Sections 646.214(b)(3) and (4) 'cover the subject matter' of the adequacy of warning devices installed with the participation of federal funds. As a result, the FRSA preempts respondent's state tort claim that the advance warning signs and reflectorized cross bucks installed at the Oakwood Church Road crossing were inadequate. Because TDOT used federal funds for the signs' installation §§ 646.214(b)(3) and (4) governed the selections and installation of the devices. And because the TDOT determined that warning devices other than automatic gates and flashing lights were appropriate, its decision was subject to the approval of the FHWA. See 23 C.F.R § 646.214(b)(4) (1999). Once the FHWA approved the project and the signs were installed using federal funds, the federal standard for adequacy displaced Tennessee statutory and common law addressing the same subject, thereby preempting respondent's claim.

The full opinion may be found at http://www.supremecourtus.gov/
opinions/99oplist.html.

Shanklin was killed at a grade crossing that had been improved using federal funds in a state wide program to substitute reflectorized cross bucks for painted wood cross bucks. The railroads have asked the United States Supreme Court to rule that once the federal government has funded any crossing improvement, including such a minimum upgrade as reflectorized cross bucks at the crossing, the whole issue of whether the crossing is adequately protected is federally preempted. 

The question of extending federal preemption to cases where cross bucks were installed with federal funds, without a specific determination by a diagnostic team that reflectorized cross bucks were all that was required to make the crossing reasonably safe, is a matter of overwhelming importance to our clients injured at grade crossings. Grade crossing accidents almost invariably come down to an issue of adequacy of the warning given by the railroad to plaintiff of the approach of its train.

Legislative History

The railroads have fought to make this common law duty disappear by taking the position that federal legislation has preempted state common law. Thus, far, the railroads have been unsuccessful in this effort. Their theories of preemption have been specifically rejected by most Courts of Appeal.

It has been the consistent position of ATLA that the legislative history of the Federal Railroad Safety Act by its very terms confirm that Congress intended to preserve state common law duties relating to grade crossing safety until such as the U.S. Secretary of Transportation promulgated a rule or regulation, specifically covering grade crossing safety. 49 U.S.C. § 20106. Thus far, the U.S. Secretary of Transportation has not promulgated a preemptive rule covering the subject matter.

ATLA cites committee hearings and committee reports which buttress and reinforce the right of the states to continue to enforce state common law concerning grade crossing safety until such time as the Secretary issues a standard covering that subject matter. These Congressional position statements are consistent with the United States Supreme Court's ruling preserving traditional areas of state common law police power in safety related areas including grade crossing safety.

Saving Clause

The Federal Railroad Safety Act includes a local safety hazard saving clause which protects state tort law duties in the grade crossing area, even under circumstances where the crossings have been substantially improved. The Federal Railroad Safety Act allows recovery on an inadequate protection theory because of the local safety hazard savings clause. The savings clause by its terms permits the states to impose more stringent requirement where there exists a local safety hazard. ATLA has consistently argued that there is nothing more local in railroad safety than a specific crossing which is unsafe. Congress was aware of the tragedies occurring at grade crossings when it adopted the Federal Railway Safety Act, and nowhere in said Act, and nowhere in said Act is it suggested that the public should be foreclosed from seeking recovery in a crossing accident.

If Congress had intended to preempt state common law, it would have so stated, as it has in other legislation. The Federal Railway Safety Act imposes common law duties upon railroads because their duties are not specifically compromised by the Act's language. Furthermore, the Federal Highway Administration has long recognized that federal grade crossing safety standards are minimum standards. Both the Federal Highway Administration and its predecessor agencies, through various printed material and policy statements, have made it clear that federal standards are minimum standards.

Preemption

The preemption issue was presented to the United States Supreme Court in CSX Transportation, Inc. v. Easterwood, 507 U.S. 658 (1993). In Easterwood the Supreme Court refused to find preemption. Since Easterwood the railroad industry has sought relief from its common law responsibilities from both the U.S. Congress and the U.S. Department of Transportation. In all of its efforts to date it has been unsuccessful.

Prior to his retirement from the United States Congress, Senator John Danforth, on May 18, 1994, introduced S. 2127, which would have provided the relief sought by the railroad. Congress did not adopt the provisions of that statute.

Having failed in Congress, the railroads attempted to achieve the same result by having the Federal Railroad Administration issue regulations which would preempt the field of railroad crossing safety. the regulation as proposed would have prohibited railroads from selecting and installing warning systems at crossings. This would have eliminated any duty upon the railroads for crossing improvements and freed them to argue in tort litigation that since their duty was eliminated, there could be no liability. Hearings were conducted on June 5, 1995, and August 8, 1997. After hearing testimony, the Federal Railway Administration terminated the proceedings. At this time the proposed Federal Railway Administration rule relieving the railroads from their grade crossing safety duty is a dead letter.

On August 4, 1999, President Clinton promulgated executive order 13132 directing federal agencies not to issue regulations preempting state law unless there is clear evidence in the statute from which the federal agency takes it authority that Congress intended state common law and statutory law be preempted by the federal authority.

ATLA takes the position that because the reflectorized cross buck in the Shanklin case was installed as part of a statewide program of minimum crossing improvement, pursuant to 23 U.S.C. 130 (d) and because the installation of the reflectorized cross buck was not proceeded by, and done pursuant to the recommendation of a diagnostic team charged with the responsibility of applying federal standards to the particular crossing, as required by 23 C.F.R.. 646-214 (b)(3) and (B)(4), no conscious decision had been made concerning the safety of that particular grade crossing, and therefore, federal preemption does not apply to the Shanklin situation.

Constructive Approval

Unfortunately, at this point there is a division of authority between the various federal circuit courts of appeal concerning the issue in Shanklin. The Fifth, Eighth, and Tenth Circuits have adopted the so-called "brightline rule," which holds that preemption comes into play when federal funds are used to install any sort of crossing warning system, including reflectorized crossing bucks. This "constructive approval" concept holds that because federal funds were used to install the reflectorized cross bucks, the Federal Highway Administration has given constructive approval to that form of upgrade. Those circuits take the position that federal funding is the touch stone of preemption and that once federal funding is proved, the issue of crossing safety and the railroad's duty to provide a reasonably safe grade crossing fro the motoring public, is no longer in the case. Herster v. CSX Transporation, Inc., 61 F.3d 382, 386 (5th Cir. 1995); Elord v. Burlington N. RR. Co., 68 F.3d 241, 244 (8th Cir. 1995); and Armijo v. Atchison, Topeka and Santa Fe Ry Co., 87 F.3d 1188, 1190 (10th Cir. 1996).

The Seventh Circuit, and now the Sixth Circuit, have rejected the "constructive approval theory" and have ruled that in addition to federal funding of the signage, there also must be a specific finding by the Federal Highway Administration that the improvement was adequate to safely protect the crossing in question. Shots v. CSX Transportation, 38 F.3d 304 (7th Cir. 1994) and Shanklin v. Norfolk Southern, 173 F.3d 386 (6th Cir. 1999).

ATLA is recommending to the United States Supreme Court that it adopted the Sixth and Seventh Circuits' dogma in this area. The proponents of constructive approval point out that the Federal Railway Safety Act provides that no expenditure of federal funds can be authorized to protect the crossings unless the "safety protection devices comply with the standards determined by the Secretary at that time as being adequate shall be installed." 23 U.S.C. § 109(e). Before the work can proceed, a "Federal Highway Administration issuance of an authorization to proceed with the work" must have been satisfied. 23 C.F.R. §630.114(b).

The railroads claim that constructive approval is justified because 23 U.S.C. §  409 prohibits the use at trial of "reports, surveys, schedules, list, or data" collected pursuant to 23 U.S.C. § 130, 144, and 152, from being discovered or used at trial.

The railroads take the position that because of these statutes, the railroads are unable to prove that they have acted responsibly and exercised due care in relation to the grade crossing because the documents necessary to prove their non-negligent safety program cannot be discovered or disclosed to the jury.

ATLA takes the position that the railroad's argument in support of constructive approval is bogus because any crossing without active protection is not covered by preemption unless the Federal highway Administration has specifically found that active protection is not required. ATLA also points out that the approval of the Secretary, or that state departments of transportation, to use passive warning devices at particular crossing is not barred from discovery or admission into evidence by 23 U.S.C. § 409, and therefore, the railroad can prove that the passive warning device had been determined by government authority to be adequate protection at the crossing, and thus, preempted from common law jury consideration.

Two Programs

ATLA has emphasized to the Supreme Court that the federal government in fact has two grade crossing safety programs. As previously noted, the first program is a "minimum protection program" to help fund passive protection as a minimum protection at every public grade crossing in America. The second program is the "hazard program" which requires the crossing be individually reviewed and investigated by a diagnostic team to determine if flashers and gates are required to make the railroad crossing, reasonably safe or if passive protection is all that the situation requires.

ATLA opines that absent such diagnostic review and safety determination, no federal decision has been made and thus, state common law remains in effect and responsibility for grade crossing is an railroad responsibility, for the breach of which money damages for railroad grade crossing victims remains appropriate.

How the United States Supreme Court resolves these issues will drastically effect, for good or ill, the interest of the highway user. We can only hope that justice will be informed by reason and the right will prevail.