1 The issues in the present cause are as follows: (1) whether Pearl's state law negli-genee theories based upon adequacy of the warning devices, excessive train speed and "local hazard conditions" are preempted by federal law such that the trial court's instructions on these issues were improper and (2) if so, whether the scope of federal preemption extends to bar evidence of adequacy of warning devices, excessive train speed and "local hazard conditions," which is offered for purposes of comparative negligence and punitive damages; (8) whether the trial court erred in instructing the jury to analyze the negligence of the parties on the basis of Oklahoma law of comparative negligence; and (4) whether the trial court erred in denying Railroad's motion for a directed verdict on the issues of liability and punitive damages.
I
FACTS AND PROCEDURAL HISTORY
T2 William Franklin Pearl, a resident of LeFlore County, Oklahoma, was driving his 1997 pickup truck home subsequent to a shopping trip at 1 pm. on December 16, 1997, whereupon his truck was struck by a train owned by Railroad and operated by its employees/Defendants Locke and Hinds, as Pearl was driving over the Pickering Street railway grade crossing in Mena, Arkansas. The crossing in question was a one-lane crossing and signs at the crossing included two reflectorized crossbucks warning signs 1 without gates and/or lights. The train at issue in this case was stationed out of Heay-ener, Oklahoma and was scheduled to return there on that date. The conductor Defendant and engineer Defendant were also residents of LeFlore County, Oklahoma.
T3 This personal injury action was instituted on March 4, 1998 in the District Court of LeFlore County, in which Pearl sought compensatory damages for Defendants' neg-
T 6 The Court of Civil Appeals, Division IV (COCA) affirmed in part, reversed in part, and remanded for a new trial, holding that the trial court erred in instructing the jury regarding the adequacy of the warning devices, excessive train speed and on "local hazard conditions," as these claims were preempted by federal law. However, the COCA concluded that preemption does not extend to bar evidentiary proof of these theories for purposes of comparative negligence and punitive damages. Additionally, the COCA determined that upon remand, the jury should be instructed on Arkansas comparative negligence law rather than Oklahoma law. Further, the COCA affirmed the trial court's denial of Railroad's Motion for Directed Verdict on the issues of Hability and punitive damages.
II
THE JURY INSTRUCTIONS
T7 Review of trial court instructions is governed by 20 0.8.2001 § 8001.1, which provides as follows:
[nlo judgment shall be set aside or new trial granted by any appellate court of this state in any case ... on the ground of misdirection of the jury or for error in any matter of pleading or procedure, unless it is the opinion of the reviewing court that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.
Id. We have held that in cases tried to a jury, where a jury is instructed on more than one issue and error affects one of the issues, "the error affecting one issue or theory in a case will be regarded as prejudicial where it is impossible to determine upon which of the two issues or theories the jury based its decision." Bredouw v. Jones,
118 In this case, the jury was instructed on the abnormally dangerous nature of the crossing/adequacy of warning devices
7
, excessive train speed/specific individual hazard (also referred to as "local hazard condition" claim, "specific individualized hazard claim" and/or "local safety hazard claim")
8
19 The Railroad additionally argued, and the COCA agreed, that the trial court erred in instructing the jury on the issue of comparative negligence according to Oklahoma law instead of Arkansas law.
11
We
110 This Court has held "that the rights and liabilities of parties with respect to a particular issue in tort should be determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties." Brickner v. Gooden,
T11 In Brickner, this Court expressly abandoned the lex loci delicti rule (the law of the place of the wrong), which previously determined the applicable substantive law for tort actions brought in Oklahoma. Id. To determine the state with the most significant relationship to the occurrence and the parties, the Brickner case identified four factors to be considered "according to their relative importance with respect to a particular issue" as follows: "(1) the place where the injury occurred, (2) the place where the conduct causing the injury occurred, (3) the domicile, residence, nationality, place of incorporation and place of business of the parties, and (4) the place where the relationship, if any, between the parties occurred." Id.
112 In this case, the motor vehicle-train collision occurred in Arkansas. However, both Mr. Pearl and his guardian, Juanita Hightower, as well as Defendants J.T. Locke and Jerry Hinds are all residents of LeFlore County, Oklahoma. Thus, all individual parties to this lawsuit reside in Oklahoma. At the time of the collision, Mr. Pearl was driving home from a shopping trip, which had begun in Oklahoma and was to end in Oklahoma. Although the Railroad owns property located in LeFlore County, Oklahoma, the Railroad's state of incorporation and its principal place of business is in a state other than Oklahoma or Arkansas. The train at issue in this case was stationed out of Heavener, Oklahoma. Further, at the time of the collision in this case, the train was traveling on a trip, which began in Oklahoma and was scheduled to return to Oklahoma.
113 The Railroad urges an application of the "most significant relationship test" that would result in resurrection of the lex loci delicti rule, as it argues there is no other significant relationship between the parties in this case other than the fact they were each involved in the accident in Arkansas. The Railroad urges a construction of the test that focuses upon the fact the collision occurred in Arkansas as the sole factor in the determination of which state's law has the most significant relationship to the occurrence and the parties. However, the proper consideration of the other Brickner factors indicates it is Oklahoma law, which clearly has the most significant relationship to the occurrence and the parties in this case with respect to negligence and comparative negligence.
£14 The Brickner case arose out of an airplane crash, which occurred in Mexico. The injured passengers brought actions against the individual owner and operator of the airplane for personal injuries sustained in the crash. In its application and evaluation of the various factors in Brickner, this Court noted that "all the parties were and still are residents of Oklahoma; the aircraft was han-gared and registered in Oklahoma; and the trip originated and was to end in Oklahoma." Id. at 638. While the Brickner Court acknowledged that the Republic of Mexico "would be concérned with the conduct of the parties while they were within its borders and the accident occurred in Mexico," it noted that " 'it would seem rather undesirable
{15 The facts and application of the factors in Brickner are directly analogous in the instant case. Just as in Brickner, all individual parties in this case are residents of Oklahoma. Additionally, just as the aircraft in Brickner was hangared in Oklahoma, the train in this case was stationed out of Heav-ener, Oklahoma and both the train and Mr. Pearl were each originating their respective trips from Oklahoma and likewise, each were planning on ending their respective trips in Oklahoma on the day of the collision. In this case, it would likewise "seem rather undesirable that the rights and obligations of the parties should be subject to change as the [train] crossed the boundary lines of each jurisdiction." Id. Thus, pursuant to the rule in Brickner, the laws of Oklahoma have the most significant relationship to the occurrence and the parties and Oklahoma law of negligence and comparative negligence should therefore apply to determine the parties' rights and liabilities in this case. Upon remand, the trial court shall apply Oklahoma law on negligence and comparative negli-genee when it instructs the jury.
III
FEDERAL LAW PREEMPTS PEARLS THEORIES OF NEGLIGENCE PREMISED UPON INADEQUATE WARNING DEVICES, EXCESSIVE TRAIN SPEED AND LOCAL HAZARD CONDITIONS
Background on the Federal Law Relating to Railroad Safety
T16 The Federal Railroad Safety Act of 1970 (FRSA), 45 U.S.C. §§ 421-447 (now codified at 49 U.S.C. § 20101 (2000), et seq.) was enacted for the express purpose of "pro-motf[ing] safety in every area of railroad operations and reducfing] railroad-related accidents and incidents." 45 U.S.C. § 421 (49 U.S.C. § 20101). Additionally, the FRSA directed the Secretary of Transportation to address safety problems at grade crossings and was given broad powers to "prescribe regulations and issue orders for every area of railroad safety." 45 U.S.C. § 48l1(a) (49 U.8.C. § 20108(2)). This legislation expressly provides for the federal preemption of State law as follows:
Laws, regulations, and orders related to railroad safety 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 until the Secretary of Transportation prescribes a regulation or issues an order covering the subject matter of the State requirement.
45 U.S.C. § 484 (49 U.S.C. § 20106). This Act also contains an express "savings clause," which provides as follows:
A State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety when the law, regulation, or order-
(1) is necessary to eliminate or reduce an essentially local safety hazard;
(2) is not incompatible with a law, regulation, or order of the United States government; and
(8) does not unreasonably burden interstate commerce.
Id. (emphasis added). Pursuant to the FRSA, in 1971, The Secretary of Transportation issued regulations, which set maximum allowable train speeds corresponding to track classification. 49 C.F.R. § 2138.9 (2002). 12
117 In 1978, the Highway Safety Act was enacted, which created the Federal Railway, Highway Crossings Program (The Crossings Program). 23 U.S.C. § 1830 (2000). The Crossings Program makes federal funds
A. Excessive Train Speed Theory
118 Two of Pearl's four negligence theories are based upon the premise that the train in question was traveling at an excessive speed at the time of the accident. Pearl specifically claims that the train was exceeding the federally mandated speed limit at the crossing (hereinafter the "excessive speed claim") and the Railroad was exceeding a safe speed in light of the specific, individualized hazard the Railroad had created at the crossing.
1 19 It is undisputed that the train at issue in this case was traveling 40 miles per hour at the time of the accident. Further, the record reflects that at the time of the accident, the track was classified pursuant to federal regulation as a Class 8 track, which .has a maximum allowable speed of 40 miles per hour. 16
121 Pearl has sought to cireumvent federal preemption by arguing that the track should have been clasgified at a lower classification and therefore, a lower speed limit should have been applicable at the time of the accident. Pearl argued that the jury was entitled to determine the class of track and its corresponding speed limit. The trial court agreed and instructed the jury on this issue. The COCA held the trial court erred in giving this instruction and this Court agrees. The federal regulations explicitly place the responsibility of the determination whether to lower a track's classification (and the track's corresponding speed limit) upon either a Federal Railroad Administration Track Inspector or a State Track Inspector. 49 C.FP.R. § 216.15(a). That regulation provides in pertinent part as follows:
When an FRA Track Inspector or State Track Inspector determines that track does not comply with the requirements for the class at which the track is being operated ... he notifies the railroad in writing that the track is being lowered in class and that operations over that track must comply with the speed limitations prescribed in part 218 of this chapter.
49 C.E.R. § 216.15(a). Pursuant to this federal authority, the determination of whether to lower the track classification and its corresponding speed limit is clearly for the FRA track inspector and/or State Track Inspector rather than a question of fact for the jury. "Federal law provides ... the decision to downgrade a track belongs to the FRA track inspector." Stevenson v. Union Pac. R.R. Co.,
122 In Stevenson, the plaintiffs argued that a track should have been downgraded and a corresponding lower speed limit should have been implemented prior to the motor vehicle-train accident at issue in that case due to "a number of track conditions found in the area including the specific local hazard." Id. at 1091. The Stevenson court rejected this argument, reasoning that "Plaintiffs are attempting to reclassify the track after the fact. This is an impermissible collateral attack on the regulatory process." Id. In this case, the record is absent any evidence of either a FRA Track Inspector and/or State Track Inspector's determination that the track in question did not meet the requirements of a class 3 track. Further, there is no evidence of any written notification to the Railroad of any federal or state inspector's determination in this case that a lowering in track classification was warrant ed. In fact, The Federal Railroad Administration inspection report of January 22, 1997
17
indicates the FRA Inspector inspect
B. The "Local Hazard" Claim/Specific, Individual Hazard Exception
123 Pearl additionally argues that the crossing presented a "specific, individualized hazard" that required the train's speed to be reduced as it approached the crossing. As noted above, federal preemption under § 20106 of excessive train speed claims is not absolute, as the statute contains an express "savings clause." The U.S. Supreme Court has held that common law speed restrictions are not preserved by the "savings clause" within the federal statute, the terms of which allows States to "adopt or continue in force an additional or more stringent law ... related to railroad safety when the law ... is necessary to eliminate or reduce an essentially local safety hazard." CSX Transp., Inc. v. Easterwood,
ۤ24 Pursuant to Easterwood and upon consideration of "the various views espoused in its progeny," this Court in Myers held "that a specific, individual hazard is a person, vehicle, obstruction, object, or event which is not a fixed condition or feature of the eross-ing and which is not capable of being taken into account by the Secretary of Transportation in the promulgation of uniform, national speed regulations." Myers,
Hazards posed by track conditions, including those existing at grade crossings, are capable of being taken into account by the Secretary and are covered by the federal speed regulations. 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.
Id.(emphasis added).
125 In this case, Pearl argues the Railroad's alleged failure to "keep a promise" regarding its increase of train- speeds and corresponding adjustment of warnings it would provide motorists driving over crossings in Mena, Arkansas amounts to a "specific, individualized hazard. 23 Pearl argues the Railroad made "false representations" that it would increase train speed incrementally and it would implement certain protective measures to ensure local citizens had the same advance warning times that they had under the lower speeds. Warning devices were never altered in accordance with the alleged "promises," and Pearl asserts that such promises had prevented local government from implementing their own safety measures. Thus, Pearl asserts these false representations created a "specific, individualized hazard" at the Pickering Street Crossing. "
126 The record reveals that Pearl's "specific, individual hazard" theory is based entirely on the Railroad's internal speed regulations, which set a lower speed limit than the maximum allowable speed limit mandated by federal law, as referenced in a letter the Railroad's General Superintendent sent to the Mayor of Mena, Arkansas on November 11, 1997 regarding the Railroad's internal policies.
24
While the record suggests that the Railroad may have violated its own internal speed limit in traveling at 40 miles per hour at the time of this collision, this speed was clearly within the maximum speed limit established by federal law for a Class 3 track. Internal speed limits set by the Railroad are not "a person, vehicle, obstruction, object, or event which is not a fixed condition or feature of the crossing" incapable "of being taken into account by the Secretary of Transportation." Id. at 1027. Clearly, train speed limits are capable of being taken into account by the Secretary of Transportation in the promulgation of uniform, national speed regulations, since this is exactly what the Secretary has done in establishing classifications of tracks and corresponding maximum speed limits. Such internal speed limits are not a "unique occurrence which could lead to a specific and imminent collision" and "have nothing to do with the avoidance of a
C. The Inadequate Warning Device Theory
127 Pearl's fourth negligence theory is premised upon the Railroad's alleged failure to provide an adequate warning to motorists of the presence of an approaching train in light of the abnormally dangerous nature of the crossing (hereinafter "the inadequate warning" claim). As discussed supra in introduction to Part III of this opinion, federal regulations implementing the Crossings Program addressed the design of grade crossing improvements. 23 CER. § 646.214(b). These regulations specify what constitutes "adequate warning devices," which must be installed at crossings "where Federal-aid funds participate in the installation of the devices." §§ 646.214(b)(8) and (4). The U.S. Supreme Court has held that when federal funds participate in the crossing improvement project, these regulations "establish a standard of adequacy that 'determines the devices to be installed." Norfolk S. Ry. Co. v. Shanklin,
128 In Hasterwood, the U.S. Supreme Court determined that the federal regulations were inapplicable in that case because although federal funds had been obtained for placement of warning devices at the crossing in question, those warning devices were never actually installed. Easterwood,
T29 The record reflects that pursuant to an Arkansas Crossings Improvement Program in 1980, federal funds were used to install the crossbucks warning signs at the Pickering Street Crossing and that such warning signs remained present at the crossing at the time of the collision in the instant case. The record also reflects that this use of federal rail-highway monies for this project was approved by the Federal Highway Administration, thus satisfying the conditions of § 646.214(b)(4)
25
Since federal funds
IV
EVIDENCE PERTINENT TO PREEMPTED THEORIES OF NEGLIGENCE
130 Although the COCA correctly determined that Pearl's claims based on inadequate warnings, excessive train speed and "local hazard conditions"/"local safety hazard" 26 were preempted by federal law, it erred in its holding that evidence pertinent to these theories was admissible on the issues of Pearl's comparative negligence 27 and punitive damages. 28
{31 The express preemption provision contained in the FRSA calls for "nationally uniform" laws "related to railroad safety,"
132 Specifically with respect to preemption of state law on the subject of adequacy of warning devices, the U.S. Supreme Court has held that "[wlhen the FHWA approves a crossing improvement project and the State installs the warning devices using federal funds, §§ 646.214(b)(8) and (4) establish a federal standard for the adequacy of those devices that displaces state tort law addressing the same subject." Norfolk S. Ry. Co. v. Shanklin,
133 Likewise, with respect to the evidence regarding excessive train speed, the provisions of 49 C.F.R. § 218.9 establish the maximum speeds trains are permitted to travel given the classification of the track on which they operate. The U.S. Supreme Court has held the federal "speed limits must be read as not only establishing a ceiling, but also precluding additional state [law]" such as "the common-law duty to operate [a train at] a moderate and safe rate of speed." Easter-wood,
{34 Despite the U.S. Supreme Court's guidance as to the broad scope of federal preemption as expressly provided in Shank-lin and Easterwood and contrary to the express preemption language of the FRSA, the COCA narrowly construed the scope of federal preemption to extend no further than negligence claims. The U.S. Supreme Court has not limited the seope of federal preemption under the FRSA to mere negligence claims, but rather, has determined that preemption extends to "state tort law" and to the "legal duties imposed on railroads by the common law." Shanklin,
1 35 Pursuant to these authorities, we hold that federal law preempts evidence regarding adequacy of warning devices, excessive train speed and/or the alleged "local hazard conditions, 31 which is offered for the purpose of proof of a state law tort claim for punitive damages and/or the issue of comparative negligence. Such evidence is part of the relevant state law substantially subsumed by federal regulations regarding railway safety and is thereby preempted.
36 If we were to permit Pearl to introduce evidence at trial regarding the adequacy of warning devices on the issue of the Railroad's comparative negligence defense and/or punitive damages claim, this would amount to an impermissible challenge of the federal standard of adequacy of warning devices.
32
If Pearl were likewise allowed to
§37 To allow Pearl to admit evidence that would permit the jury to apportion the Railroad's fault on the basis of such a challenge is akin to allowing Pearl to improperly submit a claim for negligence based upon adequacy of warnings, excessive train speed and alleged dangerous conditions of the crossing.
33
Where such negligence
138 Finally, to allow Pearl to admit evidence regarding the adequacy of the warning devices and excessive train speed on the issue of punitive damages would permit the jury to punish a Railroad for complying with the applicable federal standards for warning devices at crossings and train speed. This not only offends logic, it is contrary to the law of federal preemption.
y
SUMMARY
139 While we recognize the COCA correctly determined that Pearl's state law neg-ligenee theories based upon adequacy of the warning devices, excessive train speed and "local hazard conditions" are preempted by federal law and that the trial court erred in instructing the jury on these issues, we vacate the COCA's opinion on other grounds. In accordance with federal law, U.S. Supreme Court case law and pursuant to precedent of this Court, we hold that the seope of federal preemption under the Federal Railroad Safety Act and regulations promulgated pursuant thereto, extends to bar evidence of adequacy of warning devices, excessive train speed and allegedly hazardous conditions existing at grade crossings when such evidence is offered for purposes of comparative negligence and punitive damages. Further, we uphold the trial court's instruction to the jury to analyze the negligence of the parties on the basis of Oklahoma law of negligence and comparative negligence in light of Oklahoma law's most significant relationship to the occurrence and the parties and remand for new trial to be held solely on Pearl's vegetation claim. Finally, we uphold the trial court's denial of the Railroad's motion for a directed verdict on the issues of liability and punitive damages.
4 40 Upon certiorari previously granted,
THE COURT OF CIVIL APPEALS OPINION IS VACATED; THE DISTRICT COURTS JUDGMENT IS REVERSED; AND THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH TODAY'S PRONOUNCEMENT.
Notes
. The record indicates that directly adjacent to the road Pearl traveled on as he approached the Pickering Street Crossing, there were three warning signs, or passive devices (one round yellow sign with two black lines across the sign in the shape of an "X" with letters "R" and "R" on either side of the "X,") the next sign closer to the crossing was a diamond-shaped yellow sign indicating "CAUTION ONE LANE CROSSING ONLY," and the third sign was the crossbuck (pole with two white, rectangular shaped crossing signs at the top with black reflective lettering, which indicates "RAILROAD" and "CROSSING" on each rectangular crossing sign respectively). The crossbuck sign and posts were installed pursuant to Arkansas State Highway and Transportation Department specifications sometime in 1980. In addition to the requirement that the crossbuck signs be reflectorized, the posts supporting such signs were designed to "break away" upon substantial impact, be installed "a minimum of 9 feet from the closest rail [and] 2 feet from the edge of the roadway or the edge of shoulder but not more than 12 feet unless otherwise directed by the engineer [for the Arkansas State Highway Commission]." Arkansas State Highway Commission Plan of Proposed Railroad Crossing Signs (K.C.S.) Statewide, detail sheet. Federal funds were used in implementation of this crossings improvement and was approved by the Federal Highway Administration sometime in 1980. Pearl raises no objection to the placement of or location of the crossbucks, but alleged in his Petition the insufficiency "of the crossbucks and/or other passive devices" and Railroad's negligence in its "fail{ure] to install crossing lights and/or gates and/or advance active warnings."
. We do not agree with Pearl's assertion in his Petition for Writ of Certiorari that 20 O.S. § 3001.1 has expressly and/or implicitly overruled Bredouw v. Jones,
. This instruction on the abnormally dangerous nature of the crossing/adequacy of warning devices claim was instruction number 11, which provided as follows:
Plaintiff contends that the Pickering Street Crossing was abnormally dangerous, and she has the burden of proving this proposition,
If the Pickering Street Crossing is frequently used by the traveling public, if trains pass over it frequently and if the crossing is so dangerous because of surrounding circumstances that a reasonable careful person could not use it with reasonable safety in the absence of special warnings, then it would be an abnormally dangerous crossing. Whether the Pickering Street Crossing was abnormally dangerous is for you to decide.
If you find that the Pickering Street Crossing was abnormally dangerous, as I have defined that term, then it was the duty of Kansas City Southern Railway Company to use ordinary care to give a warning reasonably sufficient to permit the traveling public to use the crossing with reasonable safety.
. This instruction on excessive train speed/specific, individual hazard was instruction number 12, which provided as follows:
Plaintiff contends that Kansas City Southern Railway Company created a specific, individualized hazard at the Pickering Street Crossing andthat the railroad had duty to slow its train to avoid such a hazard. The mere fact that a train is being operated at a high rate of speed is not in itself negligence. However, under certain circumstances the speed of a train may be so unreasonable as to constitute negligence. It is for you to decide whether a specific, individualized hazard existed at the Pickering Street Crossing creating a circumstance that made the speed of the train in this case unreasonable.
. With respect to Pearl's excessive speed claim, the trial court gave the instruction on track classification in order to permit the jury to determine whether the track should have been classified in a lower class such that would result in a corresponding lower maximum allowable speed for that class. The track classification instruction (instruction # 13 at trial) contained virtually verbatim content of the federal regulation on track classification (49 C.F.R. § 213.9 (2002)), which provided as follows:
There was in force in the State of Arkansas at the time of the occurrence a federal regulation which provided:
[Tlhe following maximum allowable operating speeds apply for freight trains:
Excepted track ..................6....0 10 mph
Class 1 track 10 mph
Class 2 track 2.6.6} 25 mph
Class 3 track 6k. ...} 40 mph
Class 4 track ...e ee.. es. 60 mph
If a segment of track does not meet all of the requirements for its intended class, it is reclassified to the next lowest class of track for which it does meet all of the requirements of this part.
. Railroad has failed to raise or otherwise preserve any objection to the vegetation claim in any of its assignments of error, briefs and/or certiora-ri materials before this Court. Thus, we do not address the propriety of this instruction, nor do we address whether federal law preempts this tort law claim. However, it has been held that federal law preempts common law tort claims predicated on a railroad's failure to control vegetation adjacent to railroad crossings so long as the railroad complies with the federal vegetation regulation (49 CER. § 213.37(b) (2002)). O'Bannon v. Union Pac. R.R. Co.,
. The trial court instructed the jury (instruction numbers 6-9) regarding Oklahoma negligence law pursuant to the Oklahoma Uniform Jury Instructions (hereinafter OUJI-Cm~. (2d) 9.1 (Negligence-elements of liability), 9.2 (Negligence defined), 9.6 (Direct Cause-definition), 9.7 (Concurrent causes), but instructed the jury (numbers 14-16) pursuant to Arkansas "rules of the road" concerning duties of drivers of motor vehicles with respect to railroad grade crossings. The trial court gave instruction number 21 on Oklahoma comparative negligence law and instruction number 22 on Oklahoma law regarding "comparative negligence not a defense to willful and wanton" pursuant to OUJI-Civ. (2d) 9.17, 9.19 and 9.174. The distinction between Oklahoma and Arkansas law on comparative negligence arises if the jury were to determine that the negligence of the parties is equivalent. Railroad urges the application of Arkansas comparative negligence law in this instance. Arkansas law bars a plaintiff from recovery when plaintiff's negligence is equal to or greater than the negligence of defendant's negligence. Ann. § 16-64-122 (Michie 1987). Thus, if the jury were instructed on Arkansas comparative negligence law and it determined Pearl's negligence was 50 per cent-equivalent to Railroad's negligence-Pearl would therefore be barred from any recovery under Arkansas law. However, under Oklahoma law, a plaintiff may recover from a defendant, whose negligence is of equal degree to plaintiffs own negligence, since Oklahoma law bars plaintiff's recovery only if plaintiff's own negligence is of a greater degree than defendant's negligence. 23 0.$.2001 § 13.
. This regulation regarding track classification was provided to the jury in its entirety in instruction number 13, supra at note 9. Track classification is based upon numerous factors such as the track's "gage, alignment, curvature, surface uniformity, and the number of cross ties per length of track." CSX Transp., Inc. v. Easterwood,
. Additionally, federal regulations require States receiving federal aid to consider and rank the dangers posed by grade crossings, noting that "special emphasis shall be given to the legislative requirement that all public crossings be provided with standard signing." 23 C.F.R. § 924.9(a)(4) (2002). In addition to this direction to the states, the FRSA also directs the Secretary of Transportation to "maintain a coordinated effort to develop and carry out solutions to the railroad grade crossing problem." 49 U.S.C. § 20134 (2000).
. The U.S. Supreme Court has held that § 646.214(b)(1), which requires that all traffic control devices installed under the program comply with MUTCD, does not preempt state tort actions. CSX Transp., Inc. v. Easterwood,
. Sections 646.214(b)(3) and (4) provide in full:
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.
(i) 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.
. The record contains evidence indicating that in November of 1997, the classification of the track through the City of Mena was to be upgraded from Class 3 to Class 4, with a corresponding increase in the maximum allowable speed pursuant to the federal regulations from 40 miles per - hour to 60 miles per hour.
. The FRA Inspection Report of January 22, 1997 was Plaintiff's Exhibit # 279 at trial. This report documents the fact that this track was classified as Class 3 with a maximum allowable speed for this track of 40 miles per hour. This report also reflects the FRA Inspector's findings of "poor subgrade conditions (track pumping/mud, at several locations) due to drainage facitly [sic], mainly at rd. xings, and in rock cuts." However, the inspection report further expressly provides that the FRA Inspector noted "no violation recommended" in addition to notation of retention of Class 3 and speed limit of 40 m.p.h., which documents the FRA Inspector's decision to refrain from downgrading the track to a lower track classification despite the existence of the noted defect. The inspection report further notes that the FRA Inspector did not require the Railroad to provide written notification to the FRA regarding correction of this defect, but instead, indicated that such written notification to the FRA of remedial action as "optional." The inspector's notation of a defect,
. The plaintiff's negligence theory against the railroad in Easterwood was that even if the train was traveling within the speed limit established by the federal regulations, the railroad could still be liable for breach of its common law duty to operate the train at a safe speed given the "time and place." CSX Transp., Inc. v. Easterwood,
. To the extent that Pearl argues, just as the plaintiff argued in Myers, that the conditions at the Pickering Street Crossing at the time of the collision "constituted an essentially local safety hazard, which the state could have regulated had it chosen to do so is immaterial because there is no evidence that the state [of Arkansas] did so." Myers v. Missouri Pac. R.R. Co.,
. The parties in this case describe Pearl's tort law theory in this instance as the "local hazard," "local safety hazard," and/or "specific, individual hazard" claim and use these terms interchangeably, as do many courts addressing the
. Courts subsequent to Easterwood have acknowledged an exception to federal preemption in circumstances where a specific, individual hazard exists. In O'Bannon v. Union Pac. R.R. Co., the court noted that "[glenerally, courts considering this issue have ruled that a 'specific individual hazard' must be a discrete and truly local hazard. . . . They must be aberrations which the Secretary could not have practically considered when determining train speed limits under the FRSA.... The 'local hazard' cannot be statewide in character and cannot be capable of being adequately encompassed within uniform, national standards.... An alternative, expansive construction of the local safety hazard language would excessively preserve local speed regulations and significantly undermine the Secretary's ability to prescribe uniform operational speeds."
. See Myers v. Missouri Pac. R.R. Co.,
. Pearl also argues the existence of sub-grade defect in support of his argument that the jury should be allowed to determine whether the classification of the track and corresponding speed limit should have been lower at the time 'of the collision in this case. However, Pearl does not assert this defect or other conditions at the crossing constitute a specific, individual hazard. Pearl's Petition alleged generally that the Railroad operated its "train at a high, unsafe and unreasonable speed in light of the specific individualized hazards existing at the Pickering Street grade crossing, all of which were known. to them."
. Plaintiff's Exhibit 124(B) is a letter of Novem- . ber 11, 1997 from Terry L. Reardon, General Superintendent for the Railroad to the Honorable Henry G. Sunderman, Mayor of Mena Arkansas. This letter provided that the Railroad has "recently completed a 10 year track infrastructure improvement program," and that as a result, the tracks through Mena, Arkansas have been upgraded to "FRA Class 4. The Federal Railroad Administration, which has exclusive jurisdiction to regulate the speed of interstate railroads, has established a speed limit for Class 4 track of 59 miles per hour." In accordance with the increase in the federal speed limit, the letter further advised of the Railroad's plan to increase its internal "current maximum speed of 20 miles per hour to our target maximum speed of 40 miles per hour. KCS will not increase the speed of its trains until after all of the signals in Mena have been adjusted to provide the same advance warning as is currently provided."
. Under the terms of §§ 646.214(b)(3) and (4), if a crossing presents the conditions listed under (b)(3), the State must install automatic gates and flashing lights. If the conditions listed under (b)(3) are absent, (b)(4) mandates that the decision as to what particular devices to install is subject to FHWA approval. Shanklin provides that contrary to the FHWA's own position that the regulations required an individualized determination of adequacy by a diagnostic team or FHWA official, the Shanklin Court held that such federal approval need not be obtained subsequent to "diagnostic studies and a particularized analyses of the conditions" at a particular crossing. Shanklin,
. In Appellee's Petition for Writ of Certiorari and in Appellee's Brief in Response to Appellant's Brief in Chief, Plaintiff/Appellee, Pearl's sole argument as to what allegedly constituted such a specific, individual hazard was the Railroad's alleged broken "promises" regarding increasing of train speed and alleged promise to "adjust warning times for motorists" through crossings in Mena, Arkansas. However, The COCA identified additional factors comprising the alleged "local hazard condition," or "local safety hazard," as referenced at trial by Plaintiff's expert witness as follows: (1) inadequate sight distance, requiring improved sight distance or mechanized warning devices; (2) improbability that Pearl would have heard the horn; (3) difficulties in the configuration of the crossing; (4) the "non-recovery" status of the crossing, meaning "[olnce you pass a very small window of opportunity if you do not make a decision at that point and [sic] time, it's then too late if you get any information about crossing"; (5) Railroad's failure to instruct its crew or personnel regarding the extra hazards at the crossing; and (6) operation of the crossing with passive devices. The COCA correctly determined, pursuant to Stevenson v. Union Pac. R.R. Co.,
. In its Answer, the Railroad raised the affirmative defenses of "comparative fault, comparative negligence, contributory negligence, unavoidable accident and federal preemption as complete and/or partial bars to the recovery of the Plaintiff. ..." The trial court instructed the jury pursuant to the Oklahoma Uniform Jury Instructions that "[ulnder the law you are to compare the percentage (0% 100%) of negligence of Mr. Pearl, if any, with the percentage (0% 100%) of negligence of Kansas City Southern Railway Company, John Locke, and Jerry Hinds, if any." OUJI Civ. (2d) 9.17 and 9.19.
. While we hold that evidence regarding excessive train speed, adequacy of warnings and conditions characterized in this case as "local hazard conditions"'and/or "local safety hazard" is inadmissible on the issue punitive damages, we affirm the trial court's denial of Railroad's Motion for Directed Verdict on the issues of liability and punitive damages because evidence may be presented pertinent to the surviving vegetation claim such that may substantiate Pearl's position that the Railroad acted either negligently or with "reckless disregard to the rights of others" to support a punitive damages award. Where there is evidence that would "support an inference of gross negligence or reckless disregard/indifference for the safety of others ... the Trial Court was not free to refuse to submit and instruct on the issue of punitive damages." Shuman v. Laverne Farmers Coop.,
. In Easterwood, the U.S. Supreme Court explained the preemptive effect of the federal statute's use of the terms "relating to" and "covering." Easterwood,
. See also Cochran v. CSX Transp., Inc.
. Our holding does not disturb the specific, individual hazard exception to federal preemption, nor does it disturb the FRSA's provision allowing state law when necessary to reduce an "essentially local safety hazard." We reject Pearl's argument that the alleged "local hazard conditions," "local safety hazards" and/or "abnormally dangerous" conditions at the Pickering Street Crossing fall within the specific, individual hazard exception to federal preemption and likewise reject the related argument that these conditions are saved from preemption via the "savings clause" of the FRSA for an "essentially local safety hazard." Although Pearl argued these conditions were "local," "specific, individual," or otherwise unique in character, we reject this characterization, as each of the alleged conditions at the crossing in this case is capable of being taken into account by the Secretary of Transportation in the promulgation of uniform, national regulations. "Hazards posed by track conditions, including those existing at grade crossings, are capable of being taken into account by the Secretary and are covered by the federal speed regulations." Myers v. Missouri Pac. R.R. Co.,
. In certain instances, the Oklahoma Evidence Code permits admission of relevant evidence, which may not be admissible for all purposes, but may nonetheless be admissible if offered for another purpose. See, eg., 12 0.8.2001 § 2408 (evidence of compromise and offers to compromise are inadmissable except "when it is offered for another purpose, including proof of bias or prejudice of a witness, negativing a contention of undue delay, or proof of an effort to obstruct a criminal investigation or prosecution.");
The COCA based its decision to permit introduction of evidence regarding adequacy of warnings and excessive train speed for the purpose of Pearl's mitigation of the Railroad's comparative negligence defense on Mickelson v. Montana Rail Link, Inc.
. Where the affirmative defense of comparative negligence is raised, the jury is instructed to apportion the fault of each party in regard to each party's varying degrees of negligence and "any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person for whose injury, damage or death recovery is sought." Brack's Law Dictto. Nary 255 (5th ed.1979); See supra note 11. The trial court instructed the jury on the definition of comparative negligence pursuant to OUJI-Civ. (2d), Instructions No. 9.17 and 9.19, which provided in pertinent part as follows:
"As a part of their defense, the Defendants first denies [sic] that any negligence on their part was the direct cause of the occurrence involved in this lawsuit and any resulting injuries to William Franklin Pearl. Defendants further contend that if, however, the jury should find that they were negligent to some degree, then it is their contention that Mr. Pearl's own negligence exceeded the Defendant's negligence, so as to prevent any recovery by the plaintiff in this lawsuit.
Under the law you are to compare the percentage (0%-100%) of negligence of Mr. Pearl, if any, with the percentage (0-100%) of negligence of Kansas City Southern Railway Company, John Locke, and Jerry Hinds, if any.
The law provides that contributory negligence, which means the negligence of Mr. Pearl, shall not bar recovery of damages unless his negligence is of a greater degree, established by percentage, than the total combined negligence of Kansas city Southern Railway Company, John Locke, and Jerry Hinds, causing damage...." OUJI-Civ (2d), 9.17; 9.19.
Due to the very nature of the comparative negligence defense, it is inherently incapable of consideration separate and apart from the negligence claim to which it relates. Thus, where the affirmative defense of comparative negligence is raised, a negligence claim and the affirmative defenses of comparative and/or contributory negligence are inextricably intertwined. See Davis v. Burlington Northern, Inc.,663 F.2d 1028 , 1030 (10th Cir., 1981) (holding the Oklahoma compar-alive negligence statute "applies only in those cases where both the defendant and the plaintiff are negligent"). Since the negligence claims based upon adequacy of warnings and excessive train speed are preempted, the evidence on thesematters must also be likewise excluded pursuant to federal preemption, as a jury may not be permitted to apportion the Railroad's percentage of fault on the basis of evidence regarding these issues.
. The same underlying acts or omissions complained of in the preempted negligence action cannot be offered to prove that such identical acts or omissions amount to a more egregious level of misconduct. ie., reckless disregard, warranting an award for punitive damages. See Phillips v. Le Blond,