Motion-Secondary: SEAN HALE vs CSX TRANSPORTATION INC ET AL

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IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
SECOND APPELLATE DISTRICT

TODD A. DAMRON, etc., et al.,
Plaintiffs,

Vv.

.CSX TRANSPORTATION, INC., et. al.

Defendants.

CA 22546
CA 22547
CA 22592

Appellate Case No:

05-CV-2496
05-CV-2761
05-CV-3050

T. Ct. Case No.:

JOINT REPLY BRIEF OF PLAINTIFFS-APPELLANTS, TODD A. DAMRON, ETC., ET

AL., SEAN HALE, LISA AND GREG BAKER, AND MICHAEL HALE

eye Cerme~

‘MARK R. BARAN, 0074020

DONALD J. KRAL, 0042091
Reddy Baran & Kral Co.

2802 SOM Center Road, Suite 102
Cleveland, Ohio 44094

'216.867-0867

440.943.5880 Fax

mbaran@rbklawyers.com
dkral@rbklawyers.com

Attorneys for Plaintiffs-Appellants, Todd
Damron and Dennis Hensley for the
Estates of Courtney Damron and Dennis
Hensley, Deceased, respectively

/

JOHN-A.SMALLEY, 029649,
Dyer Garofalo Mann & Sch

131 N. Ludlow Street, Suite 1400
Dayton, Ohio 45402

937.223.8888

937.824.8630 Fax
jsmalley@dgmslaw.com

Attorneys for Plaintiffs-Appellants,Todd
Damron and Dennis Hensley for the
Estates of Courtney Damron and Dennis
Hensley, Deceased, respectively-5/ Richard M, Hunt -Via Phone Consent 8/27/08

RICHARD M. HUNT, 0005486
Richard M. Hunt Co. L.P.A.

120 West Second Street, Suite 1600
Dayton, Ohio 45402

937.222.1800

937.223.7839 Fax

rmh@120iaw.com
Attorney for Defendant-Plaintiff Sean Hale

And Plaintiff Lisa Baker

s/ Daniel F, Getty -Via Phone Consent 8/27/08
DANIEL F. GETTY, 0074341

Getty Law Office, L-L.C.

46 E. Franklin Street

Centerville OH 45459

937.610.5940

937.610.5958 Fax.
dgetty@gettylawoffice.com

Attorney for Plaintiff Michael Hale

/s/ Christopher Carrigg -Via Phone Consent 8/27/08

CHRISTOPHER CARRIGG, 0023947
Freund, Freeze & Arnold

_1 South Main Street, Suite 1800

Dayton, OH 45402
937.222.2424
937.222.5369 Fax

ccarrige@ffalaw.com
Attorney for Defendant Sean Hale

Margaret Young, Esq.

Young & Alexander Co., L.P.A.
130 West 2™ Street, Suite 2000
Dayton, Ohio 45402

‘Attorney for Defendant State Farm

Mutual Automobile Ins. Co.

Nicholas E. Subashi, Esq.,
Subashi, Wildermuth & Ballato

‘The Greene Town Center

50 Chestnut St., Ste 230 -
Dayton OH 45440
Attorney for Defendant-Appellee City of

Miamisburg

Robert Anspach, Esq.

Anspach Meeks Ellenberger LLP
300 Madison Ave., Ste. 1600
Toledo OH 43604-2633

Attorney for Defendant

CSX Transportation, Inc -ASSIGNMENT OF ERRORS

I THE TRIAL COURT ERRED IN FINDING THE CITY OF MIAMISBURG
IMMUNE AS TO THE FAILURE TO BARRICADE LOWER MIAMISBURG ROAD
UNTIL DEFENDANT CSX REPAIRED THE POTHOLES/CHUCKHOLES :
Appellee Miamisburg fails to demonstrate that it did not have a legal duty to barricade

Lower Miamisburg Road until Defendant CSX repaired the potholes. First, Appellee

“Miamisburg continues to confuse the issue by claiming that “Appellants offer no explanation for

why they continue to claim Miamisburg had a duty to repair the crossing....” [Brief of Appellee

at p. 13]. The Assignment of Error before this Court clearly sets forth that Appellants contend -

the error was to hold Defendant immune for failing to barricade Lower Miamisburg Road until

Defendant CSX repaired the potholes/chuckholes. Appellants are not contending that Appellee

‘had to repair the roadway, only that Appellee had to provide for the public’s safety - by placing

barricades - until it got Defendant CSX to repair the roadway.
Second, as to the error in granting Appellee immunity for failing to barricade because of-
the extensive potholes, Appellee’s entire analysis regarding public railroad crossings such as the

Lower Miamisburg Road public crossing must fail. Ohio Revised Code § 4955.20 gives

‘municipal corporations express authority over the railroad to ensure that “crossings, approaches,

and sidewalks shall be constructed, repaired, and maintained by the railroad companies” as
ordered by the municipality. Appellee contends that O.R.C. § 4955.20 “gives townships the
automatic authority to fix crossings outside municipal corporations.” [Brief of Appellee at p.

14]. Appellee’s contention that R.C. § 4955.20 does not apply to municipal corporations ignores

‘the entire second paragraph of 4955.20 which extends to municipal corporations the same powers

over railroad crossings within the municipal corporation as the boards of township trustees have

.over crossings and approaches outside of municipal corporations.Appellee misinterprets O.R.C. § 723.10, which also gives municipalities control over

public highways and streets, just as it misinterprets R.C. § 4955.20. Appellee suggests that

“public road” for purposes of R.C. § 723.10 does not include Defendant CSX’s right-of-way.

Appellee’s argument completely misconstrues and contorts the Ohio Legislature’s changes to the

‘immunity statute as explained by the Supreme Court of Ohio in Howard v. Miami Twp. Fire

Division, 119 Ohio St.3d 1. The Supreme Court found that the General Assembly acted to
restrict municipal liability to conditions present on the roadway itself and to exclude conditions
falling with the municipality’s control but outside the roadway. Appellee quotes the definition

set forth in O.R.C. § 2744.01(H) of “public road” which applies to 2744.02(B)(3) as excluding

““berms, shoulders, rights-of-way, or traffic control devices...” Appellee fails to quote the first

part of 2744.01(H) which states that “Public roads” means public roads, highways, streets,
avenues, alleys, and bridges within a political subdivision.” Appellee fails to understand that the
General Assembly directed its changes to the municipality’s right-of-way outside of the public

road. Indeed, the road sits on a municipal right-of-way so if Appellee is correct then failing to

‘repair or remove obstructions on the roadway itself would even be excluded.

Just as importantly, Appellee’s attempt to exclude the public road as it goes over the

_grade crossing from municipal control must fail because it is contrary to the long-standing

understanding that there are public grade crossings and there are private grade crossings. Under

Appellee’s interpretation, the public road stops at the edges of the railroad’s right-of-way. For

‘the Lower Miamisburg Road public crossing where there are several different distances for the

railroad right-of-way, the public road would stop approximately 85 feet from the crossing for the
north lane on the west side of the crossing, and approximately 50 feet from the crossing for the ~

south lane on the west sidé of the crossing. Similarly, on the east side of the crossing the publicroad would stop 75 feet from the crossing for the north lane and approximately 30 feet for the

south lane. [See Survey Map of Bockrath & Associates, Exhibit 19 to Plaintiffs Damron and

Hensley’s Memorandum in Opposition to the Motion for Summary Judgment as to All Claims

‘Against Defendant, City of Miamisburg]. It has long been understood that the road crossing

over a public grade crossing was a public road and was under the control of a public authority.'
In contrast, roads passing over private crossings are private roads maintained by an entity other .
than a public authority, Appellee’s interpretation of 2744.02(B)(3) under which the public road

stops on one side of the crossing at the edge of the railroad right-of-way and starts on the other

“side of the crossing at the other edge of the railroad right-of-way radically changes the entire

understanding of public vs. private grade crossings. There is no reason to believe the Ohio
Legislature enacted such a drastic and extreme modification to well understand principles. As -
recognized by the Supreme Court in Howard, when the Legislature defined “public road” to
exclude “rights-of-way” it was acting to limit municipal liability to the roadway itself.
Appellee’s further suggestion that there is “no legal authority standing for the proposition
that local municipalities have control over railroad crossings” completely ignores Ohio statutory
and case law. Under Ohio statutory law, O.R.C. § 723.10 places railroad crossings and
approaches under municipal control. One example of Ohio case law placing railroad crossings

under municipal control is City of Fairfield vs. CSX Transportation, Inc. (12" App. Dist., Butler

‘Cty., February 12, 1996), 1996 Ohio App. LEXIS 424, unreported, Case No. CA95-09-149

which forcefully demonstrated city authority to regulate public road grade crossings under

ORC. § 4955.20. [See Plaintiffs’ Memorandum in Opposition to the Motion for Summ. Judg. °

‘Even Appellee recognizes that we are talking about “railroad crossings that intersect public roadways”. [Brief of
Appellee at p. 15]. If the municipality no long controls the roadway going over a railroad crossing it makes no sense

to call that roadway a “public roadway”.of Def. Miamisburg at pp.-20-21].?

Appellee’s citation to the decision in Springdale v. CSX Ry. Corp. (1994), 68 Ohio St. 3d

“371, is inapplicable. In Springdale, the Supreme Court of Ohio was faced with a municipality’s

control over a state highway grade crossing. The Supreme Court did not say that the
municipality lacked control over the railroad crossing but rather that the municipality must first .
have plans for the crossing approved by the Director of Transportation. The present action does
not involve a state highway grade crossing.

Similarly, the Patterson decision cited by Appellee is completely inapposite to the present

case. Unlike the present case, Patterson did not involve any consideration of a city’s duties

pursuant to O.R.C. §§ 723.01 and 2744.02(B)(3). In addition, in Patterson there is no discussion

or reference in the decision to that part of O.R.C. § 4955.20 which provides that the legislative
authority of a municipal corporation may order the railroad to maintain and repair a public grade
crossing. Patterson simply did not address the issues before this Court.

Finally, Appellee’s citation to Brady v. Consolidated Rail Corporation (1988), 35 Ohio
St. 3d 161, supports Appellants’ position with respect to Appellee’s authority to direct repairs
and maintenance of the Lower Miamisburg Road public crossing. In Brady the Supreme Court
acknowledge that under O.R.C. § 4955.20 a township or municipality has the authority to order
‘an improvement to a railroad crossing but held that whether or not the local township or
municipality exercised its authority railroad companies have an independent duty of care to

Inaintain railroad crossings in safe and good repair. Brady, 35 Ohio St. 3d at 164.

* Appellee’s contention that under § 723.01 a formal “order” was required from the legislative authority is without
merit. First, Appellee Miamisburg, through Danny Clemmer had repeatedly contacted the railroad to have the

. crossing repaired and barricaded the crossing in the interim. This ongoing practice was done without any formal
“order” since presumably the legislative authority of Appellee Miamisburg has delegated the maintenance and repair
of its public streets to the Public Works Streets Department, supervised by Mr. Clemmer.The law and facts clearly establish that Appellee Miamisburg had the authority to control

‘the maintenance and repair of the Lower Miamisburg Road public grade crossing. As set forth in

Appellants’ Brief, the sequence of water coming up the east bank of the river, the roadway
crossing deteriorating, the railroad ineffectively patching the crossing, followed by another round
of potholes and chuckholes was a never-ending process throughout the career of Appellee

Miamisburg’s Public Works Streets Department Supervisor Danny Clemmer. The actual

‘knowledge of the potholes/chuckholes at the time of the collision is undisputed by Appellee.

Finally, it is well settled that in addition to the statutory authority discussed above, “a
municipality has a duty to keep its streets and sidewalks free from nuisance and in a reasonably .
safe condition.” Shepherd v. City of Cincinnati (1" Dist. Ct. App., Hamilton Cty), 168 Ohio

App.3d 444, 449, 860 N.E.2d 808, 812 (stating that “the city had a statutory and common-law

‘duty to insure that the public roads were in repair and free from nuisances”). Simply reporting

the potholes to CSX, which CSX was presumably aware of through its bi-weekly track
inspections, did not satisfy Appellee’s duty to reasonably provide for the safety of its citizens.
Appellee’s contention that it is entitled to immunity and that the potholes/chuckholes at
issue in this case would not qualify under Howard as an “obstruction” fails on two counts. First,
Appellee failed the initial prong of O.R.C. § 2744.02(B)(3) for “their negligent failure to keep ,
public roads in repair....” The mere fact that Appellee needed to act by exercising its authority
over Defendant CSX does not relieve it of its responsibility to “keep public roads in repair.”
Nothing in the statute says that Appellee can only satisfy that duty through its own employees.
Instead, Appellee should have protected the public through barricades as it had on many prior
occasions while waiting for Defendant CSX to make the necessary repairs. Appellee failed to ,

“keep public roads in repair” and is not entitled to immunity under 2744.02(B)(3).Second, Appellee’s contention that the potholes/chuckholes in this case do not qualify as
an “obstruction” not only improperly weighs the evidence but does so in a blatantly incorrect
manner. Appellants have previously set forth in detail evidence regarding the hazardous nature .
of the crossing. [Appellant’s Brief at pp. 8-11]. Even Defendant CSX’s Manager of Field
Investigations, Harold “Bud” Barnes, testified that the poor condition of the crossing surface was
a contributing factor to the January 5, 2004 collision. Moreover, Defendant CSX’s Locomotive
Engineer William H. Monroe testified at driver, Sean Hale’s Juvenile Court proceeding, where
Mr. Hale was found not guilty, that if Mr. Hale’s vehicle had not gotten stuck at the crossing, he
would have cleared prior to the collision. When Appellee claims that “obstacles” would not
include potholes such as these, it is hard to understand what would.

Appellee is correct that Appellants do not believe that protecting the motoring public
from the dangers and hazards created by the potholes/chuckholes at the Lower Miamisburg Road
public crossing involves any discretion or judgment. O.R.C. §§723.10 and 4955.20 provide
Appellee with authority to act at public grade crossings. The Supreme Court of Ohio has made it

clear that when it comes to “physical impediments such as potholes” the decision to act does not

“involve judgment or discretion. As previously noted by Appellants, in Franks v. Lopez (1994),

69 Ohio St. 3d 345, 349, 632 N.E.2d 502, the Supreme Court clearly stated that “physical
impediments such as potholes, are easily discoverable, and the elimination of such hazards
involves no discretion, policy making, or engineering judgment.” The Court went on to state that
“(t)he political subdivision has the responsibility to abate them and it will not be immune from
liability for its failure to do so.” Jd. The Supreme Court expressly rejected Appellee’s argument

herein that immunity was reinstated under R.C. 2744.03(A)(3) and (5). Since it had the legal

authority to protect the public at the public grade crossing, the decision whether or not to do so -did not involve discretion and/or judgment.’ The evidence demonstrates a genuine issue of
material fact as to whether, separate from its failure to “keep public roads in repair”, Appellee is
‘not entitled to immunity for its failure to remove obstacles from public roads. -The trial court’s
tuling finding immunity is legally incorrect.
Ul. THE TRIAL COURT ERRED IN FINDING THAT PLAINTIFFS/APPELLANTS HAD

NOT ASSERTED.A CLAIM AGAINST DEFENDANT/APPELLEE MIAMISBURG

FOR NEGLIGENCE IN FAILING TO PLACE A BARRICADE ON THE ROADWAY

BECAUSE OF FLOODING ON THE EAST SIDE OF THE CROSSING

Appellee’s suggestion that the Court correctly concluded that Appellants did not assert a
claim for flooding and barricading ignores the numerous paragraphs in Appellants’ Revised Third
Amended Complaint that refer to Appellee’s duty to keep public roads in repair and to remove .
obstructions from public roads. [See Paragraphs 14, 24, 59, and 64 of Appellants’ Revised Third
Amended Complaint]. Appellee has no explanation as to how in a notice pleading state those
allegations were somehow not sufficient to encompass the failure to address the flooding through
barricades as Appellee had done in the past.

Appellee is incorrect in claiming that it did not have notice of the flooding. [Brief of
Appellee at p. 22). Appellant Sean Hale provided extensive evidence of the fequent visits by the
Public Works Department to the crossing and the ongoing and regular surveillance by the Police

Department. [See Sean Hale’s Opposition to Miamisburg’s Motion for Summary Judgment at

pp. 3-4]. Moreover, the evidence demonstrates that for at least 24 hours prior to the collision the

river which traverses through Miamisburg had severely flooded its embankment including the -

} Appellee’s suggestion that engineering technician Bill Monroe’s decision involved judgment and was somehow
more reliable than the testimony of Mr. Clemmer, the Supervisor of the Public Works Streets Department, which was
based on authenticated photographic evidence is not correct. First, Franks makes clear that there is no discretion in

.the face of hazards such as the pothotes/chuckholes present on the public road at the grade crossing. Second, Mr.

Clemmer is, in fact, the person who repeatedly in the past directed that the railroad be contacted because of the
potholes and barricaded Lower Miamisburg Road until it was repaired. His opinion, based on this prior experiencearea adjacent to the Lower Miamisburg Road public grade crossing. The danger clearly was
“discovered, existed long enough for Appellee to recognize it, and once discovered should have
created a reasonable apprehension of danger. See, e.g. Shepherd, 168 Ohio App. 3d at 450-452.

- Appellants’ Affidavit of Michael Ekberg, Manager of Water Resource Monitoring for the Miami
Conservancy District and his Inundation Map clearly establishes a genuine issue of material fact
regarding the danger/hazard created by the flooding. Appellee’s contention that because
emergency personnel were able to go over the crossing misses the point that most of those
emergency personnel were not on the public roadway but rather trespassing on Conservancy
District property and that, because of the flooding, there was no way to turn around once over the

crossing except to trespass.’ The photographs and inundation mapping clearly demonstrate that

the motoring public could not safely travel on the other side of the public grade crossing.”

TI. THE TRIAL COURT ERRED IN FINDING THAT IF PLAINTIFFS/APPELLANTS
HAD ASSERTED A NEGLIGENCE CLAIM WITH RESPECT TO THE FLOOD
WATER THAT DEFENDANT/APPELLEE MIAMISBURG WAS ENTITLED TO
SUMMARY JUDGMENT AS TO SUCH CLAIM
As set forth above, there is a genuine issue of material fact regarding the danger/hazards

created by the flooding for motor vehicle operators on Lower Miamisburg Road. Appellants

have provided both factual and expert testimony supporting the barricading of Lower

Miamisburg Road. Obviously, if the road was barricaded, the motor vehicle would not have

been stuck on the crossing as the train bore down upon it since it never would have been on the .

road. The relationship between the failure to barricade and the collision is self-evident. Appellee

and properly authenticated evidence, is certainly as valid as that of engineering technician Bill Monroe,

-* Even Appellee admits that “(t)he property on either side of the small roadway was otherwise off-limits to the

public.” [Brief of Appellee at p. 22).

* Appellee’s suggestion that barricading Lower Miamisburg Road is not the removal of an “obstruction” is absolutely
ludicrous, If a bridge collapsed on a road obviously before the obstruction it created could be removed the road
would be barricaded to protect the safety of motorists. That is all that was required of Appellee here. Appellants dohas no answer to the obvious relationship between the breach of duty and the collision in this

case. The trial court erred in muling that if a flooding claim was made Appellee was still entitled

to summary judgment.

Iv. IF PLAIN TIFFS/APPEL LANTS ARE HELD NOT TO HAVE ASSERTED A CLAIM
AGAINST DEFENDANT/APPELLEE MIAMISBURG IN THEIR REVISED THIRD
AMENDED COMPLAINT THEN THE TRIAL COURT ERRED IN DENYING THEM
LEAVE TO SPECIFICALLY REFER TO ROADWAYS BEING BARRICADED OR
CLOSED DUE TO FLOODING IN THAT COMPLAINT :

Appellee provides no support for the trial court’s decision denying Plaintiffs/Appellants’
-Motion for Leave to Amend their Complaint to set forth separate allegations regarding

flooding/barricading. The trial court erred in denying leave to Plaintiffs/Appellants.

Vv. THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT/APPELLEE

MIAMISBURG DID NOT BREACH ANY DUTY TO PLAINTIFFS

In opposition to summary judgment, Appellants provided extensive evidence that a
proximate cause of the collision was the dangerous/hazardous condition of the crossing and the
flooding beyond the crossing which is incorporated herein. In fact, subsequent to granting

summary judgment to Appellee, the trial court below denied Defendant CSX’s Motions for

“Summary Judgment stating that “a dispute of fact exists as to whether the Ford pickup truck

driven by Sean M. Hale was stuck in potholes/chuckholes just prior to impact.” Michael Hale v.

CSX Transportation, et al., Sean Hale v. CSX Transportation, Inc., et al., Todd Damron, et al. v.

CSX Transportation, et al., (June 11, 2008), Case Nos. 05-CV-3050, 05-CV-2761, 05-CV-2496,
Montgomery Cty. Ct. of Common Pleas, Judge Timothy N. O’Connell, at p. 12. The testimony
of the locomotive engineer, the inability of the vehicle to move out of the way, the destruction of

photographs of the potholes by Defendant CSX, admissions by Defendant CSX’s own claims

not claim that Appellee had to drain the river, only that it was required to meet its duty and protect the safety of
motorists until the river receded. .investigator, all support this finding.
VI. | SEAN HALE WAS NOT THE SOLE PROXIMATE CAUSE OF THIS COLLISION
Appeliee’s contention in its Brief that Defendant Sean Hale was the sole proximate cause
of the collision is not supported by the evidence or law. In response, Appellants incorporate
herein the factual and legal argument presented in their respective Briefs in Opposition to
Appellee Miamisburg’s Motion for Summary Judgment including pages 9 through 16 (factual
evidence) and pages 26 through 34 (legal argument) of Plaintiffs Damron and Hensley’s
Memorandum in Opposition. In addition, Appellants note that based on such evidence, the trial
court subsequently denied Defendant CSX’s Motions for Summary Judgment finding (1) a
dispute of fact about whether the truck was stuck in the potholes/chuckholes just prior to impact,
(2) a dispute of material fact as to whether obstructive vegetation existed on CSX’s right-of-way
in the southwest quadrant of the crossing, (3) a dispute of fact as to whether the crossing was a :
“humped” crossing that would violate CSX’s duty to maintain the crossing in good repair, (4) an
issue of fact as to whether the procedures followed by the engineer were sufficient once he
observed the vehicle stationary on the tracks, and (5) holding that the Court could not say that

Sean Hale’s negligence in allegedly failing to exercise ordinary care exceeded the alleged

“negligence of CSX and its engineer in failing to adequately sound the train’s whistle, apply the :

brakes or slow the train, and keep a proper lookout on the railroad track. Jd. at pp. 12-17.
Finally, in response to Appellee’s contention regarding Sean Hale’s negligence,
Appellants note that their punitive damage count against Defendant CSX is supported by the

above incorporated evidence and that under Schelihouse v. Norfolk & W. Ry. Co., (1991), 61

“Ohio St. 3d 520, 524-525 the defense of contributory negligence is not available where a

Defendant has engaged in punitive conduct. Moreover, the trial court below has ruled that “thereis a dispute of fact as to whether CSX, or its agents, exhibited a conscious disregard for the rights
and safety of other persons that had a great probability of causing substantial harm” in denying
Defendant CSX’s Motion for Summary Judgment on the punitive damage claim. Any negligence
or causation attributable to Sean Hale should be left for a jury to decide.

For the reasons set forth in this matter, the trial court’s decision granting summary

judgment to Defendant/Appellee Miamisburg should be reversed and this matter remanded.

Respectfully submitted,

deh bormre

MARK R. BARAN, 0074020 JOHN-A. SMALLEY, 0029549.)
DONALD J. KRAL, 0042091 Attorney for Plaintiffs-Appellants, Todd
Attorneys for Plaintiffs-Appellants,Todd Damron and Dennis Hensley for the
_Damron and Dennis Hensley for the Estates of Courtney Damron and Dennis
Estates of Courtney Damron and Dennis Hensley, Deceased, Respectively

Hensley, Deceased, respectively

/s/ Richard M. Hunt -Via Phone Consent 8/27/08 _/s/ Daniel Getty -Via Phone Consent 8/27/08

RICHARD M. HUNT, 0005486 DANIEL F. GETTY, 0074341
Attorney for Defendant-Plaintiff Sean Attorney for Plaintiff Michael Hale
Hale and Plaintiff Lisa Baker

¢s/ Christopher Carrigg -Via Phone Consent 8/27/08
CHRISTOPHER CARRIGG, 0023947
Attorney for Defendant Sean HaleGet a Document - by Party Name - City of Fairfield AND CSX Page 1 of 5

1996 Ohio App. LEXIS 424, *

CITY OF FAIRFIELD, OHIO, Plaintiff-Appellant, - vs - CSX TRANSPORTATION, INC.,
Defendant-Appellee.

CASE NO. CA95-09-149
COURT OF APPEALS OF OHIO, TWELFTH APPELLATE DISTRICT, BUTLER COUNTY

1996 Ohio App. LEXIS 424

February 12, 1996, Decided
NOTICE:

[*1] THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING
RELEASE OF THE FINAL PUBLISHED VERSION.

CASE SUMMARY

PROCEDURAL POSTURE: Plaintiff city sought review of the decision of the Butler County
Court of Common Pleas (Ohio), which entered judgment in favor of defendant railroad
compelling the city to reimburse the railroad for the cost of moving a railroad switch and
turnout made necessary by a city road-widening project.

OVERVIEW: The city, in the course of a road-widening project, fited a complaint to
appropriate property. The property acquisition meant that the railroad was required to
move a switch and turnout. The railroad filed an answer and counterclaim to the city's
appropriation action and asked for compensation for the costs associated with the move.
The trial court ruled in favor of the railroad. On appeal, the court reversed. The court held
that the railroad's duty, under Ohio Rev. Code § 4955.20, to build and maintain crossings,
applied to the railroad's move. The court determined that the city was not required, as
part of the condemnation, to pay expenses to the railroad. The court concluded that the
duty to build and keep in good repair sufficient crossings had a necessary relationship to
the condemnation proceedings and the railroad's duty was not abrogated by the city's
appropriation of the land necessitating the move.

OUTCOME: The court reversed the decision and entered judgment in favor of the city.

CORE TERMS: crossing, railroad, turnout, switch, relocate, widening, repair, own
expense, flagman, build, summary judgment, public service, public use, road-widening,
negotiations, convenience, elimination, relocation, relocating, allocating, municipal,
highway, street, widen, grade

LEXISNEXIS® HEADNOTES @Hide
| Real Property Law > Estates > Present Estates > Fee Simple Estates %
| Real Property Law > Inverse Condemnation > Constitutional Violations ul

Real Property Law > Limited Use Rights > Easements > Public Easements §
N14 Generally, a public service corporation's real estate, whether owned in fee or held
as an easement, is private property, and as such cannot be taken or otherwise
applied to a different public use without payment of just compensation. However,

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public service corporations such as railroads are peculiarly subject to regulation
under the state's police power. State action that compels such corporations to
destroy or alter lawfully erected structures is not a taking in the constitutional
sense where such structures endanger public health or

safety. More Like This Headnote | Shepardize: Restrict By Headnote

Transportation Law > Rail Transportation > State & Local Regulation ©
HN2% In Ohio, Ohio Rev. Code § 4955.20 requires railroad companies to build and keep
in repair good and sufficient crossings. Such crossings, approaches and sidewalks
shall be constructed, repaired, and maintained by the railroad companies as so
ordered by the legislative authority of the municipal
corporation. More Like This Headnote

Transportation Law > Rail Transportation > Lands & Rights of Way Sul
Transportation Law > Rail Transportation > State & Local Regulation $x)

HN3¥% A state or locality may require a railroad company to reconstruct, relocate or
eliminate a highway crossing or trackage at its expense, where the requirements
further safety and convenience, and the allocation of the costs are fair and
reasonable. More Like This Headnote

Constitutional Law > Bill of Rights > Fundamental Rights > Eminent Domain & Taking:
Torts > Transportation Torts > Ral! Transportation > General Overvi #2

Transportation Law > Rail Transportation > Lands & Rights of Way =)

HN4% When a city, by condemnation, extends a street across a railroad, it is not bound,
by the constitutional inhibition against taking private property for public use
without compensation, to award, as part of the damages, the expenses to the
railroad company of constructing gates, planking the crossing, maintaining
watchmen, etc., which, by public regulations will be required for the safety of lives
and property. More Like This Headnote

Torts > Transportation Torts > Rail Transportation > data cnsingg

Transportation Law > Rail Transportation > State & Local Regulation “ul
HN5% Ohio Rev, Code § 4955.20 imposes a duty upon railroads to bear the costs
necessary to build and keep in repair good and sufficient crossings. Qhio Rev.
Code § 4955.20 describes a railroad's duties regarding crossings and a
municipality's authority over crossings. More Like This Headnote

COUNSEL: John H. Clemmons, Fairfield City Law Director, 1251 Nilles Road, Suite 18,
Fairfield, Ohio 45014, for plaintiff-appellant.

Lindhorst & Dreidame, James L. O'Connell, 312 Walnut Street, Suite 2300, Cincinnati, Ohio
45202, for defendant-appellee.

JUDGES: YOUNG, J. WALSH, P.J., and POWELL, J., concur.

OPINION BY: YOUNG

OPINION

(Accelerated Calendar)

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OPINION

YOUNG, J.Plaintiff-appellant, the city of Fairfield ("Fairfield"), appeals the Butler County
Court of Common Pleas decision that compels the city to reimburse defendant-appellee, CSX
Transportation, Inc. ("CSX"), for the cost of moving a railroad switch and turnout made
necessary by a city road-widening project. This court concludes that the relocation of the
structures at issue here is directly related to CSX's duty under R.C. 4955.20 "to build and
keep in repair good and sufficient crossings *** ." Accordingly, this court holds that the city
could properly require the railroad company to relocate those structures at its own expense.

Fairfield filed this action to appropriate property along Seward Road, a city thoroughfare,
[*2] in order to widen that read from two lanes to four. Seward Road crosses CSX's right-
of-way and the project called for the widening of the road southward at that point. CSX did
not challenge the city's right to take the property; however, various disagreements arose as
to the allocation of costs and expenses. Fairfield, citing R.C. 4955.20, enacted Ordinance No.
57-94 to require CSX to widen its crossing and to remove or relocate its turnout and switch
located directly ta the south of the crossing. CSX filed an answer and counterclaim to the
city's appropriation action and asked for compensation for the costs associated with the road-
widening project.

After negotiations, the parties resolved all issues save two. The principal issue concerned
which party was responsible for the cost of relocating the raifroad switch and turnout. The
second issue concerned the ultimate responsibility for the cost of stationing a flagman at the
crossing while pre-existing signals were temporarily taken out of service. The parties placed
funds in escrow pending a final determination. Thereafter, both parties filed motions for
partial summary judgment.

On August 8, 1995, the trial court ruled in favor [*3] of CSX. The trial court held that R.C.
4955.20 did not apply to the issue of compensation for the cost of relocating existing
structures that bear "no necessary relationship to the highway crossing.” The trial court
found that the expense of hiring a flagman was “more logically related to the taking of CSX
property for the Seward Road widening project (for which the city must compensate the
landowner-railroad) than it is to the providing of a means crossing railroad tracks (which,
under § 4955.20, is the railroad's responsibility)." The court therefore concluded that the
expenses associated with moving the swich and turnout and the flagman should be borne by
Fairfield.

4N1%Generally, a public service corporation's real estate, whether owned in fee or held as an
easement, is private property, and as such cannot be taken or otherwise applied to a
different public use without payment of just compensation. 26 American Jurisprudence 2d
(1966) 860, Eminent Domain, Section 181. However, public service corporations such as
railroads are peculiarly subject to regulation under the state's police power. State action that
compels such corporations to destroy or alter lawfully erected structures [*4] is not a taking
in the constitutional sense where such structures endanger public health or safety. Id., citing
New York & N.E.R. Co. v. Bristo/ (1894), 151 U.S. 556, 14 S. Ct. 437, 38 L. Ed. 269.

HNZ¥In Ohio, R.C. 4955.20 requires railroad companies "to build and keep in repair good and
sufficient crossings *** . Such crossings, approaches and sidewalks shall be constructed,
repaired, and maintained by the railroad companies as so ordered [by the legislative
authority of the municipal corporation]." (Emphasis added.} The issue here is whether the
city had the authority under R.C. 4955.20 to require CSX to relocate its switch and turnout at
its own expense.

4NSA state or locality may require a railroad company to reconstruct, relocate or eliminate a
highway crossing or trackage at its expense, where the requirements further safety and

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convenience, and the allocation of the costs are fair and reasonable. Atchison, T. & S. Ry. Co.
v. Public Util. Comm, of California (1953), 346 U.S. 346, 74 S. Ct. 92, 98 L. Ed. 51. In
Atchison, the supreme court held that a public utility commission order allocating to railroads
fifty percent of the cost of grade separation improvements [*5] did not amount to a taking
in violation of due process. Jd. at 355, 74 S. Ct. at 98. The court rejected the railroads'
argument that the commission could only allocate improvement costs on the basis of actual
benefit to the company. The court noted that "when the [railroad companies] went on the
streets in question, they assumed the burden of sharing on a fair and reasonable basis the
costs of any changes for the reason of public safety and convenience made necessary by the
growth of the communities.” Jd.

In Chicago, B.& Q. R. Co, v. Chicago (1897), 166 U.S. 226, 17 S. Ct. 581, 41 L. Ed. 979, the
United States Supreme Court made the following statement in paragraph eight of the
syllabus:

HN4E When a city, by condemnation, extends a street across a railroad, it is not
bound, by the constitutional inhibition against taking private property for public
use without compensation, to award, as part of the damages, the expenses to
the railroad company of constructing gates, planking the crossing, maintaining
watchmen, etc., which, by public regulations will be required for the safety of
lives and property.

HNSER.C, 4955.20 imposes a duty upon railroads to bear the costs [*6] necessary "to build
and keep in repair good and sufficient crossings *** ." " R.C. 4955.20 describes a railroad's
duties regarding crossings and a municipality's authority over crossings." Springdale v. CSX
Ry. Co, (1994), 68 Ohio St. 3d 371, 375, 627 N.E.2d 534. The trial court found that the
switch and turnout in this case had "no necessary relationship to a crossing." This is not true.
These structures are intimately related to this crossing by reason of their proximity to the
crossing.

Neither party nor the trial court addressed R.C. Chapter 4957, dealing with the elimination of
crossings. R.C. 4957.05 provides:

The cost of the construction of the improvement in a crossing, including the cost
of land or property purchased or appropriated, and the payment of damages to
abutting property shall be apportioned as follows: (A) The railroad company ***
shall pay, unless otherwise agreed upon, fifteen per cent; (B) The municipal
corporation or county shall pay eighty-five per cent.

R.C. 4955.20 and R.C. Chapter 4957 apparently provide for two different procedures related
to allocating the costs associated with building, maintaining, altering and eliminating public
grade [*7] crossings. See 1944 Ohio Atty.Gen.Ops. No. 7313, at 707. R.C. 4955.20 relates
to the construction and repair of such crossings, while R.C. Chapter 4957 governs the
alteration or elimination of an existing crossing. Jd.

It is unclear whether the parties overlooked R.C. Chapter 4957 or agreed that that chapter
did not apply in this case. It is not completely clear whether or not the costs of widening this
crossing could have been allocated according to the formula provided for in R.C. 4957.05.
However, the parties had already settled many issues concerning the allocation of cost
associated with this road widening project before filing their motions for summary judgment
with the trial court. The parties apparently agreed to limit the issue before the trial court to
consideration of R.C. 4955.20, In light of the parties prior negotiations and agreements, and
because neither party addressed R.C. Chapter 4957 below, this court believes that it would
be inappropriate to consider R.C. 4957.05 now for the first time on appeal.

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The evidence adduced before the trial court clearly indicates that CSX's switch and turnout
could not be safely maintained in their former positions. Under R.C. [*8] 4955.20, Fairfield
‘ had the authority to order CSX to relocate those structures. The city could properly require
CSX to relocate its switch and turnout at its own expense so long as it acted fairly and
reasonably. See Atchison. This court does not believe that the city acted unreasonably in
ordering the railroad to relocate its switch and turnout, and does not believe that the city
must bear the cost of that relocation. The city's single assignment of error is sustained.

| Judgment reversed and this cause remanded for entry of final judgment for Fairfield in
accordance with the terms of this decision.

WALSH, P.J., and POWELL, J., concur.

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Montgomery County, Ohio - Scanned Document

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UN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO
CIVIL DIVISION

MICHAEL HALE, et al,
Plaintiffs,
v.

CSX TRANSPORTATION, et al,

Defendants.

Case No. 05-CV-3050

Judge Timothy N, O’Connell

SEAN HALE, et al,
Plaintiffs,

ve

CSX TRANSPORTATION, INC,, et al.,

Defendants,

Case No. 05-CV-2761

Judge Timothy N. O’Conneil

TODD DAMRON, et at,
Plaintiffs,

ve

CSX TRANSPORTATION, et al,

Defendants.

Case No. 05-CV-2496 J

Judge Timothy N. O'Connell

DECISION, ORDER AND ENTRY
OVERRULING DEFENDANT CSX’S:
MOTIONS FOR SUMMAR'
JUDGMENT .

‘This matter is before the Court on Defendant CSX Transportation, Inc.'s (“CSX") Motion

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Jor Summary Judgment and ‘Memorandum ta Support with Respect to Plaimiffs Damron and
Hensley filed on October 23, 2007. CSX filed a Motion for Summary Judgment and
Memeorandum in Support with Respect to Plaintiffs Sean Hale, Lisa Baker, and Gregory Baker
on October 23, 2007. CSX filed a Motion for Summary Judgment and Memorandum in Support
with Respect to Plaintiff ‘Michael Hale on October 23, 2007. CSX fited a Motion for Leave to
Exceed Page Limitation Instanter on October 23, 2007. Plaintiffs Damron and Hensley filed a
Memorandum in Oppasition on December 3, 2007. Plaintiffs Damron and Hensley filed 2
Motion, Instanuer, for Leave to File an Enlarged Plaintiffs Memorandum in Opposition on
December 3, 2007. Defendant Sean Hale (“Hale”) filed a Memorandum in Opposition on
November 30, 2007. Plaintiff Scan Hale (“Hale”) filed a Memorandum in Opposition on
November 30, 2007. Plaintiff/Defendant Sean Hale (“Hale”) filed a Motion to Join Plaintiffs
Damron and Hensley in Their Memorandum in Opposition to the Motion of Defendant CSX
Transportation For Summary Judgment on December 5, 2007. CSX filed a Reply in Support on
December 17,2007. CSX filed a Motion for Leave to Exceed Page Limitation Instanter on
December 17, 2007. The Affidavit of Susan J. Kirkland was filed on December 17, 2007.
Plaintiffs Damron and Hensley filed a Sur-Reply Memorandum in Opposition to Defendant
CSX's Motion for Summary Judgment with Respect to Plaintiffs Damron and Hensley on
December 19, 2007, with Icave of Court. CSX filed a Notice of Filing Supplemental Authority in
Support of ts Motions for Summary Judgment on December 20, 2007. CSX filed a Motion for
Leave to File Reply to Plaintiffs’ Sur-Reply in Opposition to Summary Judgment, Instanter on
January 4, 2008. CSX filed a Reply to Plaintiffs’ Sur-Reply in Opposition to Summary Judgment
on January 4, 2008. Pluintiffs Damron and Hensicy fited a Supplement to Their Opposition to

CSX Transportation, Inc.'s Motion for Summary Judgment in Response to Defendant CSX's

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Claimed Supplemental Authority Filed December 20, 2007 on January 4, 2008. Plaintifis
Damron and Hensley filed a Sur-Sur-Reply Brief in Opposition to Defendant CSX's Motion for
Summary Judgment on January 29, 2008, with leave of Cour.
: L FACTS

On January $, 2004, just after 4 o'clock in the aftemoon, Scan Hale, Craig Hensley and
Courtney Damron were involved in an automobile accident involving a train operated by CSX
Transportation. Sean Hale was driving a 1985 Ford Ranger pickup truck, Craig Hensley and
Courtney Damron were Passengers in the truck, and they were going to a local fishing spot. The
accident occurred at a railroad crossing off of Lower Miamisburg Road (“the crossing™) in the
City of Miamisburg, Ohio. Sean Hale survived the accident, but Craig Hensley and Courtney
Damron did not survive the accident, Scan Hale had been across the railroad crossing numerous
times prior to the accident, and was aware that there were potholes near the crossing.

The engineer on the tain William H. Monroe (“engineer”), was traveling 48 miles per
hour as the train was approaching the Lower Miamisburg crossing. The cnginccr blew the
whistle on the train ashe approached the whistle post. The train’s light was on. ‘The engineer
saw the pickup truck approaching the crossing from the west. The pickup truck appeared to stop
with the front of (he truck on the east side of the tracks and the rest of the truck on top of the
tracks. CSX claims the engineer blew the whistle continually, and just before impact the pickup
truck began to go in reverse and the engineer lost sight of it. The train struck the passenger side
of the pickup truck. ‘

A resident who lived onthe cast side of the railroad tracks, Robert Scherrer, had
contacted both CSX and the City of Miamisburg (“Miamisburg”) about the condition of the

crossing on December 31, 2003: Bill Monroe, an engineering technician for Miamisburg, went

: 3

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to evaluate the tracks and determined that there were large potholes and a rubber Sirip missing
| , fext to the rails, Monroe instructed the person who received the complaint from Scherrer, Ms.
' Hansel, to contact CSX about the condition, but he did not feel the crossing was a danger to
i person or property. Ms. Hansel contacted CSX about the conditions on December 31, 2003.
I , Plaintiffs Damron and Hensley filed a Complaint on March 24, 2005, Plaintiffs Damron
and Hensley filed an Amended Complaint on July 28, 2005. Plaintiffs Damron and Hensley filed
a Second Amended Complaint on June 29, 2006, Plaintiffs Damron and Hensley filed a Third
Amended Complaint on August 20, 2007. Plaintiffs Damron and Hensley filed a Revised Third
Amended Complaint on September 13, 2007. ,

Plaintiffs Scan Hule, Lisa Baker, and Gregory Baker filed a Comptaini on March 31,
2005. Plaintiffs Sean Hale, Lisa Baker, and Gregory Baker filed a First Amended Complaint on
August 21, 2007. Plaintiff Michacl Hale filed a Complaint on April 5, 2005.

Il. SUMMARY JUDGMENT STANDARD

Summary Judgment is appropriate where: (1) there is no genuine issue as to any material
fact; (2) the moving party is entitled to judgment as a mattcr of law; and (3) reasonable minds
¢an come to but one conclusion and that conclusion is adverse to the party against whom the
motion for summary judgment is made.' “The burden of showing that no genuine issuc exists as
to any material fact falls upon the moving party in requesting a summary judgment."? Ohio Civil
Rule 56(C) places a duty upon the trial court to consider all appropriate materials before ruling,

on a motion for summary judgmicnt and to view the facts in the light most favorable to the non-

’ Temple v, Wean United, Inc. (1977) 50 Ohio St.2d 317, 327; see also, Ohio R.
Civ. P. 56(C).
 Harless v, Willis Day Warehousing Co. (1978), $4 Ohia S1.2d 64, 66.

:

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moving party”

‘The moving party cunnot discharge its initial burden simply by making a conclusory
assertion that the non-moving party has no evidence to prove its case. Rather, the moving party
must be able to specifically point to some evidence of the type listed in Civ. R. 56(C) which
affirmatively demonstrates that the non-moving party has no evidence to support the non-moving
party's claims.‘ , :

After adequate time for discovery and upon a motion for summary judgmem which
satisfies the test of Dresher and Hartess, supra, an cntry of summary judgment is appropriate if
the party against whom summary judgment is sought fails to make a showing on an element to
that party's case and on which tat party will bear the burden of proof at tial In opposing a
suminary judgment motion, the non-moving party may nol rest upon the mere allegations or
denials of its pleadings, but must set forth specific facts showing thal there is a genuine issue for
trial. In showing that there is genuine issue for trial, only disputes over material facts, facts that
may affect the outcome of the suit, may preclude summary judgment,”

Summary judgment must be denied where a genuine issue of material fact exists, where
competing inferences may be drawn from undisputed underlying evidence, or where the facts

present are uncertain or indefinite.’ All doubts and conflicts in the evidence must be construed

> Murphy v, Reynoldsburg (1992), 65 Obio St.3d 356.
* Dresher v. Burt (1996), 75 Ohio Si.3d 280, 293.
* Celotex Corp. v, Catrett (1986), 477 U.S. 317, 324, Ohio SL.3d 356, 360,
* Reynoldsburg Motor Sales v. Columbus (1972), 32 Ohio App.24 271, 274.
* Anderson v. Liberty Lobby (1986), 477 U.S. 242, 248.
© Duke v. Sanymetal Products Co., inc. (1972), 31 Ohio App.2d 78.

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most strongly in favor of the pay ‘against whom summary judgment is sought.”

When the couct considers evidence with regard to summary judgment, “it should not
altempt to usurp the jury's role of ‘assessing credibility, weighing the evidence, or drawing
inferences.”"” The court’s function is to consider the evidence to support the non-moving
party's position that a jury could reasonably find in its favor.'' if this evidence is sufficient, then
a genuine issue of ‘material fact remains to be resolved by the jury. It is with this standard of

review that