Union Pacific loses appeal, can't block traffic more than 10 minutes

Steve Gonzalez Mar. 12, 2006, 8:54am

The Illinois Appellate Court affirmed St. Clair County Associate Judge Richard A. Aguirre's decision to grant a permanent injunction prohibiting Union Pacific from obstructing a grade crossing on Monsanto Avenue in Sauget for more than 10 minutes in accordance with the Illinois Vehicle Code.

On November 14, 2003, Eagle Marine Industries, Inc., River City Landscape Supply, Inc., and ConAgra Foods, Inc. filed suit in St. Clair County seeking to enjoin Union Pacific from stopping its trains in the crossing at Monsanto Avenue and thereby obstructing a public road for more than 10 minutes in violation of section 18c-7402(1)(b) of the Vehicle Code.

They alleged that Monsanto Avenue provides the only means to get to and from their business facilities, that Union Pacific's trains often block Monsanto Avenue to motor vehicles for 15 to 45 minutes.

The plaintiffs claimed that the repeated obstruction of Monsanto Avenue deprives them of the right to use their properties and compromises public health and safety, and that they have sustained irreparable harm and have no adequate remedy at law.

Union Pacific filed a motion to dismiss the suit claiming the plaintiffs do not have a private right of action under section 18c-7402(1)(b) of the Vehicle Code and that plaintiffs' action is preempted by the Federal Railroad Safety Authorization Act of 1994.

On December 29, 2003, Aguirre denied Union Pacific's motion to dismiss and granted a preliminary injunction.

Aguirre ordered Union Pacific to refrain from obstructing the Monsanto Avenue crossing for a time period greater than 10 minutes, in accordance with the Vehicle Code.

Aguirre then held a hearing regarding the permanent injunction on October 18, 2004, where he heard testimony from the plaintiffs about their respective business operations.

They claimed that Monsanto Avenue provides the only practical means of getting to and from plaintiffs' facilities. Union Pacific argued that there is another road called Hog Haven Road that provides an alternate source of access to plaintiffs' facilities.

Judge James Donovan wrote the opinion for the court.

"According to the record, Hog Haven Road connects with Route 3 and runs beyond the southern end of plaintiffs' property," he wrote. "By all accounts, Hog Haven Road is a dirt-and-cinder road that has not been maintained and is in poor condition. Parts of the road are impassable after it rains.

"The evidence in the record clearly establishes that the current condition of the road makes it unsafe for emergency responders and daily traffic and that the road would require numerous structural improvements to enable it to support daily industrial traffic."

During the Oct. 18 hearing, Union Pacific called John Baricevic as a witness. Baricevic testified that he was serving his 14th year as St. Clair County board chairman and that during his time as chairman he has dealt with several complaints of blocked crossings.

"When he receives those complaints, his primary concern is public safety," Donovan wrote of Baricevic, who is now a circuit judge in St. Clair County.

"He first determines whether there is an alternate route for emergency responders. When there is no alternate route, the county asks the rail carrier to cooperate with emergency personnel and to clear the crossing when requested. Should that approach fail, the state police would be dispatched to determine whether a ticket summons should be issued. Baricevic stated that he could only recall one rail carrier who declined to cooperate, but the carrier reconsidered after it had been fined a few times.

"Baricevic also opined that Hog Haven Road provided an alternate route to access plaintiffs' facilities. During cross-examination, Baricevic testified that his opinion was based on his review of county maps indicating that the road was still there and open. He admitted that he had not been on the road in more than a year and that during his last trip, he was a passenger in a four-wheel-drive vehicle, they drove at a low speed, and the road was "passable" at that time," Donovan writes.

"In order to determine whether there is an implicit private right of action in a statute that does not expressly provide one, our courts have considered a number of factors, including whether plaintiff is a member of a class for whose benefit the statute was enacted, whether plaintiff's injury is one the statute was designed to prevent, whether a private right of action is consistent with the underlying purpose of the statute, and whether a private right of action is necessary to provide an adequate remedy for violations of the statute."

"It is clear that plaintiffs are members of a class for whose benefit section 18c-7402(1)(b) was enacted and that the economic injury alleged is a harm that the statute was designed to prevent. In this case, there is evidence to show that the business operations of plaintiffs depend on the accessibility of their facilities to employees and to the truckers who pick up and deliver commodities and supplies, that Monsanto Avenue provides the only reasonable means of access to and from plaintiffs' facilities, and that repeated, lengthy obstructions of the Monsanto Avenue crossing have economic ramifications and consequences for the health and safety of those who work in the industrial complex.

"The pursuit of a private right of action to redress the harm caused by the unreasonable obstruction of a railroad crossing is consistent with one of the underlying purposes of the statute, and there is no indication that the legislature intended to limit the available remedies for violations of the statute

"After considering the pertinent factors, we conclude that plaintiffs have an implied private right of action under section 18c-7402(1)(b) of the Vehicle Code.

"In this case, the evidence in the record clearly shows that Monsanto Avenue is the only feasible means of accessing plaintiffs' properties and that there is no safe alternate route. The evidence also shows that plaintiffs contacted Union Pacific numerous times to complain about its trains blocking Monsanto Avenue for extended periods, that Union Pacific failed to respond to those complaints, and that plaintiffs pleaded with the mayor of Sauget to summon the railroad for a conference, which was ultimately unsuccessful.

"In this case, we have concluded that plaintiffs have an implied private right of action under section 18c-7402(1)(b) of the Vehicle Code, that plaintiffs' action is not preempted by federal law, and that there is sufficient evidence to satisfy the requirements for a permanent injunction."

Judges Stephen Spomer and Stephen McGlynn concurred.

The plaintiffs' were represented by Christopher Cueto and Steve Wigginton of Belleville.

Union Pacific was represented by Tom Jones and Heath Hooks of Thompson Coburn in Belleville.

03 CH 1040 (20th Circuit)

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Union Pacific
1400 Douglas St
Omaha, NE 68179

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