*

The Honorable Arthur J. Tarnow, United States District Judge for the Eastern District of Michigan, sitting by

designation. 

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0061p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

JOSHUA NYE and JUDY RAMIREZ,

Plaintiffs-Appellants,

v.

CSX TRANSPORTATION, INC.,

Defendant-Appellee.

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No. 05-3136

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 02-01528—Lesley Brooks Wells, District Judge.

Argued: November 30, 2005

Decided and Filed: February 14, 2006 

Before: SILER and GRIFFIN, Circuit Judges; TARNOW, District Judge.*

_________________

COUNSEL

ARGUED: Robert J. Fogarty, HAHN, LOESER & PARKS, Cleveland, Ohio, for Appellants.

James R. Carnes, ANSPACH MEEKS ELLENBERGER, Toledo, Ohio, for Appellee. ON BRIEF:

Robert J. Fogarty, Pasquale DiMassa, Jr., HAHN, LOESER & PARKS, Cleveland, Ohio, for

Appellants. James R. Carnes, Robert M. Anspach, ANSPACH MEEKS ELLENBERGER, Toledo,

Ohio, for Appellee.

_________________

OPINION _________________

SILER, Circuit Judge. Plaintiff Joshua Nye was injured as a passenger of a car that collided

with a train. Nye and his mother, Judy Ramirez (collectively referred to as “Nye”), sued railroad

operator CSX Transportation, Inc. (“CSXT”), for negligently causing personal injury. Specifically,

Nye brought various claims for negligence, spoliation of evidence, loss of consortium, and punitive

damages. 

Nye presents three overarching questions for this court to decide: (1) whether his adequacy

of warning device claim is preempted by federal law, (2) whether summary judgment was proper

on his negligence claims relating to adequacy of visibility of the train cars and railroad crossing, and

1
No. 05-3136 Nye, et al. v. CSX Transportation Page 2

1

Babbitt and Heinert were originally named as defendants, but they were dismissed from this action. 

(3) whether summary judgment was proper on his spoliation claim. We hold that Nye’s first claim

is preempted by federal law. Norfolk So. Ry. Co. v. Shanklin, 529 U.S. 344 (2000). His remaining

claims fail to present genuine issues of material fact, and no reasonable jury could find for Nye.

Therefore, the district court’s grant of summary judgment is affirmed.

FACTS

On July 2, 2000, Larry Bishop attended a gathering with friends in a field in Wood County,

Ohio. Between 4:00 and 4:30 a.m. he decided to move his classic 1968 Mustang automobile

because people were leaning on it. Nye accompanied Bishop because he wanted to take a ride in

Bishop’s car. Originally, Bishop only intended to circle around the field and park the car by Hough

Road away from everyone at the party. Bishop agreed to take Nye for a ride, and pulled out of the

field to the left on Hough Road. As he approached a stop sign at the intersection of State Route 18

and Hough Road, just south of the Hough Road railroad crossing, Bishop was unable to stop his car.

He applied the brakes to no avail and continued past the stop sign through an intersection. At some

point he noticed passing train cars and attempted to swerve to the left, but he was unable to avoid

collision with the side of the CSXT train. Bishop impacted the train at the seventh and eighth

railroad cars. Although it is not clear whether Nye jumped out of the car to avoid the accident or

was thrown by force out of the car, he was dragged by the train, and sustained severe injuries that

required amputation of both of his legs. 

 One of Bishop’s friends, Cole Buchanan, was attending the party in the nearby field. He ran

to the scene of the accident and helped remove Bishop from the car as the train continued moving.

Buchanan stated that the “car would move as each railway car went by,” and that the train was

traveling east toward North Baltimore, Ohio. The conductor of the train, B.A. Babbitt, and the

engineer, R.L. Heinert, did not realize that the train had been struck.1

PROCEDURAL HISTORY

Under 28 U.S.C. § 1332(a)’s grant of diversity jurisdiction, Nye sued CSXT. He alleged

that CSXT proximately caused the collision by (1) inadequate warnings at the Hough Road crossing;

(2) insufficient lights or reflector strips on train cars; (3) failure to perform a diagnostic review or

safety study of the crossing; (4) defective design and insufficient visibility of the crossbuck sign at

the crossing; (5) inadequate pavement markings; (6) failure to sound an adequate and audible

warning as the train approached; (7) failure to avoid the hazards presented by the crossing and to

operate the train within applicable speed restrictions; (8) defective design, maintenance, and

construction of the Hough Road Crossing; and (9) negligent operation of the train as it approached

and passed through the Hough Road crossing. In response, CSXT argued that federal law preempts

“in whole or in part, by federal and/or state law, including but not limited to, the Federal Rail Safety

Act, 45 U.S.C. § 421, et seq., and Federal Rail Safety Act, 23 U.S.C. §§ 4010-4404.”

The district court provided two written decisions. First, it found that federal law preempted

Nye’s state tort claim based on alleged inadequacy of the warning devices at the Hough Road

crossing. It later granted summary judgment for CSXT, finding that “no reasonable jury could

conclude that CSXT’s conduct contributed to, let alone caused, this accident and CSXT is entitled

to summary judgement on [negligence].” It found proximate causes of the collision were brake

failure and driver’s error. In addition, it granted summary judgment on Nye’s spoliation claims.

The court concluded that because the negligence and spoliation claims fail, summary judgment is

also appropriate for Nye’s loss of consortium and punitive damages claim. 
No. 05-3136 Nye, et al. v. CSX Transportation Page 3

OHIO CROSSBUCK PROGRAM

In 1993, the Ohio Department of Transportation (“ODOT”) submitted a proposal to the U.S.

Department of Transportation, Federal Highway Administration (“FHWA”) to study the

effectiveness of a new, experimental Buckeye Crossbuck in reducing accidents at public, passive

grade crossings in Ohio. Based on this proposal, ODOT developed the Ohio Buckeye Crossbuck

Program (the “Program”), a federally funded program intended to evaluate new crossbuck designs

and to improve grade crossings. Funded 100% by the federal government, the Program involved the

installation of either an upgraded Standard Crossbuck or an experimental Buckeye Crossbuck.

Under the Program, Buckeye Crossbucks were placed at passive crossings bearing even

numbered DOT identification numbers while upgraded Standard Crossbucks were installed at

passive crossings with odd numbered DOT identification numbers. Standard Crossbucks are blackand-white X-shaped signs that read “RAILROAD CROSSING.” The upgradedStandard Crossbucks

were reflectorized. The Buckeye Crossbuck is a Standard Crossbuck with red lettering, reflective

tape on the blades, reflective sheeting on all four sides of the post, and a new sign mounted on the

crossbuck's post which read “YIELD” in red lettering and a white background.

Later in 1993, CSXT and the State of Ohio entered into an agreement to cooperate in a

demonstration project to evaluate the relative safety improvements generated by the new Buckeye

Crossbuck versus an upgraded Standard Crossbuck. Under the agreement, CSXT was “to provide

all labor, equipment, tools and materials” to install the crossbucks at all passively guarded CSXT

grade crossings in the State of Ohio but would be fully reimbursed by the state. The State of Ohio

received the funding by which it reimbursed CSXT pursuant to the Intermodal Surface

Transportation Efficiency Act of 1991 (“ISTEA”). Following the installation of the crossbucks

under the agreement, CSXT became the owner of the crossbucks and was required to “maintain them

in good condition, as required by statute at company cost and expense.”

As a part of the federally funded Program, CSXT installed two upgraded Standard

Crossbucks at the Hough Road crossing in 1995. While these crossbucks were installed pursuant to

approval granted by the FHWA, the FHWA itself made no determination that a standard crossbuck

at the Hough Road crossing would be adequate. In fact, the first determination of the adequacy of

warning devices at the Hough Road crossing was not made until 2000 when the State of Ohio,

through a diagnostic team comprised of individuals from the Ohio Rail Development Commission,

CSXT, the Public Utilities Commission, and local highway authorities, recommended that the

crossing either be closed or flashing lights and roadway gates be installed. Ultimately the FHWA

paid $271,756.85 for the installation of Standard Crossbucks and Buckeye Crossbucks at CSXT's

crossings in the State of Ohio pursuant to the Buckeye Crossbuck Program, representing 100% of

the total installation cost.

ANALYSIS

I. Preemption

This court reviews questions of federal preemption de novo. Shanklin v. Norfolk So. Ry. Co., 369 F.3d 978, 985 (6th Cir. 2004). The Supremacy Clause of the Constitution authorizes federal law

to preempt conflicting state law. U.S. CONST. art. VI, cl. 2. However, intent to preempt state law

must be “the clear and manifest purpose of Congress.” See CSX Transp., Inc. v. Easterwood, 507

U.S. 658, 663-64 (1993). Congress can express its intent to preempt state law through explicit

statutory language or implicitly through the statute's structure and purpose. See Cipollone v. Liggett

Group, Inc., 505 U.S. 504, 516 (1992).

In 1970, Congress enacted the FRSA and conferred upon the United States Secretary of

Transportation the authority to preempt state law relating to railroad crossing safety. See Shanklin,
No. 05-3136 Nye, et al. v. CSX Transportation Page 4

2

49 U.S.C. § 20106 provides:

Laws, regulations, and orders related to railroad safety shall be nationally uniform to the extent

practicable. A State may adopt or continue in force a law, regulation, or order related to railroad

safety until the Secretary of Transportation prescribes a regulation or issues an order covering the

subject matter of the State requirement. 

3

(b) Grade crossing improvements.

(1) All traffic control devices proposed shall comply with the latest edition of the Manual on Uniform

Traffic Control Devices for Streets and Highways supplemented to the extent applicable by State

standards.

(2) Pursuant to 23 U.S.C. § 109(e), where a railroad-highway grade crossing is located within the

limits of or near the terminus of a Federal-aid highway project for construction of a new highway or

improvement of the existing roadway, the crossing shall not be opened for unrestricted use by traffic

or the project accepted by FHWA until adequate warning devices for the crossing are installed and

functioning properly.

(3)(i) Adequate warning devices, under § 646.214(b)(2) or on any project where Federal-aid funds

participate in the installation of the devices are to include automatic gates with flashing light signals

when one or more of the following conditions exist:

(A) Multiple main line railroad tracks.

(B) Multiple tracks at or in the vicinity of the crossing which may be occupied by a train or locomotive

so as to obscure the movement of another train approaching the crossing.

(C) High Speed train operation combined with limited sight distance at either single or multiple track

crossings.

(D) A combination of high speeds and moderately high volumes of highway and railroad traffic.

(E) Either a high volume of vehicular traffic, high number of train movements, substantial numbers

of schoolbuses or trucks carrying hazardous materials, unusually restricted sight distance, continuing

accident occurrences, or any combination of these conditions.

(F) A diagnostic team recommends them.

(ii) In individual cases where a diagnostic team justifies that gates are not appropriate, FHWA may

find that the above requirements are not applicable.

(4) For crossings where the requirements of § 646.214(b)(3) are not applicable, the type of warning

device to be installed, whether the determination is made by a State regulatory agency, State highway

agency, and/or the railroad, is subject to the approval of FHWA.

529 U.S. at 347. The express preemption provision of the FRSA provides for uniformity of law

between the states to enact railroad safety laws until the Secretary of Transportation through the

FHWA addresses the issue. 49 U.S.C. § 20106.2

 Enacted in 1973, the Highway Safety Act created the Federal Railway-Highway Crossings

Program to provide funding for the “cost of construction projects for the elimination of hazards of

railway-highway crossings.” 23 U.S.C. § 130(a). Through the promulgation of regulations, the

Secretary of Transportation addresses the adequacy of warning devices for railway crossings in 23

C.F.R. §§ 646.214(b)(3) and (4).3

 

In Shanklin, the United States Supreme Court resolved whether 23 C.F.R. §§ 646.214(b)(3)

and (4) preempted state tort law claims for failure to maintain adequate warning devices at railroad

crossings. 529 U.S. at 352. Generally, the Court stated that the scope of the regulations applies to

“any project where Federal aid funds participate in the installation of the devices.” Id. at 354 (citing

23 C.F.R. § 646.214(b)(3)(i)). The Court held:

Sections 646.214(b)(3) and (4) therefore establish a standard of adequacy that

“determine[s] the devices to be installed” when federal funds participate in the
No. 05-3136 Nye, et al. v. CSX Transportation Page 5

crossing improvement project. Easterwood, 507 U.S. at 671. If a crossing presents

those conditions listed in (b)(3), the State must install automatic gates and flashing

lights; if the (b)(3) factors are absent, (b)(4) dictates that the decision as to what

devices to install is subject to FHWA approval. See id. at 670-671. In either case,

§ 646.214(b)(3) or (4) “is applicable” and determines the type of warning device that

is “adequate” under federal law. As a result, once the FHWA has funded the

crossing improvement and the warning devices are actually installed and operating,

the regulation “displace[s] state and private decision making authority by

establishing a federal-law requirement that certain protective devices be installed or

federal approval obtained.” Id. at 670.

Shanklin, 529 U.S. at 354 (discussing Easterwood, 507 U.S. 658) (some citations omitted).

In a somewhat similar set of facts to this case, the Ninth Circuit addressed preemption after

Shanklin in Lee v. Burlington Northern Santa Fe Railway Co., 245 F.3d 1102 (9th Cir. 2001). In

Lee, a pickup truck collided with the second and third car of a train at a grade crossing. The plaintiff

filed a state tort law claim against the railroad for negligent failure to install active warning lights

to make the crossing safe under Montana law. Id. at 1105. The crossing was guarded by

reflectorized crossbucks, which were installed with federal funding approved by the FHWA. The

district court denied summary judgment reasoning that since the Secretary of Transportation did not

expressly approve the crossbuck, the plaintiff’s state claim was not preempted. The Ninth Circuit

opined that Shanklin “makes clear that once the FHWA has funded a crossing improvement and

warning devices are actually installed and operating, federal regulations displace state and private

decision making authority.” Id. at 1106 (citing Shanklin, 529 U.S. at 354). 

In Strozyk v. Norfolk Southern Corp., a plaintiff claimed that a railroad was negligent, among

other things, for inadequate warning devices at grade crossings. 358 F.3d 268 (3d Cir. 2004). The

Third Circuit noted that the district court’s dismissal of plaintiff’s claim that crossbucks were

inadequate was not challenged by the plaintiff and was properly dismissed. However, the court

considered the dismissal of all claims arising out of the grade crossing accident an overly broad

application of § 646.214(b) and allowed the general maintenance of a safe grade crossing claim and

limited sight distance claims to continue. Again Shanklin was discussed as settling “a division

among the Circuit Courts of Appeals by clarifying that an individualized determination ensuring the

adequacy of the warning devices at a particular crossing is not a necessary precondition to

preemption.” Id. at 275 (citing Shanklin, 529 U.S. at 356).

Nye raises the following arguments against preemption of his adequacy of warning

negligence claim: (1) preemption does not apply because the warning devices were experimental;

(2) the Secretary of Transportation did not make an adequacy determination for particular

improvements at railroad crossings to protect the monitoring public; (3) the Program is not an

improvement project qualifying for preemption; (4) the FHWA did not approve the Program; and

(5) summary judgment is not proper because a genuine issue of preemption exists. 

 Nye’s arguments are clearly at odds with Shanklin. It is indisputable that the Program was

federally funded by the FHWA and ISTEA. Most significant is the fact that Nye concedes the use

of federal funds and, as Shanklin makes clear, federal funding plus installation of a crossbuck is all

that is necessary for preemption under the FRSA. 529 U.S. at 354. It is not a requirement of

preemption that the Secretary of Transportation through the FHWA make an adequacy determination

as to particular warning devices. Strozyk, 358 F.3d at 275. In essence, the FHWA’s approval, albeit

tacit approval, is its federal funding of the Ohio Crossbuck Program with funding through the

ISTEA. Nye’s contentions that preemption does not apply because the sign was experimental or that

it was not an improvement project have no impact on the fact that the crossbucks were placed on the

Hough Road crossing with federal funds by CSXT railroad in 1995, and that is all that is required

for preemption. Finally, Nye’s argument against summary judgment on the issue of preemption is
No. 05-3136 Nye, et al. v. CSX Transportation Page 6

unfounded since preemption by the FRSA is purely a question of law. Tyrrell v. Norfolk S. Ry. Co.,

248 F.3d 517, 520 (6th Cir. 2001); GTE Mobilenet v. Johnson, 111 F.3d 469, 475 (6th Cir. 1997).

Therefore, Nye’s negligence claim based on inadequate warnings is preempted. Shanklin, 529 U.S.

at 356. 

II. CSXT Negligence

This court reviews the district court’s grant of summary judgment de novo. Lautermilch v.

Findlay City Sch., 314 F.3d 271, 274 (6th Cir. 2003). Summary judgment is appropriate if there is

no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See

Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A mere

scintilla of evidence in support of the nonmoving party will not be sufficient. Id. In considering a

motion for summary judgment, the district court must construe the evidence and draw all reasonable

inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986). The central issue is “whether the evidence presents a sufficient disagreement

to require submission to a jury or whether it is so one-sided that one party must prevail as a matter

of law.” Anderson, 477 U.S. at 251-52. A court’s duty is not to “weigh the evidence and determine

the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249.

Diversity jurisdiction requires a federal court to apply the substantive law of the state in

which it sits. Hayes v. Equitable Energy Res. Co., 266 F.3d 560, 566 (6th Cir. 2001). However,

federal courts may apply their own procedural rules. See Miller v. Davis, 507 F.2d 308, 313 (6th

Cir. 1974). Therefore, we apply Ohio negligence law and our summary judgment standard. As

Nye’s negligence claims based on inadequate warnings are preempted, his negligence claims as to

inadequate train visibility and reflectorization will be reviewed. 

 Under Ohio law, in order to defeat a motion for summary judgment on a negligence claim,

a plaintiff must establish that a genuine issue of material fact as to whether the defendant: (1) owed

a duty of care to the plaintiff; (2) breached that duty; and (3) the breach of that duty proximately

caused (4) injury to the plaintiff. Texler v. D.O. Summers Cleaners & Shirt Laundry Co., 693

N.E.2d 271, 274 (Ohio 1988). The existence of duty is a legal question for the court to determine.

Mussivand v. David, 544 N.E.2d 265, 270 (Ohio 1989). 

Thus, we review de novo to decide whether a reasonable jury could find that (1) CSXT has

a duty to make sure that its train cars are visible, (2) it breached that duty, and (3) Bishop’s inability

to perceive the train was a proximate cause of the accident. It is well settled that CSXT owes a duty

of ordinary care to protect the safety of motorists. Matkovich v. Penn Cent. Transp. Co., 431 N.E.2d

652, 656 (Ohio 1982). If not preempted by federal law, “[a] railroad’s minimum statutory duty is

to erect crossbuck signs at each crossing pursuant to R.C. [OHIO REV. CODE] § 4955.33, and this

duty may be enlarged under common law to include additional warnings given special

circumstances.” Id. at 655-656. As to the duty of a driver of an automobile approaching a railroad

crossing in Ohio, that driver owes a duty of care to avoid a collision. Barger v. Chesapeake & Ohio

Ry. Co., 590 N.E.2d 1369 (Ohio Ct. App. 1990); see also OHIO REV.CODE § 4511.62 (general duty

to stop at stop sign before railroad crossing). 

1. Bishop’s testimony

Nye asserts that Bishop’s testimony that he did not see the train until he was less than one

car length away established a genuine issue of fact as to CSXT’s negligence. Specifically, Nye

claims that Bishop could have avoided the collision if he could have seen the train. Nye concludes

that Bishop’s lack of notice of the train presents a genuine issue of material fact as to CSXT’s

negligence because the crossing was dark, there was no illumination at the crossing or on the train,

and there were no reflectors on the train. Nye cites Ohio law for the proposition that discernability
No. 05-3136 Nye, et al. v. CSX Transportation Page 7

is an issue for the jury. Sharp v. Norfolk & W. Ry. Co., 522 N.E.2d 528, 530-31 (Ohio 1988); Case

v. Norfolk & W. Ry. Co., 570 N.E.2d 1132, 1137 (Ohio App. 1988). 

 CSXT argues that Bishop’s statement that he could not have seen the train does not

withstand summary judgment because he also admitted that he was not looking for a train.

Therefore, CSXT proposes that discernability is not a jury issue. CSXT suggests that even if the

crossing was illuminated by lights or the train had reflector strips, it would have made no difference

in the outcome of the case because he was not looking for a train. Moreover, Bishop admitted that

he was familiar with the railroad tracks, he knew trains traveled over those tracks, and he knew

there was a crossbuck at the crossing. Bishop felt the collision was caused solely by his brake

failure and not CSXT’s conduct. 

Deciding whether Bishop could have steered his car to safety with more warning required

speculation on the part of Bishop. At some point of visibility, Bishop likely would have been able

to steer the vehicle to safety. However, Bishop knew the train was crossing, and expected his car

to stop, but the car was unable to stop. It is conceivable, that upon seeing the train earlier, he could

have realized his brakes were malfunctioning and taken appropriate action. However, it is also

conceivable that Bishop would have continued up and until he reached the intersection, expecting

to stop, only to realize his brakes would not stop him safely.

The issue of proximate cause usually is a question of fact. Whiteleather v. Yosowitz, 461

N.E.2d 1331 (Ohio Ct. App. 1983). However, if the plaintiff's evidence on the issue of proximate

cause requires mere speculation and conjecture to determine the cause of the event at issue, then the

defendant is entitled to summary judgment. Renfroe v. Ashley, 150 N.E.2d 50, 50-51 (Ohio 1958).

Nye’s support is conjecture and based upon “what if” deposition questions. Although discernability

may very well be a jury issue, the portions of Bishop’s testimony cited by Nye are nothing more than

speculation. Moreover, Bishop repeatedly refers to his brakes as the cause of the accident. See, e.g., Ayoub v. Nat’l R.R. Passenger Corp., 76 F.3d 794, 796 (6th Cir. 1996) (holding where driver’s own

negligence proximately caused train-car collision, no reasonable jury could return a verdict against

railroad). As Bishop was the driver and repeatedly stated that visibility of the train would not have

mattered, no reasonable jury could conclude that CSXT proximately caused this accident. 

2. Dr. Heathington’s testimony

Nye contends the district court committed reversible error by weighing the testimony of his

expert, Dr. Kenneth Heathington. He posits that Dr. Heathington’s testimony established that CSXT

caused the collision and Nye’s damages by breaching its duty of ordinary care in the following

ways: (1) maintaining improper vertical grades; (2) failing to illuminate the Hough Road crossing;

or (3) failing to place reflective materials on the trains. Dr. Heathington concluded that if CSXT

had taken any series of fundamental safety steps, this accident could have been prevented. In

response, CSXT argues that Dr. Heathington’s opinions are conclusory and there was no evidence

to support his irrelevant theories. 

Dr. Heathington submitted an affidavit and report of his findings. The district court

considered Dr. Heathington’s opinion directly contrary to eyewitness reports and at odds with sworn

statements and depositions. This court has held that status as an expert does not relieve the

nonmoving party of the burden of rebutting summary judgment. Thomas v. City of Chattanooga, 398 F.3d 426, 432 (6th Cir. 2005) (“[i]f the witness is relying solely or primarily on experience, then

the witness must explain how that experience leads to the conclusion reached . . . and how that

experience is reliably applied to the facts.”). Consequently, this court cannot rely solely on the

expert’s word. Id. 

Dr. Heathington’s report is rife with unfounded conclusions about national railway safety

problems that are for the most part irrelevant to resolution of this case. However, it concluded that
No. 05-3136 Nye, et al. v. CSX Transportation Page 8

4

A rod is a traditional unit of distance equal to 5.5 yards or 5.0292 meters. 

CSXT created Bishop’s perception problem by breaching its duty of ordinary care by failing to

illuminate the Hough Road crossing and failing to place reflective materials on its train.

Dr. Heathington stated that nighttime collisions are a result of trains not “emitting light or else

reflecting the light coming from some other source back toward” drivers and concluded that the

accident would not have occurred had CSXT adopted countermeasures to overcome Bishop’s

inability to perceive the train. These concerns did not arise in this case, because Bishop was the

driver and repeatedly stated that visibility of the train would not have mattered. On that basis, no

reasonable jury could conclude that CSXT or the visibility of its trains proximately caused this

accident, irrespective of Dr. Heathington’s report. 

3. Brake failure

Nye argues that the district court erred by relying on Bishop’s testimony as conclusive proof

of brake failure. He claims that the physical proof is inconsistent with brake failure and creates a

genuine issue of material fact as to Bishop’s inability to perceive the train. He notes that CSXT’s

Assistant Trainmaster Joseph Tupa investigated the collision and found “no evidence or information

whatsoever that there was any problems with [Bishop’s] brakes.” The deposition shows Tupa had

no knowledge of brake problems. During his deposition, CSXT’s Claims Manager Aughenbaugh

stated that he pressed the brake pedal and felt that it was firm. When asked by counsel whether he

had any evidence that the brakes were not working that night, Aughenbaugh responded, “The only

evidence that I’m aware of, that I’ve seen anyway, is Mr. Bishop’s statement that the brakes weren’t

working.” He also stated that he was not aware of any evidence to the contrary. 

Nye asserts that two affidavits from experts show undisputed evidence that the brakes were

functioning. One affidavit appears to be a report of a brake inspection of the Mustang. The report

concludes that the brake system of Bishop’s Mustang “is in operational condition and no failures

were found during this inspection.” The second affidavit is a letter from Joseph M. Praha, Ph.D.,

an engineering consultant, reporting the test results of the previous brake test. He wrote to Nye’s

counsel:

Tests were made that established that with reasonable engineering and scientific

certainty that braking system is in working order. There is no evidence of leakage

of brake fluid from any of the wheel cylinders, the master cylinder or any of the

connecting piping. Every wheel exhibited braking action with shoes moving in

response to peddle depression.

Throughout his deposition, Bishop consistently highlights that the cause of the accident was

the failure of his brakes. The inspection by the CSXT claims manager was cursory and only stated

that the pedal was firm, and the other evidence was a report of a brake examination occurring a few

days later. In any event, based on the evidence, we agree with the district court’s ruling that CSXT’s

alleged negligence was not a proximate cause of the accident. Driver error and/or brake failure was

the sole cause in fact for the collision. No reasonable juror could rule otherwise. 

4. Legal duty to provide audible warning

Nye argues that the train engineers did not comply with the legal duty to provide audible

warnings. Ohio law requires that train personnel sound a whistle at a distance of at least 80 rods and

not further than 100 rods from a crossing, and ring a bell continuously until the engine passes the

crossing.4

 OHIO REV. CODE § 4955.32. Bishop stated that he never heard a whistle at the Hough

Road crossing, but he stated that his car engine was very loud. In addition, CSXT Claims Manager

Aughenbaugh stated in his deposition that the event recorder that would log the number of whistle
No. 05-3136 Nye, et al. v. CSX Transportation Page 9

5

OHIO REV. CODE § 4999.04

A) No person in charge of a locomotive shall do the following:

(1) Fail to bring the locomotive to a full stop at least two hundred feet before arriving at a crossing

with another track, or proceed through the crossing before signaled to do so or before the way is clear;

(2) When approaching a grade crossing, fail to sound the locomotive whistle at frequent intervals,

beginning not less than thirteen hundred twenty feet from such crossing and continuing until the

locomotive has passed the crossing.

(B) Whoever violates this section is guilty of a misdemeanor of the fourth degree. If violation of this

section causes physical harm to any person, whoever violates this section is guilty of a misdemeanor

of the third degree.

blows “did not record anything from beginning to end.” Nye posits that whether Bishop’s engine

was too loud and drowned out the whistle is a question of fact for the jury. In addition, he contends

that a whistle post, a sign to inform the train crew to sound the whistle, was not in place near the

Hough Road crossing. 

The evidence is clear that the impact was not with the lead engine and that Bishop collided

with the seventh and eighth cars. As the engine had passed by the Hough Road crossing and was

500 feet in front of the location of impact, the engineer was no longer under a duty to sound the

whistle. The train crew testified that the audible warning devices were activated. Once the engine

has passed the crossing, the duty to sound audible warning devices ceases.5

 OHIO REV. CODE

§§ 4955.32; 4999.04. The only evidence is that the whistle was activated prior to passing through

the crossing. The presence of the whistle post does little to create a genuine issue regarding CSXT’s

negligence. 

Failure to hear a train whistle is not sufficient to create a material issue of fact as to CSXT’s

negligence. Lintner v. Norfolk & W. Ry. Co., 694 N.E.2d 140, 142 (Ohio Ct. App. 1997)

(“Testimony of a witness that he or she either heard a train sound its whistle ("positive testimony")

or did not hear a train sound its whistle ("negative testimony") prior to a collision is not probative

unless the witness was in a position to know whether the whistle was sounded or actually hear the

whistle being sounded.”). In the end, there is positive testimony in the record by the train crew that

the whistle sounded, while Nye presents only speculation that there was no whistle. Id.

Accordingly, there is insufficient evidence to create a genuine issue of material fact. 

5. Duty to maintain a proper lookout

Nye claims that there was no evidence that either an eastbound or westbound train crew saw

Bishop’s car approaching. He requests that we infer that the lack of eyewitness testimony that a car

was approaching demonstrates a breach of the duty to maintain a proper lookout. The district court

found that “no facts and no law support the Nye[’s] claim that the train crew failed to maintain a

proper lookout.” The Supreme Court of Ohio discussed the duty to maintain a lookout as follows:

It is the duty of a locomotive engineer to keep a lookout on the track ahead of the

train. If, while doing so, his eye takes in a person approaching the track, he may

assume that such person will keep away from the track until the train passes, but

when it becomes evident that such person will not keep off the track it becomes the

duty of such engineer to use ordinary care to prevent injury to such person. 

Cates v. Consol. Rail Corp., 653 N.E.2d 1229, 1237 (Ohio Ct. App. 1995) (noting that the law

places upon the engineer the duty only to look out for persons or things "upon the track" ) (quoting

New York, Chicago & St. Louis R.R. Co. v. Kistler, 64 N.E. 130 (Ohio 1902)). 

There is no evidence to refute the engineer’s testimony that he was watching for pedestrians

and that he would have seen automobile headlights. Moreover, he also stated that he did not see or
No. 05-3136 Nye, et al. v. CSX Transportation Page 10

feel anything hit the train. Similar to the previous issue, Nye has presented no evidence to refute

this testimony other than speculation. Cates, 653 N.E.2d at 1237.

6. Identity of the train involved in the accident

Nye claims that there is a genuine issue with respect to the identity of the train involved in

the accident. During his testimony, Dr. Heathington reconstructed a collision scenario involving a

westbound train traveling on northbound tracks making the first impact with Bishop’s car rather than

an eastbound train on southbound tracks. Dr. Heathington’s safety analysis report supports the

position that Bishop’s car struck a westbound train, but that the eastbound train Q38201 was also

involved. 

The district court noted that Nye recently disputed that Bishop’s car struck an eastbound train

and insisted that Bishop’s car hit a westbound train. The district court requested that parties submit

either a factual stipulation identifying the train involved in the accident or separate statements

identifying the train allegedly involved. CSXT filed statements identifying as indisputable the

involved train as the eastbound train Q38201. Nye did not respond. Nye now claims that his

stipulation was impossible due to spoliation of evidence. 

Despite Nye’s assertions, all eyewitness testimony refutes this claim. Bishop testified that

he struck the side of the eastbound train and that the train was moving from left to right. Cole

Buchanan, who had attended the same field party as Bishop and Nye, testified that he ran to the

scene immediately after the collision and that he saw the eastbound train still crossing Hough Road

at the No. 2 main. The Wood County Sheriff’s traffic crash report from the scene indicated that the

train was traveling east on the No. 2 main. After being notified of the accident, the eastbound train

crew inspected the train and discovered damage to the south side of the rail cars. Conductor

Babbitt’s train inspection and photographs showed white paint scrapes from Bishop’s Mustang to

the seventh, eighth, and ninth rail cars of eastbound Q38201. Physical evidence showed that blood

and tissue were found east of the crossing between the rails of, and south of, the No. 2 main, starting

three railroad ties east of the crossing and ending twenty ties east of the crossing. 

Dr. Heathington’s report asserts that if the train was traveling east then the damage should

not have occurred to the right side of a northbound car, and therefore the damage must have been

caused by a westbound train. However, Bishop stated that he swerved to the left, and Nye fails to

present direct contradiction to any of these statements. 

III. Spoliation of Evidence

Nye alleges that CSXT willfully destroyed evidence critical to its case. The only potentially

viable claim of spoliation relates to radio communications between CSXT dispatchers and the train

crew. Additional unsubstantiated claims of spoliation related to the measurements of blood stains

and human tissue near the tracks, measurements and analysis of paint scrapes, conductor reports

from trains traveling in both directions around the time of the collision, defect detector data, and the

damaged or dragged ballasts. Dr. Heathington’s report and affidavit stated “[a] lot of information

which is needed to fully determine the way in which the accident in question occurred with

reasonable engineering certainty was simply not recorded or at least not reported,” and “CSXT

intentionally destroyed or failed to preserve evidence with the intent to disrupt.” 

CSXT claims that it complied with Nye’s requests. However, it claims that audio

communications, recorded and stored in the Jacksonville, Florida office are maintained for 30 days

and then the tapes are recycled in accordance with CSXT’s internal retention policy and “normal

railroad practice.” CSXT maintains that the evidence of the train crew actions shows that there was

no notice of the collision and therefore there were no dispatch communications. Because of this,

CSXT did not request that the audiotape be retained longer than its normal retention policy.
No. 05-3136 Nye, et al. v. CSX Transportation Page 11

Moreover, CSXT maintains that Nye never formally or specifically requested production of the

audio tapes. Nye did submit a letter to CSXT’s Claims Manager Aughenbaugh on February 15,

2001, which CSXT characterizes as an overly broad request. CSXT claims it complied by turning

over train movement information that it considered to be dispatcher records under its jargon. In

addition, CSXT asserts this request arrived seven months after the accident of July 2, 2000, and one

and a half years prior to the filing of this lawsuit. 

In order to sustain a prima facie claim for spoliation of evidence, the following elements

must be established: “(1) pending or probable litigation involving the plaintiff, (2) knowledge on

the part of defendant that litigation exists or is probable, (3) willful destruction of evidence by

defendant designed to disrupt the plaintiff's case, (4) disruption of the plaintiff's case, and (5)

damages proximately caused by the defendant's acts.” Smith v. Howard Johnson Co., 615 N.E.2d

1037, 1038 (Ohio 1993).

With sufficient evidence documenting how the accident occurred, it is highly unlikely that

audiotapes–if in existence–would show anything different. There is no genuine issue of material

fact of spoliation based on the speculative testimony of an expert witness. Although the threat of

pending litigation seems possible as a result of any accident, CSXT has put forth unrebutted

evidence that audiotapes were destroyed in accordance with its tape retention policy. It is also

dispositive that the tapes were destroyed before Nye made his discovery request and before the case

was filed. Nye has not demonstrated willful destruction. Therefore, summary judgment was proper.

AFFIRMED.