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Boyd v. National Railroad Passenger Corp.1/20/2005
5 F.3d 851, 861 n.18 (5th Cir. 2000); Bowman v. Norfolk S. Ry. Co., 832 F. Supp. 1014, 1017-1018 (D.S.C. 1993), aff'd, 66 F.3d 315 (4th Cir. 1995); O'Bannon v. Union Pac. R.R. Co., 960 F. Supp. at 1420-1421. Moreover, general knowledge of a chronically dangerous condition at a particular crossing does not constitute the type of individual local safety hazard excluded from preemption under the FRSA. See Beausoleil v. National R.R. Passenger Corp., 145 F. Supp. 2d at 121. The running of high-speed trains through residential areas and the presence of double tracks with "meets and passes" are general conditions at grade crossings, Statewide in character, that are amenable to uniform, national standards. See Bowman v. Norfolk S. Ry. Co., 832 F. Supp. at 1017-1018; O'Bannon v. Union Pac. R.R. Co., 960 F. Supp. at 1421.
1. Maximum Speed
The Federal Railroad Administration has promulgated regulations under the FRSA establishing the maximum allowable operating speeds for freight and passenger trains for each class of track on which such trains travel. See CSX Transp., Inc. v. Easterwood, 507 U.S. at 662; 49 C.F.R. § 213.9(a). The Easterwood Court noted that the regulations promulgated to enforce the FRSA "should be understood as covering the subject matter of train speed with respect to track conditions, including the conditions posed by grade crossings." CSX Transp., Inc. v. Easterwood, supra at 675. Therefore a State law tort claim against a railroad based on excessive speed is preempted by the FRSA if the train was operating within the Federally prescribed speed limits. See, e.g., CSX Transp., Inc. v. Easterwood, supra at 675-676; Beausoleil v. National R.R. Passenger Corp., 145 F. Supp. 2d at 120-121.
The circumstances listed by the plaintiff in attempting to establish that the Pine Street crossing is a local safety hazard are amenable to being addressed within the Federal regulatory scheme and, therefore, do not fall within the savings clause of the preemption statute. The discussion does not end here, however, because there appears to be a genuine issue of material fact as to the train's speed. More specifically, it is undisputed that the portion of the Old Colony line at issue is the type of track for which the Federal maximum allowable speed for passenger trains is 80 mph, and the plaintiff has presented some evidence that the train was operating at a speed exceeding 80 mph. Thus, to the extent the plaintiff's wrongful death claim is predicated on speed in excess of the Federal limit, it is not preempted, and such evidence may be used to establish wilful, wanton, or reckless conduct, as further discussed, infra.
2. Warning Devices
The Highway Safety Act of 1973, § 203, 87 Stat. 283, created the Federal Railway-Highway Crossings Program, 23 U.S.C. § 130 (1994). See Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344, 348 (2000). The program makes funds available to States for the "cost of construction of projects for the elimination of hazards of railway-highway crossings." 23 U.S.C. § 130(a) (1994). The Secretary of Transportation, through the Federal Highway Administration, has promulgated several regulations implementing the Crossings Program. For example, adequate warning devices on any project funded by Federal monies are to include "automatic gates with flashing light signals" when the type of track present here exists. 23 C.F.R. § 646.214(b)(3)(i). See Norfolk S. Ry. Co. v. Shanklin, 529 U.S. at 348-349. Because the requirements are mandatary for all warning devices installed with Federal funds, once such monies are provided, and the warning devices are installed and operated, 23 C.F.R. § 646.214(3) and (4) preempt State law claims based on the adequacy of wa
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