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

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Subashi,
Wildermuth

& Dinkler

1

{The Greene Town Center
50 Chestnut Street
suite 230

Dayton, Ohio 45440

phone: 937-427-8800
fax: 937-427-8816

 

 

 

‘CVE DIVISION

   

wei GF

HONTEO

TODD DAMRON, MICHAEL HALE,
AND SEAN HALE, et. al, : CASENO. CA 22546

: CA 22547

Appellants-Plaintiffs 3 CA 22592

ve

: T.C. Case Nos. 2005 CV 2496
CSX TRANSPORTATION, et al., : 2005 CV 2761, and 2005 CV 3050

Defendants,
CITY OF MIAMISBURG, OHIO,

Appellee-Defendant,

 

BRIEF OF APPELLEE .
CITY OF MIAMISBURG, OHIO

 

Nicholas E. Subashi (0033953)

nsubashi@swdohiolaw.com
Anne P. Keeton (0076811)

akeeton@swdohiolaw.com

SUBASHI, WILDERMUTH & DINKLER
The Greene Town Center

50 Chestnut Street, Suite 230

Dayton, Ohio 45440-1385

Telephone: (937) 427-8800

Facsimile: (937) 427-8816

Attorneys for Appellee-Defendant, City of
Miamisburg|
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Subashi,
Wildermuth
& Dinkler

The Greene Town Center
50 Chestnut Street
Suite 230

Dayton, Ohio 45440
ie

phone: 937-427-8800
fax | 937-427-8816

i

1
1

 

 

 

TABLE OF CONTENTS

Page
ve dil
Appellants’ Assignments of Error and Appellee’s Issues Presented for Review......... v, vi
Statement Of Facts ..........cccseccsssscsssecsssssssssseesesnesssasecseanessannescessesassusessunesssnecenareeseereesseasessnsees 1

Argument

L

I.

Il.

 

Miamisburg did not have a Legal Duty to Repair the Railroad Crossing......12

First Issue Presented for Review: Whether the trial court correctly
decided that the City of Miamisburg did not have a legal duty to
repair the Lower Miamisburg Road railroad crossing

 

Miamisburg is Entitled to Immunity from Liability for Claims Related to
Repair of Railroad Crossings

Second Issue Presented for Review: Whether the trial court correctly decided
that the City of Miamisburg is entitled to immunity for claims of negligent
repair

Miamisburg was Entitled to Summary Judgment for Claims Related to
Barricading the Railroad Crossing «00.0.0... ::cscssesssssecseseeceeseeeneesecareeseesneaeasee

Third Issue Presented for Review: Whether the City of Miamisburg had a
legal duty to barricade the Lower Miamisburg Road railroad crossing due to
potholes

Fourth Issue Presented for Review: Whether the City of Miamisburg had a duty
to remove high water from the Lower Miamisburg boat ramp or to barricade the
road due to high water

Fifth Issue Presented for Review: Whether there was any admissible evidence
that the accident was proximately caused by the condition of the tracks or by
flooding

Sixth Issue Presented For Review: Whether Appellants presented any genuine
evidence to overcome a finding that the accident was proximately caused by the
negligence of Sean Haleslw p>

Subashi,
Wildermuth
& Dinkler

‘The Greene Town Center
[50 Chestnut Street
[Sukte 230

pPavon. ‘Ohio 45440

{phone: 937-427-8800
fax: 937-427-8816

 

 

Seventh Issue Presented for Review: Whether the trial court correctly decided
that Miamisburg was entitled to immunity for the alleged failure to barricade

Conclusion ........ccecceccsccsssessecssessessesseerscresnesssesressnssassassaeterssusesacsnssessasseseesesseeseaseasaceaeeases scenes 32
Certificate of Service.......cccccsccessecssesssnesssesssssssecsssesseessueessessasecsneseneesnescnieenaeeeesnmseaneenanenee 34

TABLE OF CASES

 

Armstrong v. Best Buy Co., 99 Ohio St.3d 79, 2003-Ohio-2573...
Barger v. Chesapeake & Ohio Ry. Co. (1990), 70 Ohio App.3d 307, 590 N.E.2d 1369 ........ 28
Brady v. Consolidated Rail Corp. (1988), 35 Ohio St.3d 161, 164, 519 N.E.2d 387 «one 17

Brauning v. Cincinnati Gas & Elec. Co. (1989), 54 Ohio App.3d 38, 40, 560 N.E.2d
811, citing Moncol v. Bd. of Edn. (1978), 55 Ohio St.2d 72 .

 

Cater v. Cleveland (1998), 83 Ohio St.3d 24, 28, 697 N.E.2d 610 ....cseccessesssssssesesssnseeeneenes 18

 

Cates v. Consol. Rail Corp. (1995), 100 Ohio App.3d 288, 296, 653 N.E.2d 1229...
CSX Transp., Inc. v. Easterwood (1993), S07 U.S. 658 .....cscscssesssessesseessesessreneeseessneneensesennees 16

Ditmyer v. Board of County Com’rs of Lucas County (1980) 64
Ohio St.2d 146, 413 N.E.2d 829 wicccccsessesscsessessesssssesassesseseseeseseeseeseseesseeaesesesesesseeeseee 24

Elston v. Howland Local Schools, 113 Ohio St.3d 314, 318, 865 N.E.2d 845,
2007-Ohio-2070

 

Feitshans v. Darke County, Ohio (1996), 116 Ohio App.3d 14, 24-25, 686 N.E.2d 536........ 24

Franks v. Lopez (1994), 69 Ohio St.3d 345, 632 N.E.2d 502...ccsscsessessseenersesessnsesneeree hD

 

Freeman v. Norfolk & W. Ry. Co. (1994), 69 Ohio St.3d 611, 635 N.E.2d 310.

Howard v, Miami Twp. Fire Div., 171 Ohio App.3d 184, 2007-Ohio-1508, overtumed

by, 119 Ohio St.3d 1, 2008-Ohi0-2782.......escsscssesssnsesesssecsnecsseecsesssnecsscseaeecncenneetsesaneetss 10, 18
Kimball vy. Cincinnati (1953), 160 Ohio St. 370, 373, 116 N.E.2d 708.......scescesssseseseeeereers 18
Lang v. Pennsylvania R. Co. (1938), 59 Ohio App. 345, 18 N.E.2d 271, 273 ...esssesesseseeeers 28

iisw po]

Subashi,
Wildermuth
& Dinkler

The Greene Town Center
50 Chestnut Street
Suite 230

Dayton, Ohio 45440

phone:' 937-427-8800
fax ' 937-427-8816

 

 

Lintner v. Norfolk & Western Ry. Co. (1997) 118 Ohio App.3d 838, 841, 694 N.E.2d 140..30

Manufacturer's Natl. Bank of Detroit v. Erie Cty. Road Comm, (1992), 63

Ohio St.3d 318, 322, 587 N.E.2d 819 6

 

Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75 ..csscesesecsseeeseesseeetsnees 12
Moncol v. Bd. of Edn. (1978), 55 Ohio St.2d 72... laccsavessuessueassesssvessesaneesversueessersaseues 12
Patterson y. Patterson (October 17, 1985), 2nd App. No. 9230 ....ssssssssssssseesseesseresreeeenseeseenes 16
Petre v. Norfolk Southern Railway Co. (N.D. Ohio 2006), 458 F. Supp.2d 518... 30
Roszman v. Sammett (1971), 26 Ohio St.2d 94.0... ccs ecessecssneeeeeenerseneseesesesseereseeseeeressersenes 21
Scott v. Harris (2007), 127 S.Ct. 1769, 1776... seceesessecseesesseessessesaneanenneenessesceestesesateaseanenenee 8

 

Sidle v. Humphrey (1968), 13 Ohio St.2d 45, 233 N.E.2d 589.

Springdale v. CSX Ry. Corp. (1994) 68 Ohio St.3d 371, 627 N.E.2d 534... 6
State v. Frost (1979), 57 Ohio St.2d 121, 387 N.E.2d 235.....sssssssseesscsecsssssssssseneeseseceeseessssnes 15
Thompson v. McNeill (1990), 53 Ohio St.3d 102, 104-105 ....esessscsecssesseseessesnseressnesnenenscenees 20
Thorp v. Strigari (2003) 155 Ohio App.3d 245, 256, 800 N.E.2d 392.0... cscssseseeeneerseesenens 21

Turner y. Central Local School Dist., 85 Ohio St.3d 95, 98, 706 N.E.2d 1261, 1999
-Ohio-207

 

Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095 «00... 27
Wisintainer v. Elcen Power Strut Co. (1993), 67 Ohio St.2d 64, 66, 617 N.E.2d 1136.......... i
Wooten v. CSX Railroad (2005), 164 Ohio App.3d. 428, 440-441, 842 N.E.2d 603... 29
Zuments v. Baltimore & Ohio RR. Co. (1971), 27 Ohio St.2d 71, 72, 271 N.E.2d 81... 29
Statutes

R.C. § 4955.20 vececccsscreccseeseeresnesssssenssesnssnsseseeseeseesssseesseenereesesneseens 13, 14, 15, 16, 17, 19, 21, 32
RC. § 723.01... 15, 16sw >]

Subashi,
Wildermuth
& Dinkler

‘Thé Greene Town Center
50 Chestnut Street
Suite 230

Dayton, Ohio 45440

phone: 937-427-8800
fax: 937-427-8816
1

 

 

 

R.C. § 2744.01) csecsosscsssessnsssssesnsssnnsnnessnsnnnnesnacnesenssensneeuneeeeetsseinaeeaenessnetat 15
R.C. § 4959.03

R.C. § 4955.36 vesssssssssnstsetstsstisnsonenssonsesssintissianineeneenetineesetneueeietineietieetiaevetettn 16
R.C. § $561.16 vescsvssessuctsetsststssenensstsossessosnsianiatsessenaesnetsetssiseeaeiateseinaeuneiatrete 16

R.C. § 2744.02(B)(3)

 

R.C. § 2744.02(A)(L) scssssssssstsestestnesstenssassassanantnesatisesenaeseietuntnetneesetnetetsneteet 18

R.C. § 2744.01 (CY 2)(C).cseseccsseecssssscssecesssssesssesecsssscanssecsessecensneseeuiseccnesecsneceennneesanecsenersenaetsne 18

 

RC. § 2744.02(B)

R.C. § 2744.03

 

R.C. § 2744.03(A)(5)

 

R.C. § 2744.03(A)(3)
R.C. § 4511.62 coscsssssesssseensesusosenseeesasseantecsssenesseuneennneteseetusestunesetssteuneteeetiarsee 28, 29

R.C. § 2744. 02(A)(S) .ceccercesvesssssssecsseessseesserssneessesssssesssssssesseeessseeneesaseaseesnuesenecenesressoneerensensesten 32

APPELLANTS’ ASSIGNMENTS OF ERROR

 

L 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.

Il. 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.

I. ‘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.

Iv. If Plaintiffs/Appellants are held to not have asserted a claim against
Defendant/Appellee Miamisburg in their third revised amended complaint then the
trial court erred in denying them leave to specifically refer to roadways being

vbarricaded or closed due to flooding in that complaint.

1 Vv. The trial court erred in finding that Defendant/Appellee Miamisburg did not breach
: any duty to Plaintiffs.

APPELLEE’S ISSUES PRESENTED FOR REVIEW

First Issue Presented for Review: Whether the trial court correctly decided that the City
of Miamisburg did not have a legal duty to repair the Lower Miamisburg Road railroad
I crossing.

Second Issue Presented for Review: Whether the trial court correctly decided
i that the City of Miamisburg is entitled to immunity for claims of negligent
repair.

Third Issue Presented for Review: Whether the City of Miamisburg had a legal
. duty to barricade the Lower Miamisburg Road railroad crossing due to potholes.

, Fourth Issue Presented for Review: Whether the City of Miamisburg had a duty
| to remove high water from the Lower Miamisburg boat ramp or to barricade the
road due to high water.

Fifth Issue Presented for Review: Whether there was any admissible evidence
that the accident was proximately caused by the condition of the tracks or by
flooding.

Sixth Issue Presented for Review: Whether Appellants presented any genuine
evidence to overcome a finding that the accident was proximately caused by the
negligence of Sean Hale.

Seventh Issue Presented for Review: Whether the trial court correctly decided
that Miamisburg was entitled to immunity for the alleged failure to barricade.

 

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Subashi,
Wildermuth
& Dinkler

The Greene Town Center
50 Chestnut Street

Suite 230°

Dayton, Ohio 45440

phone: 937-427-8800 .
fax: 937-427-8816 vi|
s|
Subashi,

Wildermuth
&|Dinkler

 

‘The Greene Town Center
50 Chestnut Street
Suite 230° .
Dayton, Ohio 45440

phone: 937-427-8800
fax: 937-427-8816

 

STATEMENT OF FACTS

 

On the afternoon of January 5, 2004, Courtney Damron and Craig Hensley were killed when
la train struck the pickup truck they were in. Sean Hale, the driver of the truck, was also seriously
injured. Notably absent from the statement of facts set forth by the Plaintiffs/Appellants in their
appeal is any description of the actual events that occurred on that day. The statement of facts that
follows is fully supported by the record, testimony, and other Rule 56 evidence that would be
admissible in trial. Appellants have offered no genuine evidence to contradict the facts set forth
below.

On that mild, clear January afternoon, teenagers Sean Hale, Craig Hensley, and Courtney
Damron were riding in Sean Hale’s 1985 Ford Ranger pickup truck. (Deposition of Sean Hale, p.
32,46) They had been on their way to Hensley’s house in Germantown, Ohio, when they decided to
take a quick detour to a local fishing spot. (/d. at p. 31, 43) It had been raining and they wanted to
see how high the river had gotten. (/d.) It was not unusual for Hensley and Damron to ride with
Hale in his pickup truck, because he was the only one of the three teenagers with a vehicle at that
time. (Hale Depo. at p. 47) Hale purchased the truck just three months before the accident, and he
had no prior experience with a manual transmission vehicle. (fd. at p. 9, 32, 134)

Sean Hale recalls that he had clear visibility as he drove south on Riverview Avenue in
Miamisburg, Ohio, towards Lower Miamisburg Road. (/d. at p. 60) From Riverview Avenue, Hale
would have turned left onto Lower Miamisburg Road, driving from west to east towards the Great
Miami River. (/d. at p.42) However, Sean Hale has no memory of anything that happened after he

stopped the truck at a four-way stop sign located at the intersection of Riverview and Lower|
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Subashi,
Wildermuth
& Dinkler

the Greene Town Center
30 Chestnut Street
Suite 230

Bayton, Ohio 45440

hone: 937-427-8800
c 937-427-8816

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Miamisburg Road. (Hale Depo. at p. 53) A little after four o’clock, the pickup truck was struck by a
rain operated by CSX Transportation, Inc. at a railroad crossing just beyond that intersection. Hale
admits that he was very familiar with Lower Miamisburg Road and the crossing in question. (/d. at
tp. 39) He often went fishing at the river just beyond the crossing with Hensley and another friend.
‘Id. at p. 40, 41) Hale testified that, at the time of the accident, he had been across the tracks at
Lower Miamisburg Road at least 50 times “or a little more.” (/d. at p. 39) The last time he had been
to the crossing was between two weeks and one month before the accident. (Ud. at p. 54)
Hale described Lower Miamisburg as becoming a “one-lane gravel kind of road” after turning
loff Riverview Avenue. (ld. at p. 48) He testified that it was a small path with no pavement
markings, including no lines to divide the road into separate lanes. (Id. at p. 49) There were neither
curves in the road, nor any medians or guardrails. (/d.) Hale was also aware that the speed limit on
Lower Miamisburg Road beyond Riverview Avenue was 25 miles per hour. Ud. at p. 61)

Additionally, Hale knew there was only one house beyond the tracks and that the remainder of the

property next to the river belonged to the Miami Conservancy District. (Ud. at p. 42) He knew that
the road was a dead end, terminating at the Great Miami River, which was the area used as a boat
ramp and for fishing. (id. at p. 41)

On the day of the accident, as Sean Hale’s truck was approaching the crossing from the west,

a train operated by CSX Transportation was approaching the crossing from the south or from the
right side of the truck. (Deposition of train engineer William Monroe, 3/16/07, p. 249) Based upon
his experience crossing the tracks to go fishing, Sean Hale was aware that the railroad crossing was
active and that there were trains going through on a regular basis. (Hale Depo. p. 43) He had seen|

the Crossbucks sign before the day of the accident, and he knew there was no gate that would come’s[wp]

Subashi,
Wildermuth
\& Dinkler

\
ithe Greene Town Center
{50 chestnut Street
‘Suite 230

‘Dayton, Ohio 45440

Iphone: 937-427-8800
fax: 937-427-8816

I
1

Hown to warn him of a train. (/d. at p. 42) There was also a yellow advance warning disk located
between the Riverview Avenue intersection and the crossing. (Deposition of Ron Hess, p. 18)
During his deposition, Sean described what he would normally be able to see as he looked
liown the tracks in either direction when he had gone to the river in the past. He testified that he
could see clearly down the tracks to the left as he approached the crossing. (/d. at p. 50) As he
looked to the right, however, he testified that his view was partially obstructed by a large metal box
sitting on a concrete slab. (Id.) He could also recall that there were trees south of Lower
Miamisburg Road and that the tracks curved off. (/d.) He admits he could see to the right but it was
a“very obstructed view.” (Id. at p. 51) Hale specifically testified that the farthest point he could see
to the right was a pole with a black circular disk on it. (/d. at p. 57) The black circular disk to which
Hale is referring is called a “wayside signal,” and it is located just a few feet beyond the whistle
board. (Monroe Depo., CSX, p. 62, 102) The whistle board is located at mile marker 48 for that
particular track. (/d.) The crossing itself is located at mile marker 48.27. (Deposition of William
Dietz, CSX, p. 94) Based upon Sean Hale’s driver training just three months before the accident, he
knew he was required to look and listen to determine if a train was approaching a crossing. (Hale
Depo. p. 44-46) He knew that he would not be able to see or hear a train coming if he did not look
or listen. (/d.)

Hale also testified that he was aware that there were potholes at the Lower Miamisburg Road
crossing at the time of the accident, because there had been potholes as long as he had been going to
the river to fish. (/d. at p. 138) Hale could specify exactly where the biggest of the potholes were
located. (/d. at p. 139) He had even noticed those same potholes in the weeks that he had been there

just before the accident. (/d. at p. 142) Additionally, he agreed that the photos of the crossing}|
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Subashi,
Wildermuth
& Dinkler

i
The Greene Town Center
50 Chestnut Street
Suite 230
Gayton, Ohio 45440

|

Phone: 937-427-8800
fax: 937-427-8816
i

 

presented in his deposition accurately reflected what the crossing looked like before the accident.
Id. at 141, Ex. 2, 3, 4) Hale had never had any problems crossing the tracks before the day of the
hecident, other than he felt it was rough on his car. (/d. at p. 43, 138) He had never become stuck on
the tracks before the day of the accident. Moreover, he could not testify as to whether his truck
became stuck on the day of the accident. (dd. at p. 142)
Scan Hale testified that he would usually slow down as he approached the Lower Miamisburg

[Road crossing, but he would not stop unless he saw something coming. (Jd. at p. 155) He felt he

needed to get a running start to get over the crossing in his truck due to the manual transmission.

(Id.) However, because of his memory loss, Hale does not remember how his truck came to be on

the tracks at the time of the accident. (Hale Depo. p. 62) He believes his radio was likely playing at
a low level and that his windows were likely down because he and Craig were both smokers at the
time. (/d. at p. 63) But, he cannot say how fast he was going as he approached the crossing. (/d. at
p. 58) He does not remember ifhe slowed down. (id.) He does not remember looking for a train in
either direction. (Id. at p. 59) In fact, he does not remember seeing a train at all. (/d.) He does not
know whether his vehicle was stopped or moving at the time the train struck it. (/d. at 143) He does
not know whether, or even if, the truck had stalled or had become stuck. (d.) He does not know if]
the ignition was on or off at the time of the accident. (id.)

The engineer on the train testified that the train was approaching the Lower Miamisburg
crossing at approximately 48 miles per hour. (Monroe Depo. p. 128) The speed limit for those|
tracks was 50 miles per hour. (/d. at p. 131) The engineer began blowing the whistle on the train as}
he rounded the curve south of the crossing and as he approached the whistle post. (/d. at p. 102-103

Soon thereafter, he caught a glimpse of a pickup truck approaching the crossing from the west. (/d,s|w >]

Subashi,
Wildermuth
& Dinkler

The Greene Town Center
50 Chestnut Street
Suite 230

Dayton, Ohio 45440

i

phone: 937-427-8800
fax: 937-427-8816,

 

at p. 115) He assumed the truck would stop, but it continued up onto the tracks. (/d. at p. 277)
Then, he saw the truck stop with the front of the truck on the east side of the tracks and the rest of the
ruck on top of the tracks. (/d. at p. 126) He could see that the people inside the cab of the truck
ere looking towards the river. (/d. at p. 151) He kept blowing the whistle. (id. at p. 152) He
Inever saw anyone turn to look at the train until just before impact, when the passenger on the right
side of the truck turned to look at him. (dd. at p. 149, 279) The engineer could see the driver
messing with something near the steering column, but he could not tell whether he was trying to put
the truck in gear or start it. Then, the truck began to go in reverse and he lost sight of it. (/d. at p.
152)
Miamisburg police officer Craig Griffith was on the scene within minutes after the collision.
(Id. at p. 210) The police department soon began an extensive investigation into the cause of the
accident which had resulted in the death of two teenagers, one of whom was a student at Miamisburg
High School. (See, generally, Depositions of R. Hess, S. Gau, J. Small, J. Threkheld, J. Muncy, and
C. Griffith) Officers took pictures of the scene and spoke to the witnesses to the accident in an effort
to determine how the truck came to be on the tracks at the time of the collision. (id.) They evaluated
the train and learned that the lights were on at the time of the accident. (Gau Depo. p. 251) They
canvassed the neighborhood and learned that the whistle had been blowing more than usual before
the train reached the crossing. (J. Muncy Depo. p. 32, 37-39; Gau Depo. p. 80) Loretta Lemmons,
who is now deceased, told the officers that, on the day of the accident, the whistle had specifically]
struck her as unusual because it was continuous rather than the normal intermittent blasts. (Gaul
Depo. p. 80)

On the Saturday following the accident, two officers went back to the scene to determings|wp]

i

'Subashi,
Wildermuth
& Dinkler

The Greene Town Center
{50 Chestnut Street
{Suite 230

jDayton, Ohio 45440

i
| phone: 937-427-8800
fax: 937-427-8816

 

ether there had been anything that would have prevented the driver from being able to see the

loncoming train. (Hess Depo. p. 44-60; Gau Depo. p. 70-74) With a laser, they measured the

distance that the driver of the vehicle should have been able to see the train coming from a

reasonable stopping point on the road and the distance the persons in the train should have been able

to see the truck. (Gau Depo. p. 72; Hess Depo. p. 137) They determined that the driver should have
been able to see a train approaching from more than 1000 feet away. (Gau Depo. p. 74; Hess Depo.

p. 54) The driver could have stopped just before the incline leading to the crossing in order to see
that distance. (Gau Depo. p. 75) The officers also took photos of their investigation into possible
sight obstructions. (Gau Depo., Hale Exhibit 5) Both officers determined from their own
investigation that there was nothing that should have prevented the driver of the truck from being
able to see the train had he looked for it. (Gau Depo. p. 70; Hess Depo. p. 67) These officers, who
were experienced in accident investigation, did not consider the condition of the roadway to be a
factor. (Gau Depo. p. 137, 145; Hess Depo. p. 102)

After litigation began, it was discovered that Robert Scherrer, the resident who lived on the]
east side of the railroad tracks, had contacted both CSX and Miamisburg, about the physical condition|
of the crossing before the accident. (Deposition of Jayne Hansel, p. 45; and Deposition of Robert
Scherrer, p. 13) On December 31, 2003, Miamisburg employee, Jayne Hansel, took a complaint
from Mr. Scherrer about the crossing being rough. (/d. at p. 67) Bill Monroe, an engineering
technician for the City of Miamisburg, was sent out to evaluate the tracks and the complaint thai
same day. (/d.) He wrote down his findings that there were large potholes and a rubber strip missing
next to the rails. (Deposition of Bill Monroe, 3/21/07, p. 35, 37) He instructed Ms. Hansel to call

the railroad company, which she also did that same day. (Id. at p. 39) From his visual inspection of1

isfwp|

Subashi,
Wildermuth
|& Dinkler

|the Greene Town Center
|50 Chestnut Street.
|Suite 230

‘Dayton, Ohio 45440

\
‘phone: 937-427-8800
ifax: 937-427-8816

'

 

he crossing on December 31, 2003, Monroe determined that the crossing was not a danger to
persons or property. (Monroe Depo. at 42, 45, 65) Rather, he wanted the condition reported to the
rain company because they could fill in the potholes and make the crossing smoother. (Id. at 65)

Mr. Scherrer is an 85 year-old gentleman who, along with his wife, own the only residence on
he east side of the tracks off Lower Miamisburg Road. (Scherrer Depo., p. 6) He has lived in that
lsame house for the last 54 years and he has crossed the tracks at Lower Miamisburg Road thousands
lof times over the years. (/d. at p. 9, 14) He testified that he would contact Miamisburg about the
condition of the crossing whenever it would get bad and only if CSX failed to respond to his calls.
(Id. at p. 13) He believed the city might be able to put some pressure on the railroad company to do
something. (/d.) He claimed he was concerned that children crossing the tracks from the nearby
residential areas could get their feet caught next to the rails. (/d. at p. 14) He did not call because he
felt the crossing was dangerous for vehicles.

In the 54 years Mr. Scherrer has lived on the east side of the tracks, he has never had any

_|| difficulty getting across. (/d.) He testified that the pothole he was complaining about near the time

of the accident was not big enough to keep someone from crossing without any problem. (/d. at p.
20) Additionally, it was his practice to always stop, look, and listen for a train at that crossing,
because “you never get a second chance to make a first mistake.” (/d. at p. 18) He had never
become stuck on the tracks, and he stated that he was unaware of anyone ever getting their vehicle
stuck on the tracks or having damage to their vehicle as a result of the condition of the tracks. (/d. at
p. 14-16) Appellants have not pointed to any evidence of anyone becoming stuck on the tracks

because of potholes or of any other accidents alleged to have been related to the condition of the|

crossing.shw[p}

Subashi,
Wildermuth
& Dinkler

he Greene Town Center
50 Chestnut Street

Suite 230

Dayton, Ohio 45440

phone: 937-427-8800
fox: 937-427-8816

 

In their brief, Appellants claim that, at the time of the accident, there was “massive flooding
lon Lower Miamisburg Road at the east side of the crossing that obstructed passage beyond the Lower
[Miamisburg Road public grade crossing.” (Appellants’ Brief, p. 6) Appellants’ statement is
blatantly false. The evidence presented in this case establishes only that the Great Miami River was
high on the day of the accident. (/d. at p. 25) Disregarding the overwhelming photographic
evidence, Appellants allege inundation maps show the crossing was “impassable” at the time of the
accident. But this alleged evidence has been directly contradicted by overwhelming photographic
evidence and testimony.’ (See Photos attached to the Affidavit of Police Captain, Ron Hess)

High water from the river did cover some portion of the end of Lower Miamisburg Road at
the time of the accident, which is where a boat ramp into the river was normally located. However,
photographs of the day of the accident, which were authenticated and relied upon by Appellants’
counsel in depositions throughout discovery, demonstrated beyond any reasonable dispute that Sean
Hale could have safely crossed the tracks uninhibited by flooding. (Hess Affidavit) In fact, the
photographs show that a full-sized fire truck, two emergency medical vehicles, a police cruiser, anda
grey sedan all safely crossed those same tracks and parked on the side nearest the river immediately

after the accident. (/d.) It is clear from the record that Appellants’ claim that flooding “obstructed

' The Supreme Court of the United States has recently addressed the issue of evidence used to oppose Rule
56 summary judgment motions that is clearly contradicted by the record:

As we have emphasized, “[wJhen the moving party has carried its burden under Rule 56(c), its opponent
must do more than simply show that there is some metaphysical doubt as to the material facts .... Where the
record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no
‘genuine issue for trial.’ ” “[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment, the requirement is that there be no
genuine issue of material fact.” When opposing parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version
of the facts for purposes of ruling on a motion for summary judgment.

Scott v. Harris (2007), 127 S.Ct. 1769, 1776 (emphasis in original)(citations omitted).

8sw >]
1

‘Subashi,
Wildermuth
‘& Dinkler

\

The Greene Town Center
150 Chestnut Street
‘Suite 230

‘Dayton, Ohio 45440

i

Iphone: 937-477-8800
Max: 937-407-8816

 

passage beyond the Lower Miamisburg Road public grade crossing” and further implications
peppered throughout their brief that Hale was unable to safely cross the tracks duc to flooding on the
roadway is a deliberate misrepresentation of the record. Moreover, Appellants have presented no
evidence that the City of Miamisburg had actual or constructive notice of the flooded roadway on the

day of the accident.

STATEMENT OF THE CASE

 

Appellants originally brought two main claims against the City of Miamisburg for negligently
maintaining Lower Miamisburg Road and for failure to remove alleged vegetative view obstruction
in the public right-of-way. Sean Hale and CSX Transportation also raised cross-claims against the
city for indemnification. The City of Miamisburg moved for judgment on the pleadings, relying
upon political subdivision immunity. Specifically, Miamisburg alleged it owed no duty to maintain!
the crossing and there was no longer any exception to immunity for vegetative view obstructions in
public rights-of-way. In overruling the motion, the trial court explained that it could not be|
determined from the face of the complaint whether or not the accident occurred on a portion of the}
roadway within the city’s control, (May 17, 2006, Decision and Entry) The trial court pointed ow
that the plaintiffs did not specifically state in their complaint whether the potholes at-issue were ony
the crossing, on the roadway leading to the crossing, or someplace else,

Appellants amended their complaints several times, including the addition of reckless and
wanton misconduct allegations against Miamisburg in response to Elston v. Howland Local Schools}
113 Ohio St.3d 314, 318, 865 N.E.2d 845, 2007-Ohio-2070 (where the Supreme Court held
political subdivision is immune for the exercise of judgment or discretion by its employees absen|

reckless and wanton misconduct). Appellants further sought to amend their complaint to allege

 

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iSubashi,
Wildermuth
& Dinkler

Ihe Greene Town Center
(50 Chestnut Street
Suite 230

Dayton, Ohio 45440

\Phone: 937-427-8800
fax: 937-427-8816
I

 

Ihooding obstruction despite being privy to the same evidence that was available to Miamisburg
through discovery. The trial court ruled that Appellants’ final request to amend against Miamisburg
would be futile in that nothing had precluded Appellants from alleging such a claim in previous
amendments and Appellants had presented nothing to the court to otherwise demonstrate that the
flooding or barricading allegations had anything to do with the accident. (Aug. 17. 2007, Decision
and Entry)

After the very lengthy and extensive discovery process came to a close, Miamisburg moved
for summary judgment on all claims. The evidence demonstrated the accident occurred completely
within the boundaries of the railroad crossing, which was under the exclusive control of CSX
Transportation. Miamisburg owed no legal duty to repair the crossing, and the only evidence in the
case demonstrated Sean Hale’s negligence was the proximate cause of the accident as a matter of
law. Miamisburg also alleged it was entitled to immunity as a political subdivision of the State of,
Ohio under Chapter 2744 of the Ohio Revised Code.

In response, Appellants abandoned their vegetation and view obstruction claims against
Miamisburg. They also declined to present any Rule 56 evidence that Miamisburg or its employees
acted recklessly or wantonly. Instead, Appellants alleged the potholes in the railroad crossing were
an obstruction that Miamisburg had a duty to remove under this Court’s decision in Howard vy.
Miami Twp. Fire Div., 171 Ohio App.3d 184, 2007-Ohio-1508, overturned by, 119 Ohio St.3d 1,
2008-Ohio-2782. They further alleged that flooding beyond the tracks was an obstruction that}
Miamisburg had a duty to alleviate or a duty to barricade the road. Appellants did not allege
Miamisburg had actual or constructive notice of the flooding. Nor did they explain how the flooding

prevented Hale from safely crossing the tracks out of the path of the train.

10sIwPl
{subashi,

Wildermuth
'& Dinkler

 

|The Greene Town Center
|50 Chestnut Street
{Suite 230

iDayton, Ohio 45440

iphone: 937-427-8800
fax: 937-427-8816

 

The trial court correctly granted summary judgment to the City of Miamisburg on all claims.
(Dec. 19, 2007, Decision and Entry) Based upon all available legal precedent, the trial court
determined that Miamisburg did not have a legal duty to repair the crossing. In addition to the fact
that Appellants had previously failed to state a claim for barricading the road, such claim could not
survive summary judgment under the facts of this case. Moreover, Miamisburg was otherwise
entitled to immunity as a matter of law.

Despite the fact that the claims against CSX Transportation remained pending before the trial
court, Appellants appealed the decision granting summary judgment to Miamisburg.” The trial court
subsequently overruled the CSX Transportation’s motion for summary judgment. Appellants
contend there remains a genuine issue of material fact as to whether Miamisburg had a legal duty to
repair or barricade the roadway and whether Miamisburg is entitled to statutory immunity. For the
reasons discussed below, Appellants’ assignments of error are not supported by the record or the
law? Accordingly, the trial court’s decision granting summary, judgment to the City of Miamisburg

should be affirmed.

 

? Appellants contend this Court has jurisdiction under Wisintainer v, Elcen Power Strut Co. (1993), 67 Ohio St.2d 64, 66,
617 N.E.2d 1136. Under that authority, the trial court’s decision granting summary judgment is a final order. And, the
trial court did include the “no just cause for delay” language in its decision under Civil Rule 54, Nevertheless.
Miamisburg does not believe that this is the type of case that the Supreme Court intended to be immediately appealabla
under Civil Rule 54. The interests of judicial economy are not served by delaying the Appellants’ current right tq
proceed to trial against the entity legally responsible for maintenance of the railroad crossing. Miamisburg does not

concede Appellants’ position on this issue~

3 Miamisburg hereby incorporates all arguments and evidence submitted in support of its motion for summary judgmen
and in opposition to Appellants’ motion for leave to amend their complaint (referenced herein). For purposes of brevity
and judicial economy, this Brief focuses upon the arguments made by Appellants in support of their assignments of error}
However, there are additional grounds supporting judgment in favor of Miamisburg that may not have been addressed b;
the appellants or the trial court. Because this Court’s review is de novo, Miamisburg seeks to assure this Court that it i
not waiving any of the arguments presented to the trial court below.

it!
skoPI

Subashi,
Wildermuth
'& Dinkler

The Greene Town Center
50 Chestnut Street
_Suite 230

Dayton, Ohio 45440

{
jPhone: 937-427-8800
ifax: 937-427-8816

 

ARGUMENT

 

Ht. MIAMISBURG DID NOT HAVE A LEGAL DUTY TO REPAIR THE
RAILROAD CROSSING.

First ISSuz PRESENTED FOR REVIEW: WHETHER THE TRIAL COURT CORRECTLY

Rss EE E—E—_——e

DECIDED THAT THE CITY OF MIAMISBURG DID NOT HAVE A LEGAL DUTY TO REPAIR
THE LOWER MIAMISBURG ROAD RAILROAD CROSSING.

Appellants have made numerous allegations that the City of Miamisburg breached a legal
duty to repair the railroad crossing located at Lower Miamisburg Road. Their arguments supporting
such a duty to repair are ambiguous and confusing. The confusion arises largely from the repeated
assertion throughout Appellants’ brief that the city should have barricaded the road until the railway,
not the city, could repair the crossing. Appellants did not suggest that they were making alternative
arguments and, often, Appellants appear to implicitly recognize that the railway has the sole legal
duty and authority to make repairs toa railroad crossing. Ultimately, the trial court correctly decided
that the City of Miamisburg was entitled to immunity under Chapter 2744 of the Ohio Revised Code.
Before an analysis of immunity is even necessary, however, this Court must first conclude that
Appellants have demonstrated a material question of fact as to whether Miamisburg was negligent
with respect to repair of a public street.
Liability for negligence is always predicated upon an injury caused by the failure to discharge|
a duty owed to the injured party. Brauning v. Cincinnati Gas & Elec. Co. (1989), 54 Ohio App.3d|
38, 40, 560 N.E.2d 811, citing Moncol v. Bd. of Edn. (1978), 55 Ohio St.2d 72. Absent a duty owed
to the injured party, there simply can be no negligence. See Menifee v. Ohio Welding Products, Inc]
(1984), 15 Ohio St.3d 75. In light of the fact that the legislature, the courts, and even the parties i

this case make aclear distinction between public roads and the railroad crossings that intersect publiq

12slwPl

Subashi,
Wildermuth
}& Dinkler

The Greene Town Center
{50 Chestnut Street
VSulte 230
»Dayton, Ohio 45440

1
iphone: 937-427-8800
fax: 937-427-8816

!

 

‘oads, Appellants’ continued assertion that Miamisburg had some duty to repair the Lower
Miamisburg Road crossing lacks legal merit.

First, the parties appear to have already conceded that Miamisburg owes no duty to repair
public railroad crossings. The plaintiffs’ own experts clearly define the railroad company as being
solely responsible for maintenance of the crossing. (Berg Affidavit; Scott Affidavit; and Blackwell
Affidavit) In fact, Alpha David Nelson was called to testify as a railroad expert on behalf of Plaintiff
Sean Hale during his juvenile proceeding back in October 2004. (Transcript of juvenile proceedings

filed by S. Hale, p. 162) Mr. Nelson explained the duties of the railroad and the municipality as

follows:

It is the responsibility of railroads to maintain the surface of the railroad because it’s
under federal jurisdiction and any maintenance performed on the crossing itself by
state or local communities would ~ could cause an accident by fouling the train traffic
control circuits.

It could also damage the control circuitry itself and is not under the jurisdiction of the
state or counties to maintain.

(id.) Appellants offer no explanation for why they continue to claim Miamisburg had a duty to
repair the crossing despite their own experts’ testimony to the contrary. And, despite the fact that
CSX Transportation asserted a cross-claim against Miamisburg, the company has never asserted that
Miamisburg had a duty to repair the crossing. In fact, Billy Dietz, the CSX Roadmaster who
supervises track inspectors, testified that he never would have contacted Miamisburg to repair the
crossing. (Dietz Depo. p. 222-223) He recognized that to be the duty of the railroad company.
Second, the Ohio General Assembly has demonstrated a clear intent to make the companies
operating railways that intersect public roads solely responsible for the maintenance of such

crossings. Specifically, the legislature enacted R.C. § 4955,20, which provides in pertinent part:

Companies operating a railroad in this state shall build and keep in repair good

13|
skw

 

Subashi,
Wildermuth
& Dinkler

The Greene Town Center
50 Chestnut Street
Suite 230

Dayton, Ohio 45440

phone: 937-427-8800
fax: 937-427-8816

 

and sufficient crossings over or approaches to such railroad, its tracks,
sidetracks, and switches, at all points where any public highway, street, lane,
avenue, alley, road, or pike is intersected by such railroad, its tracks, sidetracks,

or switches. *** The board of township trustees shall have power to fix, and
determine the kind and extent, and the time and manner of constructing, crossings

and approaches outside of municipal corporations.

‘The legislative authority of a municipal corporation may exercise the same powers as

to crossings, approaches, and sidewalks within municipal corporations as such board
exercises concerning crossings and approaches outside of municipal corporations.

Such crossings, approaches, and sidewalks shall be constructed, repaired, and
maintained by the railroad companies as so ordered.

R.C. § 4955.20 (emphasis added).

This provision clearly imposes a legal duty on railroad companies to repair crossings that
intersect public roadways, such as the Lower Miamisburg Road crossing. Moreover, this section
gives discretion to the legislative authority of a municipality, not to individual employees, to order
railroad companies to repair crossings and approaches to crossings. The provision gives
municipalities no discretion to make actual repairs. And, the Court should note that, by using the
word “may,” the statute cannot be said to impose a mandatory duty on municipalities to order such
repairs. Additionally, there is no similar statute that imposes any type of specific duty on
municipalities to repair railroad crossings. Nonetheless, Appellants contend this provision gives
Miamisburg contro! over public railroad crossings. (Appellants’ Brief, p. 17) In doing so, they|
erroneously rely upon the sentence: “The board of township trustees shall have power to fix, and|
determine the kind and extent, and the time and manner of constructing, crossings and approaches|
outside of municipal corporations.” However, that provision gives townships the automatic authority]
to fix crossings outside municipal corporations. As this case involves a crossing within the

boundaries of a municipal corporation, not a township crossing outside the municipality, Appellants’

position is clearly misplaced.|
sJw >]

Subashi,
Wildermuth
& Dinkler

The Greene Town Center
50 Chestnut Street
Suite 230

Dayton, Ohio 45440

phone: 937-427-8800
fax: 937-427-8816

 

Appellants also rely upon R.C. § 723.01, which gives municipalities control of the public
highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts within
the municipal corporation. However, plainly absent from this list of items over which a municipality
lhas control are the railroad crossings that intersect public roadways. In fact, “public road” is defined
for purposes of 2744.02(B)(3) to exclude “berms, shoulders, ri ights-of-way, or traffic control devices
lunless the traffic control devices are mandated by the Ohio manual of uniform traffic contro]
devices.” R.C. § 2744.01(H). Thus, it would appear from the plain language of 2744.02(B)(3) and
2744.01(H) that the “right-of-way” held by CSX Transportation through Miamisburg and
intersecting the Lower Miamisburg Road is excluded from the City’s control and from the duty to
repair.

The General Assembly has expressly distinguished a municipality’s duties with respect to
public roads from its duties with respect to railroad crossings. Contrast R.C. § 723.01 and §
4955.20. By enacting Section 4955.20, it is clear that the General Assembly intended that railroad
companies, not municipalities, would be legally responsible for maintaining public railroad
crossings. Had the General Assembly intended to make municipalities jointly responsible for the
maintenance of public crossings, it could have easily done so by expressly imposing such a duty
instead of giving municipalities limited, discretionary authority to ensure railroad companies did
their job. R.C. § 4955.20. Basic rules of statutory construction require that the more specific
provisions of Section 4955.20 prevail over the more general provision of Section 723.01. See State
v, Frost (1979), 57 Ohio St.2d 121, 387 N.E.2d 235, paragraph one of the syllabus. Moreover, the
Revised Code expressly imposes liability upon companies operating railroads for all damages

sustained by person or property because of insufficient crosSings, neglect or carelessness in the

15stw[p|

Subashi,
Wildermuth
& Dinkler

 

The Greene Town Center
50 Chestnut Street
{Suite 230

Dayton, Ohio 45440

‘ | phone: 937-427-8800
fax: 937-427-8816
i

construction of crossings, or in keeping such a crossing in repair. R.C. § 4959.03. See also RC. §
4955.36 and 5561.16.
Finally, existing legal precedent already demonstrates that municipalities have no legal duty
ho repair railroad crossings. The Ohio Supreme Court explained that, “In determining the [city’s]
duty under R.C. § 2744.02(B)(3) or a municipality's under R.C. § 723.01, the focus should be on
whether a condition exists within the political subdivision's control that creates a danger for ordinary
traffic on the regularly traveled portion of the road.” Manufacturer's Natl. Bank of Detroit v. Erie
Cty. Road Comm. (1992), 63 Ohio St.3d 318, 322, 587 N.E.2d 819 (emphasis added). The
municipality has a duty to keep the areas within its control free from nuisance, or a condition directly
jeopardizing the safety of traffic on the road. Jd, There is no legal authority standing for the
proposition that local municipalities have control over railroad crossings, which are actually heavily
legislated by both federal and state laws. In fact, the law appears to support the very opposite
proposition. See Springdale v. CSX Ry. Corp. (1994) 68 Ohio St.3d 371, 627 N.E.2d 534 (limiting}
authority of municipalities to order repair of public railroad crossings); see also, CSX Transp., Inc. v.
Easterwood (1993), 507 U.S. 658; and Freeman v. Norfolk & W. Ry. Co. (1994), 69 Ohio S$t.3d 611,
635 N.E.2d 310.
In Patterson v. Patterson, this Court reviewed the decision by the trial court to dismiss very,
similar claims against the City of Dayton. Patterson v. Patterson (October 17, 1985), 2nd App. No.
9230, attached as Exhibit A. The plaintiff in Patterson alleged that his injuries were caused b
defects of a railroad track, including a large hole, indentation, rut, or depression. Jd. at *1. The court
found that pursuant to R.C. § 4955.20 and 4959.03, the railroad company, not the City of Dayton|

was legally responsible for maintaining railroad crossings and approaches to such railroad crossings}|
s|w pl

i

Subashi,
Wildermuth
& Dinkler

The Greene Town Center
50 Chestnut Street
Suite 230

Dayton, Chio 45440

phone: 937-427-8800
fax: 937-427-8816

 

Id. at *3. Under the facts of that case, the court determined one question remained to be resolved -
hether the railroad company had abandoned its right-of-way. Jd. at *4. The court explained that, if
he railway company abandoned its right-of-way, the legal responsibility for the railroad crossing
ould have reverted to Dayton. /d. In the current case, the Court could not possibly conclude CSX

lhad abandoned its right-of-way or its legal duty to maintain the crossing.
In Brady v. Consolidated Rail Corp. (1988), 35 Ohio St.3d 161, 164, 519 N.E.2d 387, the
(Ohio Supreme Court noted that, ordinarily, the duty to keep streets in repair and free from nuisance
rests upon a municipality, not upon the abutting owners. However, railroad companies were
expressly assigned the duty of care for the repair of railroad crossings under R.C. § 4955.20. The
Court explained:

R.C. § 4955.20 imposes general requirements on railroads to keep all rights-of-way

safe and in good repair for the benefit of the general public using such crossings,

“and negligence is the basis of liability thereunder”. This would be so even though

any improvement to such crossing, approach or sidewalk had not been ordered by a

township or municipality according to this section of law.
/d. Appellants made no attempt in their brief to distinguish these cases. In the trial court, Appellants
only minimally attempted to limit the effect of these cases without success. They failed to explain
how a municipality that has no legal authority under federal or state law to make physical repairs to
railroad crossings could nevertheless have a legal duty to do so. Moreover, they failed to explain
how any implied or common law legal duty to notify CSX of known defects in the crossing,
assuming arguendo that such duty existed, which is denied, was not otherwise satisfied when
Miamisburg contacted CSX Transportation on December 31, 2003.

Based upon the facts, expert opinions, legislation, and existing precedent, the trial court

correctly determined that any duty for maintaining the Lower Miamisburg Road railroad crossing andsfw >]

Subashi,
Wildermuth
& Dinkler

The Greene Town Center
50 Chestnut Street
‘Suite 230

Dayton, Ohio 45440

‘hone 937-427-8800
fax: 937-427-8816

 

approaches thereto belongs to CSX Transportation, not the City of Miamisburg.

IT. MIAMISBURG IS ENTITLED TO IMMUNITY FROM LIABILITY FOR
CLAIMS RELATED TO REPAIR OF RAILROAD CROSSINGS.

SECOND ISSUE PRESENTED FOR REVIEW: WHETHER THE TRIAL COURT
CORRECTLY DECIDED THAT THE City OF MIAMISBURG IS ENTITLED TO
IMMUNITY FOR CLAIMS OF NEGLIGENT REPAIR,

 

In the majority of cases, the broad immunity of Chapter 2744 of the Ohio Revised Code
provides a complete defense to a negligence cause of action for political subdivisions of the State of
Ohio, including the City of Miamisburg.