Oklahoma Federal Court Holds FRA Crossing Inventories Admissible In Finding Rail Crossing Public

In Oklahoma litigation arising from a fatality caused by a train striking a car as it passed through a railroad crossing, a key issue dictating the requisite duty of care became whether the crossing was whether the crossing was public or private.  The parties disputed the admissibility of Federal Railroad Administration Crossing Inventories related to the particular crossing.  The defendant railroad argued that they were inadmissible reports pursuant to 23 U.S.C. § 409, which provides:

“Notwithstanding any other provision of law, 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 sections 130, 144, and 148 of this title 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 or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists, or data.”

In considering the evidentiary issue, the U.S. District Court for the Western District of Oklahoma adopted the analysis set forth last year in Zimmerman v. Norfolk Southern Corp.  The plaintiff was trying to use the inventories to establish that the railroad long believed and treated the crossing as public.  The court found that the railroad itself was the initiating entity of the reports at issue, and that the railroad failed to establish how or why the reports were generated and submitted for purposes of establishing this privilege.  The court also concluded that there was no evidence that any of the reports were submitted in conjunction with a particular construction project even though some reports indicated that a “changed crossing” was the basis for the report.  The court went on to find that the railroad treated the crossing as public, even despite the absence of public funding to maintain it.