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Railroad tort claims are ruled to be preempted

Author / Coordinator: Barbara L. Jones
Minnesota Lawyer
May 2004

State tort claims against a city and the state based on negligent installation and maintenance of railroad warnings were preempted by federal statutes and regulations, the Court of Appeals has ruled.

A train operated by the Burlington Northern and Santa Fe Railway Company (BNSF) struck a car at the Legion Field Road railroad crossing in Marshall, Minn., on Jan. 3, 1999, permanently injuring a child seated in the back seat of the vehicle.

The defendants argued that federal law preempted the plaintiffs’ claims and also that they were immune from suit.

The plaintiffs moved for partial summary judgment, seeking to strike the defendants’ affirmative defenses, including preemption.

A Lyon County District Court judge granted the plaintiffs’ motion and denied the defendants’ motions, except that the judge concluded that preemption applied to one count concerning the placement of a stop sign.

The Court of Appeals affirmed the decision with respect to the preemption claim concerning the stop sign, but reversed the rest of the judgment.

“The district court erred by concluding that [the plaintiffs’] state tort claims, which squarely rest on the claimed inadequacy of the warning devices at the Legion Field crossing, are not preempted by federal law,” wrote Judge Harriet Lansing.

The 14-page decision is Hernandez, et al. v. State of Minnesota, et al., Minnesota Lawyer no. CA-567-04.

Minneapolis attorney Sharon Van Dyck, who represents the plaintiffs, said the case means that railroads and governments don’t have to follow safety regulations because the mere existence of the federal regulations forecloses the suit.

Although anticipated the preemption defense, she believes that it is inapposite where the regulations are not followed by the states. “This in essence immunizes a state against a cause of action of inadequate warnings even if it takes federal money and doesn’t follow the regulations,” she said, adding that the plaintiffs will seek a review by the Minnesota Supreme Court.

Federal funds

The collision occurred at a railroad crossing marked with retro-reflective stop signs, advance-warning signs, pavement markings and crossbucks, which are black and white x-shaped signs that read “Railroad Crossing.”

These devices, referred to as passive devices, were installed as part of the “Corridor 11 project,” which was initiated by the Minnesota Department of Transportation. The Federal Highway Administration approved the project and provided 90 percent of the funding.

About 10 months before the accident, the state allocated additional funds from the Federal Highway Administration to help finance additional warning devices — referred to as active warning devices — at the Legion Field crossing, including automatic gates and signals. The project was to begin on Jan. 19, 1999.

After the accident, the child’s parents sued the railroad, the city of Marshall and the state of Minnesota. The complaint alleged that the state and the city were negligent in failing to install automatic gates and signals at the crossing. (The railroad later settled negligence claims against it and was dismissed from the case.)

The city and the state moved for summary judgment, arguing that federal law preempted the plaintiffs’ claims and also that they were immune from liability. The plaintiffs argued that the defenses should be struck.

The Lyon County District Court judge concluded that preemption applied to the claim based on the location of the stop sign but not to any other claims.

Preemption pondered

Lansing began by explaining that the preemption doctrine arises from Art. VI, Cl. 2 of the U.S. Constitution, known as the Supremacy Clause. The doctrine says that federal law may preempt state law through an express statement, by implication when extensive legislation must be assumed to preclude enforcement of state laws or by implication when federal and state laws conflict.

The preemption issues raised in the appeal are a product of the interplay between the Federal Highway Act (FHWA) and the Federal Railroad Safety Act (FRSA), which contains an express preemption provision, wrote Lansing. Additionally, regulations have been promulgated under the FHWA that govern the design of grade-crossing improvements and the adequacy of warning devices installed under its crossing program, she observed.

The regulations specify the conditions under which adequate warning devices are to include automatic gates with flashing lights; provide for circumstances where the requirements do not apply; and also say that any alternative device that is installed is subject to federal approval.

The U.S. Supreme Court twice has held that the FHWA regulations in combination with the FRSA preemption provision preempt a plaintiff’s state tort claim for injures from an alleged failure to maintain adequate warning devices at a railroad-grade crossing, said Lansing.

In the 1993 case of CSX Transp. Inc. v. Easterwood, the U.S. Supreme Court said that federal law preempted state common law to the extent that federal regulations are adopted that substantially subsume the same subject matter. In that case, however, the plaintiff’s claim was not preempted only because the warning devices for which federal funds were obtained were not installed.

In the 2000 case of Norfolk S. Ry. v. Shanklin, the U.S. Supreme Court said that once the FHWA has funded the devices and they are installed, the regulations establish a federal standard for the adequacy of the devices that displaces state tort law addressing the same subject.

The relevant facts in Shanklin do not differ from the plaintiffs’ case, Lansing stated. The Court of Appeals rejected the argument that since active warning devices as required in the regulations were not installed, the defendants were negligent.

The argument was immaterial in light of the federal approval of the passive warning devices, Lansing wrote.

“Because the federal government approved and financed the installation of the passive warning devices at the Legion Field crossing, these devices are conclusively established as ‘adequate,’ and state tort claims alleging the inadequacy of these devices are preempted,” Lansing stated, adding that it is the identity of the decision maker, not the accuracy of the decision, that determines preemption.

Putting the brakes on

The Court of Appeals also rejected the plaintiffs’ argument that federal law did not preempt his claim of negligent placement of the crossing stop sign. (The plaintiffs argued that stop signs were not “warning devices designed for the purpose of indicating a railroad crossing” and therefore the claim was not preempted.)

Lansing said that the record showed that the stop sign at the Legion Field crossing is located on the same post as the crossbuck and was installed as part of the Corridor 11 project to increase safety devices at railroad crossings. The stop sign constituted a passive warning device and thus the claim for negligent placement was preempted under federal law, the judge observed.

The court also rejected the argument that the earlier U.S. Supreme Court cases could be distinguished because the defendants in the instant case were government entities, not railroads. The state (as well as the railroad) no longer had a duty to the plaintiffs because it no longer had the authority to control the type of warning systems installed, said Lansing.

‘Bock’ talk

The Court of Appeals also rejected the plaintiffs’ argument that preemption should not apply to their claims that the state and the city were negligent in delaying the installation of active warning devices at the crossing.

In a 1999 8th U.S. Circuit Court of Appeals case, Bock v. St. Louis Southwestern Ry., the court said that a pending project to install active warning devices at the intersection was “irrelevant” and that state negligence claims for delaying the installation of the devices were preempted, Lansing observed. Bock paralleled Easterwood and Shanklin in determining that the federal regulations displaced state decision-making authority and thus the state had no duty to the plaintiffs that could be violated by failing timely to install additional warning devices, the judge added.

Having ruled for the defendants on the preemption claims, the court did not reach the issue of official immunity.