Railroad Crossing Traps
In 1877, our Supreme Court recognized that people and railroads had “mutual and reciprocal” duties at railroad crossings. The concept is pretty simple. We allow railroads the right-of-way to operate their trains across the country without stopping for motorists, pedestrians or anybody else. In return, we only ask that railroads give us a safe place to cross their tracks and let us know when a train is coming. Under the common law, this standard of mutual and reciprocal duties based on reasonableness seemed to work very well. Trial lawyers who represent plaintiffs in crossing cases yearn for those good ole days. Those were the days when you could allege that the train was going unreasonably fast through a busy community when it collided with the motorist who was unaware of the train’s approach because there were no lights and gates at the crossing.
Unfortunately, it appears that those days are gone. Over the years, various pieces of federal legislation have been employed to preempt the common law. States are no longer free to protect their citizens at grade crossings through the application of the common law concept that the motorist and railroad should each be held to a standard of reasonable care. The mutual and reciprocal duties that were once based in reasonableness have now been decimated by federal preemption. Ironically enough, the most devastating form of federal preemption came under the guise of the Federal Railroad Safety Act of 1970 (FRSA).
The FRSA was enacted by Congress “to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.” 49 U.S.C.A. § 20101. The irony arises from the fact that an act with such a noble intent has been used to shield railroads from liability and paved the way for railroads to totally ignore their common law safety responsibilities at railroad crossings. The United States Supreme Court has addressed the extent to which the FRSA preempts state common law claims against railroads in CSX Transportation, Inc. v. Easterwood and Shanklin v. Norfolk Southern Railway, Co. These two cases are the culmination of concerted effort by the railroad industry to avoid all responsibility for safety at railroad grade crossings. A complete understanding of Easterwood, Shanklin, the FRSA and the history of preemption in the railroad industry is a fundamental requirement for handling any crossing case.
I. Federal Preemption
From the time the client first walks in the door, you must consider the role of preemption in their case. The well established areas preempted by the FRSA and other federal law include: the adequacy of warning devices at crossings; allegations of excessive train speed; the adequacy of train horn sound output; the failure to train railroad employees regarding safety issues; and the lack of safety devices on locomotives, to name a few. Recently added to this list are preemption of how the train horn is blown upon approach to a crossing and preemption of claims that railcars should be reflectorized so that they can be seen at night. How you evaluate a crossing case, craft the complaint, proceed with discovery and present the case are all necessarily influenced or controlled by preemption.
Claims alleging the need for lights and gates at a crossing and alleging the train was traveling at an unsafe speed will likely fall victim to preemption. Claims that the train horn could not be heard by the motorist and therefore provided inadequate audible warning will also be subject to preemption. This is true despite the federal government’s own studies that recognize train horns are not a reliable primary warning device.
Preemption of train horn claims can now be asserted by the railroad in two different contexts. First, the loudness of the horn is preempted, which means as long as the train horn produced 92 db of sound 100 feet in front of the locomotive, it has complied with federal law, regardless of whether the horn could be heard by the motorist. Second, commencing on June 24, 2005, the duration of the train horn blast upon approach to a crossing has also become subject to preemption. The new horn rule requires a minimum of 15 seconds of horn for slower trains, but unbelievably provides a lower standard for faster trains (trains traveling over 45 mph.) The only silver lining to this new rule is that it may not preempt claims that an emergency horn sequence should have been used before impact.
The federal government also recently preempted reflectorization of railcars. Prior to March 4, 2005, the common law provided a good basis for claims that railcars should be adequately reflectorized so that they could be seen at night while blocking unguarded crossings. The common law recognized that items like a flat black tanker car across an unlighted highway at night created an unreasonably dangerous condition. Now it appears that the railroad has been given a free pass to avoid liability for this highly dangerous and reprehensible conduct.
Finally, it is almost certain that you will hear arguments for preemption of all claims that the railroad failed to provide employees proper training in crossing safety. The railroad’s arguments on this issue are often vague and misguided, but counsel must be aware that inadequate training allegations could easily be obliterated by preemption if you have not plead and developed them correctly.
The number of areas preempted by federal law is not finite. It is limited only by the imagination of well financed railroad defense counsel, a vast sea of existing federal law, and the ongoing expansion of federal law directed by of the railroad’s powerful lobbying forces. With this background in place, the remainder of this article will be devoted to strategies that counsel can utilize to combat these looming preemption defenses that have the potential to ruin the outcome of your case.
II. Avoiding the Sting of Preemption
Viable State Law Claims
The easiest way to avoid the sting of preemption is to present claims that fall outside the scope of federal preemption. There are still some areas of state law that have escaped extinction by federal preemption. A thorough review of each case must include the identification of viable state law claims and the development of a factual basis for those claims.
Vegetation or other objects on the railroad right-of-way that block a motorist’s view may still support a claim based upon the common law duty to provide reasonably safe visibility. Many states regulate visibility at crossing by statute or regulation. Violation of these state laws can also form the basis of a claim that falls outside the bounds of federal preemption. It is relatively well settled that states can protect the public by regulating visibility at crossings. Nevertheless, railroads continue to assert that claims based upon sight obstructions near a crossing are preempted.
Crossing Surface and Design
The construction, design and maintenance of crossings surfaces, approaches and the surrounding area are still subjects that have managed to evade federal preemption. Unsafe characteristics and conditions in the crossing environment can create safety hazards for the public. Some examples include: the compatibility of the materials used in the crossing surface with the surrounding roadway surface; the rough and unstable condition of the crossing surface; the horizontal alignment (skew/curves) of the track and roadway at the crossing; the vertical alignment (hump/dip) of the crossing approach; inadequate crossing width; and the presence of a nearby roadways or railroad operations. These characteristics could contribute to the over all unsafe condition of a crossing. Crossings must be constructed in a reasonably safe manner to allow for use by the public. They should not be rough or contain defects. Crossings should not be built up nor lowered from the plane of the intersecting roadway, thereby creating an unacceptable approach grade. Ideally the track and the roadway should intersect at or near a 90 degree angle. Crossings should not be constructed in or near curves the roadway or track. Unsafe conditions in the crossing environment create hazards for the public. Most of these conditions violate recognized guidelines or standards. Crossings will have usually undergone many changes since original construction. Railroads must tear out and rehabilitate crossings on a periodic basis. Claims relating to the crossing characteristics will generally survive preemption under common law theories.
Maintenance of Signs and Signals
As mentioned above, the adequacy of signs and signals that are used as warning devices at crossings, will always be subject to efforts to invoke preemption defense. However, maintenance of grade crossing signs, signals and equipment is generally held not to be a subject that is preempted by federal law. If crossbucks lose their reflectivity and are not “operating” at the time of the nighttime accident, the railroad may be liable for its failure to maintain the crossbuck. Claims for failure to maintain signs and signals are generally not barred by federal preemption. The negligent maintenance of warning devices or the failure to warn the public of defective devices was not preempted. Malfunctioning lights and gates are another good example of how failure to maintain warning devices is usually not preempted.
The claim that a train crew failed to maintain a proper lookout should be available in most states if there is proximate cause. Proximate cause can be based on the ability of an alert crew to sound additional warnings or engage emergency brakes. While in certain situations, the crew’s failure to maintain a lookout would not necessarily prevent the accident, it may contribute to changing the dynamic of the accident. For example, if the crew, by properly paying attention, could have taken action to put the train into emergency, the impact of the collision may have been lessened, or the point of impact changed, thus lowering the risk of death or the extent of injury.
The law surrounding private crossings is an area that is free of most federal regulation and available for common law theories of liability. Private crossings are not preempted by the new horn rule. Common law does recognize the duty to sound a train horn at private crossings. Private crossings typically do not receive federal funds for the installation of signs so they are open to arguments that lights and gates or other adequate warning devices should have been installed. These crossings may even be subject to contractual obligations between the landowner and the railroad.
III. Finding Refuge Within Areas of Preemption
There are numerous ways to navigate through areas typically covered by federal preemption to lesson the impact of the preemption defenses. There are exceptions to many of the preemption rules. Some of these exceptions are basic common law principals, others are based upon the application of federal regulations. Additionally, there are opportunities to totally avoid the impact of federal preemption by developing a sufficient factual basis to overcome preemption defenses. Even if preemption defenses can not be defeated, there may be other theories that will allow you to present your evidence.
Although the speed of trains is generally preempted, the facts of a case may support a common law exception for local hazards. A common law duty to slow trains may still be possible, but the factual basis for these claims must be well developed early in the case.
The Easterwood Court recognized that the Federal Railroad Safety Act together with state laws and standards “relating to railroad safety” could co-exist “to promote safety in all areas of railroad operations.” Thus, the States are permitted to “adopt or continue in force any law, rule, regulation, order, or standard relating to railroad safety until such time as the Secretary has adopted a rule, regulation, order, or standard covering the subject matter of such State requirement.” Even after federal standards have been promulgated, the States may adopt more stringent safety requirements “when necessary to eliminate or reduce an essentially local safety hazard,” if those standards are “not incompatible with” federal laws or regulations and not an undue burden on interstate commerce.
The preemption of track speed limits are focused on the presumption that the FRA has evaluated track conditions, including those at grade crossings, and considered those factors in setting speed limits. This rationale has nothing to do with the existence of particular cars in the train makeup that must be operated at speeds lower than the track speed limit. In fact, the FRA has established regulations dealing with speed limits for particular trains that may be less than track speed limits. For instance, a train is required to have an “in service” data event recorder on the lead locomotive. Trains without an “in service” recorder may not exceed 30 m.p.h. There are other occasions where a train may need to be slowed due to the presence of a restricted car in the makeup of the train. “Restricted Cars” are defined by federal regulation. These cars are allowed to operate only by approval of the FRA on a car-by-car basis. Exceeding the restricted speed would violate this regulation.
Inadequate Warning Devices
Claims alleging inadequate warning devices at a crossing will always be met with a preemption defense. These defenses cannot be ignored. The preemption defense can be presented by motion to dismiss, summary judgment or by motion in limine. You must prepare for all of these potential attacks. Railroads rely heavily upon affidavits to support these defenses. Railroads are notorious for using incomplete, conclusory affidavits to support their claim that federal safety funds were spent on the crossbuck signs at a crossing. However, there is a reluctance to find preemption when the testimony supporting a summary judgment motion is not clear and uncontroverted. Discovery battles designed to expose unfounded preemption defenses are required in virtually every crossing case.
Presumption Against Preemption
There is a presumption against federal preemption of state law. A party arguing that federal law preempts state law bears a heavy burden of overcoming the long-standing “presum[ption] that Congress does not cavalierly pre-empt state-law causes of action.” This presumption is even stronger where preemption would displace the historic power of the States to protect the health and safety of their citizens. The presumption is particularly strong in regard to subject matters “traditionally regarded as properly within the scope of state superintendence,” Florida Lime & Avocado Growers Inc. v. Paul, 373 U.S. 132, 144 (1963) such as “the provision of tort remedies to compensate for personal injuries.” When preemption of common-law claims would leave injured individuals without any state or federal remedy a court may find preemption only in the most compelling circumstances.
Relevancy of Train Speed for Other Purposes
Even in a case where train speed is preempted, evidence of speed may be relevant in relation to the adequacy of the warning, the dangerous nature of the crossing and the reasonableness of the drivers of both the train and the automobile.
IV. Using Preemption as a Sword
Federal preemption of state law is not the same as immunity. It merely establishes federal supremacy by supplanting state law with federal law. A firm grasp of the federal law is needed so that preemption may also be used as a sword against a railroad. When federal regulations are violated, state claims can be “based on violation of federal regulations.” Some examples of using federal law to bolster the strength of a crossing case are discussed below.
Training & Internal Rules
The training of engineers to operate a locomotive is, as a general rule, a topic that is preempted. This preemption may give rise to the opportunity to utilize this regulation as the basis for a claim if the railroad failed to satisfy all requirements for issuing certificates to locomotive engineers.
Railroads are required to file with the Federal Railroad Administration one copy of its code of operating rules, timetables, and timetable special instructions before it can operate as a railroad in the United States. Railroads are also required to instruct employees concerning operating practices and operating rules. Railroad must periodically conduct operational tests and inspections to determine the extent of compliance with its code of operating rules, timetables, and timetable special instructions in accordance with a written program retained at its system headquarters and at the division headquarters for each division where the tests are conducted.
A valid claim for negligence may be based upon a violation of these federal regulations “requiring a railroad to instruct its employees concerning its code of operating rules, time tables, and time table special instructions.” These theories require a good working knowledge of railroad rules and operating practices.
The FRA has adopted specific track standards that provide for inspection frequency and specific track standards. Railroads must designate qualified persons to inspect track for defects. Federal regulations prescribe minimum safety requirements for railroad track. The requirements prescribed by these regulations apply to specific track conditions existing in isolation. Additionally, a combination of track conditions, none of which individually amounts to a deviation from the requirements in the regulations, may require remedial action to provide for safe operations over that track. Any railroad that knows or has notice that the track does not comply with the track safety standards, must bring the track into compliance or halt operations over that track. Railroads must also keep a record of each inspection required to be performed on that track. Each record of an inspection shall be prepared on the day the inspection is made and signed by the person making the inspection. Records shall specify the track inspected, date of inspection, location and nature of any deviation from the requirements of this part, and the remedial action taken by the person making the inspection. Any person who knowingly and willfully falsifies a record or report required by this part may be subject to criminal penalties. Track inspectors sometimes control the speed of trains by issuing slow orders. These slow orders may be required by track safety standards. Violation of a slow order is actionable and failure to issue a slow order could also be actionable.
As federal preemption expands in the area of crossing litigation so does the challenge for the trial lawyer. We must identify viable causes of action under state law and battle unfounded preemption defenses. We must also seek to avoid the harshness of these defenses by artfully pleading and proofing our cases. Finally, we need to embrace the continuing growth of federal regulation in this industry so that we may be able to utilize those laws to defend the rights of our clients. Crossing cases are complex and carry with them a high degree of difficulty. We must be prepared to meet this challenge.