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Carter v. Union Pacific Railroad Co.

United States District Court, C.D. Illinois, Urbana Division

April 28, 2014



COLIN S. BRUCE, District Judge.

Plaintiff, Kristina Carter, filed her Complaint (#2-1) on July 12, 2012, alleging that Defendant, Union Pacific Railroad Company, was negligent in its ownership, operation, maintenance, and construction of a railroad crossing. The case is currently before this court on Defendant's Motion to Bar Plaintiff's Expert Thomas Berns (#19), Motion to Strike Memorandum in Opposition to Defendant's Motion to Bar (#25), and Motion for Summary Judgment (#21). This court has carefully reviewed the arguments of the parties and the documents filed by the parties. For the following reasons Defendant's Motion to Bar Plaintiff's Expert (#19) is GRANTED in part and DENIED in part. In addition, Defendant's Motion to Strike (#25) is DENIED and Defendant's Motion for Summary Judgment (#21) is GRANTED.


On the afternoon of September 6, 2010, Plaintiff and Martin Prescott headed to a cookout hosted by Prescott's friend. On their way to the cookout, Prescott, who was driving the vehicle, turned onto a country road. Plaintiff and Prescott stated that they were not familiar with the road they were on and neither could name the road during their deposition. While on the road, Prescott drove over a set of railroad tracks. Neither Plaintiff nor Prescott recalled seeing any signs denoting the presence of railroad tracks. Plaintiff first noticed the railroad tracks when they drove over them, and Prescott first saw the tracks when they were 50 feet away. Prescott was driving approximately 45 to 55 miles per hour when they crossed the tracks. As they crossed, they encountered a bump and Plaintiff hit her head on the top of the vehicle. Thereafter, Plaintiff claims that she started feeling severe pain in her back. After Plaintiff and Prescott crossed the railroad tracks, Prescott turned the vehicle around in order to take Plaintiff back to her house. Later that night, paramedics were dispatched to Plaintiff's home after she called 911 complaining of back pain.

On January 30, 2013, Plaintiff visited a railroad crossing and took photographs. The photographs were attached to her February 19, 2013 affidavit (#27-1). Thereafter, Plaintiff signed the affidavit, stating that the attached group of photographs fairly and accurately depicted the location where her injury occurred.

Plaintiff hired Thomas Berns as an expert. Berns is a licensed professional engineer in the states of Illinois, Missouri, Indiana, Arkansas, and Iowa. He is a licensed professional land surveyor in the states of Illinois and Arkansas. Berns is also the President of the engineering, surveying, and planning professional corporation Berns, Clancy & Associates, PC. On August 10, 2011 and September 2, 2011, Berns examined a set of railroad tracks identified to him as the tracks Plaintiff and Prescott crossed. Following his examination, Berns prepared three drawings documenting the height, grade, and survey data he collected relating to the crossing. The drawings reflect that an individual approaching the tracks would experience an incline grade of 5% followed by an immediate decline grade of 7.3%. His report stated that his review of the site led him to conclude that the crossing was extra hazardous at the time of the accident and that the installation of flashing light signals with short-arm gates and a reconstruction of the approaches along with advanced warning signs were needed to inform the public of the anticipated hazards at the crossing. Berns further stated that the crossing should have provided appropriate warnings for the traveling public in compliance with "Title 92 Transportation Chapter III; Illinois Commerce Commission Subchapter; Rail Carriers Part 1535 Crossings of Rail Carriers and Highways." The Report also listed five opinions Berns formed after his evaluation of the crossing:

A. The visual grade approach is misleading and warning signs should have been placed so as to warn the traveling public as to the dangerous condition.
B. The existence of the grain truck exit from the "Toloma Farmers Allen Station" grain elevator should have been provided with warning signs to provide notice to the traveling public of the grades, roughness, and special nature of the vehicular traffic at this railroad/highway grade crossing.
C. The physical nature and physical features of this railroad/highway grade crossing include the special exit from the large truck grain elevator at this intersection and numerous railroad tracks.
D. The nature of the physical features and the grades at this railroad/highway grade crossing were not apparent to the traveling public. Warning signs for the grades and the crossing discontinuities should have been properly provided to the general public to identify the special circumstances and relationships at this site.
E. Based upon my field surveys, it is clear that the existing railroad/highway grade crossing in this case was not in compliance with Title 92 Transportation Chapter III; Illinois Commerce Commission Subchapter; Rail Carriers Part 1535 Crossings of Rail Carrier and Highways. These standards provide guidance to the traveling public in various circumstances particularly with extra-ordinary highway traffic and awkward physical features.

Berns testified during his deposition that additional warning signs were needed at the crossing because the roadway at the crossing was relatively narrow; large trucks entered and exited the highway near the crossing; and the crossing itself presented a steep incline. When asked to identify any books, articles, or other reference which he used to formulate his opinions in this case, Berns stated that he was not sure whether he could point his finger to any specific spot, but noted that the answers could be found somewhere in his library. He also testified that he is not a legal expert trained to interpret what the law requires at a crossing. He further noted that it is his understanding that the railroad company is not allowed to alter or change the signage at any crossing or install flashing lights and gates without the order of the Illinois Commerce Commission.

Plaintiff has also compiled potential testimony from doctors who treated her following the September 6, 2010 incident. According to Plaintiff, Dr. Stephen J. Pineda is expected to testify that Plaintiff was injured after a vehicle drove over a set of railroad tracks, became airborne, and landed heavily upon the roadway. As a result of the incident, Plaintiff suffered a fracture in or around the L1 region of her lower back. Plaintiff claims that Dr. Pineda will testify that her injuries were a direct result of the aforementioned automobile incident. Dr. Koteswara Narla is also expected to testify that Plaintiff was traveling in a vehicle that went over railroad tracks and became airborne causing Plaintiff to suffer an L1 burst fracture. Plaintiff further expects Dr. Jarrod Wall to state that Plaintiff was the passenger in a vehicle that went over railroad tracks and that she struck her head and suffered an L1 burst fracture as a result.

Defendant produced a May 12, 2005 report from the Illinois Commerce Commission which stated that the roadway around the crossing was narrow but that it met the minimum width required by 92 IL ADC ยง 1535. The report also suggested that the crossing ...

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