Steven Grade brought suit against BNSF Railway Co. (BNSF), alleging common law negligence and seeking compensation for injuries he suffered when the automobile he was driving hit a BNSF railcar that was stopped at a railroad crossing. The district court 1 granted summary judgment to BNSF dismissing all of Grade’s claims. Grade appeals, and we affirm.
I.
On a late December night in 2006, Steven Grade and his wife went grocery shopping in Hastings, Nebraska. On that night, Hastings was experiencing an ice storm that affected road conditions and reduced visibility. On the way home from grocery shopping, the Grades’ automobile, driven by Steven Grade, hit a flatbed rail-car owned by BNSF as the Grades attempted to pass through a railroad crossing. The flatbed railcar was part of a long string of flatbed railcars that had been detached from a BNSF train and that was parked unattended on a BNSF railroad track awaiting a crew change and removal of one of the railcars. 2 As a result of this collision, Grade sustained serious injuries to the bones of his lower arm and wrist, requiring surgery and resulting in permanent disability; additionally, his automobile was totaled.
Grade filed suit in Nebraska state court alleging eight claims of negligence under *683 Nebraska law. Specifically, Grade claimed the accident was caused by BNSF:
(a) In failing to maintain a proper lookout for the motoring public who were lawfully using B [SJtreet [where the accident took place];
(b) In failing to have its rolling stock under reasonable and proper control and supervision;
(c) In failing to break the parked flat cars at the crossing and move said cars a safe distance north or south of said grade crossing;
(d) In failing to have a flagman, or other railroad personnel, or to have appropriate automated audible, flashing or refectory [sic] warning devices at the crossing or on the flatcars in order to alert oncoming motorists on B Street that the flatcars were blocking the grade crossing;
(e) By blocking said grade crossing with unattended and parked flatcars for more than ten minutes without breaking and removing said cars from the grade crossing;
(f) In failing to maintain the B Street Crossing with a mounted flashing light and bell warning signal;
(g) In failing to install a mounted flashing light and bell warning signal at the B Street Crossing; and
(h) In marking the B Street Crossing with a cross-buck sign and not a cross arm devise [sic] with a flashing light.
(Complaint at 3). The case was removed to federal court based on diversity jurisdiction. BNSF moved for summary judgment, and the district court granted the motion, finding that Grade’s claims (a), (b), (d), (f), (g), and (h) were preempted by the Federal Railroad Safety Act (FRSA) because they were inadequacy-of-warning claims and the warning device in place at the B Street crossing at the time of the accident was paid for by federal funds. The district court found that Grade’s claims (c) and (e) failed because Grade could not prove causation, a necessary element of a negligence cause of action.
II.
Grade argues on appeal that the district court erred in granting summary judgment on each of his claims. “We review the district court’s grant of summary judgment de novo, taking the facts in the light most favorable to the nonmoving party and drawing all reasonable inferences in the nonmoving party’s favor.”
Quinn v. St. Louis Cnty.,
A. Inadequacy-of-Warning Claims
“We review the district court’s determination concerning the preemption of the FRSA de novo.”
BNSF Ry. Co. v. Swanson,
The federal regulations that address the adequacy of warning devices are found at 23 C.F.R § 646.214(b)(3) and (4). According to section 646.214(b)(3)(i):
Adequate warning devices ... 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 *684 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.
23 C.F.R § 646.214(b)(3)®. Where a crossing does not exhibit the factors listed in section 646.214(b)(3)®, which require the crossing to be equipped with automatic gates and flashing lights, “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 [Federal Highway Administration].” 23 C.F.R. § 646.214(b)(4).
BNSF introduced the uneontroverted affidavit of Ellis Tompkins, the custodian of records for the Nebraska Department of Roads (NDOR). Tompkins’s affidavit and supporting documents indicated the following: The B Street Crossing where Grade’s accident occurred was equipped with a reflectorized crossbuck sign. The crossbuck sign was installed pursuant to a 1978 agreement between the NDOR, BNSF’s predecessor BN, and the FHWA to add reflectorized crossbuck signs to certain crossings within Nebraska. BN installed the reflectorized crossbuck and was reimbursed for 90% of its cost by federal funds from the FHWA. In the time since the crossbuck’s installation, neither the NDOR nor the FHWA has considered whether the crossing required any additional warning devices.
Grade’s complaint alleges that the crossbuck sign was inadequate because, although not required by federal regulation, additional warning devices, such as a flagman or lookout, should have been in place at the crossing. Additionally, Grade’s claims (f), (g), and (h) appear to allege that the B Street Crossing should have complied with section 646.214(b)(3)®, as he alleges the crossing should have been equipped with automatic gates and flashing lights.
In
Norfolk Southern Railway Co. v. Shanklin,
Grade argues
Shanklin
is no longer good law because of a 2007 Amendment to the FRSA preemption section, 49 U.S.C. § 20106. Congress amended section 20106 in response to a group of cases arising out of a 2006 Minot, North Dakota accident in which a train derailed and released more than 222,000 gallons of toxic gas into the air, resulting in injury to many people.
See Lundeen v. Can. Pac. Ry. Co. (Lun
*685
deen II),
Nothing in [the FRSA] shall be construed to preempt an action under State law seeking damages for personal injury, death, or property damage alleging that a party—
(A) has failed to comply with the Federal standard of care established by a regulation or order issued by the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), covering the subject matter as provided in subsection (a) of this section;
(B) has failed to comply with its own plan, rule, or standard that it created pursuant to a regulation or order issued by either of the Secretaries; or
(C) has failed to comply with a State law, regulation, or order that is not incompatible with subsection (a)(2).
49 U.S.C. § 20106(b)(l)(A)-(C). The Amendment was retroactive to the date of the Minot derailment. 49 U.S.C. § 20106(b)(2);
Lundeen II,
Grade argues that the 2007 Amendment renders
Shcmklin
bad law and prevents his inadequacy-of-warning claims from being preempted. We find, however, that the 2007 Amendment has no effect on
Shanklin
inadequacy-of-warning claims. In the Minot derailment cases that the 2007 Amendment sought to address, the plaintiffs’ claims were based on a theory that the railroads had negligently failed to inspect the rail track.
See Lundeen v. Can. Pac. Ry. Co. (Lundeen I),
The legislative history of the 2007 Amendment indicates it was intended to clarify the preemptive effect of the FRSA, not to change it, and indeed the Amendment refers to itself as a clarification. See 49 U.S.C. § 20106(b); H.R.Rep. No. 110-259, at 351. Because the Amendment is a clarification and not a change, its application is limited to cases in which a plaintiff brings a negligence claim that alleges a railroad failed to comply with an ongoing, federal standard of care. In such cases, a *686 plaintiffs claims are not preempted. However, where a plaintiff brings a claim alleging a violation of a federal regulation that does not create an ongoing, federal standard of care, the Amendment does not apply, and the plaintiffs claims are governed by pre-Amendment preemption cases.
The warning-device regulations under which Grade brings his claims do not create an ongoing, “federal standard of care” under which the railroad is expected to act. Rather than imposing a federal standard of care under which a railroad is expected to act, the warning regulations “take the
‘final authority to decide
what warning system is needed ... out of the railroad’s and the state’s hands.’ ”
Henning v. Union Pac. R.R. Co.,
Because we agree with the Tenth Circuit that the warning regulations do not create a federal standard of care under which the railroad is expected to act, the 2007 Amendment has no effect on the prior case law relating to those regulations. As such, Shanklin was not overruled by the 2007 Amendment, and it is controlling. Under Shanklin, because the B Street Crossing warning system was paid for in part by federal funds, Grade’s warning claims are preempted.
In addition to his argument that his warning claims are no longer preempted based on the 2007 Amendment to the FRSA, Grade argues his claims are not preempted based on the local-condition savings clause under the FRSA. Under the savings clause, claims that would otherwise be preempted under the FRSA are not preempted where a claim is brought under a state law necessary to address an essentially local condition.
See
49 U.S.C. § 20106(a)(2)(A)-(C);
Duluth, Winnipeg, & Pac. Ry. Co. v. City of Orr,
The local-condition savings clause does not apply where a condition is statewide in character or is capable of being adequately addressed in the national standards created by the Secretary of Transportation.
Duluth, Winnipeg, & Pac. Ry. Co.,
B. Inadequacy of Reflective Material Claim
The portion of Grade’s claim (d) that alleges negligence in failing to equip the railcars with reflective devices or warning lights is also preempted because there are federal regulations that control what types of warning devices must be placed on railcars, and the BNSF railcar was in compliance with those regulations. See 49 C.F.R. §§ 224.101, 107. The regulations establish a timeline for equipping cars owned prior to 2006 with reflective material, and BNSF’s evidence indicated that the railcar in question was not yet required to be equipped with reflective devices under the timeline. Regulation 224.1(b) states that owners of railcars are “under no duty to install, clean or otherwise maintain, or repair reflective material except as specified” by the regulations. 49 C.F.R. § 224.1(b). BNSF was in compliance with the federal regulations controlling reflective devices, and Grade cannot create requirements beyond those included in the regulations through a state tort suit. The district court was correct in determining that Grade’s claim of negligence based on failure to equip the railcar with reflective devices is preempted.
C. Failure to Break Cars and Improper Blocking Claims
In claims (c) and (e) of his complaint, Grade alleges BNSF was negligent in failing to break the railcars once the train was stopped at the crossing, thereby blocking the crossing in violation of a Nebraska regulation that limits the amount of time that a railcar can block a crossing to ten minutes. 415 Neb. Admin. Code ch. 7 § 005.01 (2006).
To be successful in a negligence action under Nebraska law, Grade must demonstrate that BNSF owed a duty to him, that BNSF breached its duty, and that the breach was the proximate cause of the accident.
Dresser v. Union Pac. R.R. Co.,
“Under Nebraska negligence law, proximate cause consists of three ele
*688
ments: that (1) but for the negligence, the injury would not have occurred, (2) the injury is the natural and probable result of the negligence, and (3) there is no efficient intervening cause.”
Heatherly v. Alexander,
The district court found that Grade’s claim failed because Grade could not demonstrate the first two elements of proximate cause. We agree that Grade cannot show that his injuries were the natural and probable result of BNSF’s negligence in blocking the crossing in excess of the ten minutes of permitted blocking time. Under Nebraska law, certain injuries are so attenuated from a defendant’s breach of duty that they cannot be said to be caused by the defendant’s actions.
See, e.g., Wilken v. City of Lexington,
D. Failure to Keep Rolling Stock Under Control Claim
In claim (b) of his complaint, Grade claims BNSF was negligent in failing to keep its rolling stock under reasonable and proper control and supervision. However, BNSF’s cars were stopped and were located on a BNSF track, exactly where BNSF intended for them to be. Grade has failed to demonstrate that the cars were not under BNSF’s control. Therefore, the district court properly granted summary judgment as to this claim.
III.
For the foregoing reasons, we affirm the grant of summary judgment as to all of Grade’s claims.