Shanklin v. Norfolk Southern

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 27, 2004
• Docket: 01-6449
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Shanklin v. Norfolk No. 01-6449 ELECTRONIC CITATION: 2004 FED App. 0156P (6th Cir.) Southern Railway Co. File Name: 04a0156p.06 _________________ UNITED STATES COURT OF APPEALS COUNSEL FOR THE SIXTH CIRCUIT ARGUED: Everett B. Gibson, BATEMAN, GIBSON, _________________ Memphis, Tennessee, for Appellant. Pamela R. O’Dwyer, PATY, RYMER & ULIN, Chattanooga, Tennessee, for DEDRA SHANKLIN , X Appellee. ON BRIEF: Everett B. Gibson, Ralph T. Gibson, Individually and as next - BATEMAN, GIBSON, Memphis, Tennessee, for Appellant. friend of her son Jessie Guy - Pamela R. O’Dwyer, PATY, RYMER & ULIN, Chattanooga, - No. 01-6449 Tennessee, John W. Chandler, Jr., Memphis, Tennessee, for Shanklin, - Appellee. Plaintiff-Appellee, > , FORESTER, D. J., delivered the opinion of the court, in - v. which MOORE, J., joined. ROGERS, J. (pp. 28-34), - delivered a separate concurring opinion except as to Part V. - NORFOLK SOUTHERN - _________________ RAILWAY CO ., - Defendant-Appellant. - OPINION N _________________ Appeal from the United States District Court FORESTER, Chief District Judge. for the Western District of Tennessee at Jackson. No. 94-01212—James D. Todd, Chief District Judge. Defendant-Appellant Norfolk Southern Railway Company (“Norfolk”) appeals the district court’s denial of its renewed Argued: October 30, 2003 motion for judgment as a matter of law filed following a jury trial in which judgment was entered in favor of Plaintiff- Decided and Filed: May 27, 2004 Appellee Dedra Shanklin (“Shanklin”) in the amount of $1,434,014.60. In 1993, a train operated by Norfolk struck Before: MOORE and ROGERS, Circuit Judges; the vehicle of Eddie Shanklin, Dedra Shanklin’s husband, FORESTER, Chief District Judge.* killing him. The fatal accident occurred at the Oakwood Church Road railroad crossing near Milan, Tennessee. Shanklin filed an action against Norfolk, asserting various common-law claims based on Norfolk’s negligence in failing to install adequate warning devices at the crossing and in * The Ho norable K arl S. Forester, Chief Judge of the United failing to remove vegetation from the area surrounding the States District Court for the Eastern District of Kentucky, sitting by crossing. Shanklin claimed that excessive vegetation and lack designation.

1 No. 01-6449 Shanklin v. Norfolk 3 4 Shanklin v. Norfolk No. 01-6449 Southern Railway Co. Southern Railway Co.

of adequate warning devices resulted in Eddie Shanklin’s I. JURISDICTION failure to perceive the imminently oncoming train prior to his vehicle’s entry into the crossing, and thus into the train’s path. The district court had proper original jurisdiction over In 1996, a jury found in Shanklin’s favor. This Court Shanklin’s action under 28 U.S.C. § 1332(a) because there subsequently affirmed the verdict, but the Supreme Court existed a diversity of citizenship and the matter in controversy reversed with respect to the inadequate warning claim, exceeded $75,000. Shanklin is a Tennessee resident and holding that it was preempted by federal regulations Norfolk is a Virginia corporation. Norfolk timely appealed a governing the installation of warning devices. Shanklin v. final decision of a United States district court and this court Norfolk So. Ry. Co., 529 U.S. 344 (2000). accordingly has jurisdiction over this appeal under 28 U.S.C. § 1291. The Supreme Court remanded and the parties tried the vegetation claim before a second jury in 2001. Shanklin II. FACTUAL BACKGROUND AND PROCEDURAL presented evidence, over Norfolk’s objection, which tended HISTORY to demonstrate that Norfolk knew that overgrown vegetation in the vicinity of railroad crossings could obstruct the vision The Oakwood Church Road railroad crossing is located of both automobile drivers and locomotive engineers about seven-tenths of a mile from the home Eddie Shanklin approaching said crossings. Specifically, Shanklin showed shared with his wife, Dedra Shanklin. Eddie Shanklin’s that such overgrown vegetation existed at the Oakwood commute to the restaurant where he worked brought him Church Road railroad crossing, and that Norfolk failed to across the railroad tracks twice a day for the almost four years remove it. Norfolk filed a motion for judgment as a matter of he and his wife occupied the residence, and his route the law before the jury retired to deliberate, which the district morning of October 3, 1993 was no different. court denied. After the jury once more found in favor of Shanklin, Norfolk renewed its motion, which the district court Eddie Shanklin left his home in the pre-dawn darkness of again denied. a clear autumn day at 5:15 a.m., and began his journey to work. As Eddie traveled east on Oakwood Church Road Norfolk now appeals several aspects of the trial, including toward the railroad crossing, a Norfolk train was the district court’s determination that the vegetation claim simultaneously approaching the intersection, traveling at was not preempted, the district court’s admittance of three about 37 miles per hour. Based on the evidence presented at pieces of evidence tending to show knowledge, the district trial, it appears that Eddie Shanklin slowed his car to 20 miles court’s decision to read an allegedly irrelevant Tennessee per hour as he entered the railroad crossing, yet never statute to the jury, and the district court’s determination that attempted to further slow or stop his vehicle; there were no the evidence was sufficient to permit a reasonable jury to find skid marks leading to the impact zone. The Norfolk train in Shanklin’s favor. reportedly sounded its horn for approximately eleven seconds before the impact, yet could not avoid broadsiding Eddie For the following reasons, we AFFIRM. Shanklin’s vehicle, pushing it more than one-quarter of a mile before stopping. Eddie Shanklin died as a result of the accident. No. 01-6449 Shanklin v. Norfolk 5 6 Shanklin v. Norfolk No. 01-6449 Southern Railway Co. Southern Railway Co.

On September 26, 1994, Dedra Shanklin filed a wrongful vegetation claim, and accordingly remanded the case for death action in federal court, asserting several common-law rehearing on any remaining claims. negligence claims against Norfolk. Shanklin argued that Norfolk’s failure to provide adequate warning devices, sound At the second trial, Shanklin asserted her vegetation claim, the train’s horn as it approached the crossing within a presenting evidence that Eddie Shanklin’s view of the reasonable time to give adequate warning, and maintain a safe approaching Norfolk locomotive and its headlamp was sight distance by reducing the height of any embankment obscured by trees and vegetation located on Norfolk’s right of and/or clearing the vegetation from the existing bank way. Key expert testimony indicated that the vegetation proximately resulted in her husband’s death. Shanklin also surrounding the crossing would have prevented Eddie claimed that Norfolk violated Tenn. Code Ann. § 65-6-132, Shanklin from being able to see the train until he was ninety- which requires railroad owners to maintain trees on its four feet (three seconds) from the tracks. Shanklin’s expert grounds near the tracks. further testified that in order to perceive the threat, react, and stop his vehicle, Eddie, traveling at twenty miles per hour, On February 16, 1996, Norfolk filed a motion for summary needed to see the train when he was 135 feet from the tracks. judgment, arguing that federal regulations covering grade Various additional supporting evidence was admitted over crossings, 23 C.F.R. §§ 646.214(b)(3)-(4), preempted all of Norfolk’s objection. The jury found in favor of Shanklin, and Shanklin’s common-law tort claims. The district court denied judgment was entered against Norfolk in the amount of Norfolk’s motion with respect to the grade-crossing and $1,434,014.60.1 vegetation claims, holding that said claims were not preempted. The first trial ended in a jury verdict in favor of Norfolk now resurrects three evidentiary objections as Shanklin, assigning Norfolk 70% of the responsibility for the made at trial. First, Norfolk objects to the introduction of a accident, and assessing damages of $615,379. Norfolk filed “sight distance triangle chart,” and accompanying diagram, a motion for judgment as a matter of law, or in the alternative published in the Federal Highway Administration (“FHA”) for a new trial, which the district court denied. Railroad-Highway Grade Crossing Handbook (“Handbook”). Norfolk maintains that the documents do not create a duty Norfolk appealed this denial, renewing its argument that with respect to railroads, as the Handbook was written as a federal law preempted Shanklin’s claims. This Court guide for traffic engineers. At trial, Shanklin conceded that affirmed, ruling that government funding of the installation of the evidence did not constitute a legal standard or regulation, warning devices at grade crossings did not trigger preemption but argued that the Handbook had been used by railroads to of state common law claims. Shanklin v. Norfolk So. Ry. Co., understand sight distances and thus helped to demonstrate that 173 F.3d 386, 394 (6th Cir. 1999). Recognizing a circuit split Norfolk was aware of the sight distance problem. The district on the issue, the Supreme Court granted certiorari, 528 U.S. 949 (1999), and reversed. See Shanklin v. Norfolk So. Ry. Co., 529 U.S. 344 (2000). The Court held that common-law 1 claims attacking the adequacy of grade-crossing warning The jury deliberated and reached a verdict on January 26, 2001, signals were preempted from the time federal authorities assessing $831,687 for actual damages and $1,160,000 for Dedra and G uy Shanklin’s (the couple’s son) loss of consortia. The jury found that approved and committed funding to the installation of No rfolk was 72% at fault and that Eddie was 28% at fault, such that warning signals. The Court did not speak explicitly to the judgment was entered against Norfolk in the amount of $1,434,014.60. No. 01-6449 Shanklin v. Norfolk 7 8 Shanklin v. Norfolk No. 01-6449 Southern Railway Co. Southern Railway Co.

court ultimately admitted the documents. Shanklin later awareness of various problems at the crossings. The district introduced, without objection, the deposition of James court overruled the objection and permitted Shanklin to show McCloskey, an attorney for Norfolk serving on the company’s a redacted version of the deposition that covered only issues Crossing Oversight Committee, who testified that Norfolk relating to Norfolk’s general grade crossing policies. used the sight distance documents in assessing the safety of However, when Shanklin played the video for the jury, all particular crossings. parties discovered that the videotape technician hired by Shanklin failed to omit an inadmissable part of the deposition Second, Norfolk objects to the introduction of a “policy” in which Goode stated that Norfolk had the worst accident developed by Paul Melander, a manager of the Railroad rate in the entire industry.2 Safety Division of the Tennessee Public Service Commission (“PSC”), addressing potential hazards created by decreased Fourth, Norfolk objects to the invocation of what it deems sight lines at railroad crossings. The policy, essentially a to be an “ancient” and obsolete Tennessee statute, Tenn. recommendation to the state legislature, incorporated the sight Code. Ann. § 65-6-132. Shanklin presented evidence that distance chart from the Handbook, and the PSC distributed it Norfolk violated the statute, which prohibits vegetation within to all the railroads in Tennessee. While the policy lacked a railroad’s right of way that is “six (6") of more inches in legal authority in that it was not adopted by the PSC or the diameter, two feet (2') off the ground, and of sufficient height Tennessee Legislature, the PSC Commissioners had seen the to reach the roadbed if they should fall.” Id. Shanklin used policy and approved its dissemination. Shanklin therefore the statute and the evidence invoking it as additional proof of offered it for the purpose of showing notice. Norfolk’s Norfolk’s negligence and reinforced the point by littering the objection to its introduction was initially sustained. Following Shanklin’s offer of proof, however, the court reversed itself because Melander testified that the policy was not just a recommendation, but had become practice in his 2 department. Melander further testified that some railroads The district court immediately gave the following curative followed the policy and others did not. The district court instruction at Norfolk’s request: instructed the jury that neither the Handbook nor the policy THE COURT: Ladies and gentlemen, during the recess, was a legal standard binding Norfolk. we spent the better part of an hour ruling on objections, taking things out of the deposition that weren’t relevant Third, Norfolk objected to the introduction of deposition or weren’t admissible under the rules of procedure. testimony given by David Goode, the Chief Executive Officer Through an oversight, one small bit of information got of Norfolk. The testimony was taken in connection with a into the deposition that should have been deleted but was not. T he only way to cure it at this point is for me 1995 Missouri state court action filed against Norfolk, and to tell you to disregard that last minute or so of the Norfolk argued that it should not be allowed because Goode deposition you just saw and the memorandum that was had not been deposed in this case and because his deposition showed to you o n the screen. And any reference to it did not address vegetation issues but rather discussed or any testimony ab out it, you’ll disregard it. And if Norfolk’s treatment of grade crossings and its safety record in you don’t rememb er what it was, that’s good because you don’t have to forget it then. general. Shanklin responded that the general testimony regarding safety at crossings was relevant to Norfolk’s (Apx. pp. 339 -43). N orfolk did no t move for a m istrial. No. 01-6449 Shanklin v. Norfolk 9 10 Shanklin v. Norfolk No. 01-6449 Southern Railway Co. Southern Railway Co.

court room with several tree stumps taken from the area in part of 23 C.F.R. § 646.214(b) addresses the clearing of question. vegetation.3 III. PREEMPTION OF THE VEGETATION CLAIM 3 Norfolk argues that the district court, in holding that 23 C.F.R. § 646 .214 (b)(3 )-(4) states: Shanklin’s vegetation claim was not preempted, improperly (b) Grade cro ssing improve ments. limited the scope of the Supreme Court’s ruling in Shanklin (1) All traffic control devices propo sed shall com ply v. Norfolk So. Ry. Co., 529 U.S. 344 (2000). Norfolk with the latest edition of the Manua l on Uniform contends that the same federal regulations that preempt Traffic Control Devices for Streets and Highways inadequate warning device claims also preempt vegetation supplemented to the extent applicable by State standards. (2) Pursuant to 23 U.S.C. 109(e), where a railroad- negligence claims. We review the district court’s decision de highway grade crossing is located within the limits of novo because it involves a question of law. or near the terminus of a Federal-aid highway project for construction of a new highway or improvement of Congress enacted the Federal Railroad Safety Act in 1970, the existing road way, the crossing shall not be opened partially to “maintain a coordinated effort to develop and for unrestricted use by traffic or the project accepted by carry out solutions to the railroad grade crossing problem.” FH W A until adequate warning devices for the crossing are installed and functioning p roperly. 49 U.S.C. § 20134(a). The statute broadly states that all (3)(i) Adequate warning devices, under § 646.214(b)(2) “[l]aws, regulations, and orders related to railway safety . . . or on any project where Federal-aid funds p articipa te in shall be nationally uniform to the extent practicable,” but it the installation of the devices are to includ e automatic includes a savings clause provision that reads, “[a] State may gates with flashing light signals when one or more of adopt or continue in force a law, regulation, or order related the following co nditions exist: (A) M ultiple main line railroad tracks. to railroad safety or security until the Secretary of (B) Multiple tracks at or in the vicinity of the crossing Transportation prescribes a regulation or issues an order . . . which may be occupied by a train or locomotive so as covering the subject matter of the State requirement.” Id. at to obscure the movement of another train approaching § 20106. Three years later, Congress created the Federal the crossing. Railway-Highway Crossings Program, see 23 U.S.C. § 130, (C) High Speed train operation combined with limited sight distance at either single or multiple track crossings. giving the Secretary of Transportation, acting through the (D) A comb ination of high speeds and mod erately high Federal Highway Administration (“FHWA”), the power to volumes of Highway and railroad traffic. promulgate 23 C.F.R. § 646.214(b), which concerns the (E) Either a high volume of vehicular traffic, high design of grade crossings. number of train movements, substantial numbers of school buses or trucks carrying hazardous materials, unusually restricted sight distance, continuing accident Most pertinent to this appeal, 23 C.F.R. § 646.214(b)(3)- occurren ces, or any com bination of these co nditions. (4) addresses the circumstances under which automatic gates (F) A diagnostic team recommends them. and flashing signals are required and clarifies that when gates (ii) In individual cases where a diagnostic team justifies and signals are not mandated, the FHWA has the power to that gates are not appropriate, FHW A may find that the approve or disapprove the alternative type of warning device above requirements are not applicable. recommended by a state agency or a railroad. Importantly, no (4) For crossings where the requirements of § 646.214(b)(3) are no t applicable, the type of warning No. 01-6449 Shanklin v. Norfolk 11 12 Shanklin v. Norfolk No. 01-6449 Southern Railway Co. Southern Railway Co.

The Supreme Court first considered the preemptive power at a particular crossing - is hold the railroad responsible for of the Federal Railroad Safety Act (“FRSA”) in 1993. See the adequacy of those devices.” Id. at 358.4 CSX Transp., Inc. v. Easterwood, 507 U.S. 658 (1993). The Court held that for a regulation issued by the secretary of Because the Supreme Court ruling in Shanklin does not Transportation under FRSA to preempt the duties imposed explicitly extend the preemptive reach of § 646.214(b) to upon the railroads by common law, that regulation must more Shanklin’s vegetation claim, the issue before this Court is than “touch upon” or “relate to” the subject matter raised by whether the warning device regulations can be read to “cover” the common law claim because “pre-emption will lie only if the vegetation claim, such that the common law of Tennessee the federal regulations substantially subsume the subject that imposes a duty upon railroads to clear vegetation on their matter of the relevant state law.” Id at 664. The Easterwood rights of way near railroad grade crossings that prevents Court concluded that 23 C.F.R. § 646.214(b)(3)-(4) motorists from seeing and/or hearing trains approaching those preempted the plaintiff’s claim that CSX was negligent for crossings is preempted. failing to maintain adequate warning devices because the regulations “cover the subject matter of state law which, like Section 646.214(b)(3) describes under what conditions the tort law on which respondent relies, seeks to impose an certain types of warning devices are required; in other words, independent duty on a railroad to identify and/or repair it “‘cover[s] the subject matter’ of the adequacy of warning dangerous crossings.” Id. at 671 (emphasis added). devices installed with the participation of federal funds.” Shanklin, 529 U.S. at 358. Section 646.214(b)(4) mandates Later, in reviewing our first Shanklin decision, the Court that the FWHA determine what types of warning devices further analyzed 23 C.F.R. § 646.214(b)(3)-(4) to determine should be installed when the circumstances laid out in whether the regulations “‘are applicable’ to all warning § 646.214(b)(3) are not present. The regulations do not devices actually installed with federal funds.” Shanklin v. appear to focus on vegetational blockage or sight line Norfolk So. Ry. Co., 529 U.S. 344, 353 (2000). The Supreme limitations. At best, they “relate to” or “touch upon” Court did not hold that the warning device regulations vegetational growth; we cannot conclude that they “cover,” in preempted all state common law claims stemming from a the sense of “substantially subsume,” claims of negligence grade crossing accident, but rather held only that the federal regulations displaced Tennessee common law “addressing the same subject.” Id. at 359. The Court noted: “What states 4 cannot do - once they have installed federally funded devices The Court reaffirmed the notion that the regulations did no t just establish a “definitional” federal standard for adequate warning devices, but rather mandated certain requirements when the federal government covered the cost. Shanklin v. Norfolk So. Ry. Co., 529 U.S. 344, 353 (2000). The regulations attached a standard o f adeq uacy to any project involving federal funds. Id. Accordingly, the Court held that “once the FH W A has funded the crossing improveme nt and the warning devices are device to be installed, whether the determination is actually installed and operating, the regulation ‘displace[s] state and made by a State regulatory agency, State Highway private decisio n-making authority by establishing a federal law agency, and/or the railroad, is subject to the approval of requirement that certain protective devices be installed or federal approval FHWA. obtained.’” Id. at 354 (quoting CSX Transp ., Inc. v. Easterwo od, 507 U.S. 658 , 670 (1993)). No. 01-6449 Shanklin v. Norfolk 13 14 Shanklin v. Norfolk No. 01-6449 Southern Railway Co. Southern Railway Co.

due to failure to clear away vegetation near a railroad bed. but it does not “impose a broader duty to control vegetation Easterwood, 507 U.S. at 664. so that it does not obstruct a motorist’s visibility of oncoming trains.” O’Bannon v. Union Pac. R.R. Co., 960 F. Supp. Norfolk argues that plaintiff’s sight distance claim was 1411, 1422-23 (W.D. Mo. 1997); see also Mo. Pac. R.R. Co. plainly encompassed by 23 C.F.R. § 646.214(b)(3)-(4), v. R.R. Comm’n, 83 F.2d 570, 577 (5th Cir. 1987)(rejecting because the regulation requires the DOT to consider, in ruling that § 213.37(b) controlled a railroad’s right of way in assessing the need for automatic gates and flashing signals, its entirety); Bowman v. Norfolk S. Ry. Co., 832 F. Supp. the presence of “high-speed train operation combined with 1014, 1020-21 (D.S.C. 1993), aff’d 66 F.3d 315 (4th Cir. limited sight distance,” 23 C.F.R. § 646.214(b)(3)(i)(C), and 1995)(federal regulations do not preempt claims concerning the presence of “unusually restricted sight distance,” vegetation outside the area immediately next to the railbed). 23 C.F.R. § 646.214 (b)(3)(i)(E). However, this argument The comparison of 49 C.F.R. § 213.37 and the adequate takes the regulation’s language out of context. While a visual warning regulation persuasively shows that 23 C.F.R. encumbrance, be it overgrown vegetation, a structure, or the § 646.214(b)(3) does not “cover” actions based upon a contour of the land, triggers the regulatory mandate for negligent failure to clear vegetation. certain warning devices, and accordingly preempts common law claims regarding the adequacy of warning signals, it does Norfolk calls to the panel’s attention two out-of-circuit not follow that the warning device regulations preempt an district court decisions that allegedly preempt sight distance action based on the alleged failure to eliminate such a visual claims based upon the regulations at issue in Shanklin. impediment. The regulations govern warning signals, not Norfolk misconstrues these decisions, which are vegetation growth. 23 C.F.R. § 646.214(b)(3)-(4) do not unpersuasive. In a pre-Shanklin case, Bryan v. Norfolk & W. define the terms “limited” or “unusually restricted” sight Ry. Co., 21 F. Supp. 2d 1030 (E.D. Mo. 1997), the district distance, indicate that any sight distance obstructions should court granted summary judgment to the defendant on a be removed, set standards as to how much sight distance plaintiff’s claim that a railroad crossing was “extraordinarily should be provided to motorists approaching a grade crossing, hazardous” because the terrain obscured the approach of contain any guidelines relating to a railroad’s obligation to trains and because there were no automatic gates or flashing maintain its grade crossings, or even mention “vegetation” or signals guarding the crossing. Id. at 1038. The court refused “right of way.” to create “an exception to preemption . . . based on an ultrahazardous condition,” id., but Bryan is distinguishable Additionally, the DOT has promulgated other regulations because, unlike Shanklin, the plaintiff did not articulate a governing the growth of vegetation, demonstrating that when stand-alone vegetation claim, and instead lumped its visual the Department wants to regulate issues concerning obstruction claim together with a preemptable claim vegetation, it has no problem doing so. In particular, concerning the failure to provide proper warning devices. Id. 49 C.F.R. § 213.37 states: “Vegetation on railroad property Norfolk’s citation to Burlington Northern R.R. Co. v. which is on or immediately adjacent to roadbed shall be Deatherage, No. 3:95CV116-B-A, 1997 WL 33384269, controlled so that it does not . . . (b) [o]bstruct visibility of (N.D. Miss. May 21, 1997), is equally unavailing, because the railroad signs and signals . . .” 49 C.F.R. § 213.37(b). This plaintiff did not even file a vegetation action in that case. The regulation preempts any state-law claim regarding vegetative district court only considered the issue of unlimited sight growth that blocks a sign immediately adjacent to a crossing, No. 01-6449 Shanklin v. Norfolk 15 16 Shanklin v. Norfolk No. 01-6449 Southern Railway Co. Southern Railway Co.

distance in determining the applicability of the FRSA’s maintain a safe grade crossing, apart from the warning savings clause. Id. at *3-4. devices, and relatedly failed to ensure clear sight lines of oncoming trains are not preempted. On the other hand, the Third Circuit has specifically addressed the issue of whether sight distance claims are Id. at 276-77. preempted by 23 C.F.R. § 646.214 (b)(3)-(4), and has found that they are not. See Strozyk v. Norfolk So. Corp., 358 F.3d Accordingly, because we find that the Supreme Court has 268 (3d Cir. 2004). Christopher Stozyk was killed at a neither explicitly nor implicitly preempted state common law railroad crossing when a train owned and operated by Norfolk vegetation claims, and because the adequate warning Southern collided with the truck he was driving. regulations contained in 23 C.F.R. §§ 646.214(b)(3) and (4) Subsequently, Strozyk’s parents filed suit against Norfolk, do not “cover” state common law vegetation/sight distance alleging, inter alia, the railroad’s negligence for failure to claims, it follows that the district court correctly reasoned that provide proper sight lines for motorists crossing the track. Shanklin’s vegetation claim is not preempted. The district court held that 23 C.F.R. § 646.214(b) preempted plaintiff’s limited visibility claim, and concluded that because IV. THE EVIDENTIARY HOLDINGS 23 C.F.R. § 646.214(b) “lists ‘unusually restricted sight distance’ as a factor mandating the installation of active Norfolk asserts that the district court erred in admitting warning devices,” it followed that “the standard set by the three pieces of evidence: the FWHA Handbook, the PSC regulation encompasses not just the ultimate selection of a policy, and the deposition testimony of Norfolk’s CEO. This warning device but [also] . . . ‘the appropriate response to Court finds that the district court did not abuse its discretion limited sight distance or unusually restricted sight distance.’” in admitting the challenged evidence. Id. at 272. The Third Circuit Court of Appeals disagreed, noting that, even after the Supreme Court’s decisions in CSX It is important to note that, under the abuse of discretion Transp. Inc. v. Easterwood, 507 U.S. 658 (1993), and standard employed with respect to evidentiary rulings, the Shanklin v. Norfolk So. Ry. Co., 529 U.S. 344 (2000), “state district court’s decision regarding this evidence should remain law duties to maintain a safe grade crossing remain viable.” undisturbed unless this panel is left with the definite and firm Strozyk, at 276. The court continued: conviction that the district court clearly erred in its judgment after weighing the relevant factors, improperly applied the While, as Easterwood and Shanklin make clear, correct law, or inappropriately used the wrong legal standard. §§ 646.214(b)(3) and (4) substantially altered the United States v. Haywood, 280 F.3d 715, 720 (6th Cir. landscape of railroad liability, by restricting tort plaintiffs 2002).5 The district court admitted all three pieces of from interposing state law obligations concerning appropriate warning devices, the regulations do not 5 eclipse those duties ensuring safe grade crossings that are No rfolk directs our attention to, and urges us to follow, the unrelated to warning devices, such as the duty to keep evidentiary rulings of Judge Johnstone in Bryant v. Tennken R.R. Co. (No. visibility at grade crossings free from obstructions. As 00-2621-DA, W .D. Tenn.). In Bryant, which is a very similar case, Judge Johnstone disallowed the same pieces of evidence that Judge Todd those regulations cover the subject matter of warning entered into evidence in this case. H owever, Judge John stone did perm it devices, the Strozyks’ claims that Norfolk failed to the jury to view the Handbook, instructing them that the sight distance No. 01-6449 Shanklin v. Norfolk 17 18 Shanklin v. Norfolk No. 01-6449 Southern Railway Co. Southern Railway Co.

evidence for the specific and limited purpose of showing and cause a hazard. Indeed, it was undisputed at trial that the notice or knowledge, and restricted the evidence to its proper sight distance information from the Handbook was included scope. in the minutes of the Norfolk Southern Tennessee Division Grade Crossing Safety Committee, and also that the sight 1. The FHWA Handbook and the PSC Policy distance information from the Handbook was incorporated into the PSC policy that was discussed with Norfolk Southern Norfolk argues that the sight distance charts and graphs in employees in Tennessee prior to the collision at issue.6 the FHWA Handbook and the PSC policy that incorporated the sight distance information from the Handbook were Because the sight distance information in the Handbook, irrelevant to Shanklin’s claims and were thus erroneously and as incorporated into the PSC policy, helps to illuminate admitted. the notice issue, and because the district court specifically instructed the jury that neither established a legal standard, The Federal Rules of Evidence define relevant evidence this evidence was properly admitted.7 broadly as evidence having “any tendency to make the existence of any fact that is of consequence to the 2. Goode’s Deposition Testimony determination of the action more or less probable than it would be without the evidence.” Fed. R. Evid. 401. Under Norfolk objects to the introduction of video deposition Tennessee law, juries are required to compare the degree of testimony given by David Goode, the Chief Executive Officer fault of the parties, including the reasonableness of their of Norfolk. The testimony was taken in connection with conduct in light of all of the circumstances. See Eaton v. Lohman v. Norfolk & Western Ry. Co. on August 25, 1995, McLaine, 891 S.W.2d 587 (Tenn. 1994). A Tennessee jury and concerned a grade crossing accident in Missouri. Norfolk must consider: “the reasonableness of [a] party’s conduct in confronting a risk, such as whether the party knew of the risk, or should have known of it.” Id. at 592. Undoubtedly, 6 whether or not Norfolk knew of the sight distance Contrary to Norfolk’s argument, Judge Tod d did not admit the policy as a valid regulatory exercise of the PSC, but only as an unofficial requirements recommended by the FHWA or PSC policy is policy lacking in any legal force, but nonetheless a recommendation from a fact of consequence in relation to the issue of notice, the PSC of which the railroad was aware. Judge Tod d warned the jury in because if Norfolk knew that a motorist needed to see a his instructio ns that the policy carried no legal weight. certain number of feet in order to perceive an oncoming train, 7 it is more likely that it recognized that overgrown vegetation W hile the material contained in the Hand book could no t have for which it was responsible could impede a motorist’s view been admitted for the purpose of establishing Norfolk’s duty toward motorists, it was useful for the limited purpose of establishing notice. Courts and comm entators have recognized that it is preferable to admit a relevant document for a limited purpose with ap prop riate instructions, chart was in no way a binding regulation. Two judges, certainly rather than exclude adm issible evidenc e altogether. See Weinstein’s exercising reasonable minds, can reach opposite conclusions about the Federal Evidence § 105.03 [1] and [3] (Matthew Bender 2d Ed. same evidence without either abusing his or her discretion so long as 1997)(“Total exclusion of evidence of mixed admissibility in jury cases neither court clearly erred in its application of correct law or its invocation would hardly be appropriate, since its exclusion might well deny the jury of incorrect law. See In re M .J. Wa terman & A ssocs., Inc., 227 F.3d 604, access to facts that are essential to reaching a reasonably accurate 608 n.3 (6th Cir. 2000 ). decision”). No. 01-6449 Shanklin v. Norfolk 19 20 Shanklin v. Norfolk No. 01-6449 Southern Railway Co. Southern Railway Co.

argues that the portions of Goode’s video deposition Lohman case qualifies as a non-hearsay party-opponent testimony admitted at trial were irrelevant and unduly admission. prejudicial. Furthermore, Norfolk asserts that the testimony cannot properly be admitted as an admission of a party Alternatively, Rule of Evidence 804(b)(1) carves out an opponent because the case in which the deposition was taken exception to the hearsay prohibition when a witness is and the current matter do not share the same identity of unavailable for testimony; it permits the inclusion of a issues. statement given by a witness in another proceeding so long as the party “had an opportunity and similar motive to develop This Court must first examine whether Goode’s deposition the testimony by direct, cross, or redirect examination.” Fed. testimony, taken in connection with an earlier trial, can be R. Evid. 804(b)(1). The Advisory Committee Notes remark entered as evidence in a subsequent trial. Federal Rule of that common law required the previous deposition to have a Procedure 32(a) permits the use of “any part or all of a “substantial” identity of issues. Fed. R. Evid. 804(b)(1), deposition, so far as admissible under the rules of evidence Advisory Committee Notes. Norfolk argues here that the . . . against any party who was present or represented at the Lohman case, and Goode’s deposition therein, did not involve taking of the deposition.” Id. The Rule further states that the substantially the same issues as those confronted herein. “deposition of a party . . . who at the time of taking the While it is true that Goode’s deposition covers a crossing deposition was an officer . . . designated . . . to testify on grade accident in another state and under different conditions, behalf of a . . . private corporation . . . may be used by an it also addresses grade crossing safety issues generally. adverse party for any purpose,” so long as it complies with Furthermore, Shanklin sought to introduce the testimony to the rules of evidence. Fed. R. Civ. Proc. 32(a)(2)(emphasis prove that Norfolk was aware of the danger at grade added). Goode’s video deposition testimony does comply crossings, a topic which Goode did cover in the deposition. with the rules of evidence, either as an admission of a party- As Norfolk’s general knowledge and treatment of grade opponent under Federal Rule of Evidence 801, or as an crossing dangers was likewise germane in Lohman, Goode exception to the hearsay rule under Rule 804. and his attorneys had an opportunity and a nearly identical motive to develop Goode’s testimony in the earlier case. Under Rule 801(d)(2), a statement can be characterized as an admission of a party-opponent, and as such, non-hearsay, Second, the relevance of Goode’s testimony must be when: “The statement is offered against a party and is . . . (C) assessed. Similar to the Handbook and the PSC policy, a statement by a person authorized by the party to make a Goode’s deposition presents facts of consequence with regard statement concerning the subject, or (D) a statement by the to Norfolk’s knowledge of the dangers of grade crossings. party’s agent or servant concerning a matter within the scope All of Goode’s deposition testimony introduced during the of the agency or employment made during the existence of trial of this case related to the fact that Norfolk recognized the the relationship.” Fed. R. Evid. 801(d)(2)(C)-(D). Norfolk importance of identifying and eliminating hazardous does not dispute that Goode was its president and CEO at the conditions at its grade crossings prior to the collision at issue time of his deposition, or that he was authorized to make the in this case. Thus the district court cannot be said to have statements he made during that deposition. Therefore, abused its discretion in admitting Goode’s testimony for the Goode’s video deposition testimony with respect to the limited purpose of showing knowledge. No. 01-6449 Shanklin v. Norfolk 21 22 Shanklin v. Norfolk No. 01-6449 Southern Railway Co. Southern Railway Co.

Third, this Court must determine whether Goode’s United States v. Ursery, 109 F.3d 1129, 1133 (6th Cir. 1997). testimony should have been excluded under Federal Rule of Notwithstanding the undoubtedly prejudicial nature of the Evidence 403 as more prejudicial than probative. While there erroneously admitted information, this Court must assume is nothing unfairly prejudicial about Goode’s testimony that the jury in this case followed the instruction given it by regarding Norfolk’s notice of issues attendant to grade the court. See Richardson v. Marsh, 481 U.S. 200, 211 crossing safety, the evidence that Norfolk had the highest (1987). Therefore this Court finds the district court did not grade crossing accident rate in the country was extremely abuse its discretion in admitting Goode’s video deposition prejudicial.8 This testimony was erroneously shown to the testimony. No unfair prejudice resulted to Norfolk as a result jury, as the district court had already ruled it inadmissable. of Goode’s testimony regarding safety measures in general, The district court immediately responded by striking the and with respect to the erroneously admitted evidence, the evidence and issuing the following curative instruction as district court properly responded to the mistake such that the requested by Norfolk: prejudice to Norfolk was minimized. THE COURT: Ladies and Gentlemen, during the recess, V. THE TENNESSEE TREE CUTTING STATUTE we spent the better part of an hour ruling on objections, taking things out of the deposition that weren’t relevant Norfolk further contends that the district court erred in or weren’t admissible under the rules of procedure. permitting the jury to consider Tenn. Code Ann. § 65-6-132,9 Through an oversight, one small bit of information got which prohibits, on railroad’s rights of way, the presence of into the deposition that should have been deleted but was vegetation six or more inches in diameter and “of sufficient not. The only way to cure it at this point is for me to tell height to reach the roadbed if they should fall.”10 Id. Norfolk you to disregard that last minute or so of the deposition argues that the statute should not have been considered by the you just saw and the memorandum that was showed to jury because it was not designed to protect motorists and is you on the screen. And any reference to it or any obsolete. This Court finds that the district court’s decision to testimony about it, you’ll disregard it. And if you don’t remember what it was, that’s good because you don’t have to forget it then. 9 J.A. at 342-43. Even where evidence is erroneously admitted, Tenn. Code Ann. § 65-6-132: Trees, Removal the striking of evidence combined with instructions to the jury (a) Every company or person operating a railro ad in this state shall cut down all trees standing on its lands to disregard the evidence will usually cure the error, unless which are six (6) or more inches in diameter, two feet the evidence is so prejudicial that a new trial must be granted. (2') above the ground, and of sufficient height to reach the roadbed if they should fall. (b) A failure to comp ly with subsection (a) will render the company liable for damages to person or property resulting therefro m . . . 8 During the play-back of Good e’s video deposition testimony, 10 a portion that should have been redacted was shown to jurors. In that In her co mplaint, Shanklin alleged that Norfolk violated Tenn. portion of testimony, Goode’s closed-captioned statement showing acro ss Code Ann. § 65-6 -132 with respect to the Oakwood Church Road railroad the bottom of the screen indicated that Norfolk had the highest rate of crossing, and at trial introduced evidence that there were numerous trees grade crossing acciden ts in the industry. on Norfolk’s right of way that fit within the proscriptions of the statute. No. 01-6449 Shanklin v. Norfolk 23 24 Shanklin v. Norfolk No. 01-6449 Southern Railway Co. Southern Railway Co.

read the Tennessee statute to the jury did not constitute comment, after the advent of the automobile.11 Therefore, reversible error. while it cannot be said that Tenn. Code Ann. § 65-6-132 clearly applies to protect against the type of harm here at Under Tennessee law, actions for failure to comply with issue, neither can it clearly be held otherwise.12 statutory duties are limited in scope. The Plaintiff must prove that she is the intended beneficiary of a statute before that Even if Norfolk could craft a colorable argument that Eddie statute can be used to establish a duty on the part of Shanklin was not an intended beneficiary of this statute, and Defendant. See Bivin v. S. Oil Serv., Inc., 394 S.W.2d 141, thus that the district court clearly erred in instructing the jury 148 (Tenn. Ct. App. 1965). Thus Norfolk initially argues that to consider Norfolk’s negligence under Tenn. Code Ann. the statute, which the Tennessee legislature adopted in 1870, § 65-6-132, the error is harmless. When an error made by the does not apply because it is supposed to protect train court does not prejudice the outcome, the error does not passengers from derailments caused by stray tree branches on justify reversal. See Toth v. Grand Trunk R.R. Co., 306 F.3d the tracks, not motorists. 335, 348 (6th Cir. 2002). Even without consideration of Norfolk’s liability under the tree cutting statute, there was In determining whether or not Tenn. Code Ann. § 65-6-132 was meant to protect against the harm suffered by Eddie Shanklin, whose vision of the railroad crossing was found to have been obscured by overgrown vegetation present on 11 Norfolk’s right of way, we begin with the plain language of Additiona lly, there is some case law and legislative evidence indicating that, even in the 1870's, both the courts and the Tennessee the statute. Here said language does not provide a definitive legislature were concerned that there be proper sight distance at railroad answer. The phrase “reach the roadbed if they fall,” id., crossings for persons trave ling on horseb ack or in horse drawn wagons. implies that the main purpose of the statute is to protect See generally, Continental Improvement Co. v. Stead, 95 U.S. 161, 162 against train derailments by ensuring that railroads keep their (1877); Grand Tru nk Ry . Co. v. Ives, 144 U.S. 408 , 410 (1892); Lou isville tracks clear of branches. However, the statute also states that & Nashville R .R. Co. v. G ardner, 1 Tenn. 688 (Tenn. 1878 ). Further, the fact that the Tennessee legislature adopted the Railroad Precautions Act a failure to comply will result in liability “for all damages to in 1856, which required train crews to maintain a lookout ahead and person or property” resulting therefrom. Id. There is indeed sound the locomotive horn during their approach to public grade nothing in the language of the statute itself to indicate that its crossings, indicates concern about potential hazards to those traversing application is limited to the protection of train passengers. grade crossings at least fourteen (14) years prior to its passage of Tenn. See Tenn. Code Ann. § 65-6-132. The statute’s broad Code Ann. § 65-6-132 in 1870. See g enerally, Railroa d Precaution s Act- Effect of 1959 Amendment, 28 T E N N . L A W R EV . 437 (1961). imposition of liability indicates that the vegetation prohibition was intended to protect against any number of harms that 12 No rfolk further argues that the panel should hold that the could result from its presence in an overgrown state. statute is implicitly repealed because changed circumstances and non- enforcement have rendered it obsolete. Tenn. Code Ann. § 65-6-132 was The legislative history fails to provide any additional passed by the Tennessee General A ssemb ly in 187 0, and as Norfolk insight. The statute was originally passed in 1870 before the points out, mass production of the automo bile did not b egin until almost invention of the automobile; however the Tennessee forty (40) years later. Appellant’s Br. at 42. The district court rejected legislature retained the statute in 1932 without significant Norfolk’s argument on this issue, pointing out that the statute has been modified since the proliferation of automo biles. T he district court’s holding on this matter canno t be said to have bee n in erro r. No. 01-6449 Shanklin v. Norfolk 25 26 Shanklin v. Norfolk No. 01-6449 Southern Railway Co. Southern Railway Co.

considerable evidence upon which the jury could conclude harm posed by defendant’s conduct outweigh the burden upon that Norfolk was liable in part for Eddie’s death. defendant to engage in alternative conduct that would have prevented the harm.” Id. (quotation omitted). In Tennessee, VI. THE SUFFICIENCY OF THE EVIDENCE a plaintiff may recover even if he or she contributes to the negligence, so long as the plaintiff’s negligence remains less Lastly, Norfolk argues that because Eddie Shanklin was the than the defendant’s. McIntyre v. Ballentine, 833 S.W.2d 52, sole cause of the accident, the district court erred in denying 57 (Tenn. 1992). Juries, in their allocation of fault, are to Norfolk’s Rule 50(b) Motion for a Judgment as a Matter of consider, among other factors, the reasonableness of the Law. We review Rule 50(b) motions de novo. K&T party’s conduct in confronting the risk, such as whether the Enterprises, Inc. v. Zurich Ins. Co., 97 F.3d 171, 175 (6th Cir. party knew, or should have known, of the risk. Eaton, 891 1996). When a Rule 50(b) motion is premised on a challenge S.W.2d at 592. to the sufficiency of the evidence, we apply the standard of review employed by the courts of the state whose substantive There is evidence of Norfolk’s negligence such that law controls the action, Tennessee in this instance. Morales reasonable minds could reach differing conclusions about v. Am. Honda Motor Co., 151 F.3d 500, 506 (6th Cir. 1998). Norfolk’s liability. The Handbook and PSC policy, while not In undertaking this review, “it is not the office of an appellate legally requiring Norfolk to take any action, made Norfolk court to weigh the evidence. Rather, it must take the aware of the danger of reduced sight lines and of the sight strongest legitimate view of the evidence in favor of the distances needed to ensure that motorists could see oncoming plaintiff, indulging in all reasonable inferences in his favor, trains at grade crossings. There is also evidence showing that and disregarding any evidence to the contrary.” Williams v. Norfolk failed to clear vegetation near the track, and that Brown, 860 S.W.2d 854, 857 (Tenn. 1993). A motion for Eddie Shanklin’s sight view of the oncoming train could have judgment as a matter of law is proper only if, after assessing been impeded thereby. 13 Given the extreme and inevitable all the evidence in the manner described, the court can determine that reasonable minds could not differ as to the conclusion to be drawn from the evidence. Eaton v. McClain, 13 891 S.W.2d 587, 590 (Tenn. 1994). Additionally, an W ith regard to Norfolk’s negligence, the district court summarized the evidence introduc ed at trial as follows: appellate court is not permitted to reallocate fault in contravention of a jury verdict, even if the reviewing court An eyewitness to the accident testified that he was disagrees with that apportionment. Turner v. Jordan, 957 traveling alongside the train in his vehicle, and heard S.W.2d 815, 824 (Tenn. 1997). the horn blow for approximately 11 seconds from the crossing, which is less than the 1,320 feet required by In order to bring a successful negligence claim under Tennessee law. See Tenn. Code Ann. § 65-12-108(2) . . . There is also evidence in the record that the Tennessee law, a plaintiff must show (1) a duty of care owed railroad’s officials were aware of general studies to the plaintiff by the defendant and (2) a breach of that duty, regarding recommended sight distance for moto rists at which in fact and proximately causes an injury or loss. railroad crossings, even though the railroad was not Staples v. CBL & Associates, Inc., 15 S.W.3d 83, 89 (Tenn. required to comply with those recom mendations. 2000). A risk is “unreasonable and gives rise to a duty to act There is evidence that the railroad had the ability, and the authority, to make further efforts to clear vegetation with due care if the foreseeable probability and gravity of and trees on its right-of-wa y at the cro ssing, but did not No. 01-6449 Shanklin v. Norfolk 27 28 Shanklin v. Norfolk No. 01-6449 Southern Railway Co. Southern Railway Co.

injury that could result from a train-on-car collision, a jury _________________ could easily conclude that the foreseeable probability and gravity of harm outweighed the burden of clearing the CONCURRENCE vegetation on Norfolk’s right of way. Reasonable minds _________________ could also reach different conclusions about whether Norfolk breached that duty and whether the breach caused Eddie’s ROGERS, Circuit Judge, concurring. I concur in the death.14 majority opinion except for Part V. In my view, a plain reading of Tennessee’s tree cutting statute, Tennessee VII. CONCLUSION Annotated Code § 65-6-132, clearly indicates that the sole purpose of the statute was to prevent trees from falling onto Accordingly, we AFFIRM the judgment of the district the tracks. I concur not because Mr. Shanklin was within the court. protected class of the statute, but because the tree cutting statute was nonetheless admissible as evidence because it was relevant, though not controlling, on the negligence determination under Tennessee law. Tennessee Annotated Code § 65-6-132 states: (a) Every company or person operating a railroad in this state shall cut down all trees standing on its lands which are six (6) or more inches in a diameter two feet (2') above the ground and of sufficient height to reach the roadbed if they should fall. (b) A failure to comply with subsection (a) will render the company liable for all damages to person or property do so . resulting therefrom; also to a penalty of one hundred Apx. pp. 84-8 5. dollars ($100), to be recovered on suit brought in the name of any citizen before any tribunal having 14 jurisdiction, one half ( 1/2 ) of which shall go to the No rfolk further argues tha t Edd ie Shanklin was the sole cause of the ac ciden t. As its chief suppo rt for this propo sition, N orfolk claims treasury of the county in which said provisions may have that Eddie violated Tenn. Code Ann. § 55-8-145(a)(3)-(4), which requires been disregarded, and the other one half ( 1/2 ) to the moto rists to stop within fifty feet, but not less than fifteen feet from the plaintiff. near rail of the track when a train emits a signal audible from 1,500 feet away and is plainly visible to a motorist approach the crossing. The evidence presented at trial conflicted regarding whethe r the train sounded (emphasis added). Subsection (a) of § 65-6-132 is obviously its whistle at the proper distance and whether Eddie heard the signal, and concerned with trees greater than six inches in diameter a reasonable jury cou ld conclude that he did not. Furthermore, the jury falling onto a railroad track. Although the district court did reduce Edd ie’s damage award by 28% for his contribution to the believed the diameter requirement set forth in the statute accid ent. No. 01-6449 Shanklin v. Norfolk 29 30 Shanklin v. Norfolk No. 01-6449 Southern Railway Co. Southern Railway Co.

might have indicated that the Tennessee legislature was also Tennessee law is not clear on the question of whether a concerned with visibility, the diameter requirement is easily statutory obligation that protects against different harms may explained by the fact that the thicker the trunk, the more nonetheless be considered by a jury as part of its analysis of likely a derailment would occur if the tree fell. whether the defendant violated the common law standard of care. While a number of Tennessee tort cases deal with Because the language of the statute clearly indicates that statutes that arguably protect against different harms, the Mr. Shanklin was not within the class that § 65-6-132 was cases generally involve the question of whether violation of designed to protect, the statute could not be used as a basis for the statute amounts to negligence as a matter of law, not with liability under the statutory tort defined by subsection (b) of the question of whether the factfinder could consider the § 65-6-132. Similarly, the statute could not be used as a basis statute for any purpose whatsoever. for negligence per se under Tennessee law. Under longstanding and consistently applied Tennessee law, a Almost eighty-five years ago, the Tennessee Supreme plaintiff must demonstrate that the injured party was “within Court held that a statute requiring automobile drivers to stop the class of persons intended to benefit from or be protected at railroad crossings was intended to protect against collisions by the statute” to recover under a theory of negligence per se. between automobiles and trains, and not to protect against Alex v. Armstrong, 385 S.W.2d 110 (Tenn. 1964); Carter v. other traffic accidents that happen to occur at a railroad Redmond, 218 S.W. 217, 218 (Tenn. 1920); Harden v. Danek crossing. Carter v. Redmond, 218 S.W. 217, 218 (Tenn. Med., Inc., 985 S.W.2d 449, 452 (Tenn. Ct. App. 1998); 1920). The court concluded not only that the trial judge erred Traylor v. Coburn, 597 S.W.2d 319, 322 (Tenn. Ct. App. in giving a negligence per se instruction, but that the trial 1980); Berry v. Whitworth, 576 S.W.2d 351, 353 (Tenn. Ct. judge also erred in refusing to give a tendered instruction that App. 1978); see also RESTATEMENT (SECOND) OF TORTS the “statute had no bearing on the case before them.” Carter § 286. Thus, if the district court had instructed the jury that appears to support the conclusion that the district court in this violation of the tree cutting statute required the jury to find case should not have read the tree cutting statute to the jury, negligence on the part of defendant, we would be compelled but the case is hardly on all fours. Defendant in this case did to reverse. not tender a limiting instruction, although defendant did object to having the statute read to the jury. More The district court, however, did not instruct the jury that the importantly, the ultimate basis for reversal in Carter was the Norfolk Southern’s failure to comply with the tree cutting erroneous instruction regarding negligence per se, not the statute constituted negligence per se. Instead, the district failure to instruct that the statute had no bearing. The Carter court read § 65-6-132(a) to the jury along with three other court found that the trial court’s error was material because statutes relating to duties of railroad companies to keep the erroneous negligence per se instruction “practically crossing safe and the duties of a motorist when approaching necessitated a verdict against” defendant. The statement a railroad crossing.1 approving the tendered instruction was arguably dictum,

1 The district court did specify that the violation of Tennessee under Tennesse e Co de A nnotated § 65-12-109. However, the district Code Annotated § 65-12-108, which relates to precautions for railroad court did not instruct that a violation of the tree cutting statute constituted crossings such as signs and whistles, is considered negligence pe r se negligence per se. No. 01-6449 Shanklin v. Norfolk 31 32 Shanklin v. Norfolk No. 01-6449 Southern Railway Co. Southern Railway Co.

inasmuch as the court did not need to reach the materiality of particular class of individuals does not preclude the the trial court’s failure to give the tendered instruction. possibility that the failure to do such an act may be negligence at common law toward other classes of In contrast, in Teal v. E.I. DuPont de Nemours & Co., 728 persons. It also does not preclude the possibility that, in F.2d 799 (6th Cir. 1984) (applying Tennessee law), we a proper case, the requirements of the statute may be reviewed a district court judgment in a case in which the considered as evidence bearing on the reasonableness of district court had refused to give a negligence per se charge, the actor’s conduct. but nonetheless informed the jury that the regulation in question “may be considered . . . as some evidence . . . of the RESTATEMENT (SECOND) OF TORTS § 286 cmt. g (emphasis (appropriate) standard of care.” In Teal an employee of an added); see also RESTATEMENT (SECOND) OF TORTS § 286 independent contractor was injured by a ladder that allegedly cmt. f (“The fact that a legislative enactment requires a did not conform to federal OSHA regulations. While particular act to be done for the protection of the interests of permitting the jury to consider the OSHA regulation as some a particular class of individuals does not preclude the evidence of the appropriate standard of care, the district court possibility that the doing of such an act may be negligence at refused to instruct the jury on negligence per se. On common law toward other classes of persons.”). plaintiff’s appeal, we reversed, holding that because the OSHA regulation was indeed intended to protect the Second, it is consistent with general principles of American employees of independent contractors, the district court was tort law to permit the jury to consider the Tennessee statute as required to give a negligence per se instruction. Our opinion, some evidence of negligence. When a jury makes a however, did not criticize at all the district court’s apparent negligence determination, its determination can be likened, conclusion that a regulation not intended to protect a plaintiff using the famous “Hand formula,” to a balancing of the could nonetheless be considered as some evidence of the burden on the defendant in acting more carefully against the appropriate standard of care. probability of harm multiplied by the magnitude of harm if the defendant does not so act. See United States v. Carroll In the absence of clear Tennessee authority, we must make Towing Co., 159 F.2d 169, 173 (2d Cir. 1947) (Hand, J.). In our best estimation of how the Tennessee Supreme Court evaluating how burdensome it was to the defendant railroad would rule on the question of whether the Tennessee tree to cut down the trees in question to avoid the possibility of cutting statute could be admitted as some evidence of harm to persons like Shanklin, it is relevant for the jury to negligence, even though the jury could not consider it as a know that the railroad was required to cut down the trees basis for negligence per se. Two considerations lead me to anyway for an entirely different purpose. Thus it makes the conclusion that the answer to this question is yes. sense, at least in the context of the instant case, for the jury to be aware of legal requirements that directly affect the balance First, the Restatement of Torts would clearly answer the that the jury is conceptually required to make in determining question yes. Comment g to the Restatement (Second) of whether defendant has been negligent. Torts § 286 states: I would therefore hold that the district court in this case did The fact that a legislative enactment requires a particular not err in reading the tree cutting statute to the jury. It would act to be done for the protection of the interests of a of course have been preferable for the court to have stated No. 01-6449 Shanklin v. Norfolk 33 34 Shanklin v. Norfolk No. 01-6449 Southern Railway Co. Southern Railway Co.

clearly to the jury that a violation of the statute did not Southern’s duty and its breach of that duty. Thus, the simple necessarily mean that defendant was negligent. It would also reading of the tree cutting statute during the jury instruction, have been better for the district court to have explained that even if erroneous, was harmless. the jury could take into account the defendant’s legal obligation to minimize the risk of limbs obstructing the tracks, only as part of its evaluation of whether the defendant acted reasonably in not increasing the sight-distance for oncoming trains. Moreover, even if it was not appropriate for the district court to read § 65-6-132 to the jury, the error was in any event harmless, again because the jury was not instructed that violation of the tree cutting statute would constitute negligence per se. Compare Carter, 218 S.W. at 217-19. As jurisdiction for this case is based on diversity of citizenship, “federal law governs our standard of review for determining whether a jury instruction is prejudicial.” Gafford v. Gen. Elec. Co., 997 F.2d 150, 166 (6th Cir.1993) (internal quotation marks and citations omitted); Teal, 728 F.2d at 801. The Sixth Circuit has stated that it will reverse a jury’s verdict on the basis of improper instructions only when the instructions, when viewed as a whole, are confusing, misleading, and prejudicial. Federal courts generally presume the jury will follow the instructions correctly as given. We will not reverse a decision on the basis of an erroneous jury instruction where the error is harmless. Barnes v. Owens-Corning Fiberglas Corp., 201 F.3d 815, 822 (6th Cir. 2000). Although the jury was shown several dissections of trees during trial, the lack of a negligence per se instruction with regard to § 65-6-132 indicates that the jury only considered the violation of the statute as evidence of Norfolk Southern’s negligence. Throughout the trial the plaintiff presented a considerable amount of other evidence as to Norfolk