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August 22, 2005.

GREGORY STALLING, Special Administrator of the Estates of BECKY R. STALLING and RYAN NICHOL STALLING, Plaintiff,

The opinion of the court was delivered by: PAUL PLUNKETT, Senior District Judge


Gregory Stalling ("Plaintiff") has filed a three-count complaint against Union Pacific Railroad Company ("UP") and National Railroad Passenger Corporation d/b/a Amtrak ("Amtrak") or collectively ("Defendants") for their negligence and willful and wanton conduct. This matter is before us pursuant to 28 U.S.C. § 1332 and 28 U.S.C. § 1367. Defendants have filed a Rule 56 motion for summary judgment on all counts. After a review of the evidence, we conclude that as to Counts I and III, there are unresolved material issues of fact which are fatal to Defendants' motion. As to Count II, Defendants' motion for summary judgment is granted.


  Unless otherwise noted, the following facts are undisputed. On January 14, 2001, at approximately 5:00 p.m. Becky Stalling was driving through the Livingston Road railroad crossing when her van was struck by a train. The Livingston train tracks are located in Dwight, Illinois and are owned by UP. The train is owned and operated by Amtrak. At that time, the Livingston crossing displayed advanced warning signs to indicate a railroad ahead, as well as reflective crossbucks on each side of the crossing. Crossbuck signs are white regulatory, X-shaped signs with the words "Railroad Crossing" in black lettering written on them and they indicate that there are railroad tracks ahead. The crossbucks also had reflective tape placed on them, were in good condition and were able to be seen at night by approaching drivers (Defs.' L.R. 56.1(a)(3) Stmt. ¶¶ 16, 17.) Crossbucks are the equivalent of yield signs and in January 2001, they were not obstructed and were clear to pedestrians and motorists heading westbound. (Id. ¶¶ 18, 19.) In certain situations, these warnings are considered to adequately warn the public of approaching trains. There are certain crossings, however, that require flashing lights and/or gates. The appropriate warning system is determined by several factors including: vehicular and train speed and volume; dimensions, characteristics, and angle of the roadway and the tracks; sight obstructions and restrictions; accident history; and school busses or trucks carrying hazardous material operating through the crossing. (Pl.'s Resp. Defs.' L.R. 56.1(a)(3) ¶¶ 98, 99, 131; Defs.' Resp. Pl.'s L.R. 56.1(b)(3) Stmt. ¶¶ 98, 99.) Flashing lights are considered an upgrade from crossbuck signs because the level of safety has been shown to increase with their presence. (Pl.'s L.R.56.1(b)(3) Stmt. ¶¶ 124, 125, 127.)

  In January 2001, vehicular traffic in this rural farming community was light, with only 40-75 vehicles and 7-10 trains passing per day. (Id. ¶¶ 20, 21; Pl.'s Resp. Defs.' L.R. 56.1(a)(3) ¶¶ 4, 10.) Livingston Road and the railroad tracks intersect at a 45-60 degree angle. (Id. ¶ 13; Defs.' L.R. 56.1(a)(3) Stmt. ¶ 13.) A farm service company called Grainco maintains an office building and a larger storage facility just adjacent to the crossing located in the northeast quadrant of the Livingston railroad crossing. (Pl.'s Resp. Defs.' L.R. 56.1(a)(3) ¶¶ 15, 16.) There is also a MCI communications building located 130 feet from the east rail in that same quadrant. (Id. ¶ 18.) When a motorist is more than 130 feet away from the crossing, these buildings may impose sight obstructions. However, Defendants contend that when a motorist is closer than 130 feet, there are no sight obstructions. (Id. ¶ 19; Pl.'s Resp. Defs' L.R. 56.1(a)(3) ¶ 19.) The Dwight Township road commissioner testified that he has had concerns about these obstructions since 1997. (Pl.'s Resp. Defs.' L.R. 56.1(a)(3) ¶ 24.) The crossing was a mail route, a school bus route, and a passage for trucks carrying hazardous material. (Id. ¶¶ 26, 34-46.)

  On January 14, 2001, Amtrak Train #305, operated by William Hartmann, was headed southbound and collided with Stalling's westbound van. The train's headlights, which allow the train to be seen over a quarter mile away, were on and bright at the time of the accident. (Id. ¶¶ 26, 28.) The driver, Becky Stalling, passed the advance warning signs, the reflectorized crossbuck and the passing track just before reaching the main line on which train #305 was operating. (Id. ¶ 30.) At that time of the collision, the train was operating within the federal speed limit and was moving at about 74-75 m.p.h. (Id. ¶¶ 33-35.) The conductor testified that the van was going 10-15 m.p.h. and thought the van would stop before coming onto the track. (Defs.' L.R. 56.1(a)(3) Stmt. ¶ 31.) Even though the Livingston crossing was not equipped with lights on January 14, 2001, Hartmann informed police that he saw red crossing lights that were working right before the collision. (Pl.'s Resp. Defs' L.R. 56.1(a)(3) ¶¶ 69-70.) It is disputed whether the train's horn was properly sounded at the Livingston Road crossing. (Id. ¶¶ 71-79.) Hartmann states that at the time of collision, it was partly cloudy with a slight rain. (Pl.'s Resp. Defs.' L.R. 56.1(a)(3) ¶ 54.) By contrast, Captain John Johnson of the Livingston County Sheriff's Police Department investigated the scene of the accident and testified that the weather was overcast, but not foggy or snowing. (Defs.' L.R. 56.1(a)(3) Stmt. ¶¶ 39, 40.)

  As provided by Illinois law, when approaching a railroad crossing, a driver is obligated to stop within in 15-50 feet from the first rail and may not proceed further until she may safely do so. (Id. ¶ 76.) At the Livingston crossing, provided a westbound driver looks 105-127 degrees over her right shoulder, there are no visual obstructions to that driver on the railroad property, there is nothing to restrict a driver's view from an approaching train, and a motorist with normal vision should see one-half mile, or if the driver is within 120 feet of the crossing the vision would be 1,000 feet. (Id. ¶¶ 80-84.) Before the collision, Hartmann noted that the van did not change speed and because he was certain of impact, he applied the emergency brake at approximately 120-140 feet from the collision (Pl.'s Resp. Defs'. L.R. 56.1(a)(3) ¶¶ 62, 63.)

  Though disputed, Defendants' expert, James Loumiet, testified that Hartmann applied the emergency brake when the train was 241 feet, or 2.2 seconds before impact. (Defs.' L.R. 56.1(a)(3) Stmt. ¶ 37.) Defendants' expert also submits that a reaction time of 1-1.25 is considered normal for an alert driver. In Becky Stalling's case, with that reaction time combined with her rate of speed, she could have stopped her car within 29-97 feet of when she knew of the train's presence. (Id. ¶¶ 91, 96-99.) Factoring in the possibility of a wet pavement, Defendants say if Stalling had properly looked, she could have stopped between 95-109.67 feet if she was going as fast as 30 mph. (Id. ¶¶ 100, 101.) However, there were no skid marks found at the location of the accident. (Pl.'s Resp. Defs.' L.R. 56.1(a)(3) ¶ 67.) Also, there has been no evidence presented to show that Becky Stalling looked for a train on her approach to the Livingston crossing, whether she was listening for the train horn, or whether she took any affirmative steps to avoid the collision. (Defs.' L.R. 56.1(a)(3) Stmt. ¶¶ 102-104.) Despite the contentions of local residents that they encountered near misses at the Livingston crossing prior to the collision on January 14, 2001, there is no evidence that UP had received complaints about the level of devices at the Livingston crossing. (Id. ¶¶ 47, 51, 53, 69.) Also there had not been a collision at that location since 1971. (Id. ¶ 70.)

  The Illinois Commerce Commission ("ICC") is responsible for rail safety matters within the state, and it follows guidelines established by the Federal Railroad Crossing Program ("Federal Program") to evaluate and upgrade railroad crossings. Under the Federal Program, the safety of crossings is considered a joint responsibility between the governmental agency, the state, and the railroad operator, with the selection of warning devices determined by the governmental agency, the evaluations of the crossing to be completed by the states, and the diagnostic figures and conditions to be provided by the railroad. In Illinois, the ICC also uses a collaborative or team approach and has adopted the Manual on Uniform Traffic Control Devices ("MUTCD"), which states that the need and selection of warning devices is to be determined by a regulatory public agency, such as the ICC.

  In this cooperative approach, the railroad must provide information about the tracks, train volume and speed and must contribute to paying for new devices when they are installed. It is UP's own policy to work in conjunction with the states to comply with the federal guidelines. (Pl.'s Resp. Defs.' L.R. 56.1(a)(3) ¶¶ 71-73.) Each year, the ICC examines each public railroad crossing and according to the testimony of ICC representatives in late 2000, it was determined that all crossings located on the route from Chicago to St. Louis, a corridor which included the Livingston crossing, were deemed part of a "high speed rail project" and were to receive warning device upgrades. (Id. ¶¶ 66, 67.) Plaintiff maintains that this particular study, as well as all annual evaluations, are not always official diagnostic engineering studies. (Id. ¶ 66.) Although the ICC is expressly authorized to conduct such studies and issue upgrade orders after conducting official diagnostic engineering studies, a railroad need not wait for these state decisions to upgrade and may, with ICC approval, initiate and wholly pay for the installation of automatic gates and lights. (Pl.'s Resp. Defs.' L.R. 56.1(a)(3) ¶¶ 96, 136.) UP's policy and practice did not require such self-initiated annual evaluations of warning devices without public or state involvement. (Pl.'s L.R.56.1(b)(3) Stmt. ¶¶ 119, 123.) UP's Claims Manual was effective the date of the collision and affirmatively states that if a motorist's ability to see or hear a warning is impeded, the railroad may have a heightened duty to install additional safety devices. (Id. ¶ 142.)

  Plaintiff filed a three-count complaint alleging that: (1) UP was negligent because it failed to provide additional warning devices at the Livingston crossing; (2) UP's conduct was willful and wanton because: (a) it displayed an utter disregard and conscious indifference for Plaintiff's decedents in that it knowingly failed to have adequate warning devices at the Livingston Road crossing; and (b) cognizant of the danger, it failed to independently evaluate the adequacy of the warning devices at the crossing to determine the need for additional crossings; and (3) Amtrak was negligent because: (a) it failed to properly operate the train; and (b) it failed to provide adequate warning devices at the Livingston crossing. (Pl.'s Second Am. Compl. ¶¶ 46, 53, 61.)

  The Legal Standard

  To prevail on a summary judgment motion, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, [must] show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R. Civ. P. 56(c). At this stage, we do not weigh evidence or determine the truth of the matters asserted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). We view all evidence and draw all inferences in favor of the non-moving party. Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000). Summary judgment is appropriate only when the record as a whole establishes that no reasonable jury could find for the non-moving party. Id.

  In addition, where "undisputed facts give rise to disputed inferences," summary judgment is not appropriate. Harley-Davidson Motor Co., Inc. v. Powersports, Inc., 319 F.3d 973, 989 (7th Cir. 2003) ("[T]he choice between reasonable inferences from facts is a function of the fact-finder."); see also Ramirez v. The Nutrasweet Co., No. 95 C 0130 1997 U.S. Dist. Lexis, 17111 at *7 (N.D. Ill. Oct. 27, 1997) ("[I]f the evidence presented by the parties is subject to conflicting interpretations, or if reasonable minds could differ as to ...

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