Railroad Legal Issues and Resources (2015)

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115 decision granting the MTA’s motion for a summary judgment, in part, because “no reasonable jury could find that [Anemone was terminated] out of a desire to punish him for his allegedly protected expressive activity.”538 2. Transit Authority’s Alleged Violation of the Rights of Free Speech 634 and the Exercise of Religion In Lewis v. New York City Transit Authority,539 a federal district court in New York held that the Transit Authority’s policies were not facially neutral because after an employee was transferred, the Transit Authority published a series of bulletins that indicated that it was targeting women who wore headscarves. 3. Regulations Requiring Rail Employees to Undergo Observed 636 Drug Testing Do Not Violate the Fourth Amendment BNSF Ry. Co. v. United States DOT540 involved a 2008 DOT regulation regarding the DOT drug testing requirements that required all return-to-duty and follow-up tests to use a “direct observation” method that entailed a same-gender observer to watch the collection of a urine sample. The District of Columbia Circuit held that the regulations did not violate the Fourth Amendment.541 XXVIII. NEGLIGENCE AND RAILROAD LIABILITY 639 A. Introduction 639 This part of the digest discusses statutes, cases, and articles on tort law as it applies to railroads. Sections B and C discuss the attractive nuisance doctrine as it has been applied to railroads and various issues that have arisen out of collisions between motor vehicles and trains. Sections D and E address contributory negligence, the standing train doctrine, and other state laws that may apply. Section F summarizes statutes or rules that require motorists to stop, look, and listen. Section G discusses statutes and cases specifically involving accidents in connection with crossings and crossing gates. Sections H through J cover the doctrine of res ipsa loquitor, the last clear chance doctrine, and whether and when evidence of prior accidents is admissible to prove that a railroad company had knowledge or notice of a dangerous condition of its property. 538 Id. at 113. 539 2014 U.S. Dist. LEXIS 46471, at *1, 91–92 (E.D.N.Y. 2014). 540 566 F.3d 200, 202 (D.C. Cir. 2009) (citing 49 C.F.R. § 40.67(i) (2014)). 541 Id. at 208.

116 Cases 640 B. Whether the Attractive Nuisance Doctrine Applies to Railroads 640 1. Definition of an Attractive Nuisance 640 Although an owner of land owes no duty to a trespasser on his or her land, an exception is that a landowner owes a duty of reasonable care to children who are trespassers to protect them from a dangerous condition when certain elements are established.542 Who qualifies as a child appears to vary from state to state.543 2. Obvious Trains Held Not To Be an Attractive Nuisance 641 In Choate v. Indiana Harbor Belt R.R. Co.,544 the Supreme Court of Illinois held that the plaintiff failed to prove that the alleged defective structure or dangerous condition was likely to injure children on the basis that children were incapable of appreciating the risk presented. 3. Attractive Nuisance Doctrine Inapplicable to Moving Trains 642 that Injure Children In Woods v. CSX Transp., Inc.,545 a federal district court in Indiana held that the attractive nuisance doctrine “does not apply as a matter of law in cases where child trespassers are injured by moving trains because a moving train is not a subtle or hidden danger and its potential for causing serious bodily injury or death to anyone in its path is readily apparent, even to young children.”546 542 See Choate v. Indiana Harbor Belt R.R. Co., 366 Ill. Dec. 258, 265, 980 N.E.2d 58, 65 (Ill. 2012). 543 See Restatement (Second) of Torts, § 339, cmt. c. (1979 and later supplements). 544 366 Ill. Dec. 258, 265–69, 980 N.E.2d 58, 62, 64–69 (Ill. 2012). 545 2008 U.S. Dist. LEXIS 97068, at *1 (N.D. Ind. 2008). 546 Id. at *43 (citation omitted) (internal quotation marks omitted).

117 C. Motor Vehicle Collisions with Trains Including at Highway– 644 Railroad Grade Crossings 1. Interstate Commerce Commission Termination Act’s Preemption 644 of a Claim for Negligence Per Se In Elam v. Kansas City Southern Ry. Co.,547 the Fifth Circuit held that the ICCTA preempted Elam’s claim for negligence per se but did not preempt her simple negligence claim. 2. Preemption of FELA Claims by the Federal Railroad Safety Act 645 and the Locomotive Inspection Act Garza v. Norfolk Southern Ry. Co.548 involved Garza’s claim that arose after he was injured when an automobile drove through a railroad crossing, striking a Norfolk Southern train on which Garza was working; however, the Sixth Circuit held that the Federal Railroad Safety Act and the Locomotive Inspection Act preempted the engineer’s claims.549 3. FRSA’s Preemption of State Laws on Collisions at Crossings 646 In Driesen v. Iowa, Chi. & E. R. R. Corp.,550 a federal district court in Iowa held that the FRSA preempted state and local laws regulating the speed of trains, reflectorization of railcars, warning devices, and locomotive horns. 4. Liability of a Railroad Based on the Doctrine of 647 Respondeat Superior In England v. Cox,551 a federal district court in Kansas, applying the doctrine of respondeat superior,552 held that the railroad was liable for the conduct of its employee who was 547 635 F.3d 796 (5th Cir. 2011), motion granted by, remanded by, 2011 U.S. Dist. LEXIS 55564 (N.D. Miss., May 23, 2011) (stating that “[h]aving fully reviewed the record in this case, the Court is of the opinion that the remaining claims are the equivalent of a routine crossing case which is typically resolved in state court”), affirmed by, appeal after remand at, appeal dismissed by, in part, 2012 U.S. App. LEXIS 6404 (5th Cir. Miss., Mar. 26, 2012). 548 2013 U.S. App. LEXIS 17134, at *1 (6th Cir. 2013). 549 Id. at *1–2. 550 777 F. Supp. 2d 1143, 1160 (N. D. Iowa 2011). 551 2012 U.S. Dist. LEXIS 109364, at *1 (D. Kan. 2012), reconsideration denied, 2012 U.S. Dist. LEXIS 123197, at *1 (D. Kan. Aug. 30, 2012). 552 The doctrine of respondeat superior imposes liability “upon an employer for the acts of his employees committed in the course and scope of their employment.” BALLENTINE’S LAW DICTIONARY (3d ed.).

118 acting within the scope of his employment when he negligently caused his truck to collide with a locomotive by stopping his truck on the tracks. D. Contributory Negligence as a Defense to a Claim Against 648 a Railroad 1. Railroad Not Liable When a Motorist Was Intoxicated 648 In Doyle v. Union Pacific R. Co.,553 the Fifth Circuit held that Union Pacific was not liable for injuries sustained by the plaintiff Doyle when a train and Doyle’s automobile collided, because Doyle, who was driving under the influence, did not stop, look, and listen before crossing the tracks. 2. Railroad Not Liable for the Death of a Person on the Tracks 649 In Owens v. Norfolk Southern Corp.,554 a federal district court in Indiana held that Norfolk Southern was not responsible for a man’s death when the decedent Owens was lying on the tracks and under the influence of alcohol and illegal substances. 3. Child Trespasser Statute Inapplicable to Occupier of Land 650 In Jad v. Boston and Maine Corp.,555 the Massachusetts Court of Appeals held that the Boston and Maine Corporation (B&M) was not liable to the plaintiff because under Massachusetts law a railroad is not “‘liable for negligence in causing the death of a person…walking or being upon such railroad contrary to law.’”556 Articles 651 4. Standing Train Doctrine and Other State Laws 651 A 2008 law review article entitled Railroad Law analyzes Virginia law on railroad crossings, the “standing train” doctrine that relieves railroad companies of liability when a motorist crashes into the side of a nonmoving train at a crossing, the effect of a railroad employee’s contributory negligence on a claim under the Federal Employer’s Liability Act, a passenger’s contributory negligence barring recovery for a railroad’s alleged negligence, and other issues.557 553 442 Fed. Appx. 964, 966 (5th Cir. 2011). 554 2011 U.S. Dist. LEXIS 62457, at *1, 24 (N. Dist. Ind. 2011). 555 26 Mass. App. Ct. 564, 530 N.E.2d 198 (Mass. Ct. App. 1988). 556 Id., 26 Mass. App. Ct. at 565, 530 N.E.2d at 198 (quoting MASS. GEN. LAWS., ch. 229 § 2). 557 Brent M. Timberlake, Railroad Law, 43 U. RICH. L. REV. 337 (2008).

119 5. Presumption of Contributory Negligence in Occupied 653 Crossing Cases Another law review article discusses the “occupied crossing” doctrine and contributory negligence and explains that the occupied crossing doctrine presumes that unless a crossing is determined to be ultra-hazardous, a plaintiff is contributorily negligent when the plaintiff’s vehicle collides with a train in a railroad crossing.558 Cases 654 E. Contributory Negligence and Deaf Individuals 654 In Box v. South Georgia Ry. Co.,559 the court held that the South Georgia Railway Company was not liable for hitting and killing Josie Ellis, who was deaf, because she was contributorily negligent by walking on the tracks at the time of the accident. F. Failure to Stop, Look, and Listen as Precluding a 655 Plaintiff’s Claim 1. Railroad Not Liable When Plaintiff Fails to Stop, Look, 655 and Listen In Kinchen v. Missouri P. R. Co.,560 the Fifth Circuit held that the plaintiff was contributorily negligent for having failed to comply with a Louisiana law that requires a motorist to stop, look, and listen for an approaching train at a railroad crossing. 2. Intoxication Is Not an Excuse for a Failure to Stop, Look, 656 and Listen In Baker v. CSX Transportation,561 a federal district court in Alabama held that the plaintiff’s intoxication did not excuse his contributory negligence for failing to stop, look, and listen for an oncoming train. 558 Joseph R. Wheeler, Recent Developments: Torts—the Occupied Crossing Doctrine—Determining Contributory Negligence as a Matter of Law in Railroad Accident Cases, 53 TENN. L. REV. 435, 440 (1986). 559 433 F.2d 89, 94 (5th Cir. 1970). 560 678 F.2d 619, 624–25 (5th Cir. 1982). 561 46 F. Supp. 2d 1230, 1231–33 (M.D. Ala. 1999).

120 G. Liability of a Railroad Because of Defective Crossing Gates 657 Statutes and Regulations 657 1. Inspections of Gates at Railroad Crossings 657 The FRA, which has promulgated regulations on the inspection of gates at railroad crossings, requires that each gate arm and gate mechanism must be inspected at least once each month.562 Cases 657 2. Railroad Not Liable When the Plaintiff Ignored a 657 Nondefective Gate In Hall v. Consolidated Rail Corp.,563 the Supreme Court of Michigan held that the plaintiff Hall failed to provide sufficient evidence that the lights and gates at a crossing were not working at the time of the accident and further held that Conrail was not on notice of a defect “because Conrail inspected the signal system the day before the accident and found it to be working properly.”564 3. Liability of a Railroad When Crossing Gates Failed to Lower 658 Prior to the Train’s Approach In Mills v. Norfolk Southern Ry. Co.,565 the Georgia Court of Appeals reversed the trial court’s postjudgment ruling granting Norfolk Southern a new trial. The appeals court held that Norfolk Southern was liable for the death of a driver and for injuries to a passenger when the active warning system at a crossing failed to activate sufficiently in advance to provide the driver with notice that a train was approaching.566 562 49 C.F. R. § 234.255 (2014). 563 462 Mich. 179, 612 N.W.2d 112 (Mich. 2000). 564 Id., 462 Mich. at 187, 612 N.W.2d at 116. 565 242 Ga. App. 324, 526 S.E.2d 585 (Ga. Ct. App. 1999). 566 Id., 242 Ga. App. at 326, 526 S.E.2d at 588.

121 4. Railroad Not Liable When a Minor Is on the Tracks by Avoiding 661 a Safety Gate In Boyd v. Amtrak,567 the Appeals Court of Massachusetts held that a railroad operator is not negligent when an individual is injured or killed when the person is on a railroad track; however, the Supreme Judicial Court of Massachusetts reversed and remanded the case on the basis that the plaintiff had provided sufficient evidence to overcome Amtrak’s motion for a summary judgment.568 H. Liability of a Railroad for Falling Objects 662 1. Doctrine of Res Ipsa Loquitor Held to Apply When Train Moved 662 During Loading of Cargo In Miles v. St. Regis Paper Co.,569 the court held that the doctrine of res ipsa loquitor570 applies to a railroad company when there is evidence that the train moved during unloading of logs immediately prior to the accident. 2. Railroad Not Liable for Injuries Caused by a Falling Object 663 In Casella v. Norfolk & W. R. Co.,571 the Fourth Circuit held that a railroad is only responsible for safely transporting cargo and is not “responsible for a shipper’s improper loading of a bulk commodity which caused injury to an employee of the consignee.”572 567 62 Mass. App. Ct. 783, 790, 821 N.E.2d 95, 100–01 (Mass. App. Ct. 2005), rev’d, 446 Mass. 540, 845 N.E.2d 356 (reversing the appellate court’s dismissal of the reckless conduct claims but declining to hear an appeal on the negligence claims). 568 Boyd v. Amtrak, 446 Mass. at 553–54, 845 N.E.2d at 367. 569 77 Wash. 2d 828, 834, 467 P.2d 307, 310 (1970). 570 As for the meaning of the res ipsa loquitor doctrine, when “a plaintiff’s evidence establishes that an instrumentality under the exclusive control of the defendants caused an injurious occurrence, which ordinarily does not happen if those in control of the instrumentality use ordinary care, there is an inference, permissible from the occurrence itself, that it was caused by the defendant’s want of care.” Kind v. Seattle, 50 Wash. 2d 485, 489, 312 P.2d 811, 814 (1957). 571 381 F.2d 473 (4th Cir. 1967). 572 Id. at 475–76 (citing Lewis v. New York, O. & W. Ry., 210 N.Y. 429, 104 N.E. 944 (N.Y. 1914)).

122 I. Last Clear Chance Doctrine 664 1. Doctrine Held Inapplicable to a Collision Between an Automobile 664 and a Train at a Railroad Crossing In Newman v. Missouri P. R. Co.,573 the Fifth Circuit held the last clear chance doctrine did not apply to a collision between an automobile and a train at what the court described was an “unusual and dangerous” crossing, because “[t]here was no compelling evidence establishing that there existed a time during which plaintiff was helpless while the train crew were not.”574 Article 665 2. Determining When the Last Clear Chance Doctrine Applies 665 An article entitled Last Clear Chance in Tennessee explains that the prerequisite for the application of the last clear chance doctrine is that the plaintiff must have been contributorily negligent; thus, when the doctrine is applied it has the effect of excusing the plaintiff’s contributory negligence.575 Cases 666 J. Admissibility of Evidence of Prior Accidents 666 1. Admissibility of Prior Accidents as Evidence of a Railroad’s 666 Knowledge of a Dangerous Condition In Mikus v. Norfolk and Western Ry. Co.,576 an Illinois appellate court held that evidence of prior incidents of broken gates at a crossing was properly admitted into evidence because the evidence showed that N&W knew of a dangerous condition at the crossing; moreover, N&W’s defense counsel’s examination of the signal maintainer for the railroad opened the door to the introduction of such evidence. 573 545 F.2d 439 (5th Cir. 1977). 574 Id. at 447. 575 L. Anderson Galyon III, Comment: Last Clear Chance in Tennessee, 39 TENN. L. REV. 104, 107 (1971). 576 312 Ill. App. 3d 11, 24–25, 726 N.E.2d 95, 106–07 (Ill. App. 2000).