A Progressive Train of Thought: The Survival of Certain State
Tort Claims in Railroad Crossing Collision Cases After Shanklin
By Kristen Comer1
(Reprinted with permission)
I. INTRODUCTION
More than 350 drivers are killed every year in collisions
with trains at railroad crossings.2 Eddie Shanklin joined their
ranks on October 3, 1993.3 It was just after 5:15 a.m. on a clear
autumn morning when Mr. Shanklin approached the Oakwood Church
Road crossing in Gibson County, Tennessee.4 He had been driving
through the crossing twice a day for almost four years, on his
way to and from his restaurant job.5 As his truck lumbered over
the tracks at about twenty miles per hour, it was broadsided by
a Norfolk Southern train. The train would push the vehicle more
than 400 meters down the tracks before finally coming to a stop.6
Eddie Shanklin died that day, a mere seven-tenths of a mile from
the home he shared with his wife, Dedra.7
Mrs. Shanklin filed a wrongful death action against Norfolk
Southern in Tennessee state court, claiming that the railroad
had installed inadequate warning devices at the crossing and had
failed to remove sight-obstructing vegetation.8 She also asserted
that railroad employees had failed to sound the train’s whistle
and
apply
its
brakes
in
a
timely
fashion.9
In
filing
the
complaint, she began a legal battle that would languish for more
1
than a decade and culminate in a historic decision by the United
States Supreme Court.
In
its
regulations
opinion,
would
the
preempt
Supreme
state
Court
tort
held
claims,
that
such
federal
as
Dedra
Shanklin’s, if federal funds had been used to install warning
devices at a railroad crossing.10 The decision appeared to sound
a
death
knell
for
plaintiffs
hoping
to
recover
under
state
statutes or state common law tort theories.11 However, subsequent
courts
have
not
ascribed
to
such
an
austere
and
inflexible
reading of Shanklin; they have allowed common law negligence
claims for excessive vegetation and failure to maintain safe
track conditions to survive.12 Other courts have ruled against
railroads that did not prove unequivocally that their warning
devices
were
fully
operational
and
installed
with
federal
funds.13 These decisions, along with the favorable ruling for
Mrs. Shanklin on remand, offer a glimmer of hope that plaintiffs
whose loved ones have been killed by trains can still prevail
under state law.
This note will examine: 1) the Supreme Court’s holding in
Shanklin that established a link between the federal funding of
crossing
improvements
dissent
on
the
and
grounds
preemption;
of
fairness
2)
Justice
and
Ginsburg’s
public
policy;
3)Shanklin’s impact on subsequent railroad crossing litigation,
including courts that applied the Shanklin rule more broadly
2
than the Supreme Court intended; 4) other courts that ascribed
to
a
narrow
interpretation
of
Shanklin
and
allowed
claims
unrelated to warning devices to move forward; and 5) plaintiff
Dedra
Shanklin’s
ultimate
victory
on
remand,
in
which
she
defeated preemption by proving that the Supreme Court’s decision
did not diminish a railroad’s common law duty to maintain safe
track conditions. This note concludes that Shanklin does not
afford the railroads blanket preemption. Rather, courts should
interpret
the
preemption
if
Shanklin
and
only
decision
very
narrowly,
if
claim
involves
the
applying
properly-
functioning warning devices installed with Federal funds. Other
state
tort
claims,
conditions,
failure
such
to
as
failure
clear
to
sight
maintain
obstructions
safe
track
around
a
crossing, and malfunctions in warning devices, should survive,
as they are not covered by the plain language of the federal
regulations.
II. THE HISTORIC COMMON LAW DUTIES OF RAILROADS AND THE RISE OF
FEDERAL PREEMPTION
As
long
ago
as
1877,
the
Supreme
Court
addressed
the
mutual, reciprocal duties of motorists and railroads to avoid
collisions at crossings and established a standard of care.14 In
Continental
Improvement
Co.
v.
Stead,
the
court
held
that
motorists were required to exercise the care of a reasonable
3
prudent person to detect and yield to trains.15 The railroads, in
turn, were required to give reasonable and timely warning of a
train’s approach, and to make every effort to stop the train to
avoid a collision.16
The
preemption
issue
surfaced
in
1970,
when
Congress
enacted the Federal Railroad Safety Act (FRSA) to address the
steep rise in collisions at railroad grade crossings.17 Federal
preemption
applies
when
a
state
statue
conflicts
with,
or
frustrates, federal law.18 If such a conflict exists, the state
law must give way to the federal law according to the Supremacy
Clause of the United States Constitution.19 There is a strong
presumption against preemption, and the court will only apply
preemption
Congress.”20
if
In
“it
is
the
railroad
clear
crossing
and
manifest
litigation,
purpose
the
of
defendant
railroad bears the burden of proving preemption.21
The FRSA contained an express preemption provision, which
stated that “a State may adopt or continue in force a law,
regulation,
or
order
related
to
railroad
safety
until
the
Secretary of Transportation proscribes a regulation or issues an
order covering the subject matter of the requirement.”22 In other
words, state common law would still govern in negligence and
wrongful death cases unless the Federal Government enacted a
regulation to cover the subject matter in question.
4
Three years later, Congress created the Federal RailwayHighway Crossings Program, which makes federal funds available
to states to install and improve warning devices, such as gates
and
flashing
lights,
at
crossings.23
To
participate
in
the
program and gain access to this funding, a state must “conduct
and systematically maintain a survey of all highways to identify
those
railroad
crossings
which
may
require
separation,
relocation, or protective devices, and establish and implement a
schedule of projects for this purpose.”24
The Federal Highway Administration (FHWA) issued several
regulations
implementing
the
Crossings
Program.25
23
CFR
§
646.214(b)outlines the overall design of crossing improvements;
23 CFR §§ 646.214(b)(3) and (4) detail what warning devices will
be considered adequate based on the conditions and circumstances
surrounding each individual crossing.26 At a minimum, the state
must provide every crossing with a black-and-white X-shaped sign
reading “RAILROAD CROSSING.”27 This sign is commonly known as a
“crossbuck.”
those
used
hazardous
For
crossings
frequently
materials,
by
The
it
deems
school
FHWA
more
buses
requires
dangerous,
or
that
trucks
such
as
carrying
states
install
automatic gates and flashing lights. The same regulation applies
at
crossings
involving
high-speed
trains,
limited
sight
distances, or heavy highway and railway traffic.28 When none of
5
these special circumstances exists, the type of warning device
to be installed is subject to FHWA approval.29
There are nearly 260,000 railroad grade crossings in the
United States,30 and two-thirds of these are equipped with only a
crossbuck sign.31 Crossings without automatic warning signals are
often referred to as “passive” crossings, and they account for
sixty percent of accident fatalities.32 The Oakwood Church Road
crossing where Mr. Shanklin was killed was one of these; it had
no
automatic
gates
or
flashing
lights
to
warn
him
of
an
approaching train.33 The installation of the crossbuck signs at
Oakwood
Church
Road
was
part
of
a
project
to
upgrade
196
crossings in eleven Tennessee counties.34 The project had been
approved by the FHWA and 99 percent of the funds used were
federal funds.35
II. THE SHANKLIN DECISION LINKS FEDERAL FUNDING WITH PREEMPTION
OF STATE TORT CLAIMS
A. The Majority Opinion
It was undisputed that the warning devices at the crossing
where
Eddie
compliant
Shanklin
with
the
was
federal
killed
were
standards
installed
outlined
in
and
23
fully
CFR
§
646.214(b).36 The only question for the court was whether these
regulations were applicable to all warning devices installed or
6
improved
with
federal
funds,
thus
preempting
Shanklin’s
Tennessee state tort claims against the defendant railroad.37
The
majority
stated
that
the
Supreme
Court
had
already
addressed this question in CSX Transportation v. Easterwood.38 In
that 1993 case, the court answered in the affirmative, holding
that the regulations apply across the board to federally-funded
crossing improvements.39 In Shanklin, the court
position
and
held
that
preemption
is
clarified its
triggered
when
the
following three requirements are met: 1) the FHWA has approved a
crossing improvement project; 2) the warning devices obtained
through
the
operational;
project
and
3)
are
actually
federal
funds
installed
have
been
and
spent
fully
on
the
improvement project.40 Once these requirements are satisfied, the
regulations will establish a federal standard for the adequacy
of
the
warning
devices
and
“displace
state
and
private
decisionmaking authority” on the subject.41 This displacement of
state law, and not the state’s rigid adherence to 23 C.F.R. §
646.214(b), preempts state tort actions.42 Thus, whether a state
should
have
originally
installed
different
or
additional
devices, or should have later upgraded them, is immaterial to
the preemption question.43
States retain the freedom to make
further improvements with their own funds but are not required
to do so, even if they decide later that a particular crossing
should be upgraded.44 Future improvements made without federal
7
funds do not change a crossing’s preemptive status, as long as
federal funds were originally spent on the crossing.45
Because the crossbuck installation at the Oakwood Church
Road crossing met the three-prong test outlined above, the 8-2
majority held that the federal standard for adequacy under 23
C.F.R. § 646.214(b) displaced Tennessee statutory and common law
on
the
subject.46
inadequate
warning
Mrs.
Shanklin’s
devices,
state
therefore,
tort
were
claims
preempted
by
for
the
federal regulations47 and the defendant railroad was absolved of
all
state
tort
liability.48
The
decision
was
undoubtedly
a
victory for the railroad industry.
B. Ginsburg’s Dissent and Breyer’s Concurring Opinion
Did the ruling in Shanklin let railroads off the hook too
easily? Justice Ginsburg, in her dissent, said yes. She argued
that the outcome of the case “defie[d] common sense and sound
policy” and achieved a double windfall for the railroads.49 In
addition, it displaced state negligence law without providing an
adequate
federal
standard
of
conduct
to
“fill
the
void.”50
Justice Ginsburg explained: “[T]he Federal Government foots the
bill
for
installing
safety
devices;
and
that
same
federal
expenditure spares the railroads from tort liability, even for
the
inadequacy of devices designed only to secure the “minimum”
protection Congress envisioned for all crossings.”51
8
Justice
Ginsburg
noted
that
the
Oakwood
Church
Road
crossing, a passive crossing, met only a bare minimum standard
for safety. Moreover, no governmental authority had individually
evaluated its specific dangers when the 196-crossing wholesale
upgrade
occurred
decision
in
absolve
Tennessee.52
the
railroads
Not
only
did
the
of
liability,
majority’s
but
it
also
protected the states from negligence lawsuits.53 Justice Ginsburg
further argued that previous Supreme Court decisions, including
Easterwood, did not completely oust state tort claims; they held
only that federal funding was necessary to trigger preemption,
not that it was sufficient by itself to preempt all state law.54
The
majority
federal
opinion,
funding
was
however,
the
only
seemed
to
settle
requirement.55
the
After
issue;
Shanklin,
warning devices at railroad crossings that had been installed
with Federal funds were deemed adequate as a matter of law.56
In his concurring opinion, Justice Breyer sided with the
majority
on
the
preemption
issue
but
agreed
with
Justice
Ginsburg that ensuring only minimum safety standards for the
nation’s motorists defied common sense and sound policy.57 His
rationale
for
joining
the
majority
was
that
the
scheme
for
creating regulations is flexible and allows for amendments.58 If
the
government
seeks
to
avoid
preemption
for
public
policy
reasons, he opined, then it need only change the laws to allow
state tort claims to survive.59 In the years since Shanklin,
9
however, the FHWA has not, in fact, amended the regulations.
Thus, the kinds of federal preemption questions addressed in the
2000 Shanklin decision still pose major dilemmas for the courts.
IV.
THE
IMPACT
OF
SHANKLIN:
CLAIMS
PREEMPTED
BY
FEDERAL
REGULATIONS AND THE MISAPPLICATION OF BLANKET PREEMPTION
Following
the
Shanklin
decision,
defendant
railroads
in
similar cases began to assert preemption defenses against any
state
tort
claims
they
faced,
even
if
those
claims
did
not
involve warning devices. The railroad industry interpreted the
decision broadly, contending that Shanklin removed even more of
their duties at crossings than a strict reading of the majority
opinion
would
suggest.60
Much
of
the
confusion
surrounding
Shanklin stemmed from the vague nature of the FHWA regulations,
which remain silent on the issue of state tort claims outside
the realm of warning devices.61 Due in part to this confusion,
several subsequent courts took the railroad industry’s view and
subscribed to a broad reading of Shanklin. After disallowing the
state
tort
claims
for
inadequate
warning
devices
(under
the
Shanklin rule), these courts held that negligence claims for
excessive
train
speed,
inadequate
headlights,
and
failure
to
sound an adequate whistle were also preempted.62 These types of
claims,
of
course,
were
never
discussed
by
the
Shanklin
majority. However, the Supreme Court did address them in a few
10
pre-Shanklin decisions such as Easterwood. In Easterwood, for
example, the Supreme Court expressly declined to rule on the
effect
of
preemption
on
excessive
speed
claims,
leaving
the
lower courts to debate this issue.63 Its failure to rule fueled
even
more
uncertainty
in
the
sphere
of
state
tort
claim
preemption.
A. The Preemption of Claims for Specific, Individual Hazard;
Excessive Speed; and Inadequate Lights, Bells, and Whistles
In
addition
Plaintiffs
contend
to
claims
involved
that
the
in
for
inadequate
railroad
crossings
crossing
in
their
warning
devices,
litigation
cases
often
constituted
a
“specific, individual hazard.” Other common claims involve the
speed of the train at the time of the collision and the adequacy
of the train’s lights and warning whistles. When a plaintiff can
prove that the particular crossing in her case was a specific,
individual
hazard,
preemption
exists.64
courts
To
have
meet
ruled
this
that
standard,
an
the
exception
hazard
to
must
consist of a “person, vehicle, obstruction, object, or event
which is not a fixed condition or feature of the crossing and
cannot
be
addressed
by
a
uniform
national
standard.”65
In
addition, the hazard must be something that was not contemplated
by the drafters of the FRSA, such as illegally or improperly
parked
vehicles
or
machinery
that
11
obstruct
the
view
of
an
engineer approaching the crossing.66 It has been difficult for
plaintiffs to meet this standard; previous courts have refused
to find a specific, individual hazard when stationary buildings
are
the
obstruction,
or
in
the
event
of
poor
weather
conditions.67 Courts have also ruled that traffic conditions, a
crossing’s
accident
history,
sight
distances,
sun
glare,
and
general knowledge that a crossing is dangerous do not rise to
the level of a specific, individual hazard.68
Plaintiffs
negligence
alleging
claim
for
a
specific,
excessive
individual
speed
have
hazard
been
in
a
largely
unsuccessful. The plaintiff asserted such a claim in Meyers v.
Missouri Pacific Railroad Co., stating that defendant railroad
negligently
failed
to
reduce
the
train’s
speed
despite
the
existence of a specific, individual hazard.69 First, the court
ruled that plaintiff’s state tort claim for inadequate warning
devices was preempted under Shanklin, even though the devices
were installed in 1962, eight years before the passage of the
FRSA.70 The defendant railroad helped sway the court by offering
proof that the devices had been upgraded with federal funds in
1987, after the FRSA took effect.71
However, plaintiff offered another claim; he alleged that
the train involved in the collision was “traveling at a speed
which was greater than reasonable, prudent, or proper for the
crossing.”72
Alternately,
Plaintiff
12
argued
that
the
railroad
breached a common law duty to stop or slow down to avoid a
specific, individual hazard, which was, in this case, a vehicle
on the tracks.73 Plaintiff asserted these claims although it was
undisputed that the train was traveling within the Federal speed
limit when the collision occurred.74
The court rejected plaintiff’s argument, stating that since
the Federal government sets the maximum speed for each class of
track, a state tort claim for excessive speed will be preempted
as long as the train involved was traveling within the federal
speed limit.75 The Meyers court found preemption per 49 C.F.R. §
213.9(a),
primary
although
it
responsibility
did
for
concede
that
classifying
railroads
their
own
have
the
tracks,
and
thus for setting their own speed limits.76
Despite this gap in logic, a Louisiana state court issued a
comparable holding in Furlough v. Union Pacific Railroad Co.77
The court ruled that any state claims for excessive speed are
preempted by the FRSA, regardless of “an obstructed sight line,
rough crossing, parallel roadways, inoperative ditch lights and
inclement
weather.”78
conditions
are
without
Negligence
merit,
the
claims
court
which
opined,
allege
these
because
the
conditions do not rise to the level of a specific, individual
hazard.79
A third court found excessive speed claims to be preempted
in Strandberg v. Chicago Central Railroad Co.80 In that case,
13
Plaintiff contended that the train involved in the collision
should have reduced its speed due to equipment placed on the
track.81 The court rejected this argument, asserting that if the
train was traveling within the federal speed limit at the time
of the collision, the fact that there was equipment near the
track was immaterial.82 The court explained
that “plaintiff’s
claim of failure to maintain a slow speed to avoid potential
hazards” was just another way of claiming excessive speed, and
should be treated as such.83 Other post-Shanklin courts dealing
with excessive speed negligence claims have ruled in a similar
fashion.84
The plaintiff in Strandberg also asserted that the train’s
whistles, bells, and headlights were not adequate.85 He testified
that
he
did
not
see
the
headlights
nor
hear
the
whistle
immediately before the crash; therefore, he concluded, they must
not have been sufficient.86 In addition, Plaintiff argued that
the train’s headlights should have been oscillating, since there
was a building near the crossing that blocked the forward-facing
headlights on the train.87
The court ruled that the claim of an inadequate whistle was
preempted by federal regulations, although it did not reference
the exact regulation covering such a claim.88 Instead, it cited a
1988
Fifth
regulations
Circuit
case
affecting
the
stating
that
train
itself
14
“virtually
appear
all
state
preempted
by
federal law” under the FRSA.89 Using this logic, the court ruled
that any claim for inadequate train headlights was preempted as
well.90 In sum, plaintiffs asserting claims for excessive train
speed, inadequate lights or whistles, and “specific, individual
hazard”
have
generally
found
their
claims
preempted
by
the
courts.
C. The Survival of
Certain State Tort Claims After
Shanklin
Other decisions proved to the railroads that Shanklin was
not a magic ticket out of liability. Specifically, state tort
claims involving obstructions around a crossing, which impeded
the decedent motorist’s sight range up and down the tracks, were
allowed to survive.91 Other plaintiffs defeated preemption by
showing that the railroad failed to prove that federal funds
were
spent
to
addition, the
upgrade
warning
Strandberg
devices
at
the
crossing.92
In
court left the door open to defeat
preemption in whistle and headlight claims; it stated that if
plaintiff alleged that the train operators negligently failed to
sound the whistle or activate the headlights (not just that
these pieces of equipment were inadequate), the claims would not
be preempted.93
Plaintiffs
have
found
perhaps
the
greatest
degree
of
success in the realm of excess vegetation claims. Most states
have
passed
statutes
requiring
15
railroads
to
control
sight-
obstructing vegetation around their crossings. For example, Ohio
mandates that “every railroad company shall destroy or remove
plants, trees, brush, or other obstructive vegetation upon its
right-of-way at each intersection with a public road or highway,
for
a
distance
of
six
hundred
feet
or
a
reasonably
safe
distance.”94
Several courts have refused to apply the Shanklin rule when
state tort claims for obstructive vegetation are at issue. In a
2003 decision, the Third Circuit held that federal regulations
would not preempt an action based on the failure of a railroad
to
maintain
sight
safe
distances.95
principal
crossing
grade
In
contention
had
crossing
this
was
obstructed
case,
that
the
conditions,
Plaintiff
excess
decedent’s
including
Clair
vegetation
view
of
clear
Strozyk’s
around
the
the
oncoming
train.96 The lower court had read Shanklin very broadly and had
concluded
that
the
federal
regulations
would
preempt
all
negligence claims arising out of the accident.97 The appellate
court rejected this view, stating that:
We can find nothing in the text of the regulation that
dictates that the Strozyks’ visibility claim was
preempted along with their claims regarding the
adequacy of the warning devices. To the contrary, the
plain language of the regulation indicates that the
subject
matter
is
the
adequacy
of
warning
98
devices...not negligence law more broadly.
16
In so holding, the court relied on the Supreme Court’s language
in the
Easterwood
decision. In that case, the Supreme court
ruled that a federal regulation will only preempt state law if
the regulation “substantially subsumes” that area of state law;
it is not enough for the regulation to merely “touch upon” or
“relate to” the subject matter.99 The Strozyk court concluded
that 23 CFR § 646.214(b) did not substantially subsume state
negligence law with regard to a railroad’s duty to maintain safe
crossing conditions by trimming vegetation.100 Furthermore, the
court criticized the defendant railroad for its broad reading of
Shanklin, stating that the decision, read in its entirety, does
not support the supplanting of “the negligence regime of the
fifty states.”101
In a similar decision, Clark v. Illinois Central Railroad
Co., the Mississippi Supreme Court focused on the text of the
Shanklin decision itself.102 The court asserted that the Shanklin
majority
referred
exclusively
to
the
installation
and
maintenance of warning devices and neglected to mention general
track
conditions.103
Thus,
the
Mississippi
court
held,
the
Shanklin rule should apply only when plaintiffs assert a claim
for inadequate warning devices.104 Because sight obstructions due
to vegetation fall outside the “narrow confines” of Shanklin’s
holding, they are not preempted.105 In dicta, the court furthered
a policy argument that preemption can interfere with the tenets
17
of federalism, which seek to “preserve traditional spheres of
state law.”106 Since state negligence law endeavors to further
reasonably safe conditions at railroad grade crossings, federal
preemption could have a detrimental effect on the safety and
well-being
of
motorists.107
Reminiscent
of
Justice
Ginsburg’s
dissent in Shanklin, the Clark court held that “[i]t would be
illogical
and
against
firm
public
policy
to
find
that
the
railroad has been excused from its common law duty to maintain
an otherwise safe crossing simply because the FHWA signed off on
a request for funds to install passive warning devices at a
crossing.”108
Another
defendant
plaintiff,
railroad’s
Kimberly
preemption
Alcorn,
argument
prevailed
in
a
2001
over
the
Missouri
case.109 Alcorn offered evidence that the passive crossing where
she was injured was obstructed by vegetation and that the tracks
themselves were 23 feet below the level of the road, further
diminishing the sight distances.110 Moreover, the crossbuck sign
that
should
have
warned
her
of
an
approaching
crossing
was
propped up at an angle in a roadside ditch.111 Other motorists
who had experienced near-misses at the crossing testified that
they
had
great
difficulty
seeing
or
hearing
the
oncoming
trains.112 They cited vegetation, sun glare, and the lay of the
crossing as the major culprits.113 In addition, representatives
for the defendant railroad testified that the railroad knew of a
18
fatal 1997 accident that had occurred at the same crossing and
knew
that
one
quadrant
of
the
crossing
was
ninety
percent
obstructed by vegetation.114
In its opinion, the Alcorn court discussed Shanklin only
briefly
demanded
and
held
that
that
her
the
state
circumstances
tort
claims
of
Alcorn’s
survive.115
The
case
court
explained, “[t]he fact that the state of Missouri, either on its
own, through agency decision, or through programs sponsored by
the
federal
program,
government
has
improvement
sought
projects
such
to
does
as
the
identify
not
grade
hazards
negate
the
crossings
and
safety
prioritize
railroad’s
duty.”116
Alcorn went on to prove that the railroad’s negligence was the
proximate cause of her injuries and was awarded $25 million in
compensatory damages.117
In another set of cases, states such as Ohio, Louisiana,
and New Mexico refused to grant summary judgment to railroads
that did not prove unequivocally that their warning devices were
installed with federal funds.118 In Bonacorsi v. Wheeling & Lake
Erie Railway Co., the court found that the defendant railroad
had failed to prove federal funding, and thus preemption did not
apply.119
The
Plaintiff,
therefore,
was
free
to
litigate
the
issue of the inadequacy of the crossing’s warning devices.120
The
defendant
railroad
in
Largo
v.
Atchison,
Topeka,
&
Santa Fe Railway Co. also failed to prove preemption. In this
19
case, the railroad argued that the Shanklin rule applied to all
crossings
where
federal
funds
had
been
spent,
regardless
of
whether that money was used to upgrade warning devices.121 In
1978, a federal grant had allowed the railroad to widen and
install
sixteen
feet
of
timber
planking
at
the
crossing;
according to the railroad, this project was enough to trigger
preemption.122
The
court
rejected
the
argument,
stating
correctly
that
Shanklin requires that the federal funds in question be spent on
warning
devices
before
preemption
is
triggered.123
Thus,
the
court held, the railroad did not satisfy Shanklin’s three-prong
test.124 Although the ultimate issue of the railroad’s negligence
was left for the trial court on remand, the appeals court stated
that “[w]e reject Defendants’ argument that railroads have no
duty
whatsoever
to
do
anything
about
hazardous
crossings.”125
Going beyond Justice Ginsburg’s dissent in Shanklin, the Largo
court suggested that when railroads become aware of a particular
hazards at a crossing, “they should at a minimum be required to
notify
the
appropriate
governmental
authorities
that
improvements are necessary.”126 After all, railroads and their
employees
are
the
entities
most
familiar
with
individual
crossings and the dangers they pose. In addition, because of
insurance claims and lawsuits stemming from crossing collisions,
20
the railroads have superior knowledge of what conditions tend to
produce accidents.127
Some plaintiff’s attorneys have argued that even claims for
inadequate
survive
warning
the
devices
Shanklin
improved
holding.128
For
with
federal
example,
funds
the
fact
can
that
federal money was spent to install warning devices at a crossing
does not eliminate the railroads’ common law duties to maintain
those
devices
in
good
working
order.129
Even
after
Shanklin,
railroads remained responsible to make certain their alreadyinstalled
warning
functioning.130
devices
For
were
example,
properly
Crossbuck
signs
and
continuously
installed
by
the
federal government are fitted with reflective tape so drivers
can see them at night, but the reflective quality often wears
off after seven or eight years.131 Thus, a plaintiff might defeat
preemption by proving that a non-reflective crossbuck is not
fully
operational
Similarly,
if
under
the
the
automatic
three-prong
light
and
gate
Shanklin
systems
test.132
are
not
working properly at the time of the collision, any negligence
claim arising out of that collision should not be preempted.133
In summary, plaintiffs in a number of post-Shanklin cases have
defeated preemption on claims of failure to maintain safe track
conditions.
motorists
This
a
duty
clear
includes
view
down
trimming
the
vegetation
tracks
and
to
keeping
allow
the
crossing’s warning devices in good working order. Furthermore,
21
plaintiffs can defeat preemption by showing that the railroad
did not prove unequivocally that federal funds were used to
improve warning devices at the crossing in question.
D. DEDRA SHANKLIN PREVAILS ON REMAND, DEFEATING PREEMPTION
After the Supreme Court ruled against Dedra Shanklin on her
claim of inadequate warning devices, her case was remanded to
the United States District Court for the Western District of
Tennessee.134
failure
to
Her
second
remove
tort
excess
claim
vegetation
against
the
railroad
for
around
the
crossing
was
tried before a second jury there in 2001.135 Shanklin contended
that Norfolk Southern’s failure to control vegetation and thus
maintain
a
safe
sight
distance
around
the
crossing
was
the
proximate cause of her husband’s death.136 In furtherance of this
argument, Shanklin cited a Tennessee statute requiring railroads
to maintain and trim trees around their tracks.137 In support of
her claims, she offered evidence showing that Norfolk Southern
knew
or
should
have
known
that
overgrown
vegetation
could
obstruct the sight lines of both motorists and locomotives at
crossings.138
The jury ruled in favor of Shanklin, and the defendant
railroad
again
appealed
on
a
preemption
theory.139
Norfolk
Southern argued that the same federal regulations that preempted
Shanklin’s claim for inadequate warning devices also preempted
22
her
vegetation
negligence
claims.140
In
its
argument,
the
railroad criticized the lower court for improperly limiting the
scope of Shanklin.141
In a decision similar to that of the Strozyk court, the
United States Court of Appeals for the Sixth Circuit disagreed
with the railroad.142 In its opinion, handed down on May 27,
2004, the court held that 23 C.F.R. § 646.214(b) governed only
warning signals, and not vegetation growth: “[T]he regulations
do not eclipse those duties ensuring safe grade crossings that
are
unrelated
to
warning
devices,
such
as
the
duty
to
keep
visibility at grade crossings free from obstructions.”143
The court reasoned that the federal regulations do not even
mention vegetational blockage or sight limitations; nor do they
define
what
a
sight
limitation
is,
mandate
that
sight
limitations be removed, or set standards as to how much sight
distance
should
be
provided
to
motorists
approaching
a
crossing.144 Thus, the court concluded, 23 C.F.R. § 646.214(b)
does
not
“cover”
negligence
actions
based
on
a
railroad’s
failure to clear vegetation.145 Consequently, Dedra Shanklin’s
state
tort
claim
was
not
preempted,
and
the
trial
court’s
decision in her favor was affirmed.146 After ten years of legal
battles,
Shanklin
had
finally
proved
that
Norfolk
Southern’s
negligence was the proximate cause of her husband’s death.
23
V. RESOLUTION
Although the Supreme Court’s decision in Shanklin continues
to
cast
a
shadow
over
railroad
crossing
collision
cases,
Shanklin’s victory on remand, as well as the Strozyk and Clark
decisions, should limit the circumstances in which a railroad
can prevail on preemption theory. Specifically, courts should
invoke the Shanklin rule only when the adequacy of properlyfunctioning warning devices is at issue. Conversely, state tort
claims unrelated to warning devices should survive. The United
States Court of Appeals for the Sixth Circuit made it abundantly
clear that regulations that do not mention vegetation or sight
blockages cannot logically preempt a cause of action thereon.147
To hold otherwise would not only defy common sense, but as
Justice
Ginsburg
asserted,
it
would
allow
the
railroads
to
unjustly escape liability.148 After all, the railroad industry
has been thriving in the United States for 130 years and is in a
better position than anyone to recognize and deal with crossing
hazards.149
involving
The
railroads
crossing
have
collisions
also
for
been
over
conducting
seventy-five
studies
years.150
Arguably, the industry has discovered something during this time
period to explain how a motorist could be hit by “something as
big
and
loud
government
is
as
to
a
train.”151
further
the
If
the
common
goal
good
and
of
the
the
federal
safety
of
motorists, the railroads should not be excused of their common
24
law duties to maintain safe crossing conditions simply because
they
have
received
some
federal
funds
to
upgrade
warning
devices. If a driver, because of dense vegetation blocking his
view, cannot see an approaching train, the courts cannot hold
him responsible if he fails to yield.
Moreover, the Supreme Court has established the rule that
preemption of state law will only apply if that preemption is
the clear and manifest purpose of Congress.152 Although the FRSA
does contain an express preemption clause, the FHWA regulations
themselves are silent as to state tort claims outside the realm
of warning device installation. This omission can be interpreted
two ways. First, it could mean that the FHWA did not intend the
regulations
warning
to
devices.
preempt
claims
Alternately,
for
it
negligence
could
mean
unrelated
that
the
to
FHWA
intended to preempt all state tort claims but was too vague in
drafting the regulations. If the latter is true, the federal
government should amend 23 C.F.R. § 646.214(b) to include these
claims
and
progeny.
end
Justice
the
confusion
Breyer,
in
his
surrounding
Shanklin
and
Shanklin
concurrence,
its
stated
that he joined the majority specifically because the government
has the legal power to amend its regulations. If the FHWA seeks
to alter the status quo, he reasoned, they can make changes to
“achieve the commonsense result that the Government itself now
seeks.”153 Common sense recommends that the federal government
25
rewrite the regulations to unequivocally spell out which tort
claims are to be preempted and which are not.
As Justice Ginsburg and the Clark court suggested, public
policy also demands reform in the realm of railroad crossing
safety.
The
federal
government
could
pursue
a
novel,
though
expensive, safety solution by mandating that all railroad grade
crossings be installed with automatic warning devices. Such a
mandate makes sense because the majority of fatalities occur at
passive
crossings.154
Furthermore,
studies
have
shown
that
automatic lights and gates are ninety percent more effective
than
a
mere
approaching
grade
crossbuck
train.155
separation,
overpasses
and
sign
Another
which
in
warning
possible
solution
necessitates
underpasses
to
motorists
eliminate
the
some
is
to
of
an
explore
construction
railroad
of
grade
crossings entirely.
VI. CONCLUSION
The double windfall enjoyed by the railroad industry after
Shanklin consists of immunity from tort liability paired with
government
handouts
for
crossing
improvements.
As
Justice
Ginsburg stated, the current scheme of preemption defies common
sense
and
railroad
compromises
to
keep
its
the
own
public’s
safety.
crossings
The
reasonably
duty
safe
of
a
was
established in 1877, and if the railroad breaches this duty, it
26
must be held liable. Moreover, allowing state tort claims to go
forward does not ensure an automatic victory for the plaintiff.
It simply means that the court will deny the railroad’s motion
for summary judgment on a preemption theory. Then, the merits of
each individual tort issue will be decided by the trier of fact.
Since every crossing is different in terms of sight distances,
dangerous
conditions,
and
obstructions,
the
jury
is
best
equipped to judge whether or not the railroad breached its duty
in any particular case. The interests of justice require that
the railroad industry, like any other industry in America, be
held accountable for its negligent acts.
27
1
J.D. expected May 2006.
U.S. DOT Collision Statistics, Operation Lifesaver, available at http://www.oli.org/for_media/us_col_stats.html.
(Sept. 7, 2004).
3
Shanklin v. Norfolk S. Ry. Co., 369 F.3d 978, 982 (6th Cir. 2004), reh’g en banc denied,
4
Shanklin v. Norfolk S. Ry. Co., 529 U.S. 344, 350 (2000) (Ginsburg, J., dissenting).
5
Shanklin, 396 F.3d at 982.
6
Id.
7
Id.
8
Id.
9
Id.
10
Shanklin v. Norfolk S. Ry. Co, 529 U.S. 344, 357 (2000).
11
Schuetze, Robert A., So Now What Do We Do?—Life After Shanklin, 2000, American Trial Lawyers Association,
Westlaw, 2 Ann. 2000 ATLA-CLE 2543.
12
Clark v. Ill. Cent. R.R. Co., 794 So.2d 191, 196 (Miss. 2001).
13
See, e.g., Hargrove v. Mo. Pac. R.R. Co., 861 So.2d 903, 908 (La. Ct. App. 2003); Largo v. Atchison, Topeka &
Santa Fe Ry. Co., 41 P.3d 347, 351 (N.M. Ct. App. 2001); Bonacorsi v. Wheeling & Lake Erie Ry. Co., 767 N.E.2d
707, 714 (Ohio 2002).
14
Cont’l Improvement Co. v. Stead, 95 U.S. 161, 164 (1877).
15
Id.
16
Id.
17
Shanklin v. Norfolk S. Ry. Co., 529 U.S. 344, 347 (2000).
18
CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 663 (1993).
19
Id.
20
Id. at 664.
21
See, e.g., Medtronic v. Lohr, 116 S.Ct. 2240 (1996).
22
Shanklin, 529 U.S. at 347.
23
Id. at 348.
24
Id.
25
Id.
26
Id. (Citing 23 C.F.R. § 646.214 (1999).) “Separation” refers to building overpasses or underpasses to eliminate a
railroad grade crossing.
27
Id.
28
23 C.F.R. § 646.214 (1999).
29
Shanklin v. Norfolk S. Ry. Co., 529 U.S. 344, 349 (2000).
30
Federal Railroad Administration, “Grade Crossings,” at http://www.fra.dot.gov/us/content. (Accessed Sept. 7,
2004).
31
O’Dwyer, Pamela R. Caught in the Crossfire: How the 900 Pound Gorilla Got His Way, 2000, American Trial
Lawyers Association, Westlaw, 2 Ann. 2000 ATLA-CLE 2527 (2000).
32
Id.
33
Shanklin, 529 U.S. at 350.
34
Id.
35
Id.
36
Id.
37
Id. at 353.
38
507 U.S. 658 (1993).
39
Shanklin,, 529 U.S. at 352.
40
Id. at 356-358.
41
See supra text accompanying note 18.
42
Shanklin, 529 U.S. at 357-358.
43
Id.
44
Id. at 358.
45
Strandberg v. Chicago Cent. R.R. Co., 276 F. Supp. 2d 1136, 1142 (N.D. Iowa 2003).
46
Shanklin, 529 U.S. at 359.
47
Id.
48
Id. at 358.
2
28
49
Id. at 360 (Ginsburg, J., dissenting).
Id.
51
Id. at 360-61 (Ginsburg, J., dissenting).
52
Id.
53
Id.
54
Id. at 361 (Ginsburg, J., dissenting).
55
Id. at 359.
56
Wilson v. Kan. City S. Ry. Co., 276 F. Supp. 2d 614, 620 (S.D. Miss. 2003).
57
Id. at 359 (Breyer, J., concurring.)
58
Id.
59
Id.
60
O’Dwyer, supra note 31.
61
23 C.F.R. §§ 646.214(b)(3) and (4)
62
Strandberg v. Chicago Cent. R.R. Co., 284 F. Supp. 2d 1136, 1143 (N.D. Iowa 2003); Furlough v. Union Pac.
R.R. Co., 766 So.2d 751, 759-760 (La. Ct. App. 2000); Meyers v. Mo. Pac. R.R. Co., 52 P.3d 1014, 1028 (Okla.
2002).
63
Strandberg, 284 F. Supp. 2d at 1143.
64
Furlough, 766 So.2d at 759-60 (La. Ct. App. 2000).
65
Anderson v. Wis. Cent. Trans. Co., 327 F. Supp. 2d 696, 978 (E.D. Wis. 2004).
66
Furlough, 766 So.2d at 760.
67
Id. at 761.
68
Meyers v. Mo. Pac. R.R. Co., 52 P.3d 1014, 1028 (Okla. 2002).
69
Id. at 1023.
70
Id.
71
Id.
72
Id.
73
Id. at 1026.
74
Id. at 1024.
75
Id. at 1023.
76
Id.
77
Furlough v. Union Pac. R.R. Co., 766 So.2d 751, 759-60 (La. Ct. App. 2000).
78
Id. at 760.
79
Id.
80
Strandberg v. Chicago Cent. R.R. Co., 284 F.Supp.2d 1136, 1143 (N.D. Iowa 2003).
81
Id.
82
Id.
83
Id.
84
See, e.g., Wilson v. Kan. City S. Ry. Co., 276 F. Supp. 2d 614, 620 (S.D. Miss. 2003); Hightower v. Kan. S. R.R.
Co., 70 P.3d 835, 852 (Okla. 2003).
85
Id. at 1143-1144.
86
Id. at 1144.
87
Id.
88
Id.
89
Id. at 1143.
90
Id. at 1144.
91
See, e.g., Strozyk v. Norfolk S. Ry. Co., 358 F.3d 268, 277 (3rd Cir. 2004); Clark v. Ill. Cent. R.R. Co., 794 So.2d
191, 196 (Miss. 2001).
92
See, e.g., Hargrove v. Mo. Pac. R.R. Co., 861 So.2d 903, 908 (La. Ct. App. 2003); Largo v. Atchison, Topeka &
Santa Fe Ry. Co., 41 P.3d 347, 351 (N.M. 2001); Bonacorsi v. Wheeling & Lake Erie Ry. Co., 767 N.E.2d 707, 714
(Ohio 2002).
93
Strandberg, 284 F. Supp. 2d at 1143.
94
O.R.C. § 4955.36 (1967).
95
Strozyk, 358 F.3d at 269.
96
Id. at 270.
97
Id. at 272.
50
29
98
Id. at 273.
Id.
100
Id.
101
Id. at 275.
102
Clark v. Ill. Cent. R.R. Co., 794 So.2d 191, 195-196 (Miss. 2001).
103
Id. at 196.
104
Id.
105
Id.
106
Id.
107
Id.
108
Id.
109
Alcorn v. Union Pac. R.R. Co., 50 S.W.3d 226, 234 (Mo. 2001).
110
Id. at 233.
111
Id.
112
Id.
113
Id.
114
Id.
115
Id. at 236.
116
Id.
117
Id. at 231.
118
See, e.g., Hargrove v. Mo. Pac. R.R. Co., 861 So.2d 903, 908 (La. Ct. App. 2003); Largo v. Atchison, Topeka &
Santa Fe Ry. Co., 41 P.3d 347, 351 (N.M. 2001); Bonacorsi v. Wheeling & Lake Erie Ry. Co., 767 N.E.2d 707, 714
(Ohio 2002).
119
Bonacorsi, 767 N.E.2d at 714.
120
Id.
121
Largo, 41 P.3d at 350-51.
122
Id.
123
Id. at 351.
124
Id.
125
Id. at 352.
126
Id.
127
Id.
128
Schuetze, supra note 11.
129
O’Dwyer, Pamela R., Death Is Not a Dog Bite, So Why Give a Railroad One for Free?, 2000, American Trial
Lawyers Association, Westlaw, 2 Ann.2002 ATLA-CLE 2573.
130
Schuetze, supra note 11.
131
Id.
132
Id.
133
Id.
134
Shanklin v. Norfolk S. Ry. Co., 369 F.3d 978, 981 (6th Cir. 2004).
135
Id.
136
Id. at 982.
137
Id.
138
Id. at 981.
139
Id. at 982.
140
Id. at 984-985.
141
Id. at 985.
142
Id. at 995.
143
Id. at 987.
144
Id.
145
Id.
146
Id. at 994.
147
Id. at 987.
148
Shanklin v. Norfolk S. Ry. Co., 529 U.S. 344, 360 (2000) (Ginsburg, J., dissenting).
149
O’Dwyer, supra note 31.
99
30
150
Id.
Id.
152
CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993).
153
Shanklin, 529 U.S. at 359-360 (Ginsburg, J., dissenting).
154
Schuetze, supra note 11.
155
Id.
151
31