Crossing Accidents: Who’s Getting Railroaded Now?

History Of Responsibilities At Railroad Grade Crossings

In 1877, the United States Supreme Court addressed the relative duties of railroads and motorists at grade crossings . Our highest court described the responsibilities of the motoring public and the railroad industry as being “mutual and reciprocal.” The Court indicated that members of the traveling public would be required to exercise reasonable care to detect and avoid trains at grade crossings, and that the railroad was obligated to give reasonable and timely warning of a train’s approach.

Despite continued efforts by the rail industry to limit their own duties, the United States Supreme Court has held fast with its approach to railroad grade crossing responsibilities as a question of fact for the jury . In the Grand Truck decision, the Court stated:

There is no fixed standard in the law by which a court is enabled to arbitrarily say in every case what conduct shall be considered reasonable and prudent, and what shall constitute ordinary care, under any and all circumstances. The terms ‘ordinary care,’ ‘reasonable prudence,’ and such like terms, as applied to the conduct and affairs of men, have a relative significance, and cannot be arbitrarily defined. What may be deemed ordinary care in one case may, under different surroundings and circumstances, be gross negligence. The policy of the law has regulated the determination of such questions to the jury, under proper instructions from the court. It is their province to note the special circumstances and surroundings of each particular case, and then say whether the conduct of the parties in that case was such as would be expected of reasonable, prudent men, under a similar state of affairs. When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is ever considered as one of law for the court.

In 1927, The Supreme Court did muddy the water somewhat in the infamous decision of B. & O. Railway Company v. Goodman . In that case, the court announced in dicta the duty of a traveler to stop and exit his vehicle at a grade crossing to confirm or preclude the possible presence of an oncoming train. Fortunately, the dicta in Goodman was soon clarified by Justice Cardozo in the eloquent opinion delivered in Pokora v. Wabash Ry. Co . Cardozo refused to impose an artificial legal standard upon drivers approaching a crossing with obstructions to visibility. On that issue, Cardozo wrote:

In such circumstances the question, we think, was for the jury whether reasonable caution forbade his going forward in reliance on the sense of hearing, unaided by that of sight. No doubt it was his duty to look along the track from his seat, if looking would avail to warn him of the danger. This does not mean, however, that if vision was cut off by obstacles, there was negligence in going on, any more than there would have been in trusting to his ears if vision had been cut off by the darkness of the night€¦ Pokora made his crossing in the daytime, but like the traveler by night he used the faculties available to one in his position€¦ A jury, but not the court, might say that with faculties thus limited he should have found some other means of assuring himself of safety before venturing to cross. The crossing was a frequented highway in a populous city. Behind him was a line of other cars, making ready to follow him. To some extent, at least, there was assurance in the thought that the defendant would not run its train at such a time and place without sounding bell or whistle€¦ Indeed, the statutory signals did not exhaust the defendant’s duty when to its knowledge there was special danger to the traveler through obstructions on the roadbed narrowing the field of vision€¦All this the plaintiff, like any other reasonable traveler, might fairly take into account. All this must be taken into account by us in comparing what he did with the conduct reasonably to be expected of reasonable men.

Cardozo made it clear that juries must assess fault on a case-by-case basis, and thus limited any precedential effect of the dicta in Goodman. Despite the express limitation on the precedential value of the Goodman case, there was a line of authority developed after Goodman which required a motorist to stop prior to traversing a railroad crossing. These cases follow what is known as the “Pennsylvania Rule .”

A contrasting line of authority is known as the “dangerous trap doctrine.” This doctrine was adopted by the Louisiana Court of Appeals in Bertrand v. Missouri Pacific Railroad Company . The doctrine provides:

[I]f a [railroad] crossing is unusually dangerous because the view of the motorist is so obstructed as to require that he place himself in a position of peril dangerously near the tracks, before he has a view of the oncoming train, the railroad company will be held liable, unless it can show that it took unusual precautions, such as reducing the speed of the train, or increasing its warnings and providing signaling devices, etc. The theory of this doctrine is that the railroad may not rely upon the duty of the motorist to stop and look, if the physical circumstances are such that stopping and looking will do the motorist no good.

Since the United States Supreme Court initially established “mutual and reciprocal” responsibilities at grade crossings, those basic responsibilities of railroads and the motoring public remained unchanged for over a century. They were very simple: Motorists must yield to trains at grade crossings. Railroads must let motorists know a train is approaching the grade crossing. Despite the fundamental simplicity of these long-standing reciprocal duties they have been abandoned for a system that makes no sense. In 1989, the industry created a special executive committee on grade crossing litigation for the purpose of establishing “preemption” as the omnipotent defense that would negate all common law claims brought against railroads. The first major preemption victory for the industry came in Easterwood v. CSX Transportation, Inc . In that landmark decision, the court preempted common law excessive speed claims based upon the preemptive effect of federally established track speed limits. The railroad industry lost the preemption argument in Easterwood concerning claims of inadequate warning devices (lights and gates). However, that preemption defense has now been established in Norfolk Southern Railway v. Shanklin . A review of federal statutory and regulatory laws governing railroads is necessary to understanding Easterwood, Shanklin, and the extent of current preemption defenses.

Enter Federal Funding

The Federal Government initially began its involvement with railroad grade crossing safety issues in 1910. The government required reporting of accidents that occurred at grade crossings as a part of the Accident Reports Act of 1910. A few years thereafter the government made funds available on a 50-50 cost splitting basis and the Federal-Aid Road Act of 1916. Those funds were available for crossing safety improvements on rural roads.

The National Industrial Recovery Act of 1933 provided federal funds for grade crossing safety improvements without requiring any matching funds from the railroads.

Incomplete records of the Interstate Commerce Commission (which is now called the Surface Transportation Board) indicates that at least 1,000 – 2,200 people have died at railroad grade crossings annually during the first 75 years of this century. Even before 1950, there were studies that recognized the indisputable advantage of active warning devices. In 1949, a comprehensive study of the effect of automatic gates established that the hazard to the motoring public at grade crossings could be reduced by 80-90% by the installation of gates at crossings previously protected only by a standard crossbuck. During the 1960’s, there were a number of studies conducted by various organizations and scientists that confirmed the effectiveness of active warning devices.

Congress responded in 1970 by including language in the 1970 Federal Railroad Safety Act and the 1970 Highway Safety Act requiring the Secretary of Transportation to study the problems of highway-rail crossings and report back to Congress with recommendations. The result of these requirements was a two-volume report to Congress. The first volume, filed November 1971, was entitled “REPORT TO CONGRESS. RAILROAD-HIGHWAY SAFETY, PART 1: A COMPREHENSIVE STATEMENT OF THE PROBLEM”. This report confined itself to a detailed account concerning the extent of the safety problem at railroad grade crossings. The second portion of the report to Congress was filed in August of 1972 and entitled “REPORT TO CONGRESS. RAILROAD-HIGHWAY SAFETY, PART 2: RECOMMENDATIONS FOR RESOLVING THE PROBLEM”. As a result of the two-part report, the Highway Safety Act of 1973, funded from the Highway Trust Fund, provided for federal money to be distributed to the states in a fashion similar to other highway funds. This arrangement established a national crossing inventory that was prepared in joint cooperation of state, federal and industry personnel. This federal, state and industry cooperation was also evidenced by the cost of sharing formula for improvement projects. This arrangement has been subject to minor modifications and additional legislative authorizations for continued funding, but serves as the basis for current funding of public projects at highway grade crossings. The application of this federal scheme will be discussed in more detail below.

This Federal Railroad Safety Act started out as a simple idea: provide a source of funding for lights and gates and thereby increase safety at railroad crossings. Unfortunately, where there is federal money there will be abuse. The railroad industry saw these funds somewhat differently. They saw this as an opportunity to supplement their maintenance budgets. To do so they utilized an exception that allowed for the expenditure of these safety dollar to add signs to substandard crossings in order to bring those crossings into compliance with the Manual and Uniform Traffic Control Devices (MUTCD). Once a railroad has allowed the signs at its crossings to fall into such a state of disrepair that they don’t comply with the MUTCD they can qualify to have their signs replaced with new ones paid for by the government. The extra bonus may well be the granting of immunity against any claims by motorist that there should have been lights and gates at the crossing. It is ironic how the misuse of federal funds can create preemption that prevents the installation of the lights and gates that were intended by the legislation in the first place.

In 1974, local road authorities became involuntarily involved in RAILROAD GRADE CROSSING SAFETY. The passage of federal regulations mandating the use of the MUTCD required their participation. The mandatory placement of an advance warning sign at railroad highway grade crossings pursuant to Part 8 of the MUTCD indisputably dragged the local road authorities into the grade crossing safety arena. See 23 CFR 655.601-603 (39 FR 35650). In the Easterwood opinion, our Supreme Court recognized the joint responsibility of the local road authorities and railroads at grade crossings.

Shanklin Exposes States

THE QUESTION: Who is responsible for the accident when lights and gates were not installed at an ultra-hazardous railroad crossing where federal funds have been spent?

It now appears that victims of accidents at these ultra-hazardous crossings can look to the State or State Agency that administers the federal funds. Every state that has participated in wholesale “crossbuck replacement programs,” “lens replacement programs ,” or other expenditure of federal funds at crossings are now subject to lawsuits for wrongfully administering those federal funds.

THE ANSWER: States MUST Install Lights and Gates When Appropriate.
The Shanklin opinion handed down on April 17, 2000 makes it clear that states must bear the responsibility for appropriate administration of the Section 130 Federal Funding Programs. Any number of direct quotes from the Shanklin opinion make this clear. The Supreme Court’s review of this federal program made it clear that lights and gates “must” be installed at any crossings that meet the criterion of §646.214(b)(3). The only exception for installation of flashing lights and gates at crossings that meet (b)(3) criterion is the ability for “a diagnostic team” to justify “that gates are not appropriate”.[Emphasis Added] See §646.214(b)(3)(ii). That authorization does not allow for anything less than flashing lights at such crossings.

Easterwood Gave Us The First Hint

The Easterwood decision recognized that “each state receiving federal aid is required to establish a ‘highway safety improvement program’ that establishes priorities for addressing all manner of highway hazards and guides the implementation and evaluation of remedial measures.” The discussions of this federal legislative and regulatory scheme should have put states on notice that they had some responsibility to appropriately administer federal funds and that failure to do so may result in lawsuits for wrongfully administering those federal funds. The language in the Easterwood opinion should have served as notice to the States.

There is no secret that crossing safety costs money. The historical debate over who should pay the money is too extensive for inclusion in this paper, but a clear congressional intent to assist is long standing. Congress included funding in the highway appropriations bills that provided for “the elimination of hazards to life at railroad grade crossings, including the separation or protection of grades at crossings, the reconstruction of existing railroad grade-crossing structures, and the relocation of highways to eliminate grade crossings.” 74 Stat. 582 (1936). However, the current federal scheme was designed specifically to involve the states.

By the 1970’s there were more than 220,000 public railroad-highway grade crossing in the United States and of those approximately 78% did not have train-activated protective devices. It was estimated that 12,000 motor vehicle-train collisions occurred every year, an average of 32 per day, resulting in 1,500 deaths and 7,000 injuries. H.R. Rep. No 93-118 (1973), reprinted in 1973 U.S.C.C.A.N. 1892. These figures and the human toll prompted Congress to have the crossing safety problem studied by the FRA and DOT from 1970-1972. Reports and findings of those studies resulted in the enactment of Section 203 of the Federal-Aid Highway Act of 1973, which is codified in 23 U.S.C. §130. Section 130 is the authorizing provision for federal regulations governing the expenditure of federal funds to improve railroad crossing safety. States were given the ability to spend these funds. In particular, Section 130 authorized the adoption of 23 C.F.R. §646.214, which was the heart of the Easterwood and Shanklin cases. At issue here are §646.214(b)(3) and §646.214(b)(4) .

This Theory Was Used Even Before Shanklin

Can a state or state agency be sued for failure to carry out its mandatory obligations under 23 U.S.C. §130 and 23 C.F.R. §646.214? This federal statutory and regulatory scheme intended to improve railroad crossing safety by promoting the installation of lights and gates is now the basis for insulating railroads for liability. Protecting the railroads from liability was never the intent of this federal program, but under Shanklin the railroads have been let off the hook. Now that railroads are not subject to suit for the failure to install lights and gates, who is? The Federal government is doing its part by spending the money for needed improvements. Injured victims are left with no choice. They must sue the state or state agency responsible for administering the federal program. The question becomes: “Where did the federal money go?” In situations where federal money was paid to railroads to let them use it to supplement their maintenance budgets, somebody is going to have some serious explaining to do. Can States and State Agencies be sued for improper expenditure of federal funds? The answer is: “YES.”

Austin v. Tennessee Established The Validity Of Such A Theory

At issue in Austin v. Tennessee was liability of the Tennessee Department of Transportation (TDoT) for the wrongful death of a motorist who was on a bridge when it collapsed. The State’s position was that it enjoyed sovereign immunity while plaintiff argued that the relevant law, 23 U.S.C. §144, imposed a mandatory duty upon the state that defeated sovereign immunity. The Court agreed with plaintiff, citing the mandatory language contained within §144: “It is implicit in 23 U.S.C. §144 that the duties to inventory, inspect and classify include the duty to maintain. Whether or not federal funding is applied for or is available when applied for, it is implicit throughout the Federal-Aid Highway Act that the potential for federal funding on any part of a state’s highway system is dependent upon the state’s performance of the inspection and maintenance responsibilities in accord with the Act and with proper regard for the safety of the public. “In short, every bridge in the federal-aid systems that is in need of rehabilitation or replacement is a project for which federal funding might become available.” Austin, supra at 455.

The Theory Has Been Applied To Crossing Cases

The Kansas Supreme Court discussed the Austin and Easterwood cases at length in Ball v. Burns & McDonnell , where suit was brought by a motorist who was injured when the automobile in which she was a passenger was struck by a train. Plaintiff sued the state under the Kansas Tort Claims Act, alleging that 23 C.F.R. §646.214 imposed a mandatory duty on the Kansas Department of Transportation (KDOT) to install active warning devices at the railroad grade crossing where the accident occurred. The court found that plaintiff could not prevail under §646.214(b)(2) because the crossing at issue was not on a federal-aid highway project. Also, plaintiff was not allowed to proceed under §646.214(b)(3) because there was no proof that federal funds had been spent on the crossing to trigger the mandates of that section. What this case did recognize was the theory that expenditure of federal funds at a crossing would “trigger” the application of §646.214(b)(3). The court also recognized that the criteria listed under §646.214(b)(3) would be “triggered” when those funds participate.

Claims Under State Law: Right To Assume Safety Of Roadway

“Persons using a public way which is in constant use, who have no knowledge of the contrary have a right to assume, and to act on the assumption, that the way is reasonably safe for ordinary travel.” This is a generally accepted principle the motoring public relies on every day. Courts throughout the country have upheld this standard repeatedly holding state and local governments liable for failure to adequately warn motorists of dangerous conditions existing in or on the roadway. Application of this duty to the specific setting of railroad-highway intersection is no different.

Negligence And State Statutes

Negligence is the most common theory of recovery against governmental entities for defects in the design and maintenance of streets and highways. Traditionally, governmental entities have been immune from tort liability. State law on immunity is always the first area of inquiry. Exceptions to liability are usually statutory. There are two types of statutes that may be used to sue state and local governments: state tort claims statutes and highway defect statutes. State tort claims statutes provide state liability, either implicitly or explicitly, for roadways that are unsafe or in need of maintenance, based upon the roadway being governmental property. Highway defect statutes, similarly, provide state liability for highway defects that result in physical injury or property damage to motorists or the traveling public. In addition, these statutes make the state’s decisions regarding the manner in which the roads are maintained operational in nature rather than discretionary.

Most highway defect cases based upon state law require notice of the defect. The state’s notice of the roadway defect may be either actual or constructive. Actual notice would arise where an employee of the state obtained reliable information regarding the defect or when a particular crossing is the sight of a relatively high number of motor vehicle-train accidents. See Lee v. Missouri Pacific Railroad Co. Constructive notice may be found if the dangerous condition is in existence for a period of time and should have been discovered within time to fix the defect to prevent injury. Constructive notice will also be inferred where a state employee has frequent contact with the defect. An example of this would be an employee who crosses a rail grade crossing with inadequate signing every day on his way to work. If an accident occurs at the crossing as a result of the inadequate signing, the courts will impute knowledge to the state based upon the employee’s daily contact with the dangerous crossing.

Mandatory Duty Imposed By Federal Law

States participating in the federal funding program to improve crossing safety have voluntarily agreed to assume the duties associated with that program. Following promulgation of 49 U.S.C. §20106 (formerly 45 U.S.C. §434), state law was preempted in the area of adequate warning signs for highway rail grade crossings. §20106 makes it a requirement that states, at a minimum, conform their railroad safety standards to the federal standards in an effort to achieve national uniformity. Those States have an affirmative duty to assess the status and condition of rail grade crossings and determine whether the criteria of §646.214(b)(3) have been met. If so, the State must install automatic gates with flashing light signals if any federal money is used to improve the crossing. The failure of a state to conform to the requirements of §646.214 when using federal funds to improve a crossing is a clear violation of a mandatory duty.

Implying A Federal Private Cause Of Action

In McClellan v. Cablevision of Connecticut, Inc. the court addressed the issue of implied or explicit private remedies under federal law. The determinate factors were: (1) whether plaintiff is one for whose especial benefit Congress enacted the statute, (2) is there any indication of explicit or implicit legislative intent to create or deny a private remedy, (3) is implying a private remedy consistent with the underlying purposes of the legislative scheme, and (4) is the cause of action one traditionally relegated to state law, in an area basically the concern of the states, so that it would be inappropriate to infer a cause of action based solely on federal law.

First, it is inferred from the legislative history that Congress intended to institute measures that would afford the motoring public greater safety at railroad grade crossings. This is demonstrated by the very language contained in the initial acts that were passed through both the Senate and the House of Representatives prior to formal enactment. The safety of motorists was the foremost consideration behind providing for safer grade crossings. See H.R.Rep. No 93-118, supra.

Secondly, Congress did not include specific remedial measures in either §646.214 or 23 U.S.C. §130, its enabling statute. The provisions provide for periodic reports from the states to the Federal Highway Administration and the Secretary of Transportation and the contents thereof. The Secretary shall then analyze and evaluate each state program, identify those not in compliance, and make recommendations for future implementation of the railroad highway crossings program. See 23 U.S.C. §130(d). However, neither 23 U.S.C.§130(d) nor 23 C.F.R. §646.214 contain language, either inferred or explicit, which would deny a private cause of action for third-party plaintiffs.

Thirdly, implication of a private remedy would be consistent with the underlying purposes of the legislative scheme. The purpose of instituting §646.214(b)(3) and §646.214(b)(4) was to protect the motoring public from dangers associated with railway grade crossings. Failure to infer a private cause of action would render the mandatory language of these sections useless and without teeth because there are no explicit remedies provided for failure to comply with the mandatory requirements.

Fourth is the determination of whether the cause of action is one traditionally relegated to state law, in an area basically the concern of the states, so that it would be inappropriate to infer a cause of action based solely on federal law. The provisions contained within §646.214(b)(3) and §646.214(b)(4) preempt the area of state law, thereby imposing a mandatory duty upon the states. The preemption in this area is complete, leaving no cause of action under state law. This principle was made clear by the Court in the Shanklin and Easterwood cases. Therefore, it would be appropriate for courts to infer a cause of action based solely on federal law.

Civil Rights Claim Under 42 USC 1983

Violation of a Federally Guaranteed Right

Wilder v. Virginia Hospital Association was a §1983 action challenging Virginia’s administration of the state’s Medicaid program in which the plaintiffs were allowed to pursue their cause of action. The distinguishing factor between these cases is the underlying cause of action pleaded. It is an accepted principle that §1983 actions may be brought against states when plaintiffs seek to vindicate violations of federal statutory rights. See Wilder, supra at 713. However suits brought under §1983 alleging amorphous constitutional or statutory rights will not survive 11th Amendment scrutiny.

The Test

The Wilder and Blessing courts set out the test for determining whether plaintiffs have a cause-of-action under §1983 against the state for not complying with federal regulations or statutes. The three-prong test used is: (1) whether plaintiff is an intended beneficiary of the statute; (2) whether plaintiff’s asserted interests are not so vague and amorphous as to be beyond the competence of the judiciary to enforce; and (3) whether the statute imposes a binding obligation upon the States.

Motorists are the Intended Beneficiaries

The 1970 Rail Safety Act and the 1970 Highway Safety Act required the Secretary of Transportation to study safety problems at highway-rail crossings and report back to Congress with recommendations. The result of these requirements was a two-volume report to Congress. Armed with these reports Congress enacted the Highway Safety Act of 1973 which provided for federal money to be distributed to the states in a fashion similar to other highway funds. This arrangement established a national crossing inventory that was prepared in joint cooperation of states, federal government, and the railroad industry. An overall scheme requiring cooperation by the federal government, state government, and industry was evidenced by the cost-sharing formula established for improvement projects. There can be no argument that the intent of this extensive federal scheme is to protect motorists at grade crossings.

The Right to Travel

“Freedom of travel is a constitutional liberty closely related to the rights of free speech and association.” The concept of a citizen’s right to travel freely has been developed by the U.S. Supreme Court by looking to the provisions of the First, Fifth, and Fourteenth Amendments and the Commerce Clause of the U.S. Constitution.

Historically, the right to travel has been applied in instances in which there existed state laws that discriminated against non-citizens entering the state or impeded interstate commerce, and to enforce the rights of minorities and enforce civil rights and the Thirteenth Amendment. U. S. Supreme Court case law has firmly established that the right to interstate travel is protected by the Constitution and can be asserted against government and private interference. This right to travel between the states implies the right to travel within the states when motorists travel upon the federal, state and local highways. The Fourteenth Amendment states that no state shall make a law that abridges those rights assured by the federal Constitution. The constitutional origin of the right to travel is evidence of its importance. However, standing alone the right is somewhat “vague and amorphous.” It is the Federal Highway Safety Act that defines with particularity what adequate warning a motorist is guaranteed on federally funded highways and projects.

Binding State Obligation

There can be no doubt that binding obligations on States have been created by the Federal Highway Safety Act. Each State had to specifically adopt Highway Safety Programs to qualify for federal funds. Each state has had to participate in an elaborate federal system of evaluation and approval. Following the decisions in Easterwood and Shanklin, there is no room to argue that 23 C.F.R. § 646.214 does not impose a binding duty on States.

Conclusion

States have now reached a crossroad. They can no longer continue administering federal funds in a fashion that allows railroads to dip into those funds to supplement their maintenance budgets. Maintenance of signs and signals is a railroad duty. Installation of lights and gates with federal funds is a State’s duty. As guardian of these federal funds States are the target of lawsuits for improper expenditure of those funds. You can be assured that the railroads are very comfortable with the protected status they won in the Shanklin case. The holding in Shanklin was no accident. They worked on this preemption defense for years and selected the right cases to advance the industry’s self-interest. Give the railroads credit. It was a brilliant, well-orchestrated plan to use federal safety funds to protect themselves from suit. They won. Now it appears that States are left holding the bag.