United States District Court, E.D. Michigan, Southern Division
JESSICA FRYE, as Personal Representative of the Estate of SHYAN FRYE, Plaintiff,
CSX TRANSPORTATION, INC., et al., Defendants.
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
STEPHEN J. MURPHY, III UNITED STATES DISTRICT COURT JUDGE.
Frye, a minor, was struck and killed by a train when
traversing a grade crossing in Wayne County, Michigan. Her
mother, Jessica Frye ("Frye"), brought suit based
on negligence in her capacity as the personal representative
of the Estate of Shyan Frye. Defendants are the owners,
maintainers, and operators of the railroad crossing and the
train that struck Shyan. Defendants removed the case and
filed a motion for summary judgment. Because the briefing
failed to clearly state the claims in genuine dispute, the
Court denied the motion without prejudice and ordered the
parties to confer and rebrief. They did so, and their efforts
resulted in the present motion for summary judgment. The
Court held a hearing and will, for the reasons below, grant
the motion in part and deny it in part. The Court will also
order the parties to mediate prior to trial.
Road runs east-west in Huron Charter Township, Michigan. ECF
34, ¶ 1. It is bisected by Lincoln Secondary, a railroad
track running north-south. Id. ¶ 2. The grade
crossing where the road and track meet is equipped with signs
and signals which, along with the crossing itself, are
maintained by Defendant Consolidated Rail Corporation
("Conrail"). Id. ¶¶ 5, 37.
April 15, 2011, 13-year-old Shyan Frye was walking her
bicycle eastbound on West Road toward the grade crossing. ECF
1-2, ¶ 17. She proceeded into the crossing itself and
onto the tracks. There, she was struck and killed by
Defendant CSX's Locomotive 8454, which was headed
northbound. The train was operated by CSX employees,
including Defendant Gallacher, the conductor, and Defendant
Fischer, the engineer. ECF 34, ¶¶ 18-19. The entire
sequence of events took place in the course of about 40
events leading up to the tragedy are undisputed. Fischer
began sounding the lead locomotive's horn 19 seconds
before impact and he did not apply the breaks until just
before impact with the girl. Both Fischer and Gallacher saw
Shyan before she was struck. And at the time of the accident,
the train was traveling at about 43 miles per hour-seven
miles an hour below the speed limit.
the parties dispute is the timing and order of the events.
Defendants claim that when Shyan was first spotted, she was
standing beside the tracks, but had not yet crossed onto
them. They claim that she only proceeded onto the tracks just
before the train arrived at the crossing. Frye contends that
she was on the tracks with her bicycle wheel stuck from the
moment the defendants first spotted her-while the train was
still a quarter of a mile off. The parties also disagree on
the particular sequence of long and short horn blasts.
judgment is proper if there is "no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law." Fed.R.Civ.P. 56(a). A fact is material
for purposes of summary judgment if its resolution would
establish or refute an "essential element of a cause
of action or defense asserted by the parties[.]"
Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.
considering a motion for summary judgment, the Court must
view the facts and draw all inferences in the light most
favorable to the non-moving party. Stiles ex rel. D.S. v.
Grainger Cty., Tenn., 819 F.3d 834, 848 (6th Cir. 2016).
The Court must then determine "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 v. Liberty
Lobby, Inc., 477 U.S. 242, 251-52 (1986). And although
the Court may not make credibility judgments or weigh the
evidence, Moran v. Al Basit LLC, 788 F.3d 201, 204
(6th Cir. 2015), a mere "scintilla" of evidence is
insufficient to survive summary judgment; "there must be
evidence on which the jury could reasonably find for the
plaintiff, " Anderson, 477 U.S. at 252.
first round of briefing, the parties disputed whether
Defendants' motion for summary judgment was
all-encompassing or merely a motion for partial summary
judgment that left some claims unaddressed. Frye argued that
Defendants failed to address some of the theories of
liability asserted in her complaint, while Defendants, in
their reply, argued that Frye had abandoned certain claims.
Pursuant to the Court's subsequent order, the parties
conferred and Defendants' new brief listed five discrete
issues of liability. See ECF 34, PgID 875. Frye did
not dispute the list, and responded to the arguments raised
by Defendants' in their brief.
plaintiff is deemed to have abandoned a claim when a
plaintiff fails to address it in response to a motion for
summary judgment." Brown v. VHS of Mich., Inc.,
545 F.App'x 368, 372 (6th Cir. 2013). The abandonment
need not be explicit and "such an inference may be
fairly drawn from the papers and circumstances viewed as a
whole[.]" Jackson v. Fed. Exp., 766 F.3d 189,
196 (2d Cir. 2014). If summary judgment is granted, the Court
"must provide an explanation sufficient to allow
appellate review. This explanation should, where appropriate,
include a finding of abandonment of undefended claims or
defenses." Id. at 198.
light of the Court's direction to rebrief the motion,
Defendants' clear statement concerning the outstanding
issues, and Frye's declination to respond, the Court
finds that all claims but the following have been abandoned:
a) Negligence (Failure to Slow the Train);
b) Negligence (Failure to Maintain the Grade Crossing);
c) Negligence (Failure to Train Employees Regarding
Inspection or Repair of Crossings); and
d) Negligence (Failure to Properly Sound the Horn).
Failure to Slow the Train
alleges that Defendants were negligent in failing to slow the
train upon seeing Shyan in the crossing. Defendants argue
that the crew had no duty to slow the train or apply the
brakes earlier than they did and were therefore not
Michigan law, train operators may assume that a seemingly
able-bodied person will exercise "reasonable
precautions" to observe any oncoming trains and will
"seasonably step aside." Bonner v. Grand Trunk
W. Ry. Co., 191 Mich. 313, 319 (1916). As such, train
operators have no duty to stop "simply because they see
ahead of them upon or approaching the track persons who are
apparently without disability and of sufficient age to
understand the hazards of a railroad track[.]" Wexel
v. Grand Rapids & I. Ry. Co., 190 Mich. 469, 477
(1916). Even minors of a sufficient age are presumed to
recognize and avoid risk. See Trudell v. Grand Trunk R.
Co., 126 Mich. 73, 80-81 (1901) (noting that the
train's engineer would be justified in believing a
seven-year-old boy would step off the tracks in time to avoid
injury); accord Berlin v. Chicago & N.W. Ry.
Co., 261 Mich. 479, 482-83 (1933) (concerning a
nine-year-old child). Thus, the operator of a train is under
no obligation to slow ...