     Case: 13-30188      Document: 00512521619         Page: 1    Date Filed: 02/04/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                                                    Fifth Circuit

                                                                                   FILED
                                    No. 13-30188                              February 4, 2014
                                  Summary Calendar                             Lyle W. Cayce
                                                                                    Clerk

CECILIA ELIZABETH ALFARO, Individually and on behalf of her minor
child, Abigail Paz Alfaro, and on behalf of her deceased children, Emelia
Isabel Alfaro, Eduardo Alejandro Paz Alfaro, Joel Angel Paz Alfaro, and
Israel Paz Alfaro,

                                                 Plaintiff-Appellant,
v.

NATIONAL RAILROAD PASSENGER CORPORATION (AMTRAK);
ILLINOIS CENTRAL RAILROAD COMPANY, doing business as Canadian
National/Illinois Central; TANGIPAHOA PARISH COUNCIL; LOUISIANA
STATE DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT,

                                                 Defendants-Appellees.




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                            U.S.D.C. No. 2:10-cv-1912


Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant, Cecilia Alfaro, filed this negligence suit against
Defendants-Appellees, National Railroad Passenger Corporation (Amtrak),


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                   No. 13-30188
Illinois Central Railroad Company (IC), Tangipahoa Parish Council, and
Louisiana State Department of Transportation and Development (DOTD),
(collectively, “Appellees”), claiming liability for the death of her daughter and
three sons resulting from a collision between a vehicle and a passenger train.
Appellees filed individual motions for summary judgment in district court on
the grounds that they were not liable for the deaths of Alfaro’s children. The
district court granted summary judgment in favor of Appellees and dismissed
Alfaro’s suit. Alfaro appeals herein. We AFFIRM.
                                         I.
         On June 18, 2010, an Amtrak passenger train collided with a 2002 Ford
Windstar minivan at the Capace Road Crossing (“the Crossing”) in Tangipahoa
Parish, Louisiana, killing all of the vehicle’s occupants. The vehicle was being
driven by Cecelia Alfaro’s 18-year-old unlicensed daughter, Emelin Alfaro, who
was seven months pregnant at the time of the collision. Cecilia Alfaro’s three
sons, Eduardo Alejandro Paz Alfaro, Joel Angel Paz Alfaro, and Israel Paz
Alfaro, were riding in the backseat of the vehicle.
         The train was traveling on railroad tracks owned by IC. A crossbucks
sign and a STOP sign were posted in advance of the approach to the Crossing.
No signage, shrubbery, vegetation, or other objects were obstructing any part
of the railroad from the viewpoint of a driver parked at the STOP sign at the
intersection of the tracks and the Crossing. The roadway at the Crossing was
in good condition and free of potholes. The collision happened on a clear, sunny
afternoon.     A video camera on the train recorded the entire incident and
showed that Emelin Alfaro failed to stop, or slow, at the STOP sign before
approaching the railroad tracks, driving straight into the path of the oncoming
train.
         The video also contained audio recording of the event evidencing that the
train was sounding its horn continuously a quarter mile from the Crossing
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prior to the accident. The horn had a decibel level of 109dB(A), in accordance
with federal regulations which require a minimum decibel level of 96dB(A) and
a maximum decibel level of 110dB(A).              49 C.F.R. § 229.129(a).         Also in
accordance with federal regulations, the train was traveling on a Class 4 track
at a speed of 79 miles per hour prior to activating its emergency brakes. 49
C.F.R. § 213.9(a).
                                            II.
      After the accident, Cecilia Alfaro brought suit individually and on behalf
of her deceased children and her surviving daughter, Abigail Alfaro, against
Appellees in Louisiana state court alleging various acts of negligence and
liability for the deaths of her children. Amtrak removed the suit to federal
district court on grounds of federal question jurisdiction. Shortly thereafter,
all Appellees filed individual motions for summary judgment arguing that
Emelin Alfaro’s negligent failure to stop at the STOP sign was the sole cause
of the accident and that the plaintiff’s state law claims were preempted by
federal law.
      At the summary judgment proceedings, the district court granted
summary judgment in favor of all Appellees. 1 With respect to each Appellee
specifically, the district court held the following: (1) Amtrak did not breach a
duty regarding slowing down or stopping the train in time to avoid the
accident; (2) Amtrak operated the train within the federally mandated speed
limit, thus, the plaintiff’s claims regarding such were preempted by federal
law; (3) Amtrak sounded its horn in accordance federal regulations and the
plaintiff’s claims regarding such were preempted by federal law; (4) IC did not



      1 The district court properly dismissed the claims of Abigail Alfaro under LA Civil
Code Article 2315.2(A) since a surviving sibling has no right of action on a wrongful death
claim when the decedent leaves a surviving parent. LA C.C. art. 2315.2(A)(3).

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breach any duty regarding the maintenance of the roadway or right-of-way; (5)
since the advance warning and crossbucks signs were installed at the Crossing
using federal funds, it is presumed that the Secretary of Transportation
determined they were adequate, therefore, the plaintiff’s claims regarding such
were preempted by federal law; (6) site photographs and Cecilia Alfaro’s
testimony regarding the visibility at the Crossing and Emelin Alfaro’s
familiarity with the Crossing demonstrated that the dangerous trap doctrine
was inapplicable and that the plaintiff’s claims regarding inadequate sight-
distance limitations were without merit; (7) the plaintiff’s claims against
Tangipahoa Parish Council and the DOTD regarding the adequacy of the
warning devices at the Crossing were preempted by federal law; and, (8) the
DOTD did not have a legal duty regarding the safety of the Crossing because
it was an off-system crossing and there was no evidence presented that it
assumed such a duty by taking an active role in its maintenance or control.
       On appeal, Cecelia Alfaro argues that the district court erroneously held
that her claims regarding the defective, unsafe, and inadequate design of the
Crossing were preempted by federal law. She further argues that the adequacy
of the sight distance at the Crossing was a material issue of fact. 2 She contends
that the district court erred in dismissing on grounds of federal preemption her
sight distance claims and her claims regarding Appellees’ failure to maintain




       2 With respect to this contention, Appellant claims that under 49 U.S.C. § 20106, as
amended in 2007, and the holdings of Zimmerman v. Norfolk S. Corp., 706 F.3d 170 (3d Cir.
2013), cert. denied, No. 12-1448, 2013 WL 2903502, and Ill. Cent. R.R. Co. v. Cryogenic
Transp., Inc., 901 F. Supp. 2d 790 (S.D. Miss. 2012), her claims regarding sight distance and
failure to maintain a safe crossing are not preempted by federal law and the district court
erred in granting summary judgment on the grounds of preemption with respect to these
claims. We are not persuaded by this argument. A plain reading of the district court opinion
indicates that it did not dismiss Appellant’s sight distance, visibility, and dangerous trap
claims on the grounds of federal preemption, but rather on the photographic, testimonial,
and other evidence presented at the summary judgment proceedings.
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a safe crossing. Finally, she argues that the district court erred in disposing of
her dangerous trap/comparative fault claims by summary judgment.
                                       III.
      After considering the parties’ arguments as briefed on appeal, and after
reviewing the record, the applicable statutory, state and federal case law, and
the district court’s judgment and reasoning, we AFFIRM the district court’s
summary judgment in favor of Appellees and adopt its analysis in full.




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