substantive
change in the meaning of the provision,” but was meant to “provide[] further
clarification of the intention of 49 U.S.C. §20106.” H.R. Conf. Rep. No. 110-259,
at 351 (2007).
{¶21} Third, the language introduced by the 2007 amendment does not
bear upon the reasons for preemption set forth under Easterwood and Shanklin.
The Supreme Court stated in Shanklin that the plaintiff’s state-law inadequate-
signalization claim was preempted because Section 646.214(b)(3) and (4), Title
23, C.F.R. either mandated the installation of specific warning devices or required
the warning devices to be approved by the Federal Highway Administration,
thereby “ ‘subsum[ing] the subject matter of the relevant state law’ ” and
preempting the plaintiff’s claim. Shanklin, 529 U.S. at 352, quoting Easterwood,
507 U.S. at 664. The additional statutory language of Section 20106(b), Title 49,
U.S.Code does not alter the warning-device requirements of Section 646.214(b)(3)
and (4), Title 23, C.F.R., but only provides exceptions for preemption, even when
those warning-device requirements are applicable. Accordingly, even after the
2007 amendment, the warning-device requirements of Section 646.214(b)(3) and
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(4) still “subsume the subject matter of the relevant state law.” Easterwood, 507
U.S. at 664. “[I]f Congress intend[ed] for [this] legislation to change the
interpretation of a judicially created concept, it [would make] that intent specific,”
Midlantic Natl. Bank v. New Jersey Dept. of Environmental Protection (1986),
474 U.S. 494, 501, but Section 646.214(b)(3) and (4), Title 23, C.F.R. still
indicates federal preemption.
{¶22} Finally, other courts that have considered the effect of the 2007
amendment to Section 20106, Title 49, U.S.Code have also concluded that it has
no effect on the precedential value of the preemption analysis set forth under
Easterwood and Shanklin. See Henning, 530 F.3d at 1216 (“Congress did not
overrule Shanklin, but instead provided clarification for courts interpreting
Shanklin”); Murrell, 544 F.Supp.2d at 1152-1153 (“Upon finding that Shanklin
was not overruled by Congress’ clarification to section 20106, I now hold
plaintiff's inadequate warning devices claim is preempted by federal law”); and
Gauthier v. Union Pacific RR. Co., E.D.Tex. No. 1:07CV12, 2009 WL 812261(“After the amendment of Section 20106(b), the familiar preemption analysis of
[Easterwood and Shanklin] and their progeny is applied to allegations of state law
negligence, unless [the exceptions of Section 20106(b), Title 49, U.S.Code
apply]”).
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{¶23} Accordingly, because we find that the 2007 amendment to the FRSA
does not alter the preemption analysis set forth under Easterwood and Shanklin,
we will apply that analysis to the facts of the case before us.
{¶24} Attached to CSX’s motion for summary judgment was an affidavit
and exhibits establishing that two standard crossbucks were installed at this
railroad crossing in 1993 through the Ohio Crossbuck Program, pursuant to the
approval granted by the United States Department of Transportation, Federal
Highway Administration. Additionally, the affidavit and exhibits establish that
these crossbucks were installed using only federal funds. Moreover, Kill
presented no evidence contradicting these facts in his motion for summary
judgment. Accordingly, because these warning devices were installed using
federal funds, the requirements of Section 646.214(b)(3) and (4), Title 23, C.F.R.
applied. Because it was not alleged that at the time of installation of these warning
devices, any of the conditions found in Section 646.214(b)(3)(i)(A) through (F)
were present to necessitate the furnishing of flashing lights and automatic gates,
only the requirement of Section 646.214(b)(4) applied, and this requirement was
met when the Federal Highway Administration approved the installation of the
crossbucks. Consequently, Section 646.214(b)(3) and (4), Title 23, C.F.R.
“effectively set the terms under which [CSX was] to participate in the
improvement of crossings” and “displace[d] state and private decisionmaking [sic]
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authority,” Easterwood, 507 U.S. at 670, thereby preempting Kill’s state-law
inadequate-signalization claim relating to this railroad crossing.
B. Exceptions to Preemption
{¶25} Even though we have found Kill’s inadequate-signalization claim to
be preempted, we must still decide whether the facts support any of the exceptions
for preemption contained under Section 20106, Title 49, U.S.Code. Specifically,
Kill argues that his inadequate-signalization claim is not preempted because CSX
was in violation of a federal standard of care pursuant to Section 20106(b)(1)(A),
Title 49, U.S.Code; because CSX was in violation of its own rule created pursuant
to a federal regulation, as stated in Section 20106(b)(1)(B); and because the three
conditions necessary for an exemption from preemption under Section 20106(a)(2)
were present.
1. Failure to Comply with a Federal Standard of Care
{¶26} Section 20106(b)(1)(A), Title 49, U.S.Code provides an exception to
preemption where the railroad company “has failed to comply with the Federal
standard of care established by a regulation or order issued by the Secretary of
Transportation.” Here, Kill asserts that because this railroad crossing has
experienced multiple car and train collisions over the last several years, it meets
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the requirements for the installation of flashing lights and automatic gates pursuant
to Section 646.214(b)(3)(i)(e), Title 23, C.F.R., and because CSX failed to install
these warning signals, it failed to comply with a federal standard of care and
preemption does not apply.
{¶27} However, Section 646.214(b)(3), Title 23, C.F.R. does not establish
a standard of care, but, instead, sets forth affirmative requirements that must be
met when certain conditions exist, thereby eliminating the railroad’s discretion in
its decision to install an adequate warning system. See Henning, 530 F.3d at 1215(“It is apparent that § 646.214(b)(3) and (4) [Title 23, C.F.R.] do not establish a
federal standard of care under which a railroad must act”); Shanklin, 529 U.S. at
353-354, quoting Easterwood, 507 U.S. at 670 (“Unlike the other regulations, ‘§§
646.214(b)(3) and (4) [Title 23, C.F.R.] displace state and private decisionmaking
authority by establishing a federal-law requirement that certain protective devices
be installed or federal approval obtained’”).
{¶28} Accordingly, because Section 646.214(b)(3), Title 23, C.F.R. does
not establish a standard of care under which CSX was required to operate, Section
20106(b)(1)(A), Title 49, U.S.Code does not operate to permit Kill’s state-law
inadequate-signalization claim.
2. Failure to Comply with its Own Rule
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{¶29} Section 20106(b)(1)(B), Title 49, U.S.Code provides a second
exception to federal preemption. The statute provides that a state-law claim will
survive preemption when the railroad “has failed to comply with its own plan,
rule, or standard that it created pursuant to a regulation or order issued by either of
the Secretaries.” Here, Kill argues that CSX failed to comply with its own rule to
keep the crossbuck in repair pursuant to its contractual agreement with the state of
Ohio when it failed to replace the reflectorized tape that deteriorated off the
crossbuck. In support of his argument, Kill cites the agreement between CSX and
the state of Ohio for installation of the crossbuck. Section eight of that agreement
states that CSX, “at its cost and expense, shall own said crossbuck signs and
maintain them in good condition, as required by statute.”
{¶30} Although CSX contractually agreed to maintain the crossbuck, this
is not the equivalent of a “plan, rule, or standard * * * created pursuant to a
regulation.” First, CSX’s obligation to maintain the crossbuck was not created
pursuant to a regulation but pursuant to the contract. Second, in looking at the
legislative history of Section 20106(b)(1)(B), Title 49, U.S.Code, it is clear that
this contractual agreement was not the type of rule or plan contemplated by the
statute.
{¶31} The House of Representatives Conference Report on the 2007
amendment to Section 20106, Title 49, U.S.Code states that the amendment was
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intended to “clarify the intent and interpretations of the existing preemption statute
and to rectify the Federal court decisions related to the Minot, North Dakota
accident that are in conflict with precedent.” H.R. Conf. Rep. No. 110-259, at
351 (2007).
{¶32} The federal court decisions to which the conference report refers are
Mehl v. Canadian Pacific Ry. Ltd. (D.N.D.2006), 417 F.Supp.2d 1104 and
Lundeen v. Canadian Pacific Ry. Co. (C.A.8, 2006), 447 F.3d 606. See Henning,
530 F.3d at 1212-1213. In Lundeen, the Eighth Circuit determined that the
plaintiff’s negligent-inspection claim for damages as a result of a train derailment
was preempted even though it was alleged that the railroad failed to comply with
the federal regulations related to inspection. In Mehl, the federal district court also
found that plaintiff’s negligent-inspection claims were preempted despite the
plaintiff’s argument that the railroad failed to comply with the inspection
regulations under federal law.
{¶33} In looking at these two cases with which Congress was concerned
when drafting the 2007 amendment to Section 20106, Title 49, U.S.Code, it is
clear that the exception contained in Section 20106(b)(1)(B) directly concerns
plans or rules that specifically relate to federal requirements. Here, any plan or
rule that CSX was required to follow in replacing the reflectorized tape arose from
its contractual agreement with the state of Ohio, not a federal regulation. Kill cites
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to no other federal regulation or requirement that CSX was required to follow in
replacing the reflectorized tape.
{¶34} However, even if Kill was able to cite a federal regulation requiring
CSX to maintain the crossbucks by repairing any reflectorized tape, we would still
find his claim to be barred, as that claim would be a failure to adequately maintain
the railroad crossing, and Kill dismissed this and all other claims in his amended
complaint, except for the inadequate-signalization claim.
{¶35} Accordingly, we find that Kill is unable to show the applicability of
the preemption exception contained in Section 20106(b)(1)(B), Title 49,
U.S.Code.
3. Preemption Savings Clause of Section 20106(a)(2), Title 49, U.S.Code
{¶36} Section 20106(a)(2) was unaltered by the 2007 amendment to the
FRSA and provides that a state law will be excluded from preemption when the
law “is necessary to eliminate or reduce an essentially local safety or security
hazard; is not incompatible with a law, regulation, or order of the United States
Government; and does not unreasonably burden interstate commerce.” Section
20106(a)(2)(A) through (C), Title 49, U.S.Code. Here, Kill argues that he meets
all three prongs of this preemption savings clause. He asserts that, under Ohio
common law, railroads have a duty to exercise reasonable care to protect the safety
of motorists at railroad crossings, which, under the conditions existing at this
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crossing, required the installation of automatic gates and flashing lights. Kill
claims that this duty to exercise reasonable care is necessary to reduce a local
safety hazard, as there has been a high number of accidents at this railroad
crossing; that this duty is not incompatible with a federal law or regulation, as this
common-law standard for the placement of automatic gates and flashing lights
closely mirrors the federal standard contained in Section 646.214(b)(3), Title 23,
C.F.R.; and that this common-law standard would not unduly burden interstate
commerce, as evidenced by the fact that this railroad crossing has been recently
upgraded with gates and flashing lights.
{¶37} Ohio common law requires that a railroad exercise reasonable care
in protecting motorists from and warning them of trains approaching a highway
crossing. Carpenter v. Consol. Rail Corp. (1994), 69 Ohio St.3d 259, 263, citing
Matkovich v. Penn Cent. Transp. Co. (1982), 69 Ohio St.2d 210. Under some
conditions, this duty to exercise reasonable care could require the installation of
flashing lights and automatic gates. See id.; Anderson v. CSX Transp., Inc. (1991),
74 Ohio App.3d 365, 372.
{¶38} A local safety hazard is a ‘“local situation[] which [is] not statewide
in character and not capable of being adequately encompassed within national
uniform standards.’” Duluth, Winnipeg, & Pacific Ry. Co. v. Orr (C.A.8, 2008),
529 F.3d 794, 798, quoting Natl. Assn. of Regulatory Util. Commrs. v. Coleman
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(C.A.3, 1976), 542 F.2d 11, 14-15. To ascertain if a safety hazard is essentially
local in nature, we must “inquire into the nature of the hazard itself to determine
whether it is the type of hazard that is properly dealt with on a local level.” Union
Pacific RR. Co. v. California Pub. Util. Comm. (C.A.9, 2003), 346 F.3d 851, 860,
citing Burlington N. & Santa Fe Ry. Co. v. Doyle (C.A.7, 1999), 186 F.3d 790,
795.
{¶39} In determining what constitutes an essentially local safety hazard,
courts have found that an abnormally high accident rate alone does not justify such
a finding. See Murrell, 544 F.Supp.2d at 1156-1157. The frequency of accidents
only serves as evidence of an existence of a hazard, not “the nature of the hazard
itself.” Union Pacific RR. Co., 346 F.3d at 861 (finding that a high derailment rate
alone does not establish an essentially local safety hazard).
{¶40} Consequently, because Kill contends that an essentially local safety
hazard exists solely based upon the frequency of accidents, he is unable to
establish the presence of a local safety hazard at this railroad crossing, and we find
that he fails to meet the first prong of the preemption savings clause of Section
20106(a)(2)(A), Title 49, U.S.Code. It is unnecessary to examine the remaining
two prongs.
{¶41} Accordingly, because we find that the 2007 amendment to the FRSA
did not alter the preemption analysis of Easterwood and Shanklin; that Kill’s state-
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law inadequate-signalization claim is preempted by the FRSA; that Kill does not
meet the preemption exceptions contained in Section 20106(b)(1)(A) through (B),
Title 49, U.S.Code; and that Kill fails to meet the requirements of the preemption
savings clause of Section 20106(a)(2)(A) through (C), we find that the trial court
did not err in granting summary judgment to CSX, thereby dismissing his
inadequate-signalization claim.
{¶42} Accordingly, we overrule Kill’s assignment of error.
CSX’s Cross-Assignment of Error
{¶43} In its cross-assignment of error, CSX asserts that the trial court erred
in failing to dismiss Kill’s punitive-damage claim after dismissing his state-law
claim for inadequate signalization. Specifically, CSX asserts that because a
punitive-damages claim cannot exist independently of the underlying claim, the
trial court was required to dismiss Kill’s punitive-damages claim when it
dismissed his underlying claim for inadequate signalization. We agree.
{¶44} It is well established that a claim for punitive damages cannot exist
independently of the underlying cause of action for which it is sought. Moskovitz
v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, 649, citing Seasons Coal Co. v.
Cleveland (1984), 10 Ohio St.3d 77. “[A] civil action may not be maintained
simply for punitive damages, but, rather punitive damages are awarded as mere
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incident to the cause of action in which they are sought.” Miller v. Xenia (Mar.
22, 2002), 2d Dist. No. 2001 CA 82.
{¶45} In the case sub judice, Kill filed an amended complaint setting forth
only a claim for inadequate signalization and a claim for punitive damages. The
trial court subsequently dismissed the inadequate-signalization claim on summary
judgment, but left the punitive-damages claim undecided.
Even though the Defendant has addressed the punitive damage
claim, the Court finds that the only issue before the Court, by
agreement, is the federal preemption claim, which may make all
other claims moot. Therefore, the Court will not address the same at
this point.
CONCLUSION
The Court finds that Defendant’s Motion for Summary Judgment is
well taken in that there are no genuine issues as to any material facts
and as a matter of law Plaintiff’s claims are barred by federal
preemption.
This is a final judgment as to one but fewer than all of the claims1
and the Court makes an expressed determination pursuant to Civ.R.
54(B) that there is no just reason for delay.
{¶46} Consequently, because a punitive-damages claim cannot exist
independently of the underlying claim for which it was brought, we find that Kill’s
claim for punitive damages cannot survive the dismissal of his underlying
inadequate signalization claim and that the trial court erred in failing to dismiss the
punitive-damages claim.
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{¶47} Accordingly, we sustain CSX’s cross-assignment of error.
{¶48} Having found no error prejudicial to the appellant and cross-appellee
in the particulars assigned and argued in his assignment of error, but having found
error prejudicial to the appellee and cross-appellant in the particulars assigned and
argued in its cross-assignment of error, we affirm in part and reverse in part, and
we remand the cause to the trial court for further proceedings consistent with this
opinion.
Judgment affirmed in part
and reversed in part,
and cause remanded.
PRESTON, P.J., and WILLAMOWSKI, J., concur.
1
We note that the trial court was referring only to the punitive-damages claim, as no other claims remained.
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