Robert Zimmerman v. Norfolk Southern Corporation, 2013 U.S. App. LEXIS 1568

Background

Zimmerman was riding a motorcycle and collided with a Norfolk Southern train at the Diller Avenue crossing in 2008, leaving him partially paralyzed.
Zimmerman sued in federal court under Pennsylvania tort law, asserting four claims including failure to warn, unsafe crossing maintenance, regulatory-compliance with crossing devices, and punitive damages.
The district court granted summary judgment partly on FRSA preemption grounds, and the Third Circuit reverseda part and affirmed another part, applying a two-step FRSA preemption framework.
The 2007 FRSA amendment added subsection (b), clarifying damages actions if federal standards or internal railroad rules were violated, while preserving the general preemption framework in (a).
Zimmerman sought to introduce National Crossing Inventory reports and accident reports to prove excessive speed, but the district court excluded many documents on privileges (23 U.S.C. § 409) and (49 U.S.C. § 20903).
The majority favored reversing on some claims while upholding preemption on the excessive-speed claim and the third claim (negligence per se for warning devices).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
FRSA preemption framework post-2007 amendment	Amendment narrows preemption, preserving Strozyk/Shanklin/Easterwood framework.	Amendment preserves key preemption test and allows reliance on (a)(2) 'covering the subject matter'.	Two-step framework retained; apply (b)(1) A-B to avoid preemption, then (a)(2) for remaining claims.
Excessive-speed claim against § 213.9 preemption	Regulation creates a federal standard of care; speed limit violation not preempted.	If track class is Class 2 or 3, speed within federal limits; preemption applies.	Not preempted at step one as § 213.9 creates a federal standard; district court erred in complete preemption analysis.
Admissibility of crossing and accident reports under § 409 and § 20903	Reports may be non privileged and admissible to prove speed and sight distance.	Many reports are privileged (state-compiled under § 409 or exempt under § 20903).	Nine pre-2008 crossing reports excluded; but most accident reports admitted; some reports privileged; reversal in part on admissibility.
Maintenance/sight-distance duty at a crossing	NS owed duty to maintain warning devices and ensure sight distance; failures not preempted.	Strozyk permits non-preemption for maintenance and sight-distance; occupancy rule may limit duties.	Claims non-preempted; however, Zimmerman failed to raise a prima facie case on maintenance or sight-distance under state law; summary judgment affirmed on those grounds.
Track misclassification and preemption	Misclassifying the track as Class 2/3 could impose higher caution; federal regulations cover misclassification.	No federal standard for sight-distance-based classification; § 213.9 preempts	Misclassification claim preempted; federal scheme governs track-class considerations; claim rejected.

Key Cases Cited

CSX Transp., Inc. v. Easterwood, 507 U.S. 658 (1993) (preemption framework for 'covering the subject matter' governs whether regulation preempts state law)
Strozyk v. Norfolk S. Corp., 358 F.3d 268 (3d Cir. 2004) (pre-FRSA amendment test; regulation may preempt state law if it substantially subsumes the subject matter)
Easterwood v. CSX Transportation, Inc., 507 U.S. 658 (1993) (longstanding preemption precedent relied upon for majority framework)
Shanklin v. Norfolk S. Ry. Co., 529 U.S. 344 (2000) (addressed preemption scope when Federal standards apply; MUTCD-related devices)
Guillén v. City of Roswell, 537 U.S. 129 (2003) (§ 409 privilege scope; states’ inventories and data protections under federal programs)
Grade v. BNSF Ry. Co., 676 F.3d 680 (8th Cir. 2012) (preemption of warnings devices where federal scheme governs)
Henning v. Grand Trunk Western R.R. Co., 530 F.3d 1212 (10th Cir. 2008) (preemption of certain device-related claims under FRSA)