Railroad Legal Issues and Resources (2015)

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58 7. Calculation of Offset in Settlement with a Railroad in Claim 388 Against a Private Party for Creating a Hazardous Condition Near Railroad Tracks In RGR, LLC v. Georgia Settle, Personal Representative of the Estate of Charles E. Settle, Sr., Deceased,252 the Supreme Court of Virginia ruled that RGR LLC was negligent in creating a hazardous condition when the company stacked lumber near the railroad tracks, which blocked motorists’ view of the tracks at the crossing where the accident occurred. XV. DAMAGE TO OR MAINTENANCE OF PROPERTY 389 A. Introduction 389 This part of the digest discusses damage to property caused by or sustained by a railroad. Section B discusses damage to railroad bridges and other property, as well as state statutes that apply to the construction and maintenance of railroads. Section C deals with damage to property caused by a railroad and whether the ICCTA 253 preempts state tort claims against a railroad for property damage. B. Liability of a Railroad for Neglect of a Bridge 389 Statutes 389 1. Damages for Violation of a Statute Applicable to Bridges 389 In Iowa a railroad company is liable for damages to “any person by reason of any neglect or violation” of an Iowa statute that requires railroad companies to build and maintain all bridges necessary for a railroad to cross over or under another railway, highway, or waterway.254 2. Liability for the Cost of a Bridge Required for Drainage 390 An Illinois statute provides in part that when a drain apparently owned by a district authority (district) crosses an existing railroad and a bridge is necessary for the crossing the district is liable to the railroad for the cost of constructing and maintaining the bridge.255 252 2014 Va. LEXIS 161, at *1, 3 (Va. 2014). 253 49 U.S.C. § 10102 (2014). 254 IOWA CODE § 327F.2 (2014). 255 70 ILL. COMP. STAT. § 605/12-4 (2014).

59 3. Liability for the Cost of a Crossing Over or Under a Railroad and 390 for Bridge Repair A Maine statute provides in part that when a railroad is constructed over or under another railroad or canal, the “corporation making the crossing is liable for damages, occasioned by making the crossing.”256 Cases 391 4. Whether a Railroad’s Agreement with a Transit Company to 391 Maintain a Bridge Relieved the Railroad of Its Obligation Under Section 93 of the New York Railroad Law In City of Middletown v. Wallkill Transit Co.,257 the Erie Railroad Company maintained that the transit company’s predecessor had agreed to maintain a bridge and keep it in repair. A New York court held that the agreement did not relieve the railroad company of its obligation to the City under Section 93 of the Railroad Law of New York.258 5. Whether a Railroad’s Duty Under Section 93 of the New York 392 Railroad Law to Maintain and Repair a Bridge Included a Duty to Erect Signage In Aramini v. CSX Transportation, Inc.,259 involving a claim that CSX failed to provide a sign that adequately alerted drivers to the actual height of a bridge, a federal district court in New York held that the “statutory obligation to maintain and repair bridge structures” did not include “a duty to erect signage.”260 6. Triable Issue of Fact on Whether an Expansion Joint Was 392 Part of a Bridge and Abutments Under Section 93 of the New York Railroad Law In Oppenheim v. Village of Great Neck Plaza, Inc.,.261 an appellate court in New York held that under New York Railroad Law Section 93, there were issues of fact regarding whether the expansion joint at issue in the case constituted a defective condition in a bridge. 256 ME. REV. STAT., tit. 23 § 7209 (2014). 257 18 Misc. 334, 193 N.Y.S. 297 (N.Y. Sup. Ct. 1922). 258 Id., 18 Misc. at 335, 193 N.Y.S. at 298. 259 2014 U.S. Dist. Lexis 74154, at *1 (W.D.N.Y. 2014). 260 Id. at *9–10. 261 46 A.D. 3d 527, 846 N.Y.S.2d 628 (N.Y. App. 2d Dep’t 2007).

60 7. Whether the “Second Comer” Doctrine Imposed a Duty of 393 Complete Reconstruction of a Bridge In Baltimore & Ohio Railroad Company v. Kuchta,262 the Maryland Court of Special Appeals held that the county commissioners’ attempt in an agreement to relinquish the county’s common law rights as a “first comer” was “beyond the scope of their authority, and therefore ultra vires,” and also rejected B&O’s “argument that the second comer doctrine did not impose upon it the duty of completely reconstructing Bridge 5A.”263 8. 28 U.S.C § 130’s Preemption of the “Second Comer” Doctrine 394 in a Case Involving Bridge Reconstruction and Maintenance CSX Transportation, Inc. v. Mayor and City Council of Baltimore City, Maryland264 concerned a dispute over whether an agreement between the B&O, the predecessor of CSXT, and the City of Baltimore (City) was a valid and binding contract. A federal district court in Maryland held that under 23 U.S.C. § 130, “once a state or local government agrees to the federal funding of a railroad crossing construction or reconstruction project, it cannot seek to impose the cost of that project upon the railroad.”265 9. Liability for Damage to a Bridge Owned by a Railroad When the 397 Bridge Is Struck by a Vessel Union Pac. R. Co. v. Kirby Inland Marine, Inc.266 involved a vessel’s collision with a bridge owned by Union Pacific and whether the bridge was an unreasonable obstruction to navigation pursuant to a federal statute, the Truman–Hobbs Act. The Eighth Circuit held that because the Truman–Hobbs Act has to do with funding, not safety, it was improper to shift responsibility from the vessel-owner back to the bridge-owner, Union Pacific. However, the court remanded the case to determine whether a presumption that the vessel was negligent was rebutted by a Coast Guard finding that the bridge was an unreasonable obstruction to navigation.267 262 76 Md. App. 1, 543 A.2d 371 (1988). 263 Id., 76 Md. App. at 8, 10, 543 A.2d at 375, 376 (citation omitted). 264 759 F. Supp. 281 (D. Md. 1991). 265 Id. at 284. 266 296 F.3d 671, 675 (8th Cir. 2002), cert. denied, Union Pac. R.R. Co. v. Kirby Inland Marine, Inc., 2003 U.S. LEXIS 1124 (U.S. Feb. 24, 2003), cert. denied, Kirby Inland Marine, Inc. v. Union Pac. R.R., 2003 U.S. LEXIS 1123 (U.S. Feb. 24, 2003). 267 296 F.3d at 676.

61 10. Liability for Damage to Bridge Used But Not Owned by 399 a Railroad In Louisville & Nashville R.R. Co. v. M/V Bayou Lacombe,268 the Fifth Circuit held that the Louisville and Nashville Railroad Company (L&N) did not have a property interest in a bridge struck by a tugboat that would permit L&N to recover for damages to the bridge because the agreement between L&N and Southern Railway only granted L&N the right to use Southern Railway’s bridge. 11. Liability for Damage to a Railroad Bridge During 400 Hurricane Katrina In BNSF Ry. Co. v. Parker Drilling Offshore USA LLC,269 Browning Oil Company (Browning Oil) secured a rig (owned by Parker Drilling Offshore U.S.A. L.L.C. (Parker)) to a nearby dock, which the rig damaged during Hurricane Katrina. The Fifth Circuit affirmed a summary judgment for Browning Oil on Parker’s contractual claim for indemnification.270 12. Whether a Railroad’s Operating Agreement with Amtrak 401 Was a Valid Prior Cost Allocation Agreement Divesting the Public Utility Commission of Jurisdiction to Allocate Costs In Norfolk Southern Railway Company v. Public Utility Comm’n,271 a Pennsylvania court ruled that Norfolk’s Operating Agreement with Amtrak did not constitute a valid private cost allocation agreement, as contemplated by 66 Pa. C.S. § 2704(a), that would divest the Pennsylvania Public Utility Commission of jurisdiction to allocate any costs for the removal of the bridge to Norfolk Southern. Article 402 13. State Public Utility Commission Authority to Allocate the Expense 402 of Bridge Repair to a Railroad A law review article discusses the decision in Wheeling & Lake Erie Ry. Co. v. Pennsylvania Public Utility Comm’n272 that upheld the PUC’s decision on the allocation of the cost of bridge repair to the railroad because the ICCTA did not preempt the state statute. 268 597 F.2d 469, 471, 474 (5th Cir. 1979). 269 332 Fed. Appx. 986 (5th Cir. 2009). 270 Id. at 987. 271 Norfolk Southern Railway Company, 2014 Pa. Commw. Unpub. LEXIS 233, at *1, 12, 20 (Pa. Commw. Ct. 2014). 272 778 A.2d 785, 196–97 (Pa. Commw. Ct. 2001).

62 C. Liability for Damage to Other Property 403 Statute 403 1. Damage to Property Caused by a Railroad 403 A Michigan statute provides that, unless an engine is proved to have been in good order or that all safety precautions were taken, railroad companies are liable for damage to property “by fire originating from engine’s passing over the road, fires set by company employees by order of the officers of the road, or otherwise originating in the constructing or operating of the railroad.”273 Cases 403 2. Liability for Damage to Private Property Caused by a 403 Railroad Trestle In Irish v. BNSF Ry. Co.,274 although a Wisconsin statute prohibited the obstruction of water flow when a railroad company builds a track across a drainage area, the plaintiffs were not entitled to relief because they failed to comply with the required statutory notice. 3. Liability of a Railroad for Nuisance and Contamination 404 of Property In Redevelopment Agency v. BNSF Railway Company,275 involving contamination caused by a petroleum spill from a nearby facility, the Ninth Circuit held, inter alia, that the railroads were not liable for nuisance as possessors of the property because there was no evidence “that the Railroads had actual knowledge of the contamination while they were in possession of the Property.”276 4. Whether the ICCTA Preempts Tort Claims Under State Law 406 for Water Damage Caused by a Railroad In Emerson v. Kansas City S. Ry. Co.,277 property owners alleged that the Kansas City Southern Railroad Co.’s failure to keep a drainage ditch clear of obstructions resulted in the 273 MICH. COMP. LAWS § 462.259 (2014). 274 674 F.3d 710, 711, 712 (7th Cir. 2012). 275 643 F.3d 668 (9th Cir. 2011). 276 Id. at 675. 277 503 F.3d 1126 (10th Cir. 2007).