676 F.3d 680 (8th Cir. 2012), 10-3636, Grade v. BNSF Ry. Co.

Docket Nº:10-3636.
Citation:676 F.3d 680
Opinion Judge:SHEPHERD, Circuit Judge.
Party Name:Steven L.D. GRADE, Appellant, v. BNSF RAILWAY COMPANY, a Delaware Corporation, Appellee.
Attorney:Kevin Kent Knake, argued, Hastings, NE, for Appellant. Krista M. Carlson, argued, Thomas C. Sattler, on the brief, Lincoln, NE, for Appellee.
Judge Panel:Before LOKEN, MURPHY, and SHEPHERD, Circuit Judges.
Case Date:April 16, 2012
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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676 F.3d 680 (8th Cir. 2012)

Steven L.D. GRADE, Appellant,


BNSF RAILWAY COMPANY, a Delaware Corporation, Appellee.

No. 10-3636.

United States Court of Appeals, Eighth Circuit.

April 16, 2012

Submitted: Dec. 13, 2011.

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[Copyrighted Material Omitted]

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Kevin Kent Knake, argued, Hastings, NE, for Appellant.

Krista M. Carlson, argued, Thomas C. Sattler, on the brief, Lincoln, NE, for Appellee.

Before LOKEN, MURPHY, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Steven Grade brought suit against BNSF Railway Co. (BNSF), alleging common law negligence and seeking compensation for injuries he suffered when the automobile he was driving hit a BNSF railcar that was stopped at a railroad crossing. The district court 1 granted summary judgment to BNSF dismissing all of Grade's claims. Grade appeals, and we affirm.


On a late December night in 2006, Steven Grade and his wife went grocery shopping in Hastings, Nebraska. On that night, Hastings was experiencing an ice storm that affected road conditions and reduced visibility. On the way home from grocery shopping, the Grades' automobile, driven by Steven Grade, hit a flatbed railcar owned by BNSF as the Grades attempted to pass through a railroad crossing. The flatbed railcar was part of a long string of flatbed railcars that had been detached from a BNSF train and that was parked unattended on a BNSF railroad track awaiting a crew change and removal of one of the railcars.2 As a result of this collision, Grade sustained serious injuries to the bones of his lower arm and wrist, requiring surgery and resulting in permanent disability; additionally, his automobile was totaled.

Grade filed suit in Nebraska state court alleging eight claims of negligence under

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Nebraska law. Specifically, Grade claimed the accident was caused by BNSF:

(a) In failing to maintain a proper lookout for the motoring public who were lawfully using B [S]treet [where the accident took place];

(b) In failing to have its rolling stock under reasonable and proper control and supervision;

(c) In failing to break the parked flat cars at the crossing and move said cars a safe distance north or south of said grade crossing;

(d) In failing to have a flagman, or other railroad personnel, or to have appropriate automated audible, flashing or refectory [sic] warning devices at the crossing or on the flatcars in order to alert oncoming motorists on B Street that the flatcars were blocking the grade crossing;

(e) By blocking said grade crossing with unattended and parked flatcars for more than ten minutes without breaking and removing said cars from the grade crossing;

(f) In failing to maintain the B Street Crossing with a mounted flashing light and bell warning signal;

(g) In failing to install a mounted flashing light and bell warning signal at the B Street Crossing; and

(h) In marking the B Street Crossing with a cross-buck sign and not a cross arm devise [sic] with a flashing light.

(Complaint at 3). The case was removed to federal court based on diversity jurisdiction. BNSF moved for summary judgment, and the district court granted the motion, finding that Grade's claims (a), (b), (d), (f), (g), and (h) were preempted by the Federal Railroad Safety Act (FRSA) because they were inadequacy-of-warning claims and the warning device in place at the B Street crossing at the time of the accident was paid for by federal funds. The district court found that Grade's claims (c) and (e) failed because Grade could not prove causation, a necessary element of a negligence cause of action.


Grade argues on appeal that the district court erred in granting summary judgment on each of his claims. " We review the district court's grant of summary judgment de novo, taking the facts in the light most favorable to the nonmoving party and drawing all reasonable inferences in the nonmoving party's favor." Quinn v. St. Louis Cnty., 653 F.3d 745, 750 (8th Cir.2011). " Where there is no dispute of material fact and reasonable fact finders could not find in favor of the nonmoving party, summary judgment is appropriate." Fercello v. Cnty. of Ramsey, 612 F.3d 1069, 1077 (8th Cir.2010).

A. Inadequacy-of-Warning Claims

" We review the district court's determination concerning the preemption of the FRSA de novo." BNSF Ry. Co. v. Swanson, 533 F.3d 618, 621 (8th Cir.2008). We are mindful of our general " reluctance to find preemption when interpreting a federal statute pertaining to a subject traditionally governed by state law." Id.

The federal regulations that address the adequacy of warning devices are found at 23 C.F.R § 646.214(b)(3) and (4). According to section 646.214(b)(3)(i):

Adequate warning devices ... on any project where Federal-aid funds participate in the installation of the devices are to include automatic gates with flashing light signals when one or more of the following conditions exist:

(A) Multiple main line railroad tracks.

(B) Multiple tracks at or in the vicinity of the crossing which may be occupied by a train or locomotive so as to obscure

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the movement of another train approaching the crossing.

(C) High speed train operation combined with limited sight distance at either single or multiple track crossings.

(D) A combination of high speeds and moderately high volumes of highway and railroad traffic.

(E) Either a high volume of vehicular traffic, high number of train movements, substantial numbers of schoolbuses or trucks carrying hazardous materials, unusually restricted sight distance, continuing accident occurrences, or any combination of these conditions.

(F) A diagnostic team recommends them.

23 C.F.R § 646.214(b)(3)(i). Where a crossing does not exhibit the factors listed in section...

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