Shots v. CSX Transp., Inc.
| Decision Date | 13 October 1994 |
| Docket Number | No. 94-1290,94-1290 |
| Citation | 38 F.3d 304 |
| Parties | Jason M. SHOTS, Plaintiff-Appellee, v. CSX TRANSPORTATION, INCORPORATED, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
David V. Scott, New Albany, IN (argued), for Jason M. Shots.
Victor L. Frost, II, Bruce A. Hugon (argued), Frost & Hugon, Indianapolis, IN, for CSX Transp., Inc.
William A. Brasher, Brasher Law Firm, St. Louis, MO, Stephen A. Trimble, Hamilton & Hamilton, Washington, DC, for Association of American Railroads, amicus curiae.
David W. Stone, IV, Anderson, IN, Daniel J. Harrigan, Bayliff, Harrigan, Cord & Maugans, Kokomo, IN, for Association of Trial Lawyers of America, amicus curiae.
Before POSNER, Chief Judge, and WELLFORD * and EASTERBROOK, Circuit Judges.
Jason Shots was injured when the car he was driving collided with a train operated by CSX at a grade crossing in Indiana in 1989. The crossing was equipped only with reflectorized cross-bucks--the familiar warning sign with two crossed arms implanted with plastic disks that reflect a vehicle's headlights at night. Shots brought a diversity tort suit against CSX, charging that the railroad had been negligent in failing to make the crossing safer--to equip it with an automatic gate and flashing-light signals or persuade the state or the municipality to do so. (A railroad grade crossing is the intersection of two rights of way--the railroad's, for the track, and the state or municipality's, for the highway or road that crosses the track--and we do not know which entity has the actual right or responsibility for the warning system.) The railroad interposed the defense that any attempt by the state through its common law or otherwise to regulate safety at this crossing was preempted by the Federal Railroad Safety Act of 1970, 45 U.S.C. Secs. 421 et seq., because the cross-bucks had been installed with federal financial assistance. The district judge rejected the defense but certified the question for interlocutory appeal under 28 U.S.C. Sec. 1292(b), and we accepted the certification.
No previous case decides whether federal financial assistance alone preempts state regulation of crossing safety. In the wake of CSX Transportation, Inc. v. Easterwood, --- U.S. ----, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993), of which more anon, the Tenth Circuit in two cases has held that the financial assistance must be a "significant event" in some as yet not fully defined sense, Armijo v. Atchison, Topeka & Santa Fe Ry., 19 F.3d 547, 550-51 (10th Cir.1994); see also Hatfield v. Burlington Northern R.R., 1 F.3d 1071 (10th Cir.1993), but the cases do not explore the issues that arise once the threshold of establishing federal financial assistance has been crossed. The novelty of the issue presented by the present case--what if anything more must be shown besides federal financial assistance to knock out a state common law or statutory safety requirement for grade crossings--and its financial importance both to railroads and to tort plaintiffs and their lawyers are shown by the filing of amicus briefs by the American Association of Railroads and the Association of Trial Lawyers of America.
The Federal Railroad Safety Act creates a scheme of comprehensive federal regulation of rail safety, including safety at grade crossings, but allows the states to "adopt or continue in force any law, rule, regulation, order, or standard relating to railroad safety until such time as the Secretary [of Transportation] has adopted a rule, regulation, order, or standard covering the subject matter of such State requirement." 45 U.S.C. Sec. 434. We must decide whether the Secretary has "cover[ed] the subject matter" of Indiana's common law of torts, so far as the absence of automatic gates and flashing-light signals at the crossing where Shots was injured is concerned, by a regulation which provides that "on any project where Federal-aid funds participate in the installation of" warning devices at grade crossings the devices must include "automatic gates with flashing light signals" if any one of a number of specified conditions is present. The conditions include "multiple main line railroad tracks," "a high volume of vehicular traffic," and "a diagnostic team recommends [automatic gates with flashing-light signals]." Even if one or more triggering conditions is present, "if a diagnostic team justifies that gates are not appropriate" the Secretary can waive them. 23 C.F.R. Sec. 646.214(b)(3)(ii). If the requirements in subsection (3) (just quoted) for gates plus flashing lights are not satisfied, "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" the Secretary. 23 C.F.R. Sec. 646.214(b)(4). The railroad deems subsection (4) applicable and argues that the Secretary approved, or at least should be deemed to have approved, the reflectorized cross-bucks at the crossing where Shots was injured. If this is right, the state cannot require greater or different precautions at the crossing.
The regulation, although subject to the preemption provision of the Federal Railroad Safety Act of 1970, CSX Transportation, Inc. v. Easterwood, supra, --- U.S. at ----, 113 S.Ct. at 1737 n. 4, was actually promulgated under the authority of a later statute, the Highway Safety Act of 1973, 23 U.S.C. Secs. 101 et seq. A follow-on to the Federal Railroad Safety Act, the Highway Safety Act offered federal money for the installation of grade-crossing safety devices to states that would undertake to identify those crossings that might require such devices and to "establish and implement a schedule of projects for this purpose"; hence the need for the diagnostic teams, ordinarily made up of state and railroad safety engineers, to which the regulation refers. 23 U.S.C. Sec. 130(d).
Pursuant to the Highway Safety Act, the State of Indiana made an agreement with the predecessor of CSX in 1975 to "upgrade the passive protection at the Railroad's public rail-highway crossings in Indiana to minimum standards, as established by the State." The agreement covers 2,638 highway crossings and requires the railroad to install (largely at the expense of the state, which is to say of the federal government) reflectorized cross-bucks at all crossings that do not have them and to replace "nonstandard" with standard reflectorized cross-bucks at other crossings. All the new cross-bucks were to be supplied by the state at no charge to the railroad. The agreement was approved by the Secretary of Transportation only five days after regulation 646.214 went into effect, and without a recommendation by a diagnostic team. The crossing at which Shots was injured was one of the crossings at which, pursuant to the agreement, reflectorized cross-bucks were installed. Since this occurred long before the accident took place, and since federal funds "participated" in the installation, the railroad argues that the regulation clicks in and any argument that it was negligent not to have gates and flashing lights is precluded by the preemption provision in the 1970 Act.
The Supreme Court's opinion in Easterwood cites the regulation and states with reference to it that --- U.S. at ----, 113 S.Ct. at 1741. Read literally, as a blanket statement that the regulation prescribes the safety devices for all crossings at which federal funds have been used for the installation of some safety device, this passage supports the railroad's position. But we do not think that the literal reading is the correct one. The regulation does not specify particular safety devices at particular crossings. Rather, it establishes criteria for determining which safety devices are required at particular crossings. Because the Supreme Court in Easterwood found that federal funds had not participated...
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