Strozyk v. Norfolk Southern Corp.Strozyk v. Norfolk Southern Corp.
Case Information
*1 Opinions of the United 2004 Decisions States Court of Appeals
for the Third Circuit 1-20-2004
Strozyk v. Norfolk S Corp
Precedential or Non-Precedential: Precedential
Docket No. 02-3957
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PRECEDENTIAL Filed January 20, 2004 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 02-3957 CLAIR STROZYK, Individually, as Parent of, and as Co-Administrator of the Estate of Christopher Strozyk; DENISE STROZYK, Individually, as Parent of, and as Co-Administratrix of the Estate of Christopher Strozyk,
Appellants v.
NORFOLK SOUTHERN CORP.; JOSEPH SULLIVAN Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 01-cv-02478) District Court Judge: Honorable Ronald L. Buckwalter Argued October 2, 2003 Before: RENDELL, WEIS and GARTH, Circuit Judges . (Filed: January 20, 2004) Frederick E. Charles [ARGUED] 441 Linden Street Allentown, PA 18101 Stephen L. Shields 104 West Fourth Street P.O. Box 5456 Bethlehem, PA 18015 Counsel for Appellants Paul F.X. Gallagher [ARGUED] Gallagher, Rowan & Egbert 1500 Walnut Street Suite 1600 Philadelphia, PA 19102 Counsel for Appellees
OPINION OF THE COURT RENDELL, Circuit Judge .
Christopher Strozyk was killed at a railroad crossing
when a train owned and operated by Norfolk Southern
collided with the truck he was driving. Subsequently,
Strozyk’s parents filed suit against Norfolk, alleging,
inter
alia
, the railroad’s negligence for inadequate warning
devices at the grade crossing, excessive speed of the train,
and failure to provide proper sight lines for motorists
crossing the track. Norfolk moved the District Court for
summary judgment, arguing that much of the Strozyks’
complaint was preempted by virtue of the Federal Railroad
Safety Act of 1970 (“FRSA”), 84 Stat. 971, as amended,
I. The fatal collision took place on May 8, 2000 at a railroad crossing that intersects Smith Lane in Alburtis, Pennsylvania. The District Court found that warning devices, specifically crossbucks—the X-shaped signs placed on posts that read “RAILROAD CROSSING”—were installed at the Smith Lane crossing around June of 1987. These warning signs were installed under the auspices of a federal-state crossbuck replacement program and paid for in part with federal funds, and were in place at the time of Strozyk’s accident, thirteen years later. These facts are unchallenged on this appeal.
Following the accident, in March of 2001, the Strozyks filed a wrongful death and survival action in Pennsylvania state court, asserting various claims of negligence against Norfolk. After removing the case to the District Court based on diversity jurisdiction, Norfolk then moved for summary judgment. It argued that the FRSA preempted state tort claims where federal funding was involved in the improvement of the grade crossing. Norfolk contended that the crossbucks at the Smith Lane crossing were installed in part with federal money and that, consequently, the Strozyks’ claims were preempted. In an order issued on June 5, 2002, the District Court agreed, and granted Norfolk’s motion for partial summary judgment, eliminating all but two of the Strozyks’ claims as preempted. The Strozyks do not appeal the District Court’s finding that the warning devices at the Smith Lane crossing were installed with federal funds nor do they appeal what follows from that finding, i.e., that they may not challenge the warning devices’ adequacy.
However, going beyond the claims relating to warning
devices, the District Court reasoned that
appeal. First, the Strozyks claim that Norfolk violated its duty of care under Pennsylvania law to maintain a safe grade crossing. Second, and relatedly, the Strozyks claim that obstructed sight lines at the grade crossing restricted the ability to see oncoming trains. Indeed, the Strozyks’ principal allegation appears to be that excess vegetation, which Norfolk had a duty to control, obscured decedent’s view of the oncoming train.
After the District Court’s June 5 order, only two claims remained: a) failing to give proper sound, signal, or warning of the presence of the train prior to collision and b) violating the decedent’s right of way. Norfolk then filed a motion for summary judgment with respect to these claims, arguing that its engineer had sounded a horn on its approach to the Smith Lane Crossing. In responding to this motion, the Strozyks conceded that a horn was blown and stated that Norfolk’s motion was “unopposed.” Consequently, the District Court, in an order issued on September 27, 2001, granted Norfolk’s second motion for summary judgment and dismissed the case. “Because the grant of summary judgment and the dismissal of the complaint are inconsistent,” we will disregard the District Court’s reference to dismissal of the Strozyks’ complaint and treat the record instead as a summary judgment record.
Cheminor Drugs, Ltd. v. Ethyl Corp.
,
2. In their reply brief, the Strozyks contend for the first time that the District Court also erred with respect to the dismissal of the two remaining claims, i.e., “failing to give proper sound, signal or warning of the presence of [the] train prior to its collision with Plaintiffs’ decedent’s vehicle under the circumstances” and “violating the Plaintiffs’ decedent, Christopher Strozyk’s right of way under the circumstances.” But, as we have repeatedly instructed, this Court requires appellants to set forth issues and arguments raised on appeal in their opening brief. Thus, the Strozyks’ challenge of the second summary judgment order was “one brief too late.” Republic of Phil. v. Westinghouse Elec. Corp. , 43 F.3d 65, 71 n.5 (3d Cir. 1994). Not only did the Strozyks fail to properly challenge the second summary judgment on appeal, they did not, as already noted, oppose the motion at the District Court level. We therefore decline to disturb the District Court’s order in this regard.
II.
The District Court had subject matter jurisdiction
pursuant to
Sch. of Law v. ABA , 107 F.3d 1026, 1032 (3d Cir. 1997).
A.
We are asked to determine whether
(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. (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.
the FRSA’s express preemption provision. Pursuant to this
provision, state laws, regulations, and common law duties
concerning railroad safety remain in force until the
Secretary of Transportation promulgates regulations or
orders that “cover[ ] the subject matter of the State
requirement.”
Court in Shanklin v. Norfolk S. Ry. Co. , 529 U.S. 344 (2000), has held that by virtue of the FRSA, these regulations preempt state tort claims challenging the adequacy of warning devices that are installed in part with federal funds.
After first concluding that federal funds were expended
for the installation of the crossbucks at the Smith Lane
crossing, the District Court considered which of the
Strozyks’ claims were preempted by the FRSA. The District
Court dismissed the Strozyks’ claims that the crossbucks at
the grade crossings were inadequate—a determination
which the Strozyks do not challenge. But the District Court
went on to dismiss other claims which the Strozyks argue
were not within the subject matter of
(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.
First, with respect to the Strozyks’ limited visibility claim,
the District Court observed that
Second, with respect to the Strozyks’ claim that Norfolk did not maintain a safe grade crossing, the District Court held that it would “defy logic to allow preemption in the case of a specific allegation that a railroad failed to maintain adequate warning devices, rendering a grade crossing unsafe, but not the general allegation that a railroad failed to maintain a safe grade crossing.” After concluding that the specific claims concerning warning devices and the general claims of a safe grade crossing were “one in the same [sic]”, the District Court dismissed the Strozyks’ general maintenance claims as preempted. Id.
Norfolk urges that, in addition to adopting the District Court’s reasoning regarding the scope of the regulation, we should affirm on different grounds, namely, that Norfolk met its duty of care to the decedent. Indeed, on appeal Norfolk appears to sidestep the substance of the District Court’s preemption determination, and instead, challenges the merits of the Strozyks’ claims under Pennsylvania negligence law. Norfolk contends that Pennsylvania common law establishes an either/or standard for due care at a grade crossing: sounding a horn obviates a railroad’s duty to provide proper sight lines and vice versa. Pointing to the Strozyks’ concession to the District Court that the train engineer did sound a horn 1,500 to 1,800 feet from the crossing, Norfolk argues that even in the absence of preemption, the fact that it gave the sound warning necessarily means that it prevails as a matter of law on the Strozyks’ claims, regardless of any limited sight lines or failure to maintain a safe grade crossing.
We consider each argument in turn.
B.
The District Court’s reading of
We can find nothing in the text of the regulation that dictates that the Strozyks’ visibility claim was preempted along with their claims regarding the adequacy of the warning devices. To the contrary, the plain language of the regulation indicates that the subject matter is the adequacy of warning devices, not the considerations involved in choosing them or state negligence law more broadly. The regulations provide that “[a]dequate warning devices . . . are to include automatic gates with flashing light signals when one or more of the following conditions exist . . . .” The bare mention of these conditions, including limited visibility, does not indicate an intent to regulate those conditions. By this reasoning, each of the listed considerations, e.g., schoolbus traffic, high speed trains, or trucks freighted with hazardous materials, would be the subject matter of the regulation. The plain meaning of the regulation defies such an expansive reading.
To be certain, the regulations before us do involve the
issue of limited sight distance. But the Supreme Court has
cautioned that a showing that certain FRSA regulations
preempt state law requires “more than that they ‘touch
upon’ or ‘relate to’ that subject matter . . . .” ,
Id. The mere listing of various conditions that would require active warning devices as a matter of federal law does not constitute substantial subsumption requiring the displacement of related state law. We therefore find that the District Court erred in its reading of the regulation and its dismissal of the Strozyks’ limited sight distance claim.
C. With respect to the Strozyks’ claim regarding general maintenance of a safe grade crossing, the District Court held that it was illogical to preempt claims of inadequate warning devices while leaving untouched such a general negligence claim, concluding that the warning devices claim and the general maintenance claim essentially collapsed into each other. But, we do not believe that the text of the regulation, discussed above, or its interpretation by the Supreme Court, compels this result.
In the two principal Supreme Court opinions that guide
our analysis in this area,
Easterwood
and
Shanklin
, the
plaintiffs sued a railroad for, among other claims,
inadequate warning signals at grade crossings. The
Supreme Court held that once federal funding has been
used to install warning devices, the railroad is relieved of
liability as to those claims.
See Shanklin
, 529 U.S. at 358;
Easterwood
, 507 U.S. at 670. The Court held that with
federally funded grade crossing improvements, a railroad’s
state law obligations with respect to appropriate warning
devices are superseded by federal requirements as set forth
in
In , a widow brought a wrongful death action under Georgia law on behalf of her husband, who died in a grade crossing collision. She sued the railroad for, among other things, failing to maintain adequate warning devices at the grade crossing and operating the train at excessive speed. 507 U.S. at 661. The Supreme Court considered whether several regulations promulgated under the FRSA preempted Easterwood’s claims. First, it considered the provisions of 23 C.F.R. pt. 924, the regulations that outline “the general terms of the bargain between the Federal and State Governments.” Id. at 667. The Court ruled that
10
nothing on the face of these regulations indicated an
intention to alter the states’ traditional role in regulating
railroads.
Id.
at 667-68. Second, the Court ruled that
Lastly, the Court considered the regulations that form the
basis of the appeal before us:
The Court in Shanklin followed the path it had forged in the Easterwood case. Like the decedents in Easterwood and the case at bar, Eddie Shanklin died when his truck collided with a train at a grade crossing. Unlike the grade crossing in Easterwood , there were indeed warning devices at the grade crossing which were installed with federal participation. The defendant railroad appealed an adverse verdict for, inter alia , the inadequacy of those warning devices. Guided by Easterwood , the Court ruled for the railroad, holding that existence of warning devices installed under the auspices of the Crossings Program preempted claims challenging the adequacy of those warning devices.
4. The Court ruled, however, that Easterwood’s state law excessive speed
claim was preempted by
that killed her husband was traveling under the speed limit prescribed by this federal regulation. Id.
5. Like the Strozyks, the plaintiff in Shanklin also alleged that Norfolk had been negligent by failing to remove vegetation from the area See Shanklin , 529 U.S. at 358 (holding that “once [railroads] have installed federally funded devices at a particular crossing—[states may not] hold the railroad responsible for the adequacy of those warning devices”).
Moreover, the Court settled a division among the Circuit
Courts of Appeals by clarifying that an individualized
determination ensuring the adequacy of warning devices at
a particular crossing is not a necessary precondition to
preemption.
Id.
at 356. Rather, the Court held in both
Easterwood
and
Shanklin
that state law challenges to the
adequacy of warning devices
installed pursuant to
Unfortunately,
the Court made a
few broad
pronouncements in these opinions that seemingly point to
a blanket preemption of state tort law. The Court in
Easterwood
stated that
surrounding the crossing. Norfolk conceded, however, in its Supreme Court brief that Shanklin’s vegetation claim was not preempted by federal law. See Brief for Petitioner at 47 n.25, Shanklin v. Norfolk S. Ry.
Co. , 529 U.S. 344 (2000) (No. 99-312) (“[T]here is no dispute that Ms.
Shanklin is entitled on remand to a trial on her three remaining theories of petitioner’s liability under state law: namely, the alleged failure of petitioner to (1) sound the horn in a timely fashion; (2) apply the brakes in a timely fashion; and (3) remove vegetation from the crossing .” (emphasis added)). That is, of course, inconsistent with the position Norfolk has assumed in the Strozyks’ lawsuit.
But these passages should not be read out of context. Read in their totality, neither opinion speaks of supplanting the negligence regime of the fifty states; nor do these cases intimate that they are relieving railroads of any and all state duties of care with respect to grade crossing safety in general. Instead, the Supreme Court recognized that “the scheme of [state] negligence liability could just as easily complement” the basic division of state and federal responsibilities under the Crossings Program regulations.
Easterwood
, 507 U.S. at 668 (interpreting regulations
contained in 23 C.F.R. pt. 924). Indeed, the Court noted
that “with respect
to grade crossing safety,
the
responsibilities of railroads and the State are, and
traditionally have been, quite distinct.”
Id.
After
acknowledging the states’ traditional role in the regulation
of railroad safety, and invoking the presumption against
preemption,
id.
at 668, it would be odd indeed if the Court
intended its construction of
After the Supreme Court’s remand order, the plaintiff proceeded with, and prevailed in, a jury trial with respect to a limited sight lines/tort vegetation claim, similar to that alleged by the Strozyks. Shanklin v. Norfolk S. Ry. Co. , No.
94-1212, slip op. at 3, (W.D. Tenn. Oct. 24, 2001).
6. By virtue of the FRSA,
Our reading also comports with the interpretation given
to the regulation by the Federal Highway Administration
(“FHWA”), which the Supreme Court has quoted with
approval. In
Shanklin
, the Court noted that it had earlier
adopted as authoritative the FHWA’s construction of
Easterwood
, 507 U.S. 658 (1993) (Nos. 91-790 and 91-
1206) (“U.S. Brief ”)). The FHWA’s declaration made clear
the limited scope of
And, the courts have recognized that state law duties to
maintain a safe grade crossing remain viable. In dicta, the
Supreme Court observed that Georgia law imposes a duty
on railroads to “take all reasonable precautions to maintain
grade crossing safety.”
Easterwood
, 507 U.S. at 665 n.5
(citing
Southern R. Co. v. Georgia Kraft Co.
,
App. 1999)). Georgia’s laws on railroads have changed since
, but as noted by the Georgia Court of Appeals
“[w]ithout question, the common-law duty of the railroad,
except with respect to initiating and authorizing the
installation of protective devices at a railroad crossing,
remains in effect . . . . A railroad may still be liable for
other negligent conduct, such as the failure to maintain a
working crossing arm or obstructing vision at a crossing.”
Evans Timber
, 519 S.E.2d at 709-10. Similarly, in a case
that involved, as here, allegations of excessive vegetation,
the Supreme Court of Mississippi held that “[t]he language
and discussion [in
Shanklin
] throughout refer exclusively to
the installation and maintenance of warning devices alone
and not the maintenance of the general track conditions.”
Clark v. Ill. Cent. Ry. Co.
,
For these reasons, we decline to adopt an expansive view
of
D.
Norfolk’s principal argument on appeal
is
that
Pennsylvania common
law establishes an either/or
standard of due care at a grade crossing: sounding a horn
obviates a railroad’s duty to provide proper sight lines and
vice versa. Given the Strozyks’ concession that a horn was
7. The Strozyks averred that excessive vegetation existed at the crossing
when the accident occurred, thirteen years after the warning devices
were installed there. The District Court reasoned that because
1997). We note, however, that despite any change of conditions, claims
regarding the inadequacy of warning devices remain preempted.
Shanklin
,
sounded, Norfolk argues that irrespective of our decision on preemption, it should ultimately prevail as a matter of law.
This challenge to the Strozyks’ claims is made for the first time on this appeal. While in its second motion for summary judgment, Norfolk had made a similar argument regarding Pennsylvania common law, that motion only dealt with the two remaining claims of failure to give proper sound, signal, or warning of the presence of the train prior to collision and violation of decedent’s right of way; the remaining claims had been already preempted. Axiomatically, we decline to pass on issues not decided by the lower court. Peachlum v. City of York, Pa. , 333 F.3d 429, 439-40 (3d Cir. 2003) (“It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.” (quoting Singleton v. Wulff , 428 U.S. 106, 120 (1976))). We leave it for the District Court to address the merits of Norfolk’s argument with respect to Pennsylvania common law on this issue.
We note that, were this a pure matter of law, we might view the situation differently, and seek supplemental briefing so as to resolve this issue. However, the case law cited by Norfolk does not appear to us to draw as clear a line as Norfolk urges. Instead, the caselaw renders the determination as to the railroad’s duty of care to be heavily fact-contingent, with all the conditions being relevant. A railroad must “exercise ordinary care at a crossing by adopting a reasonably safe and effective method, commensurate with the dangers of a particular crossing, of warning travelers of the approach of the train.” Nat’l Freight, Inc. v. Southeastern Pa. Transp. Auth. , 698 F. Supp.
74, 78 (E.D. Pa. 1988), aff ’d , 872 F.2d 413 (3d Cir. 1989) (discussing Pennsylvania common law); McGlinchey v.
Baker
,
conditions and obstructions, such as vegetation or
embankments, the speed of the oncoming train, and
whether a whistle was sounded; none base a determination,
as a matter of law, on one factor alone such as a horn
warning.
See
,
e.g.
,
Buchecker v. Reading Co.
,
III.
As
9. Our decision today is limited to the regulation considered by the
District Court, namely
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