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Boyd v. National Railroad Passenger Corp.1/20/2005
rning devices. See CSX Transp., Inc. v. Easterwood, 507 U.S. at 670-671; Norfolk S. Ry. Co. v. Shanklin, 529 U.S. at 358-359; O'Bannon v. Union Pac. R.R. Co., 960 F. Supp. at 1417.
Here, the evidence established that the design and construction of the warning devices at the Pine Street crossing were Federally funded in accordance with 23 C.F.R. § 646.214. The Federal regulations are thus triggered and preempt the plaintiff's common-law claims based on the inadequacy of the warning devices at the Pine Street crossing. Furthermore, as stated, supra, the Pine Street crossing is not a local safety hazard within the meaning of 45 U.S.C. § 20106. Accordingly, the plaintiff may not rely on Amtrak's or the MBTA's failure to install and maintain four-quadrant gates to support his wrongful death claim predicated on wilful, wanton, or reckless conduct under G. L. c. 229, § 2.
B. Applicability of 23 U.S.C. § 409
The plaintiff claims that Amtrak and the MBTA's conduct was wilful, wanton, or reckless based on their inaction in the face of knowledge that children and bicyclists were proceeding around lowered crossing gates at several grade crossings along the Old Colony line. To establish this claim, the plaintiff relies upon documents, reports, and testimony derived from the corridor analysis and the video surveillance tapes installed as part of the MBTA's four-quadrant gate demonstration project. The defendants contend such evidence is inadmissible pursuant to 23 U.S.C. § 409 (1994 & Supp. III 1998).
Section 409 of 23 U.S.C. provides that "reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings pursuant to [§§ 130, 144, and 152 of 23 U.S.C.,] or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding . . . in any action for damages arising from any occurrence at a location mentioned or addressed in" such documents.
The congressional intent in enacting § 409 was to encourage candid evaluation and correction of highway and railway safety hazards by shielding the process from the roving eyes of tort litigants. See Robertson v. Union Pac. R.R. Co., 954 F.2d 1433, 1435 (8th Cir. 1992); Harrison v. Burlington N. R.R. Co., 965 F.2d 155, 160 (7th Cir. 1992). See also Pierce County v. Guillen, 537 U.S. 129, 145-146 (2003). Section 409 does not require that the sole purpose for the compilation or collection of data be one specified in the statute, i.e., the compilation need not have been specifically funded pursuant to 23 U.S.C. §§ 130, 144, or 152. See Robertson v. Union Pac. R.R. Co., 954 F.2d at 1435 n.3; Lusby v. Union Pac. R.R. Co., 4 F.3d 639, 641 (8th Cir. 1993). Section 409 "protects not just the information the agency generates, i.e., compiles, for § 152 purposes, but also any information that an agency collects from other sources for § 152 purposes." Pierce County v. Guillen, 537 U.S. at 145. The statute governs documents authored in the interest of developing safety enhancement projects even if such documents encompass information compiled for proposed or future plans eligible for Federal funds. See Harrison v. Burlington N. R.R. Co., 965 F.2d at 159; Rodenbeck v. Norfolk & W. Ry. Co., 982 F. Supp. 620, 623-624 (N.D. Ind. 1997).
Here, the summary judgment record reveals that the purpose of the corridor analysis was to evaluate possible safety enhancements, including the use of four-quadrant
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