Grade v. BNSF Ry. Co.

• Decision Date: 16 April 2012
• Docket Number: No. 10–3636.,10–3636.
• Citation: 676 F.3d 680
• Parties: Steven L.D. GRADE, Appellant, v. BNSF RAILWAY COMPANY, a Delaware Corporation, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

676 F.3d 680

Steven L.D. GRADE, Appellant,

v.BNSF RAILWAY COMPANY, a Delaware Corporation, Appellee.

No. 10–3636.

United States Court of Appeals, Eighth Circuit.

Submitted: Dec. 13, 2011.Filed: April 16, 2012.

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.

I.

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 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.

II.

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 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 646.214(b)(3)(i), which require the crossing to be equipped with automatic gates and flashing lights, “the type of warning device to be installed, whether the determination is made by a State regulatory agency, State highway agency, and/or the railroad, is subject to the approval of FHWA [Federal Highway Administration].” 23 C.F.R. § 646.214(b)(4).

BNSF introduced the uncontroverted affidavit of Ellis Tompkins, the custodian of records for the Nebraska Department of Roads (NDOR). Tompkins's affidavit and supporting documents indicated the following: The B Street Crossing where Grade's accident occurred was equipped with a reflectorized crossbuck sign. The crossbuck sign was installed pursuant to a 1978 agreement between the NDOR, BNSF's predecessor BN, and the FHWA to add reflectorized crossbuck signs to certain crossings within Nebraska. BN installed the reflectorized crossbuck and was reimbursed for 90% of its cost by federal funds from the FHWA. In the time since the crossbuck's installation, neither the NDOR nor the FHWA has considered whether the crossing required any additional warning devices.

Grade's complaint alleges that the crossbuck sign was inadequate because, although not required by federal regulation, additional warning devices, such as a flagman or lookout, should have been in place at the crossing. Additionally, Grade's claims (f), (g), and (h) appear to allege that the B Street Crossing should have complied with section 646.214(b)(3)(i), as he alleges the crossing should have been equipped with automatic gates and flashing lights.

In Norfolk Southern Railway Co. v. Shanklin, 529 U.S. 344, 357–59, 120 S.Ct. 1467, 146 L.Ed.2d 374 (2000), the Supreme Court determined that when a crossing warning device has been installed using federal funds, any state claim alleging the inadequacy of that warning device is preempted irrespective of whether the warning device complied with section 646.214(b)(3) or (4). According to Shanklin, it is the use of federal funds in the installation of a warning device rather than the compliance with federal regulations that triggers preemption. 529 U.S. at 357–58, 120 S.Ct. 1467. Because the B Street Crossing was equipped with a warning device using federal funds, under Shanklin, all of Grade's claims, including the claims alleging the crossing device was not in compliance with section 646.214(b)(3), are preempted.

Grade argues Shanklin is no longer good law because of a 2007 Amendment to the FRSA preemption section, 49 U.S.C. § 20106. Congress amended section 20106 in response to a group of cases arising out of a 2006 Minot, North Dakota accident in which a train derailed and released more than 222,000 gallons of toxic gas into the air, resulting in injury to many people. See Lundeen v. Can. Pac. Ry. Co. (Lundeen II), 532 F.3d 682, 687 (8th Cir.2008). Federal courts that heard the Minot derailment cases, including ours, found that the plaintiffs' state causes of action were completely preempted by the FRSA. Id. at 687–88. These decisions “caus[ed] a stir on the political front.” Id. at 688. In response, Congress passed the 2007 Amendment to the FRSA, which states:

Nothing in [the FRSA] shall be construed to preempt an action under State law seeking damages for personal injury, death, or property damage alleging that a party—

(A) has failed to comply with the Federal standard of care established by a regulation or order issued by the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), covering the subject matter as provided in subsection (a) of this section;

(B) has failed to comply with its own plan, rule, or standard that it created pursuant to a regulation or order issued by either of the Secretaries; or

(C) has failed to comply with a State law, regulation, or order that is not incompatible with subsection (a)(2).

49 U.S.C. § 20106(b)(1)(A)-(C). The Amendment was retroactive to the date of the Minot derailment. 49 U.S.C. § 20106(b)(2); Lundeen II, 532 F.3d at 688.

Grade argues that the 2007 Amendment renders Shanklin bad law and prevents his inadequacy-of-warning claims from being preempted. We find, however, that the 2007 Amendment has no effect on Shanklin inadequacy-of-warning claims. In the Minot...