Opinion
C.A. No. 03C-08-172-PLA.
Submitted: September 5, 2006.
Decided: October 5, 2006.
UPON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. GRANTED in part, DENIED in part.
Michael J. Hood, Esquire, Michael J. Hood, LLC, Wilmington, Delaware and Mark S. Pinnie, Esquire, Barnard Mezzanotte Pinnie, Media, Pennsylvania. Attorneys for Plaintiff.
Daniel F. Wolcott, Jr., Esquire, Potter Anderson Corroon LLP, Wilmington, Delaware. Attorney for Defendant Norfolk Southern Corporation.
I. Introduction
Gregory Fokides ("Fokides") was killed when a train owned and operated by Norfolk Southern Corporation ("Norfolk") collided with the pickup truck Fokides was driving. Fokides' executor, James Fokides, and his three other children, Christine Burd, Maria Detorre, and Nicholas DeCristo (collectively "Plaintiffs") subsequently filed this wrongful death action against Norfolk.
The Complaint also names as defendants the operator of the train, Charles B. Smith, Jr. and The State of Delaware. See Docket 1. However, both the Plaintiffs and Norfolk have stipulated to the dismissal of Mr. Smith and the State. See Docket 25, 29.
Norfolk has filed the instant motion for summary judgment seeking dismissal of all but one of the claims against it on the ground that the Plaintiffs' claims are preempted by federal law, specifically the Federal Railway Safety Act of 1970 ("FRSA") in conjunction with the Federal Highway Administration's ("FHWA") regulations.
See Docket 35.
Since there is no dispute that the signs and warning devices at the railroad crossing where the accident occurred were installed with federal funds, and because there is also no dispute that Norfolk's train was traveling below the authorized track speed at the time of the accident, the Court concludes that state law tort claims, with the exception of the vegetation removal claim, are preempted and must therefore be dismissed. Accordingly, Norfolk's motion is GRANTED in part and DENIED in part.
II. Statement of Facts
On October 25, 2001, Fokides was driving his 1991 Ford pickup truck eastbound on Blackbird Forest Road in Smyrna, Delaware. At the same time, a train owned and operated by Norfolk was approaching the railroad crossing on Blackbird Forest Road ("Blackbird crossing"). Apparently unaware of the approaching train, Fokides proceeded towards the crossing. He allegedly did not see the train until he was approximately eighty feet from the intersection, which was too late. Norfolk's train struck Fokides' truck. His injuries from the accident eventually led to his death.
Docket 1, p. 3.
In August 2003, Plaintiffs filed a wrongful death suit against Norfolk alleging, inter alia, the railroad failed to have adequate warning devices and safety mechanisms at the crossing, failed to properly control the train by operating it at an excessive rate of speed given the extremely limited sight distance at the intersection, failed to insure proper sight distance for vehicular traffic by not removing obstructions, buildings, vegetation and other impediments, and failed in not recognizing the tunneling effect of any horn warning signal given the dense vegetation and trees at the site of the accident.
Id., p. 3-9; Docket 37, p. 1-2. Norfolk does not contest the Plaintiffs' horn claim in its motion for summary judgment, likely because the issue of whether the train horn was sounded, or if it was capable of being heard by motorists when approaching the Blackbird crossing, is one of fact for the jury to decide.
III. Parties' Contentions
Norfolk has moved for summary judgment. It argues the Plaintiffs' claims with respect to the safety of the Blackbird crossing are preempted by federal law. Specifically, Norfolk contends that common law claims asserting unsafe conditions at railroad crossings are preempted by the FRSA and the FHWA regulations if the crossings have safety equipment installed using federal funds. According to Norfolk, all of the Plaintiffs' claims, except for the horn claim, are based upon the foundation that conditions at the Blackbird crossing were unsafe. Because the parties have stipulated that the crossing enhancements at the Blackbird crossing were federally funded, Norfolk argues the claims are preempted.Norfolk also argues that the speed of its train prior to entering the Blackbird crossing was within the authorized track speed and, therefore, Plaintiff's excessive speed claim should likewise be preempted by the FRSA and FHWA regulations.
See Docket 35, ¶ 5.
Lastly, Norfolk contests the viability of Plaintiffs' claim alleging Norfolk failed to insure proper sight distance for vehicular traffic by not removing vegetation. Norfolk argues that it can not be liable for failing to remove vegetation because it complied with DEL CODE ANN., tit. 17 § 706(a) ("section 706(a)"). However, even assuming that section 706(a) was violated, Norfolk maintains that it would still not be liable because such violation would not have been the proximate cause of the accident. Norfolk, therefore, reasons that Plaintiffs' claim alleging it was negligent for failing to remove vegetation must fail.
"No hedge, shrub, tree or solid fence shall be erected, planted or maintained within the railroad property or right-of-way and for a distance of 25 yards from the point where that property or right-of-way crosses any public or private road at which grade crossing protection is not provided by gates, warning lights or watch person." Section 706(a).
See Docket 35, ¶ 4.
In response, Plaintiffs contend that their claims that Norfolk failed to have adequate warning devices and safety mechanisms at the crossing are not preempted by the FRSA and FHWA regulations because, while the crossing enhancements (specifically the warning lights) were installed with federal funds, the warning lights at the crossing were not "operating" within the meaning of 23 C.F.R. §§ 646.214(b)(3) and (4) ("sections 646.214(b)(3) and (4)"). That is, the warning lights were "washed out" by the sunlight and did not have a "hood" to shield the lights from the sun. This, according to the Plaintiffs, makes the warning lights inoperable. Therefore, because warning signals at railroad crossings must be properly installed and operating for federal preemption to apply, the Plaintiffs' claims with respect to the adequacy of the warning devices and lack of safety mechanisms (such as a crossing gate) are not preempted.
Sections 646.214(b)(3) and (4) provides in full:
(b) Grade crossing improvements.
* * *
(3)(i) Adequate warning devices, under § 646.214(b)(2) or 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.
(ii) In individual cases where a diagnostic team justifies that gates are not appropriate, FHWA may find that the above requirements are not applicable.
(4) For crossings where the requirements of § 646.214(b)(3) are not applicable, 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.
See Docket 37, p. 3.
Plaintiffs also argue that their claim that Norfolk's train was traveling at an excessive rate of speed is a viable claim even though Plaintiffs concede that the train was traveling below the permitted maximum speed at the time of the accident. Plaintiffs assert that the Blackbird crossing was a "local safety hazard," as that term is used in 49 U.S.C. § 20106 ("section 20106"), and therefore claims for reductions of speed may be permitted in an effort to eliminate or reduce such hazard.
"Laws, regulations, and orders related to railroad safety and laws, regulations, and orders related to railroad security shall be nationally uniform to the extent practicable. A State may adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), prescribes a regulation or issues an order covering the subject matter of the State requirement. A State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety or security when the law, regulation, or order — (1) is necessary to eliminate or reduce an essentially local safety or security hazard; (2) is not incompatible with a law, regulation, or order of the United States Government; and (3) does not unreasonably burden interstate commerce." Section 20106.
See Docket 37, p. 4.
Finally, Plaintiffs contend that their claim that Norfolk failed to insure proper sight distance by not removing vegetation is not preempted. Plaintiffs maintain that the preemption regulations do not absolve a railroad from its duty to ensure safe crossings, such as the duty to keep visibility at crossings free from obstructions. Further, Plaintiffs aver that, to the extent that section 706(a) is considered, there is undoubtedly vegetation 75 feet from the Blackbird crossing which, in turn, has a direct impact on the sight distance and thus must be considered by the jury in this case.
Id., p. 2-3.
IV. Standard of Review
When considering a motion for summary judgment, the Court's function is to examine the record to ascertain whether genuine issues of material fact exist and determine whether a party is entitled to judgment as a matter of law. Summary judgment will not be granted if, after viewing the record in a light most favorable to the non-moving party, there are material facts in dispute or if judgment as a matter of law is not appropriate. If, however, there are no material facts in dispute, and the moving party is entitled to judgment as a matter of law, summary judgment will be granted.The moving party bears the initial burden of demonstrating that the undisputed facts support its legal claims. Should the moving party make such a showing, the burden shifts to the non-moving party to demonstrate that genuine issues of material fact exist.
See Storm, 898 A.2d at 879-880; Urena v. Capano Homes, Inc., 901 A.2d 145, 150 (Del.Super.Ct. 2006).
V. Analysis A. Federal Preemption
Congress derives the power to preempt state law from the Supremacy Clause of Art. VI of the United States Constitution. Federal preemption "may be explicit, or `implicitly contained in [the] structure or purpose' of a federal statute." State law may also be preempted if it "directly conflicts with federal law, or if the federal law so occupies the field of regulation as to imply that Congress left no room for state legislation."In analyzing preemption issues, the United States Supreme Court "has held on multiple occasions that, . . . `because the States are independent Sovereigns in our federal system, we have long presumed that Congress does not cavalierly pre-empt state-law causes of action.'" Therefore, when performing a preemption analysis, courts "start with an assumption that the historic police powers of the States will not be preempted unless that was the `clear and manifest purpose of Congress.'" Courts, thus, must be mindful that the "`purpose of Congress is the ultimate touchstone in every pre-emption case.'"
Green v. Fund Asset Mgmt., L.P., 245 F.3d 214, 223 (3d Cir. 2001) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485-486 (1996)).
Id. at 224.
Id. See also Lueck, 471 U.S. at 208 (citations omitted) ("[T]he question whether a certain state action is pre-empted by federal law is one of congressional intent. `The purpose of Congress is the ultimate touchstone.'"); Cohen, 2004 WL 2340046, at *3 ("Courts focus on the intent of Congress when determining whether a state law has been preempted, and courts begin their review with the presumption that Congress did not intend to preempt state law.").
B. Warning Devices and Safety Mechanisms
In enacting the FRSA, Congress "conferred upon the United States Secretary of Transportation the authority to preempt state law relating to railroad crossing safety." Section 20106 of the FRSA is the "express preemption provision" and "provides for uniformity of law between the states to enact railroad safety laws until the Secretary of Transportation through the FHWA addresses the issue." To reiterate, section 20106 reads in full:
Laws, regulations, and orders related to railroad safety and laws, regulations, and orders related to railroad security shall be nationally uniform to the extent practicable. A State may adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), prescribes a regulation or issues an order covering the subject matter of the State requirement. A State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety or security when the law, regulation, or order —
(1) is necessary to eliminate or reduce an essentially local safety or security hazard;
(2) is not incompatible with a law, regulation, or order of the United States Government; and
(3) does not unreasonably burden interstate commerce.
The Secretary of Transportation addressed the adequacy of warning devices for railway crossings through the promulgation of regulations under the FHWA. Specifically, sections 646.214(b)(3) and (4), which provide:
(b) Grade crossing improvements.
* * *
(3)(i) Adequate warning devices, under § 646.214(b)(2) or 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.
(ii) In individual cases where a diagnostic team justifies that gates are not appropriate, FHWA may find that the above requirements are not applicable.
(4) For crossings where the requirements of § 646.214(b)(3) are not applicable, 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.
In Norfolk S. Ry. Co. v. Shanklin, the United States Supreme Court considered whether sections 636.214(b)(3) and (4) preempted state tort actions for failure to maintain adequate warning devices at railroad crossings. The facts in Shanklin are analogous to the facts in this case in that the plaintiff widow brought a wrongful death action against Norfolk as a result of an accident in which Norfolk's train struck the decedent's vehicle and killed him. The plaintiff's primary claim was that Norfolk was liable for failing to maintain adequate warning devices at the crossing where the accident occurred. After both the United States District Court for the Western District of Tennessee and the United States Court of Appeals for the Sixth Circuit held that the FRSA did not preempt the plaintiff's claim that the devices at the crossing were inadequate, the Supreme Court granted certiorari "to resolve a conflict among the Court of Appeals as to whether the FRSA, by virtue of [sections] 646.214(b)(3) and (4) , pre-empts state tort claims concerning a railroad's failure to maintain adequate warning devices at crossings where federal funds have participated in the installation of the devices."
529 U.S. 344 (2000).
Id. at 352.
The Supreme Court ultimately answered in the affirmative, holding that the plaintiff's claim was preempted. In so holding, the Supreme Court stated:
Sections 646.214(b)(3) and (4) establish a standard of adequacy that `determine[s] the devices to be installed' when federal funds participate in the crossing improvement project. If a crossing presents those conditions listed in (b)(3), the State must install automatic gates and flashing lights; if the (b)(3) factors are absent, (b)(4) dictates that the decision as to what devices to install is subject to FHWA approval. In either case, [section] 646.214(b)(3) or (4) `is applicable' and determines the type of warning device that is `adequate' under federal law. As a result, once the FHWA has funded the crossing improvement and the warning devices are actually installed and operating, the regulation `displace[s] state and private decisionmaking authority by establishing a federal-law requirement that certain protective devices be installed or federal approval obtained.'
* * *
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 pre-empts [plaintiff's] state tort claim that the advance warning signs and reflectorized crossbucks installed at the [railroad crossing where the accident occurred] were inadequate. Because TDOT [Tennessee Department of Transportation] used federal funds for the signs' installation, §§ 646.214(b)(3) and (4) governed the selection and installation of the devices. And because TDOT determined that warning devices other than automatic gates and flashing lights were appropriate, its decision was subject to the approval of the FHWA. 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 pre-empting [plaintiff's] claim.
Id. at 354, 358-359 (citations omitted) (some alterations in original).
In applying the Shanklin holding to this case, the Court is satisfied that the Plaintiffs' claim that Norfolk failed to have adequate warning devices and safety mechanisms at the Blackbird crossing is preempted. It is undisputed that the crossing enhancements, specifically the warning lights, at the Blackbird crossing were federally funded. It is also uncontested that the warning lights were "installed" and flashing, thus "operating", at the time of the accident. Therefore, because the Blackbird crossing enhancements were federally funded, installed and operating at the time of the accident, Delaware statutory and common law addressing the adequacy of such crossing enhancements is displaced by the federal standard, thereby preempting the Plaintiffs' claim.
See Docket 33.
See id.; Docket 41, p. 22-23.
See Shanklin, 529 U.S. at 358-359.
Plaintiffs' effort to broaden the scope of "operating" to encompass any accident where the devices may have been inadequate, while a resourceful attempt to overcome preemption, is simply not convincing. The warning lights at the Blackbird crossing were working properly at the time of the accident as they were flashing prior to Norfolk's train entering the intersection. Plaintiffs argue that the lights were not "operating" because motorists were unable to see the flashing lights due to sun glare and Norfolk's failure to place "hoods" over the lights to block the sun. By defining "operating" so broadly as to apply whenever installed devices do not prevent an accident, every plaintiff in this type of action could simply rehash his or her argument so as to avoid federal preemption under the FRSA. The Plaintiffs here are merely restating their adequacy argument by contending the warning lights, although working, were not "operating," because Fokides allegedly could not see them before he entered the intersection. Such a claim is precisely what is preempted under Shanklin.
Accordingly, because Shanklin makes clear that federal funding, installation and operation is all that is necessary for preemption under the FRSA, the Plaintiffs' claim that Norfolk failed to have adequate warning devices and safety mechanisms at the Blackbird crossing is preempted and therefore dismissed.
See Nye, 437 F.3d at 562 ("[A]s Shanklin makes clear, federal funding plus installation . . . is all that is necessary for preemption under the FRSA."). See also id. ("[Preemption by the FRSA is purely a question of law" for the Court to decide.)
C. Train Speed
Plaintiffs' excessive speed claim is likewise preempted by the FRSA. Section 213.9(a) of Title 49 of the Code of Federal Regulations provides that trains are permitted to operate at the following maximum speeds depending upon the class of track: ---------------------------------------------------------------------------------------------- | [In miles per hour] | |--------------------------------------------------------------------------------------------| | Over track that meets all of the | The maximim allowable | The maximim allowable | | requirements prescribed in this | operating speed for freight | operating speed for | | part for — | trains is — | passenger trains is — | |-----------------------------------|-------------------------------|------------------------| | Excepted track ...................|............................10 | N/A | |-----------------------------------|-------------------------------|------------------------| | Class 1 track ....................|............................10 | 15 | |-----------------------------------|-------------------------------|------------------------| | Class 2 track ....................|............................25 | 30 | |-----------------------------------|-------------------------------|------------------------| | Class 3 track ....................|............................40 | 60 | |-----------------------------------|-------------------------------|------------------------| | Class 4 track ....................|............................60 | 80 | |-----------------------------------|-------------------------------|------------------------| | Class 5 track ....................|............................80 | 90 | ---------------------------------------------------------------------------------------------- Section 213.9(a) "cover[s] the subject matter of train speed with respect to track conditions, including the conditions posed by [railroad] crossings." "Thus, if a train is involved in an accident while traveling under the maximum speed prescribed by § 213.9(a), a state law claim based on excessive speed is preempted." An excessive speed claim is not preempted, however, if a train was traveling too fast to avoid a "`specific, individual hazard.'"A specific, individual hazard is "a person, vehicle, obstruction, object, or event which is not a fixed condition or feature of the crossing and which is not capable of being taken into account by the Secretary of Transportation in the promulgation of uniform, national speed regulations." More concisely, a specific, individual hazard refers only "to a unique occurrence which could lead to a specific and imminent collision and not allegedly dangerous conditions at a particular crossing."
Myers v. Missouri Pac. R.R. Co., 52 P.3d 1014, 1027 (Okla. 2002).
Id. at 1028 (emphasis supplied); Liboy ex rel. Liboy v. Rogero ex rel. Rogero, 363 F. Supp. 2d 1332, 1341 (M.D. Fla. 2005) ("Generally speaking, it seems valid to say that a specific, individual hazard, rather than being a generally dangerous railroad crossing, is a unique occurrence giving rise to an imminent threat of collision."). Cf. Stevenson v. Union Pac. Ry. Co., 110 F. Supp. 2d 1086, 1088-89 (E.D. Ark. 2000) ("A `specific, individual hazard' is not to be confused with the statutory `essentially local safety hazard' set forth in 49 U.S.C. § 20106.").
As set forth in Myers, 52 P.3d at 1028 n. 44, the following conditions have been held to constitute a specific, individual hazard: Shaup v. Frederickson, 1998 WL 726650 (E.D. Pa. Oct. 16, 1998) (a car standing on a track); Bakhuyzen v. Nat'l Rail Passenger Corp., 20 F. Supp. 2d 1113 (W.D. Mich. 1996) (poor visibility due to snow); Missouri Pac. R.R. Co. v. Lemon, 861 S.W.2d 501 (Tex.App. 1993) (line of improperly parked tank cars obscuring view of engineer who knew of other factors making the crossing dangerous); Stone v. CSX Transp., Inc., 37 F. Supp. 2d 789 (S.D. W.Va. 1999) (terrain, obstructed sight lines and limited access together with repeated signal apparatus malfunctions at crossing); Alcorn v. Union Pac. R.R. Co., 50 S.W.3d 226 (Mo. 2001) (the unwavering approach of a vehicle at a railroad crossing, where the engineers knew or should have known that a collision was imminent).
The following conditions have been held not to constitute a specific, individual hazard: Earwood v. Norfolk S. Ry. Co., 845 F. Supp. 880 (N.D. Ga. 1993) (multiple tracks and rail cars obstructing the view); Bowman v. Norfolk S. Ry. Co., 832 F. Supp. 1014 (D.S.C. 1993) (an ultrahazardous crossing due to trucks transporting hazardous materials, heavy traffic, and a previous accident); O' Bannon v. Union Pac. R.R. Co., 960 F. Supp. 1411 (W.D. Mo. 1997) (a dangerously designed crossing including inadequate warning devices, an obscured view due to the angle at which the track crossed the highway, and a steep grade); Armstrong v. Atchison, Topeka Santa Fe Ry. Co., 844 F. Supp. 1152 (W.D.Tex. 1994) (high vehicular traffic area lacking an automatic gate with flashing lights); Cox v. Norfolk and W. Ry. Co., 998 F. Supp. 679 (S.D. W.Va. 1998), (snow-covered crossing); Williams v. Alabama Great S.R.R. Co., 1994 WL 419863 (E.D. La. Aug. 8, 1994) (presence of fog and brick facility); Beausoleil v. Nat'l R.R. Passenger Corp., 145 F. Supp. 2d 119 (D. Mass. 2001) (general knowledge of a chronically dangerous condition such as disembarking passengers habitually crossing the tracks); Stuckey v. Illinois Cent. R.R. Co., 1998 WL 97270 (N.D. Miss. Feb. 10, 1998) (icy conditions which were not limited to subject crossing, but were prevalent throughout area); Seyler v. Burlington N. Santa Fe Corp., 102 F. Supp. 2d 1226 (D. Kan. 2000) (heavy rainfall combined with weather service warnings of flash floods); Furlough v. Union Pac. R.R. Co., 766 So. 2d 751 (La.App. 2000) (obstructed sight line, rough crossing, parallel roadways, inadequate warning devices, inoperative ditch lights and inclement weather); Steva v. Soo Line R.R. Co., 1997 WL 381854 (8th Cir. 1997) (high traffic volume, grade/angle of the crossing, and surrounding vegetation); Herriman v. Conrail, Inc. 883 F. Supp. 303 (N.D. Ind. 1995) (artificial lighting that obscured the train's headlight).
In this case, the parties agree that Norfolk's train was traveling below the authorized maximum track speed under section 213.9(a) at the time of the accident. There is also nothing to indicate that the Blackbird crossing had a specific, individual hazard. That is, there was not a "unique occurrence," such as "a person, vehicle, obstruction, object, or event," other than fixed conditions and features of the Blackbird crossing that led to the accident. Plaintiffs submit that, despite traveling below the permitted speed prior to entering the Blackbird crossing, the trains are practically "on top of" traffic every time they emerge from the dense woods and, as such, a local safety hazard is created. The occurrence of the trains emerging without much warning, however, is a "fixed condition" that, according to the Plaintiffs, happens every time a train approaches the Blackbird crossing. Since there was no "unique occurrence" that happened at the time of the accident, the Court can not conclude that a specific, individual hazard existed. The Plaintiffs' excessive speed claim is thus preempted and dismissed.
See Docket 37, p. 4.
See Anderson, 327 F. Supp. 2d at 978, 980 (citation omitted) ("`Factors such as general knowledge that a crossing is dangerous, traffic conditions, a crossing's accident history, sight distances, multiple crossings in close proximity, sun glare, a railroad's internal policies regarding speed, and inadequate signal maintenance are not specific, individual hazards.' . . . Section "213.9(a) preempts state laws requiring trains to slow down at crossings because of vegetation overgrowth.").
Furthermore, the Plaintiffs' claim that Norfolk failed to insure proper sight distance by not removing obstructions, buildings, vegetation and other impediments is also preempted (except vegetation removal, see infra) under section 213.9(a). In addition to "covering the subject matter of train speed," section 213.9(a) also "addresses hazards at grade crossings, including obscured visibility due to . . . buildings." This is because when the Secretary of Transportation "sets maximum operational train speed at a grade crossing, he does so only after assessing the track conditions [which] includ[es] obstructions to visibility." Therefore, section 213.9(a) covers the same subject matter as the Plaintiffs' sight distance claim. As a result, federal law preempts any claim that Norfolk failed to insure proper sight distance by not removing obstructions, buildings, and other impediments.
Gleason v. Soo Line R. Co., 1999 WL 33656833, at *3 (N.D. Iowa Jan. 12, 1999).
See also Shanklin, 529 U.S. at 352 ("[T]he FRSA's pre-emption provision dictates that, to pre-empt state law, the federal regulation must `cover' the same subject matter, and not merely `touch upon' or `relate to' that subject matter.").
See Estate of Strandberg v. Chicago, Cent. Pac. R.R. Co., 284 F. Supp. 2d 1136, 1144 (N.D. Iowa 2003) ("Because federal regulations cover the same subject matter as the plaintiff's claim, federal law preempts any claim that the defendant failed to provide proper sight distance with regard to the headlights and the building.").
D. Vegetation
Section 213.37 of Title 49 of the Code of Federal Regulations addresses vegetation. The provision provides in pertinent part that "[v]egetation on railroad property which is on or immediately adjacent to roadbed shall be controlled [by the railroad]." The purpose of section 213.37 is to manage vegetation so it does not become a fire hazard, obstruct the visibility of railroad signs and signals, interfere with railroad employees performing their trackside duties, prevent the proper functioning of signal and communication lines, or prevent railroad employees from visually inspecting moving equipment from their normal duty stations. Section 213.37 "preempts a state common law tort claim predicated on a railroad's failure to control vegetation" on or adjacent to roadbed.However, because section 213.37 applies "only to vegetation on, and immediately adjacent" to roadbed, "states are free to regulate vegetation beyond the area contemplated by section 213.37." Delaware's applicable provision regulating vegetation for railroads is DEL CODE ANN., tit. 17 § 706(a), which requires that:
Nat'l R.R. Passenger Corp. (Amtrak) v. H P, Inc., 949 F. Supp. 1556, 1564 (M.D. Ala. 1996). See also Bowman, 832 F. Supp. at 1020 ("[B]ecause these regulations apply only to vegetation on, and immediately adjacent to, the railbed, states are free to regulate vegetation located beyond the area contemplated by 49 C.F.R. § 213.37.").
No hedge, shrub, tree or solid fence shall be erected, planted or maintained within the railroad property or right-of-way and for a distance of 25 yards from the point where that property or right-of-way crosses any public or private road at which grade crossing protection is not provided by gates, warning lights or watchperson.
Because the "area immediately adjacent to roadbed [under section 213.37] extends no further than ten or fifteen feet from it," section 706(a) is not preempted since it extends a railroad's duty to remove vegetation up to 25 yards, or 75 feet, from the point where the railroad's property or right-of-way crosses the road. Therefore, although the Plaintiffs' claim relating to vegetation immediately on or adjacent to the track at the Blackbird crossing is preempted, the Plaintiffs' claim relating to vegetation beyond the area covered by the federal regulation, specifically the area covered under section 706(a), is not preempted.
Anderson, 327 F. Supp. 2d at 980.
Viewing the evidence in the light most favorable to the Plaintiffs, there is thus sufficient evidence of vegetation to deny summary judgment for Norfolk. The issue of whether Norfolk complied with section 213.37 and section 706(a), to the extent it is not preempted, is one of fact for the jury to decide.
With respect to the vegetation claim, Plaintiffs also argue that Norfolk has a duty to remove vegetation that is not on its property. Plaintiffs, however, offer no support for this contention. In fact, Plaintiffs' counsel has admittedly found no "case law that says [Norfolk] has the obligation to go to the next door neighbor and say your trees are impeding my sight line . . . It's improbable we'll be able to advance that argument." Docket 41, p. 15. The Court has similarly found no support for placing a duty upon a railroad to remove adjacent landowner's vegetation, likely because it would be impracticable for a railroad to fulfill such a duty. The Court, therefore, finds that Norfolk did not have a duty to remove its neighboring landowner's vegetation near the Blackbird crossing. To the extent there remains a dispute as to whether the vegetation in this case was on Norfolk's property or the property of an adjacent landowner, such an issue is one of fact to be decided by the jury.