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Jarvis v. Mid-South Rail Corp.8/24/1998
ing: He relied on DOTD records to state that federal funds were used, including the records from DOTD's general files that were researched by Sterritt. Compare Hester, supra, where the railroad introduced Mississippi DOTD records with an affidavit to show that federal funds were used at the crossing at issue in that Mississippi federal court proceeding. Ouachita Parish obviously did not originally view these documents as being privileged, having specifically listed " ocuments reflecting use of federal funds on crossing signs at the crossing" as an exhibit and Shrewsberry as a witness in the Joint Pre-Trial Statement filed on May 8, 1997.
Without deciding whether or not specific documents merely reflecting the use of federal funds to install signs at the crossing are excluded under 23 U.S.C. § 409, we find that defendants, on this record at this juncture, have failed to establish that Shrewsberry had personal knowledge that federal funds were indeed used in the installation of warning devices at the Golson Road crossing, or, in the alternative, to explain adequately his failure to produce the documents relied upon in that determination. This Conclusion is particularly true when Shrewsberry's "knowledge" was refreshed by some records apparently viewed by the parish counsel and maintained under Shrewsberry's supervision that may or may not have been privileged under federal law.
Under these circumstances, some non-privileged records should have been attached to the affidavit to support the motions for summary judgments. Of course, summary judgment should not be denied if attaching the documents in question would contravene 23 U.S.C. § 409.
While it seems apparent that appellees may eventually establish that federal funds were used to upgrade the Golson Road crossing, they have not done so on this record on the appeal of summary judgments.
We address the supplemental motion for summary judgment filed belatedly by the parish in an unpublished appendix to this opinion.
DECREE
At the cost of appellees, the summary judgments are reversed and the matter is remanded for further proceedings with leave to appellees to again seek summary judgments properly supported.
BROWN, J., concurs with written reasons.
BROWN, Judge, Concurring, with written reasons.
The Golson Road crossing is controlled by railroad cross-bucks and advance warning signs. If federal funds "participated" in the installation of these passive "warning devices" at this crossing and approval was given by the Secretary of Transportation, then state tort law cannot impose a greater or different standard. The Tenth Circuit has held that the degree of federal "participation" must be significant. Armijo v. Atchison, Topeka and Santa Fe Railway Co., 19 F.3d 547 (10th Cir. 1994); Hatfield v. Burlington Northern Railroad Co., 1 F.3d 1071 (10th Cir. 1993). The Fifth Circuit case of Hester, supra, does not address or define "participation."
Although regulating rail safety, the FRSA allows states to "adopt or continue in force any law, rule, regulation or standard" until a rule, regulation or standard covering the subject matter has been promulgated by the Secretary of Transportation. 45 U.S.C. § 434. A general regulation will not suffice. Easterwood, supra. 23 C.F.R. § 646.214 (b)(3) specifically covers signalization at rail crossings. Under specified circumstances, automatic gates and flashing lights are required; however, if those conditions do not exist, proposed passive devices must be approved by the Secretary.
The standard laid down by the Secretary cannot be challenged on the grounds that he made a mistake; however, a
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