Bonacorsi v. Wheeling & Lake Erie Ry. Co.

[This decision has been published in Ohio Official Reports at 

95 Ohio St.3d 314

.]




  BONACORSI, APPELLANT, v. WHEELING & LAKE ERIE RAILWAY COMPANY,
                                         APPELLEE.
     [Cite as Bonacorsi v. Wheeling & Lake Erie Ry. Co., 

2002-Ohio-2220

.]
Civil procedure—Civ.R. 56—Supreme Court review of summary judgment
        ruling—Court of appeals’ reversal of trial court’s denial of railroad
        company’s motion for summary judgment on plaintiff’s inadequate-
        warning-device claim reversed, and trial court’s judgment and jury
        verdict reinstated, when.
     (No. 2000-2278—Submitted January 29, 2002—Decided May 22, 2002.)
     APPEAL from the Court of Appeals for Stark County, No. 1999CA00407.
                                   __________________
        DOUGLAS, J.
        {¶1} In July 1996, plaintiff-appellant, Cris A. Bonacorsi, was seriously
injured1 when the motorcycle he was driving collided with the engine of a freight
train at a railroad crossing on Howe Road in Brimfield Township, Ohio. The train
was owned and operated by defendant-appellee, Wheeling & Lake Erie Railway
Company (“W&LE”).
        {¶2} At the time of the accident, signs were posted along Howe Road
warning westbound motorists, such as Bonacorsi, of the upcoming crossing. Posted
approximately eight hundred fifty feet before the crossing was a round, yellow sign
with a large black X flanked by two Rs. Next, about seven hundred feet from the
crossing, the pavement was painted with a large white X flanked by two Rs. Three
hundred feet before the crossing, the pavement marking was repeated. Immediately



1. Among other injuries, Bonacorsi’s left leg was amputated at the hip, his pelvis was fractured,
and one of his lungs collapsed.
                                    SUPREME COURT OF OHIO




before the crossing were a red triangular “yield” sign and a white, X-shaped sign
with the words “RAILROAD CROSSING” written in black (“crossbuck sign”).
The signs and pavement markings described above are classified as “passive
warning devices” because they indicate the presence of a crossing but they do not
change in any respect when a train is approaching. Section 646.204, Title 23,
C.F.R. In contrast, “active warning devices” are traffic control devices activated
by the approach of a train, such as flashing light signals and automatic gates that
warn motorists that a train is approaching the crossing. 

Id.

         {¶3} On the day of the accident Bonacorsi was aware that he was
approaching a crossing, but because there were no active warning devices at the
crossing and because foliage growing near the railroad right-of-way blocked his
view, he was unaware that a train was also approaching the crossing.2 As Bonacorsi
neared the tracks his line of sight became less obstructed by the foliage and he was
able to see the approaching train but he was travelling too fast to avoid a collision.
         {¶4} Bonacorsi subsequently filed a claim against W&LE alleging that the
accident was caused by W&LE’s negligence “in failing to install active warning
devices, failing to eliminate view obstructions caused by the foliage surrounding
its crossing, failing to operate the train in a safe and lawful manner, including
maintaining a proper lookout and maintaining control over the train so that it could
avoid a collision, and by failing to properly sound the train’s horn and bell.”3



2. Archie Burnham, a professional engineer specializing in traffic safety, testified that at the time
of the accident when a westbound motorist was three hundred forty feet from the crossing, foliage
obstructed the motorist’s view of all but twenty-eight feet of the railroad tracks north of the crossing.
He further testified that, taking into account the posted speed limit of Howe Road (forty miles per
hour) and the train speed limit (twenty-five miles per hour), published safety guidelines provide that
at three hundred forty feet from the crossing, westbound motorists should be able to see at least two
hundred sixty feet of the track north of the crossing in order to stop their vehicles in reaction to
seeing a train.
3. Bonacorsi further alleged that because W&LE was aware of prior accidents at this crossing, its
conduct in failing to install active devices and/or failing to eliminate the sight obstruction at this
crossing constituted willful and wanton misconduct and illustrated a conscious disregard for the




                                                   2
                                       January Term, 2002




         {¶5} W&LE moved for partial summary judgment asserting that
Bonacorsi’s claim that the warning devices were inadequate was preempted by
federal law.       In this regard, W&LE asserted that federal funds paid for the
installation of the crossbuck sign posted on Howe Road and that warning devices
installed using federal funds are adequate as a matter of federal law.4 Thus, W&LE
argued, the subject of warning-device adequacy with regard to the Howe Road signs
has been covered, thereby triggering the preemption provision of Section 20106,
Title 49, U.S.Code.5
         {¶6} As proof that federal funds were used to install the Howe Road
crossbuck sign, W&LE submitted an affidavit executed by Bruce Brown, an


rights and safety of others. Thus, Bonacorsi argued that he was entitled to punitive as well as
compensatory damages. The trial court refused to submit the punitive damages claim to the jury.
4.        {¶a}      Section 646.214(b), Title 23, C.F.R. provides:
          {¶b}      “(3)(i) ‘Adequate warning devices’ * * * 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:
          {¶c}      “(A) Multiple main line railroad tracks.
          {¶d}      “(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.
          {¶e}      “(C) High Speed train operation combined with limited sight distance at either
single or multiple track crossings.
          {¶f}      “(D) A combination of high speeds and moderately high volumes of highway and
railroad traffic.
          {¶g}      “(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.
          {¶h}      “(F) A diagnostic team recommends them.
          {¶i}      “(ii) In individual cases where a diagnostic team justifies that gates are not
appropriate, FHWA [Federal Highway Administration] may find that the above requirements are
not applicable.
          {¶j}      “(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.”
5.        {¶a}      Section 20106, Title 49, U.S.Code provides:
          {¶b}      “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.”
          {¶c}      Although the preemption provision contains an exception, it is inapplicable in this
case.




                                                   3
                                  SUPREME COURT OF OHIO




employee of W&LE, stating that prior to the accident the crossbuck sign at the
Howe Road crossing was installed with federal funds as part of Ohio’s Buckeye
Crossbuck Program. Attached as an exhibit to Brown’s affidavit was a pamphlet
created by the Ohio Department of Transportation (“ODOT”), titled “Ohio’s
Buckeye Crossbuck Program.” The pamphlet described an experimental program
designed to determine the effectiveness of a newly designed crossbuck sign.
According to the pamphlet, the program required that crossbuck signs at all passive
crossings in Ohio be replaced with new crossbuck signs.6
        {¶7} Also attached to Brown’s affidavit was an agreement between ODOT
and W&LE, wherein W&LE agreed to replace existing crossbuck signs at all of its
passive crossings in Ohio by the end of 1993 as part of the Buckeye Crossbuck
Program. ODOT agreed to supply the new crossbuck signs and to reimburse
W&LE for its installation costs. The agreement indicated that the reimbursement
money would come from federal funds.
        {¶8} In his brief opposing W&LE’s motion, Bonacorsi attacked the
sufficiency of Brown’s supporting affidavit, arguing that the affidavit was not based
on Brown’s personal knowledge that federal funds were spent on the installation of
the crossbuck sign at the Howe Road crossing. See Civ.R. 56(E), which requires
that affidavits in support of motions for summary judgment be made on “personal
knowledge.” In addition, Bonacorsi argued that even if W&LE could prove that
federal funds had been used to install the crossbuck sign, that fact alone would not



6. According to ODOT’s pamphlet, there were more than three thousand seven hundred passive
crossings in Ohio when the Buckeye Crossbuck Program began. The program required that
crossbuck signs at one-half of the passive crossings, selected at random, were to be replaced with
the newly designed Buckeye crossbuck signs (described as a “highly reflectorized red and white”
crossbuck sign) and the other half with standard black-and-white crossbuck signs that had been
“upgraded” with reflective tape on all four sides of the post. The Howe Road crossing fell into the
latter category, i.e., the crossbuck sign installed at the Howe Road crossing was the upgraded
standard crossbuck sign. Once the new signs were in place, ODOT planned to study accident
statistics and human behavior at the crossings to compare the effectiveness of both types of signs.




                                                4
                                 January Term, 2002




be sufficient to trigger preemption. Bonacorsi argued that W&LE was also required
to show that the Federal Highway Administration (“FHWA”) had approved the
installation.
        {¶9} W&LE replied that proof of federal funding was sufficient, in and of
itself, to trigger preemption because when federal funds are used to install warning
devices at a railroad crossing it is presumed that the devices meet FHWA approval
and thus meet the federal standards of adequacy.
        {¶10} The trial court agreed with Bonacorsi and found that W&LE had
failed to prove that federal funds were used to install the crossbuck sign. In
addition, the trial court rejected W&LE’s assertion that federal funding of sign
installation was, in and of itself, sufficient to trigger preemption of an inadequate-
signalization claim, and held that proof of FHWA approval was also required in
this case. Accordingly, the court denied W&LE’s motion for partial summary
judgment.
        {¶11} Thereafter, W&LE, with leave of court, filed an additional motion
for partial summary judgment, again arguing that Bonacorsi’s inadequate-warning-
device claim was preempted. Attached to the motion was an affidavit executed by
Susan Kirkland, an employee of the Ohio Rail Development Commission.7 In her
affidavit, Kirkland stated that the crossbuck signs installed at all passive crossings
in Ohio, including W&LE crossings, were installed with federal funds as part of
the Buckeye Crossbuck Program.
        {¶12} In his response to W&LE’s motion, Bonacorsi argued that Kirkland,
like Brown, did not have personal knowledge of the statements made in her
affidavit regarding federal funding of the installation of the Howe Road crossbuck
sign. In support of his assertion, Bonacorsi referred to Kirkland’s deposition
testimony in which Kirkland testified that ODOT was responsible for handling


7. The Ohio Rail Development Commission was created by R.C. 4981.02(A).




                                            5
                                 SUPREME COURT OF OHIO




federal funds, that she did not work for ODOT, and that her knowledge of federal
funding of sign installation at railroad crossings came from other people. In
addition to his argument that Kirkland lacked the personal knowledge required by
Civ.R. 56(E), Bonacorsi renewed his assertion that proof of federal funding alone
was insufficient to preempt a state-law claim of inadequate warning devices.
        {¶13} The court agreed with Bonacorsi that federal funding alone was not
sufficient to trigger preemption and, consequently, denied W&LE’s motion. The
court did not discuss whether Kirkland’s affidavit was sufficient to establish that
federal funds were used to install the Howe Road crossbuck sign.
        {¶14} W&LE subsequently moved to vacate the court’s denial of its motion
for partial summary judgment.8 The court again reviewed W&LE’s additional
motion for partial summary judgment, and again denied it. The court stated, “While
federal funds may have been used in the purchase and/or installation of the * * *
crossbuck signs at the Howe Road crossing, there is no evidence that the Federal
Highway Administration approved the * * * crossbuck signs as being adequate to
protect motorist safety at such crossing.”
        {¶15} Thereafter, the matter proceeded to a jury trial. The jury found for
Bonacorsi, but further found that both Bonacorsi and W&LE were negligent and
determined that each party’s negligence contributed equally to causing the accident.
In response to a written jury interrogatory labeled “One-A” that asked, “If you find
that [W&LE] was negligent, in what respect(s) do you so find?” the jury responded
in writing, “Two prior accidents; railroad did not initiate change in signals and
signs. Proving ordinary care. Plaintiff unable to see the train.”
        {¶16} The jury determined that Bonacorsi’s compensatory damages were
$1,664,200. Reducing the verdict by fifty percent to account for Bonacorsi’s


8. W&LE’s motion to vacate alleged that the order denying its motion for partial summary judgment
was invalid because Judge Sinclair issued the order after Judge Lile had been assigned to preside
over the matter.




                                               6
                                     January Term, 2002




contributory negligence, the trial court entered judgment in favor of Bonacorsi in
the amount of $832,100.
          {¶17} W&LE appealed raising numerous assignments of error.9                          The
assignment relevant to this appeal asserted that the trial court erred in denying
W&LE’s motion for partial summary judgment.
          {¶18} The court of appeals, upon de novo review of W&LE’s motion for
partial summary judgment, found that Kirkland’s affidavit established that federal
funds had been used to pay for installation of the Howe Road crossbuck sign. In
addition, the court held that proof of federal funding was, in and of itself, sufficient
to trigger preemption of Bonacorsi’s inadequate-warning-device claim. In support
of its holding the court cited Norfolk S. Ry. Co. v. Shanklin (2000), 

529 U.S. 344

,

120 S.Ct. 1467

, 

146 L.Ed.2d 374

, which was decided while this case was pending
in the court of appeals. Consequently, the court of appeals reversed the trial court’s
denial of W&LE’s motion for summary judgment on Bonacorsi’s inadequate-
warning-device claim.
          {¶19} Moreover, the court found that the jury’s response to Interrogatory
One-A clearly revealed that the jury’s verdict against W&LE was based solely on
Bonacorsi’s inadequate-warning-device claim. Accordingly, the court reversed the
jury’s verdict, vacated Bonacorsi’s award, and entered judgment in favor of
W&LE.
          {¶20} The cause is before this court upon our allowance of a discretionary
appeal.
          {¶21} There are two issues before the court in this case. The first issue is
whether the court of appeals erred in reversing the trial court’s denial of W&LE’s
motion for partial summary judgment. Only if we find that the reversal was proper



9. Bonacorsi cross-appealed with regard to the trial court’s failure to submit the issue of punitive
damages to the jury. See footnote 3.




                                                 7
                             SUPREME COURT OF OHIO




do we reach the second issue in this case, which is whether the court of appeals
erred in interpreting the jury’s response to Interrogatory One-A to mean that the
jury found W&LE negligent only with regard to Bonacorsi’s inadequate-
signalization claim.
       {¶22} With regard to the first issue, Bonacorsi claims that the court of
appeals erred in two respects. First, he argues that the court erred in finding that
Kirkland’s affidavit proved that federal funds paid for the installation of the Howe
Road crossbuck sign. In this respect, Bonacorsi renews the argument he made to
the trial court and the court of appeals, i.e., that Kirkland lacked personal
knowledge of the statements made in her affidavit.
       {¶23} Second, Bonacorsi argues that the court of appeals erred in applying
the holding in Shanklin, 

529 U.S. 344

, 

120 S.Ct. 1467

, 

146 L.Ed.2d 374

, to this
case. In this regard, Bonacorsi asserts that Shanklin applies only when federal funds
are applied toward railroad crossing improvement programs and not when applied
toward experimental programs such as the program under which the crossbuck sign
at the Howe Road crossing was installed. Consequently, Bonacorsi argues, even if
the court finds that Kirkland’s affidavit does prove federal funding, his inadequate-
signalization claim was not preempted because the federal regulation regarding sign
adequacy, interpreted by the court in Shanklin, did not apply to the program
responsible for installing the Howe Road crossbuck sign.
       {¶24} Our review of summary judgment rulings is de novo. Doe v. Shaffer
(2000), 

90 Ohio St.3d 388, 390

, 

738 N.E.2d 1243

. Accordingly, we apply the same
standard as the trial court and court of appeals in this case. Civ.R. 56(C) provides
that summary judgment shall be granted when the filings in the action, including
depositions and affidavits, show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of law.
       {¶25} We first review Kirkland’s affidavit to determine whether it
establishes that federal funds paid for the installation of the Howe Road crossbuck




                                         8
                                January Term, 2002




sign. Proof of federal funding is crucial to W&LE’s preemption argument because
the federal regulation that covers the subject of warning-device adequacy applies
only to warning devices installed with federal funds. Section 646.214(b)(3)(i), Title
23, C.F.R. (see footnote 4); Carpenter v. Consol. Rail Corp. (1994), 

69 Ohio St.3d 259, 263

, 

631 N.E.2d 607

 (“Before a state law governing warning devices will be
deemed preempted, federal funds must actually have been committed and spent”).
       {¶26} Civ.R. 56(E) requires that affidavits supporting motions for summary
judgment be made on personal knowledge. State ex rel. Cassels v. Dayton City
School Dist. Bd. of Edn. (1994), 

69 Ohio St.3d 217, 223

, 

631 N.E.2d 150

. For
obvious reasons, this is the same standard as applied to lay witness testimony in a
court of law. Id.; Evid.R. 602. “Personal knowledge” is “[k]nowledge gained
through firsthand observation or experience, as distinguished from a belief based
on what someone else has said.” Black’s Law Dictionary (7th Ed.Rev.1999) 875.
See, also, Weissenberger’s Ohio Evidence (2002) 213, Section 602.1 (“The subject
of a witness’s testimony must have been perceived through one or more of the
senses of the witness. * * * [A] witness is ‘incompetent’ to testify to any fact unless
he or she possesses firsthand knowledge of that fact.”).
       {¶27} Kirkland explicitly states in her affidavit that she had “personal
knowledge” that federal funds were used to install crossbuck signs at all Ohio
railroad crossings marked with passive warning devices.           In her deposition,
however, Kirkland testified that ODOT was responsible for handling federal funds,
that she did not work for ODOT, and that her knowledge that federal funds were
used to install signs at railroad crossings came from other people.
       {¶28} After reviewing Kirkland’s deposition testimony we find that she
clearly lacked the personal knowledge required by Civ.R. 56(E) to support the
statements in her affidavit regarding federal funding. Consequently, we find that
W&LE failed to prove that federal funds paid for the installation of the Howe Road




                                          9
                                  SUPREME COURT OF OHIO




crossbuck sign.10 Because, at a minimum, federal funding is required to trigger
preemption, we hold that W&LE’s motion for partial summary judgment should
not have been granted.
         {¶29} Our holding renders moot Bonacorsi’s second argument with regard
to W&LE’s motion for partial summary judgment, i.e., his assertion that Shanklin
does not apply to this case. In addition, we do not reach the second issue in this
case, which was dependent on a finding that partial summary judgment was proper.
         {¶30} For the foregoing reasons, we reverse the judgment of the court of
appeals and reinstate the judgment of the trial court and the verdict of the jury.
                                                                            Judgment reversed.
         RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
         MOYER, C.J., KLINE and LUNDBERG STRATTON, JJ., dissent.
         ROGER L. KLINE, J., of the Fourth Appellate District, sitting for COOK, J.
                                    __________________
         KLINE, J., dissenting.
         {¶31} I respectfully dissent. In my view, the trial court and the court of
appeals did not err when they considered Susan Kirkland’s affidavit as admissible
evidence because W&LE presented sufficient evidence to establish that the
affidavit met the Civ.R. 56(E) “personal knowledge” requirement. Kirkland’s
description of her job duties allowed an inference that she would be in a position to




10. We also note that W&LE failed to tender any documentary evidence to show that the state
received money from the federal government to pay for the Buckeye crossbuck project or to show
that there was an agreement executed by the federal government indicating that it would pay for the
project. A federal statute that was in effect at the time this project was allegedly funded required
the Secretary of the United States Department of Transportation to enter into a formal project
agreement with state transportation departments concerning projects that were to receive federal
funding under Title 23, U.S.Code. Former Section 110, Title 23, U.S.Code, 

72 Stat. 894

. Although
Kirkland testified in her deposition that there was an executed agreement between the state of Ohio
and the FHWA regarding the project, and W&LE, in its brief submitted to this court, refers to a
contract between the FHWA and the state of Ohio, no such agreement is contained in the record.




                                                10
                                January Term, 2002




know if federal funds were used to install the crossbuck signs at the Howe Road
crossing.
       {¶32} I agree with the majority that a court ruling on a motion for summary
judgment first must determine what evidence is admissible before it may construe
that evidence in the opposing party’s favor. Civ.R. 56(E). I further agree that the
“personal knowledge” requirement set forth in Civ.R. 56(E) is the same standard
contained in Evid.R. 602 for a lay witness testifying at trial. The trial court has
discretion in determining whether evidence is admissible. See, e.g., Miller v. Bike
Athletic Co. (1998), 

80 Ohio St.3d 607, 616

, 

687 N.E.2d 735

.
       {¶33} 1 McCormick on Evidence (5th Ed.1992) 40, Section 10, addresses
the personal knowledge requirement by commenting:
       {¶34} “A person who has no knowledge of a fact except what another has
told him does not, of course, satisfy the requirement of knowledge from
observation. When the witness, however, bases his testimony partly upon firsthand
knowledge and partly upon the accounts of others, the problem is one which calls
for a practical compromise. As a case in point, when a witness speaks of his own
age or his kinship with a relative, the courts allow the testimony. * * * In short,
when the witness testifies to facts that he knows partly at first hand and partly from
reports, the judge should admit or exclude according to the overall reliability of the
evidence.” (Footnotes omitted.)
       {¶35} In Akron-Canton Waste Oil, Inc. v. Safety-Kleen Oil Serv., Inc.
(1992), 

81 Ohio App.3d 591

, 

611 N.E.2d 955

, the court of appeals upheld the trial
court’s admission of the testimony of a secretary for the purpose of showing the
intention of her corporate employer. The secretary had contact with the managers
and the corporate employees and, essentially, ran the office. Her bosses disclosed
their intentions to her when they gave her instructions to perform the operations of
the company. The court concluded that she had based her testimony on personal
knowledge. “Her description of her job duties also allowed an inference that she




                                         11
                             SUPREME COURT OF OHIO




would be in a position to know the reasons for the various practices of the
corporation.” 

Id. at 597

, 

611 N.E.2d 955

.
       {¶36} The above McCormick quotation and the holding in Akron-Canton
Waste Oil led this court in Dublin City School Dist. Bd. of Edn. v. Franklin Cty. Bd.
of Revision (1997), 

80 Ohio St.3d 450

, 

687 N.E.2d 422

, to interpret the personal
knowledge requirement contained in Evid.R. 602 and find that a trial court may
admit testimony based partly on firsthand knowledge and partly upon the accounts
of others. This court found that a witness who had personal knowledge of a
taxpayer’s purchase of twelve parcels of property and a taxpayer’s strategy in
assigning an artificially high purchase price to one parcel could testify for the
purpose of showing that this allocation did not reflect the true value of the parcel in
question. The witness’s job allowed him access to the following information:
       {¶37} “[H]e attended and participated in corporate management meetings
at which the sale and the strategy for allocating the purchase price were discussed.
He oversaw ‘property taxes, insurance, financial reporting, corporate, federal and
state income tax filings, among other things.’ His duties included administering
the purchased properties.     The [Board of Tax Appeals] could infer that he
collaborated in devising the allocation strategy and could find that he incorporated
the allocation decision in his reporting and filing duties.” Id. at 453, 

687 N.E.2d 422

.
       {¶38} In this case, the majority summarizes Kirkland’s deposition
testimony as revealing that “ODOT was responsible for handling federal funds, that
[Kirkland] did not work for ODOT, and that her knowledge that federal funds were
used to install signs at railroad crossings came from other people.” However, a
closer examination of Kirkland’s deposition reveals that she testified as follows:
As a manager of the safety programs at the Ohio Rail Development Commission,
Kirkland was one of many people responsible for carrying out the Buckeye
Crossbuck Program. The Public Utilities Commission of Ohio (“PUCO”) designed




                                          12
                                     January Term, 2002




the crossbuck program and sent a directive to Kirkland’s employer to implement it.
As manager of the safety section, she was responsible for setting up the funds,
reviewing the plans, and processing the bills for the crossbuck program. She
attended meetings and helped set up the parameters and the procedures of the
program. She helped draft an agreement between ODOT and W&LE in which
ODOT agreed to supply all new crossbuck signs at passive crossings and to
reimburse W&LE from federal funds for its installation costs.
        {¶39} Kirkland also testified that she helped draft an agreement with the
FHWA involving the administration of the crossbuck program. She and her staff
had to follow the directives of the FHWA when they carried out the crossbuck
program. The agreement provided that the federal funds for the signs and program
would flow from the federal government to the state of Ohio by routing the funds
from FHWA to ODOT. Kirkland’s staff was involved in the payments made for
the standard crossbuck signs at the Howe Road crossing. However, she stated that
her knowledge that federal funds were used to install the crossbuck signs at the
Howe Road crossing was based on what others told her. While administering the
crossbuck program, her employer (the Ohio Rail Development Commission) was
within ODOT and was called the Rail Division.11 The ODOT Rail Division
distributed an educational brochure for the Buckeye Crossbuck Program.
        {¶40} Kirkland’s deposition testimony reveals that her job allowed her
access to information regarding the crossbuck program similar to that possessed by
the witness in Dublin Bd. of Edn., 

80 Ohio St.3d 450

, 

687 N.E.2d 422

. As manager
of the safety section, she set up the funds, processed the bills, and reviewed the
plans of the program. She attended meetings where the parameters and procedures



11. At the time of her deposition, Kirkland and her attorney stated that her employer is affiliated
with ODOT but is legally not a division of ODOT. The Ohio legislature “created the Ohio [R]ail
[D]evelopment [C]ommission, as an independent agency of the state within [ODOT].” R.C.
4981.02(A). The director of ODOT is an ex officio member of the commission. 

Id.

                                                13
                                   SUPREME COURT OF OHIO




were established, helped draft agreements involving ODOT, W&LE, and FHWA
that included funding, and followed the directives of FHWA to carry out the
program. Her description of her job duties allowed the trial court to infer that she
would be in a position to know whether federal funds paid for the installation of the
crossbuck signs at the Howe Road crossing. Therefore, Kirkland had personal
knowledge to state in her affidavit that federal funds were used to install crossbuck
signs at all passive crossings in Ohio. Consequently, the trial court did not abuse
its discretion in considering this affidavit,12 and the court of appeals did not err in
finding that Kirkland had personal knowledge.
         {¶41} I would affirm the court of appeals’ judgment on the “personal
knowledge” issue and address the other issues in this appeal.
         MOYER, C.J., and LUNDBERG STRATTON, J., concur in the foregoing
         dissenting opinion.
                                     __________________
         Linton & Hirshman, Robert F. Linton, Jr., and Mark W. Ruf; Allen
Schulman & Assoc., Inc., and Allen Schulman, Jr., for appellant.
         Howes, Daane, Milligan, Kyhos & Erwin, L.L.P., Philip E. Howes and
Thomas R. Himmelspach, for appellee.
         Squire, Sanders & Dempsey, L.L.P., and Charles F. Clarke, urging
affirmance for amicus curiae Association of American Railroads.




12. The trial court implicitly found that Kirkland had personal knowledge when it overruled
Bonacorsi’s motion to strike the affidavit. However, the trial court never found that W&LE had
established that federal funds were used to install the crossbuck sign at the Howe Road crossing.
Instead, it denied the partial motion for summary judgment on another ground. Thus, the court of
appeals had authority to review the “personal knowledge” issue but did not have the authority to
find that federal funds were used to install the sign in question because it did not have anything from
the trial court to review. See Murphy v. Reynoldsburg (1992), 

65 Ohio St.3d 356, 360

, 

604 N.E.2d 138

; see, also, Fulmer v. Insura Prop. & Cas. Co. (2002), 

94 Ohio St.3d 85, 99-100

, 

760 N.E.2d 392

 (Cook, J., dissenting); Bowen v. Kil-Kare, Inc. (1992), 

63 Ohio St.3d 84, 89

, 

585 N.E.2d 384

.




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                              January Term, 2002




       Clark, Perdue, Roberts & Scott Co., L.P.A., and Paul O. Scott; and Dorothy
H. Bretnall, urging reversal for amicus curiae Ohio Academy of Trial Lawyers.
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