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Jarvis v. Mid-South Rail Corp.8/24/1998
general agreement covering the entire state was found to provide minimum passive protections, but was not necessarily a determination by the Secretary of what safety devices would be adequate for a particular crossing. Shots v. CSX Transportation, Inc., 38 F.3d 304 (7th Cir. 1994).
The Fifth Circuit in Hester, supra, stated:
The fact that federal funds participated in the installation of the warning devices legally presupposes that the Secretary approved and authorized that expenditure, which in turn legally presupposes that the Secretary determined that the safety devices installed were adequate to their task. There is no evidence that this did not in fact happen. Nor is there any evidence demonstrating that passive warning devices alone were deemed inadequate (or were not found adequate) to promote safety at Hatley Circle. (Emphasis added).
Id. at 387.
Obviously, plaintiff cannot defend against a summary judgment motion and show "that this did not in fact happen" if he cannot obtain in discovery the information concerning the "participation" of federal funds at this crossing and the Secretary's approval that the signals were adequate to their task. Under these circumstances, without these documents, defendants' summary judgment motion must fail.
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