Case Information
*1 Before M ANION , E VANS , and S YKES , Circuit Judges . S YKES , Circuit Judge
. This сase arises from a tragic train-car collision that caused serious injuries to the driver of the car and killed her three-and-one-half-year-old daughter, a passenger. The daughter’s estate and her mother and father brought a personal injury and wrongful- death action in Indiana state court, which the defendants— the owner of the railroad crossing, Newton County and its Highway Department, the railroad, and the State of Indiana and its Department of Transportation—removed to federal district court. The suit asserted that railroad warning devices at the crossing were inadequate, that the defendants negligently failed to remove vegetation that ob- structed the ability to view oncoming trains, and also that Newton County negligently failed to maintain other signage at the crossing.
On the defendаnts’ motions for summary judgment, the district court concluded that the case was controlled by Norfolk Southern Railroad Co. v. Shanklin , 529 U.S. 344 (2000); applying Shanklin , the court held that the plaintiffs’ inadequate warnings claims were preempted by federal law. We agree. Under Shanklin and the facts of this case, the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. §§ 20101 et seq ., preempts the plaintiffs’ claims to the extent they are premised upon the alleged inadequacy of the warning devices at the crossing. The district court also held that the plaintiffs’ negligence claim against Newton County for obstruction of view and failure to maintain signage was factually insufficient to survive summary judgment. We affirm that decision as well.
I. Background
At approximately 9:45 a.m. on January 13, 2000, an au- tomobile operated by Sheryl Bechard was struck by a train operated by the National Passenger Railroad Associatiоn (“Amtrak”). The accident occurred on County Road (“CR”) 400 East in Newton County, Indiana, at a rail crossing owned and maintained by CSX Transportation Corporation. Sheryl Bechard suffered serious injuries in the collision but survived; her daughter Kacie, a passenger in the vehicle, died three days later from injuries sustained in the acci- dent.
At the time of the accident, the CR 400 crossing was marked by advance warning signs and reflectorized cross- bucks facing northbound and southbound traffic. Cross- bucks are the familiar white boards marked with the words “RAILROAD CROSSING” in black letters assembled in a large “X” configuration. These warning devices were in- stalled pursuant to a 1976 agreement between the State of Indiana and the Louisville & Nashville Railroad Company, a predecessor to CSX Transportation Corporation. The agreemеnt enabled the disbursement of federal funds under the Federal Railway-Highway Crossings Program, 23 U.S.C. § 130, which helps the states pay for projects designed to eliminate hazards at railway-highway crossings. Under federal regulations, warning signs installed under the Crossings Program must conform to the latest edition of the Manual on Uniform Traffic Control Devices for Streets and Highways (“MUTCD”), supplemented to the extent applica- ble by stаte standards. See 23 C.F.R. § 646.214(b)(1) (2005). It is undisputed that 90% of the cost of the warning devices installed at the CR 400 crossing was paid for using federal funds.
Kacie’s mother and father, as individuals, and Fifth Third
Bank, as the administrator of Kacie’s estate, filed suit in
Indiana state court against CSX Corporation and CSX
Transportation Corp. (jointly “CSX”), as well as Newton
County and the Newton County Highway Department
(jointly “the County”). The complaint was later amendеd to
include Amtrak and the State of Indiana and the Indiana
Department of Transportation. Amtrak removed the case to
federal court pursuant to 28 U.S.C. § 1441, the general
removal statute, and 28 U.S.C. § 1349, which confers
federal jurisdiction over suits involving corporations when
one-half of the capital stock in that corporation is owned by
the United States.
See Lynch v. Household Fin. Corp.
, 405
U.S. 538, 550 n.17 (1972). Attached to Amtrak’s removal
motion were consent letters from the other defendants.
See
Doe v. GTE Corp.
,
The plaintiffs’ complaint, as amended, alleged four counts of negligence. In the first count the plaintiffs claimed that CSX negligently failed to install and maintain adequate warning devices at the CR 400 crossing and failed to re- move obstructions from the right-of-way for which it was responsible. In the second count the plaintiffs alleged that the County negligently maintаined the CR 400 crossing in an extrahazardous and unreasonably dangerous condition. The third count leveled the same allegation against Indiana and its Department of Transportation. In the fourth count the plaintiffs claimed that Amtrak negligently trained the crew and negligently operated the train involved in the accident. Each of the four counts sought damages for the injuries sustained by Kacie, Sheryl, and Stephen Bechard. The plaintiffs later stipulated to the dismissal of the State of Indiana and the Indiana Department of Transportation.
CSX and Amtrak moved jointly for summary judgment; the County filed a separate summary judgment motion. Applying Shanklin , the district court held that insofar as the plaintiffs’ claims were premised upon the alleged inade- quacy of the warning devices at the crossing, they were preempted by federal law. Fifth Third Bank v. CSX Corp ., 306 F. Supp. 2d 841, 848-52 (N.D. Ind. 2004). The court accordingly granted summary judgment to all defendants with respect to claims premised on the inadequacy of the warning devices. As for the plaintiffs’ negligence claim against the County for failure to remove vegetation ob- structions from its right-of-way, the court held there was no factual basis in the record to conclude that but for an obstruction of viеw, Bechard would have seen the train and stopped. Id. at 846. The court also held there was no factual basis for the plaintiffs’ claim that the County was negligent in failing to properly maintain its signage on the public road approach to the crossing. In the alternative, the court held that the County was entitled to immunity under the Indiana Tort Claims Act, I ND . C ODE § 34-13-3-3(7) (2005).
The district court denied summary judgment on the plaintiffs’ obstructiоn-of-view claim against CSX and Amtrak, concluding that although the plaintiffs “had an extremely steep uphill climb” under Indiana statutory and case law on this remaining claim, summary judgment was inappropriate. As is relevant to this claim, the court de- clined to resolve a dispute between the parties over Sheryl Bechard’s competence to testify due to head injuries suf- fered in the collision; the court concluded that until the competence question was resolved, disputed issues of fact precluded summary judgment on the obstruction-of-view claim against CSX and Amtrak. [1] The district court then issued an order pursuant to Rule 54(b), F ED . R. IV . P., and this appeal followed.
II. Discussion
The plaintiffs raise four arguments on appeal. First, they contend that federal law does not preempt their inadequate warnings claims, because the defendants failed to prove that the railroad warning signs at the crossing were properly installed, approved, adequate, and operating. Sec- ond, they argue that summary judgment was improperly granted on their claim against the County for obstruction of view and failure to maintain signage—including stop signs and pavement markings—because the district court rested its decision in part on Sheryl Bechard’s testimony, even though it separately held that the unresolved competence issue precluded summary judgment on the obstruction-of- view claim against CSX and Amtrak. Third, the plaintiffs argue that the County is not entitled to immunity under the Indiana governmental immunity statute. Finally, the plaintiffs contend that this case should not have been in district court at all because Indiana’s consent to removаl did not validly waive its Eleventh Amendment immunity.
Summary judgment is appropriate if the pleadings,
depositions, answers to interrogatories and admissions on
file, together with any affidavits, demonstrate that there is
no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. F ED . R. IV . P.
56(c);
Celotex Corp. v. Catrett
, 477 U.S. 317, 323 (1986).
Federal preemption is an affirmative defense upon which
the defendants bear the burden of prоof.
Fort Howard Paper
Co. v. Standard Havens, Inc
.,
A. Jurisdiction
The plaintiffs renew in this court their objection to federal
jurisdiction, contending that Indiana did not waive its
Eleventh Amendment immunity when it consented to
removal. In their opening brief they relied on
Ford Motor
Co. v. Department of Treasury of Indiana
,
A rule of law that finds waiver through a state attorney
general’s invocation of federal-court jurisdiction avoids
inconsistency and unfairness. A rule of federal law that,
as in
Ford
, denies waiver despite the state attorney
general’s state-authorized litigating decision, does the
opposite. For these reasons . . . we consequently over-
rule
Ford
insofar as it would otherwise apply.
Lapides v. Bd. of Regents of the Univ. Sys. of Ga.
, 535 U.S.
613, 623 (2002). Under
Lapides
, the letter from the Indiana
Assistant Attorney General consenting to removal of this
case constitutes a waiver of Indiana’s Eleventh Amendment
immunity; the district court therefore properly declined to
remand this case to state court. In their reply brief the
plaintiffs suggest that
Lapides
should not apply retroac-
tively; this argument is foreclosed by
Harper v. Virginia
Department of Taxation
,
B. Federal Preemption
Article VI of the Constitution provides that the laws of the
United States “shall be the supreme Law of the Land . . .
any Thing in the Constitution or Laws of any State to the
Contrary notwithstanding.” U.S. ONST . art. VI, cl. 2.
Derivative of this constitutional text is the doctrine of
preemption, which operates to prevent the enforcement of
state laws that conflict with federal laws or regulations. The
Supreme Court typically classifies preemption analysis into
three categоries. Preemption can occur when Congress
declares its intention to preempt state regulation through
a direct statement in the text of federal law (so-called “ex-
press preemption”). It can occur by implication in the “struc-
ture and purpose” of federal law showing a Congressional
intent to preempt state law (so-called “implied preemp-
tion”). Finally, prеemption can occur by an actual conflict
between state and federal law, such as occurs when it is
impossible for a private party to comply with both federal
and state law requirements.
English v. Gen. Elec. Co.
, 496
U.S. 72, 79 (1990). In all three types of preemption, “the
ultimate touchstone” is congressional purpose.
Medtronic,
Inc. v. Lohr
,
The FRSA contains an express preemption provision:
A State may adopt or continue in force a law, regula- tion, or order related to railroad safety or security until the Secretary of Transportation (with respect to rail- road 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.
49 U.S.C. § 20106. The Secrеtary of Transportation has promulgated regulations concerning the design of grade crossing improvements, including adequate warning de- vices. These regulations call for the installation of auto- matic gates with flashing light signals when certain enu- merated conditions exist at a highway/rail crossing. 23 C.F.R. § 646.214(b)(3)(i). Where the specified conditions do not exist, the regulations provide that the type of warning device to be installed is subject to the approval of the Federal Highway Administration (“FHWA”). 23 C.F.R. § 646.214(b)(4).
In Shanklin , the Supreme Court held that the FHWA’s regulations addressing the adequacy of warning devices at rail crossings preempt state tort actions challenging the adequacy of devices installed using federal funds. Shanklin , 529 U.S. at 347. Relying on its earlier decision in CSX Transportation, Inc. v. Easterwood , 507 U.S. 658, 670 (1993), the Court held that 23 C.F.R. § 646.214(b)(3) and (4) preempt state tort law when those regulations arе found to be applicable to a particular crossing. Since the regulations are mandatory for all warning devices installed with federal funds, Shanklin , 529 U.S. at 353, the Court held they establish a standard of adequacy that “ ‘determine[s] the devices to be installed’ when federal funds participate in the crossing improvement project.” Id. at 354 (quoting Easterwood , 507 U.S. at 671). Therefore, the Court held, “[O]nce the FHWA has funded the crossing improvеment and the warning devices are actually installed and operat- ing, the regulation ‘displace[s] state and private deci- sionmaking authority by establishing a federal-law re- quirement that certain protective devices be installed or federal approval obtained.’ ” Id. (quoting Easterwood , 507 U.S. at 670).
The Shanklin court made clear that whether the devices installed under a federally funded crossing improvement project actually meet the standards set forth in § 646.214(b)(3) and (4) is immaterial to the preemption analysis:
It is this displacement of state law concerning the devices’ adequacy, and not the State’s or the FHWA’s adherence to the standard set out in [the regulations] or to the requirements of the MUTCD, that pre-empts state tort actions. Whether the State should have or- iginally installed different or additional dеvices, or whether conditions at the crossing have since changed such that automatic gates and flashing lights would be appropriate, is immaterial to the pre-emption question.
Id. at 357-58. Furthermore, the Court held that federal preemption attaches even if the warning devices were installed without any prior individualized assessment of the crossing at issue in a given case. Id. at 357-58 (abrogating Shots v. CSX Transp., Inc ., 38 F.3d 304, 307-08 (7th Cir. 1994)).
Thus, under
Shanklin
, preemptiоn in this context oper-
ates to preclude any state law claim premised upon any
alleged inadequacies in railway crossing warning devices,
and the district court properly dismissed the plaintiffs’
claims in this regard. In reaching that conclusion we join
two other circuit courts that have addressed
Shanklin
’s im-
pact on state-law negligence actions. In
Lee v. Burlington
Northern Santa Fe Railway Co.
, 245 F.3d 1102 (9th Cir.
2001), the plaintiff, injured in a collision with a train,
brought negligence claims under Montana law against the
railroad premised upon failure to install adequate warning
devices. The case reached a federal jury, which found that
the plaintiff was more than 50% negligent, precluding
recovery under Montana law. Following the district court’s
entry of judgment on the verdict, the Supreme Court de-
cided
Shanklin
. On appeal the railroad cited
Shanklin
’s
preemption holding as an alternative ground for affirmance.
The Ninth Circuit held that
Shanklin
unequivocally
preеmpted the plaintiff’s inadequate warnings claim:
“
Shanklin
makes clear that once the [FHWA] has funded a
crossing improvement and warning devices are actually
installed and operating, federal regulations displace state
and private decisionmaking authority.”
Lee
, 245 F.3d at
1106;
see also Union Pac. R.R. Co. v. Cal. Pub. Utils.
Comm’n
,
The facts of this case bring it squarely within the holding of Shanklin . The CR 400 crossing, where the collision oc- curred, was upgraded with federal funds disbursed by the FHWA pursuant to the FRSA. The warning devices were installed as mandated by 23 C.F.R. § 646.214(b)(3) and (4). Almost all the funds needed to complete the project were provided by the federal government, and in fact the govern- ment signed off on the installation of the devices once the statewide upgrade program was complete. Accordingly, to the extent the plaintiffs’ claims against the defendants are premised upon the alleged inadequacy of the warning devices at the CR 400 crossing, they are preempted.
C. Obstruction of View and Failure to Install/
Maintain Signs The plaintiffs also challenge the dismissal of their negli- gence claim against the County to the extent that the dis- trict court found the evidence of obstruction of view and failure to maintain signage at the crossing insufficient to survive summary judgment. On the obstruction-of-view claim, they contend that photographic evidence of the CR 400 crossing does not clarify where the County’s right-of- way terminates and the railroad’s begins, creating a ques- tion of fact that precludes summary judgment. They also argue that the district court improperly premised its ruling on Shеryl Bechard’s testimony that she had observed the signs and was familiar with the crossing when the court had not yet resolved the issue of her competence to testify. Finally, as to this claim, they assert that the district court erred in holding that the County was immune under Indiana’s governmental immunity statute, I ND . ODE § 34-13-3-3.
A negligence claim under Indiana law requires: (1) a duty on the part of the defendant in relation to the plaintiff; (2) a breach of that duty or, in other words, a failure on the part of the defendant to conform his conduct to the requisite standard of care; and (3) an injury to the plaintiff resulting from that breach. Douglass v. Irvin , 549 N.E.2d 368, 369 (Ind. 1990). The district court concluded that the summary judgment record was insufficient to create an issue of fact on the plaintiffs’ claim that the view of the railroad tracks was obstructed by vegetation or that the County was negligent with respect to the presence and/or maintenance of signage at the crossing. The court noted the complete lack of evidence that vegetation obstruction was a cause of the accident, that any signs were damaged or missing, or that any alleged deterioration in the pavement markings was a cause of the accident.
Setting aside the dispute about Shеryl Bechard’s com- petence to testify, the plaintiffs have not cited to record evidence tending to show vegetation overgrowth at the crossing or that vegetation-obstructed view was a cause of the accident. See Justice v. CSX Transp., Inc. , 908 F.2d 119 (7th Cir. 1990) (discussing the duty to prevent visual obstructions at railroad crossings and causation in obstruc- tion-of-view negligence claim under Indiana law). Nor have they cited аny record evidence to support their claim that the County failed to install or maintain stop signs and pavement markings, or that the absence or deterioration of this signage was a cause of the accident. To the contrary, photographs of the crossing in the record—albeit undated photographs—show visible stop signs and no vegetation ob- 13 structions to the view of the traсks from the road. Summary judgment on this aspect of the plaintiffs’ claim against the County was appropriate.
For the foregoing reasons, the judgment of the district court is A FFIRMED .
A true Copy:
Teste:
________________________________ Clerk of the United States Court of Appeals for the Seventh Circuit
Notes
[1] The plaintiffs appear to have abandoned their claim against Amtrak for negligent training of railroad personnel and negligent operation of the train. Thе obstruction-of-view claim against CSX and Amtrak is referred to in a stipulation of the parties as the “sole remaining claim” in the case.
[2] As we have noted, the district court held in the alternative that the County was immune from suit under Indiana’s governmental immunity statute, I ND . ODE § 34-13-3-3 (2005). Because we agree with the district court’s conclusion that the plaintiffs’ negligence claim against the County for obstruction of view and failure to install/maintain signage is factually insufficient to survive summary judgment, we do not address the immunity issue. USCA-02-C-0072—7-22-05