*1 conduct but was treated gaged a number of the same we consider resign, forced to to an infer- favorably, may give more rise employee factors, including whether discrimination, employ- an ence of unlawful discharge, encour- threatened with job in a different ee who holds a different demoted, subject re- aged resign, similarly situated. See benefits, department involuntarily trans- pay or duced Inc., Sys., 191 F.3d subject Pivirotto v. Innovative position, ferred to a less desirable Cir.1999). (3d 344, We thus will un- 358-59 given or job responsibilities, to altered grant of affirm the District Court’s sum- v. satisfactory job evaluations. Colwell (3d mary judgment on the Title VII sex dis- Corp., 602 F.3d Rite Aid (Count I). Cir.2010). crimination claims concluded that Man The District Court III. CONCLUSION prove working a hostile envi del failed to above, will For the reasons set forth we and thus also concluded that she ronment judgment affirm the of the District Court necessarily a construc failed establish claims, respect with to the retaliation discharge Spencer claim. See v. Wal- tive claims, PHRA and the Title VII sex dis- Stores, Inc., n. 4 Mart 469 F.3d claims, we will reverse the Cir.2006) (“To crimination but (3d dis prove constructive summary judgment respect with grant of charge, plaintiff must demonstrate a to the Title hostile work environment VII greater severity pervasiveness discharge claims and constructive required than the minimum harassment environment.”). proceedings remand for further in accor- prove working a hostile opinion. dance with this the District Because we will reverse respect to the hostile Court’s decision claim, reasoning environment its
work discharge long the constructive claim is no remand, er sufficient. On the District should review the constructive dis Court charge light claim in of evidence of a hos if the tile work environment to determine employment of Mandel’s had conditions ZIMMERMAN, Appellant Robert become intolerable. Disparate ii. Treatment NORFOLK SOUTHERN CORPORATION. Mandel also contends that she re wages ceived and less vacation time lower No. 11-3369. similarly employees, situated male than Appeals, United States Court Frank Drozal. The District specifically Third Circuit. correctly concluded that Mandel necessary failed to raise the inference of Argued Sept. 2012. employees discrimination because the Filed: Jan. were not compared which Mandel herself similarly particular, Drozal situated' —in position higher
held a different and had a Although level of education. the identifi similarly cation of a situated individual class, en- protected outside of the who *4 Bell, Conrad,
PA, Jeffrey A. Emily M. Musser, Conrad, Lan- Clymer, Brown & caster, PA, Appellant. for Hohn, [Argued], Robert M. Richard K. Stroh, Scheuerle, Philadelphia, Hohn & PA, Appellee. CHAGARES, SMITH,
Before:
ALDISERT, Judges. Circuit
OPINION SMITH, Judge. Circuit riding Zimmerman was his mo- Robert torcycle evening on a summer 2008. He approached crossing, a railroad but was *5 building dark and a obscured tracks. seventy-six than feet When he was less ap- that a train was away, he noticed his front proaching. stop, He tried to but he the handle- locked and flew over brake bars, colliding with a locomotive. headfirst partially paralyzed. left him The collision Corporation He sued Norfolk Southern court, asserting federal three state tort claims.1 heavily among Railroads are the most regulated American industries. Unfortu- Zimmerman, nately many reg- of these tort preempt ulations state claims. The (“FRSA”) Safety Act Federal Railroad provision scope contains a that outlines the preemption. 49 U.S.C. 20106. The District Court for the Eastern District of Pennsylvania provision relied on this summary judgment for Norfolk granting Southern, concluding that most of Zimmer- preempted. man’s were will claims We part part. reverse in and affirm in E. Diller is a two-lane road that Autry, Boyle, [Ar- Joshua M. Dennis Avenue Hill, Holland, Boyle, Camp diagonally through New gued], Autry Murphy, & runs appears caption. Corp., proper party 1. The action See Zimmerman v. S. to this Norfolk 10-cv-02267, Railway Company, a No. 2011 WL at *1 n. be Norfolk Southern (E.D.Pa. 2011). through subsidiary Corporation, Aug. We Southern refer appellee party as Norfolk Southern. but neither has moved to amend the out house, part In er’s he headed for home on his Pennsylvania. the southern dark, motorcycle. a railroad It was and Zimmerman town, Avenue intersects Diller wearing riding Norfolk was helmet and within operated owned and track speed of a limit. He turned south onto of the location Because Southern. crossing, approached south- Diller Avenue and the cross- tavern northwest of ing crossing a difficult time see- he did not believe was still motorists have bound —a Meanwhile, example, a mo- active. an eastbound Norfolk trains. For ing eastbound away consisting only can train two en- seventy-six feet see Southern torist who gines approached travelling tracks. The only sixty-five feet down the twenty-four per miles hour. It sounded its thirty-five limit on Diller Avenue speed hour, horn. speed limit on per miles while the subject disagree- to some the tracks is apparently failed notice argues
ment. Norfolk Southern
that the train was about to enter the cross-
twenty-five
maybe
limit is at least
seventy-six
until he was less than
feet
hour, but Zimmerman ar-
forty
per
miles
away.2
point,
At that
he was too close to
per
that it is ten miles
hour.
gues
opera-
track to
of the train
stop.3
One
tors noticed Zimmerman around this time
crossing has
The Diller Avenue
been
enough
the train soon
stop
but could
accidents over the
scene of a number of
aggressive-
avoid the collision. Zimmerman
years.
reported
Five accidents were
motorcycle,
ly applied the brake of his
later,
A decade
the 1970s.
lock.
causing the front wheel
He
Pennsylvania
the Commonwealth
flipped over the
and flew head-
handlebar
installed two
crossing’s
former owner
*6
engine.
tank
the lead
gas
first into the
of
called cross-
railroad-crossing signs,
white
partially paralyzed.
The collision left him
bucks,
of federal
funds.
with the use
signs,
the installation of these
five
Since
Zimmerman sued Norfolk Southern
reported.
more accidents have been
At
Pennsylvania
of
under
the Eastern District
accident,
time of Zimmerman’s
there
Pennsylvania
complaint
tort law. His
list-
of
was a crossbuck fixed on each side
warn;
four counts: failure to
failure to
ed
track;
yellow warning
there was also a
crossing;
maintain a safe
failure to ensure
Avenue,
sign on Diller
150 feet north of
complied with
devices
crossing, together
painted
warn-
regulations;
punitive damages.
federal
ings
17, 2011,
on the street. Zimmerman contends
the District Court
August
On
fallen into disre-
warnings
that these
had
motion for
granted Norfolk Southern’s
pair
signs
concluding
branches covered the
summary judgment,
some
—tree
markings
preempted
the north side and the street
had
Zimmerman’s claims were
of
genuine
did not create a
faded.
and that others
fact.
issue of material
2008,
12,
On
Zimmerman celebrat-
June
timely
ap-
a
notice of
birthday. After a
Zimmerman filed
thirty-eighth
game
ed his
plenary
exercise
review over
trip
peal.4
church softball and a
to his moth-
We
of
According
expert, a vehicle
only
vague
to Zimmerman's
2.Zimmerman
has
a
recollection
travelling thirty-five
per
events,
miles
hour needs
experts
attempted
have
so
stop.
seventy-six
least
feet to
ex-
recreate the crash. One of Zimmerman’s
perts
that "[w]hen
concluded
jurisdiction under 28
4. The District Court had
away
point
was 76 to 97 feet
from the
of
1332,
jurisdiction
§
un-
U.S.C.
and we have
collision, the train was not visible.” J.A. 687.
§
der 28 U.S.C. 1291.
(3d Cir.2009)
grant
(recognizing
decision to
a
Court’s
District
comes in two varieties:
implied preemption
v.
summary judgment. Orvosh
motion for
preemption
preemption).
field
and conflict
Emps.
Ins.
Salaried
Program
Grp.
interpret
tend to
federal statutes
Am.,
We
Volkswagen
F.3d
way
implied preemption.
avoids
(3d Cir.2000). We construe the evidence
Holk,
(citing
II
regulation, or order related to railroad
preemption permeates
The doctrine of
safety
security
Secretary
or
until the
appeal.
Norfolk Southern
...
Transportation
prescribes
regulation
argues that
federal
regulations
various
covering
subject
or issues an order
preempt Zimmerman’s claims under the
requirement.”
matter of the State
Id
preemption provision. 49
FRSA
U.S.C.
20106(a)(2). Moreover,
may
states
interpreted
provi-
20106. We have
adopt
stringent
a “more
law” if it is neces
years,
sion a
times over the
few
but Con-
sary
safety
security
to eliminate a “local
it in
gress changed
begin
2007. We
our
20106(a)(2)(A).
Id.
hazard.”
As
Su
by providing a framework for
discussion
noted,
preme Court has
the FRSA “dis
*7
analyzing preemption under the amended
plays considerable solicitude for state law.”
yet
FRSA.
do so because we have
We
Easterwood,
Transp.,
CSX
Inc. v.
507 U.S.
interpret the amendment and
this
because
658, 665,
1732,
113 S.Ct.
The
Clause of the
Before the 2007
we held
regulation preempts
United States Constitution is the source of
that a federal
state
Const,
(a)
VI,
preemption.
art.
cl. 2.
law
if
regulation
U.S.
under subsection
Clause,
Supremacy
“substantially
subject
Under the
federal law
mat
subsume[s]
trumps
preempts
Strozyk
or
state law whenever
ter of the relevant state law.”
v.
(3d
can
Preemption
Corp.,
two are
conflict.
be
S.
358 F.3d
271
Cir.2004)
Easterwood,
express
way,
implied
(quoting
or
the effect
507 U.S. at
—either
1732)
664, 113
is the
preemption
(quotation
same:
renders the rele
S.Ct.
marks omit
ted).
regulation
vant state law invalid.
v.
The
must do
than
See Gade Nat’l
more
Ass’n,
88, 98,
Mgmt.
simply
upon
Solid Wastes
505 U.S.
“touch
or relate to
sub
[the]
(1992);
ject
112
law.
at
S.Ct.
We under the amended preemption analysis Zimmerman’s first claim is that Norfolk two-step process. We requires FRSA him of negligently Southern failed to warn allegedly ask whether the defendant first In approaching train. a federal standard of care violated either claim at least three complaint, this has pursu or an internal rule was created (1) obey train parts: failed so, regulation. If ant to a federal (2) limit; the train failed to use its speed preemption. claim avoids See 49 plaintiff’s (3) horn; light and and Norfolk Southern 20106(b)(l)(A)-(B). Otherwise, U.S.C. provide failed to motorists with an ade- step we move to the second and ask But quate view of the track. regulation covers the whether federal during argument oral that he conceded 20106(a)(2). A plaintiffs claim. See id. lacks evidence that the train failed to use regulation preempts— covers—and thus horn, light duty provide its and and the “substantially if it plaintiffs claim sub adequate sight separate duty, distance is a subject matter” that claim. sume[s] as discussed Part III.B. Zimmerman’s Easterwood, 664, 507 at 113 U.S. S.Ct. claim a single first thus boils down to (noting regulation that the must do claim: speed. excessive upon more than “touch or relate to [the] matter”). subject step, rely In this we excessive-speed 1. Zimmerman’s claim precedent -including predate cases — preempted is not because C.F.R. two-step ap amendment. This § 218.9 creates a standard federal is text of the proach consistent with the care. history, amended and and FRSA its have a Penn Railroads under approaches Eighth similar to in the sylvania ap law to warn motorists of Co., Ry. Tenth Circuits. Grade v. BNSF Co., R.R. proaching trains. Wilson v. Pa. (8th 680, Cir.2012); Henning, 676 F.3d (1966). 421 Pa. 219 A.2d 668-69 at 530 F.3d duty requires This railroads to avoid ex speeds, are cessive since motorists less
Ill trains, likely to speeding sight see an important warning We address each Zimmerman’s claims method. See id. in turn. (explaining relationship between entirely analysis. plaintiffs’ preempted consistent with our In that the claims were de- allegations carrying anhydrous spite that the train ammonia railroad violated fed- Lundeen, Minot, regulations); F.Supp.2d eral derailed in North Dakota. Toxins air, (holding plaintiffs’ 1011-12 that the forcing many claims filled the local residents to preempted despite allegations were that the person evacuate. The toxins killed one rules). railroad violated its internal injured at least a hundred Two feder- others. al district courts considered tort claims aris- Congress interpretations renounced these ing from the derailment. Lundeen v. Canadi- by passing A the 2007 amendment. confer- Co., Ry. F.Supp.2d Pac. an report goal ence stated that the was “to recti- *9 (D.Minn.2007); Ry., Mehl v. Canadian Pac. fy the Federal court decisions related to the
Ltd., 1104, (D.N.D.2006). F.Supp.2d Minot, 417 1106 North Dakota accident that are in con- cases, interpreted 110-259, In both the courts the precedent.” H.R.Rep. flict with No. plaintiffs' (2007), FRSA and concluded that the tort reprinted at 351 in 2007 U.S.C.C.A.N. 119, preempted, though claims were even the report that the 183. The also states plaintiffs alleged "restructuring that the railroad violated is not intended to indicate regulations change pro- meaning federal and its own internal rules. in the the substantive Mehl, (holding F.Supp.2d See 417 at vision.” Id. 1116-17
179
excessive-speed
Zimmerman’s
warning
noting
and its
speed
train’s
§if
preemption
time to
claim avoids
213.9 creates
have less
trains
speeding
that
Co.,
regulation
R.R.
263 a federal standard of care. A
v. Pa.
stop); see also Conner
Cir.1959).
(3d
944,
pre
a
of care for FRSA
945-46
creates
standard
F.2d
if it
the de
emption purposes
establishes
allegedly violated
Southern
Norfolk
that the
gree of care
defendant—in most
train at more
by operating its
this
cases, the railroad—must exercise. See
limit. A federal
speed
than double
(8th ed.2004)
Dictionary 1441
Black’s Law
speed
limit for
establishes
regulation
care”
“the
(defining
degree
“standard of
as
per
ten miles
hour for
of tracks:
each class
person
care that a reasonable
should
tracks,
twenty-
1
freight trains on Class
exercise”);
Henning, 530 F.3d at
see also
tracks, forty
2
per
five miles
hour
Class
no federal stan
(concluding
there is
tracks,
and so
per hour on Class
miles
if
regulation
dard of care
takes the
agree
§ 213.9. Both sides
on. 49 C.F.R.
authority
“final
to decide” what action is
more than
travelling
train
no
that the
(in
needed “out of the railroad’s [hands]”
it entered
per
miles
hour when
twenty-five
quotations
ternal
marks and citations omit
that the
alleges
Zimmerman
crossing.
(same).
Grade,
ted));
roads are for com- man accessed the database and obtained pliance they must ensure that their — reports nine on the Diller Avenue cross- travelling trains are within the limit. As a oldest from 1970 and the most —the result, speeding Zimmerman’s claim is not reports recent from 2010. The nine were claim preempted. pre- Because his avoids inventory by submitted to the national dif- emption step in the first of the FRSA by ferent four entities: the Commonwealth preemption analysis, we need not consider Pennsylvania, by Southern, two Norfolk step. the second Conrail, and two the prior owner of the crossing. It is unclear who submitted the improperly 2. The District Court ex- report. reports initial The state eight crossing reports. cluded train typical speed over the is five excessive-speed claim has per to ten miles hour and that the “Maxi- hurdle, preemption cleared the but it must Speed” mum Time Table is ten or fifteen evidentiary also clear an hurdle. Zimmer- per miles hour.6 man acknowledges the train was trav- According crossing reports, to these elling speed within the limit for Class travelling Norfolk Southern’s train was too however, alleges, and Class 3 tracks. He fast at the time of the collision. Neverthe- track 1. was Class There is some less, the District Court excluded them support allegation. evidence to this based on privilege created types The record contains of docu- two U.S.C. 409: help ments that Zimmerman: re- Notwithstanding any provision other ports Department Transpor- from the law, schedules, lists, reports, surveys, Crossing Inventory tation’s National or compiled data or reports pur- accident from a similar database. collected crossing reports speed pose identifying, evaluating, plan- state that the hour, per ning safety limit is ten or fifteen potential miles enhancement of Eight crossing reports report state that the “Maxi- The ninth states that the maximum Speed” presum- mum Time Table speed is "15.” Id at 1008-09. "10”— ably meaning per miles hour. J.A. 995-1012. *11 § of sites, roadway begin part condi- with the first hazardous We accident agree Both sides that the re- privilege. tions, railway-highway crossings, pur- or ports Crossing from the National Invento- 130, 144, 148 of and to sections suant ry railway-high- were collected to evaluate develop- of purpose title or for the this however, They way crossings. disagree, im- safety construction ing any highway reports collected “pursuant were may imple- project which be provement 130, 144, sections and 148 of [Title 23].” to highway utilizing Federal-aid mented Zimmerman asserts that collection of the subject discovery to not be funds shall section, any reports pursuant was not in a into evidence Federal or admitted they while Norfolk Southern asserts or considered proceeding or court State § pursuant collected were any action for purposes for other arising from occurrence damages Congress passed High- the Federal-Aid or addressed a location mentioned 93-87, Act in way 1973. Pub.L. No. schedules, lists, surveys, or reports, such (1973). Act created the Stat. 250 data. and im- Federal Railroad Administration posed safety-related obligations various this pleonastically expressed, Though accept states that federal funds. Some parts. statutory clearly has two privilege obligations these are now codified data, and reports, excludes part The first (d) particular, 130. In subsection U.S.C. compiled or collected they the like if were inventory to maintain an requires states evaluate, safety “the identify, plan or their borders: crossings railroad within sites, potential accident enhancement systemat- Each State shall conduct and conditions, railway- roadway or hazardous highways all ically survey maintain a crossings, pursuant sections highway crossings identify those railroad 130, 144, 148 of The sec- [Title 23].” and may require separation, reloca- which they documents if part excludes such ond devices, tion, and establish protective “any develop or collected to compiled were for implement projects a schedule of safety improvement construction highway minimum, At a such purpose. this may implemented utiliz- project which be for all rail- provide signs shall schedule highway funds.” The Dis- ing Federal-aid crossings. way-highway trict concluded 130(d). it was first When 23 U.S.C. the first privileged were under reports require any Act federal passed, the did §of 409. part crossing in- maintain a national agency to ventory. evidentiary privileges, Like all statutory re- absence of a narrowly. Despite the privilege this interpret
we
Guillen,
129, 144,
agencies,
federal
state
quirement, various
537 U.S.
Cnty.
Pierce
(2003) (con
railroad
private
highway departments,
http://www.fra.dot.gov/rrs/pages/fp_1499. above, in As noted the record this case ”]. shtml Manual [“1996 reports contains two submitted to the Na- decades, Inventory Crossing pas-
Over the next few states and tional after the voluntarily sage Safety Improvement railroads submitted information of the Rail Act 2010, in inventory. process to the The submission 2008. Both were one submitted changed by Pennsylvania, over time —states and railroads the Commonwealth of indepen- sometimes submitted information the other Norfolk Southern. J.A. 995- dently, question, again, they and railroads sometimes submitted 98. The whether states, passed compiled information to which then it were collected or pursuant § along inventory. to the national 130. Compare (“[T]he id. at 4-1 transportation State Act, We conclude that after the 2008 agency party should be the who forwards reports pur- state-submitted are collected changes all data item and all cross- § suant to but railroad-submitted re- ings to the Railroad Administra- [Federal result, ports only are not. As a state omitted)), (emphasis with 2007 tion].” reports privileged part are under the first (indicating Manual 44-45 railroads §of textually Our conclusion is directly should send some information to based: states must submit re- Administration). the Federal Railroad ports inventory to the national under 23 Many willingly states submitted informa- 130(i) (which references), § § U.S.C. inventory they tion to the national because while railroads must submit under 49
were able to meet
their
create
(which
§
§
U.S.C.
409 does not ref-
130(d)
inventory
§
par-
statewide
under
erence).
reports
State
are thus collected
ticipating
inventory.
in the national
See
130,”
“pursuant
section[ ]
railroad
1996 Manual at 1-1.
reports
Congress
are not.
could have
cooperative
notwithstanding,
placed
The
effort
the railroad-reporting requirement
gaps
remained in
Crossing
alongside
requirement—
the National
the state
thirty years
case,
Inventory
later. See Letter
in that
reports
railroad
would be
Mineta,
from Norman Y.
Sec’y
similarly privileged.
U.S.
But Congress instead
Hastert,
Transp., to
Speaker
place
requirement
J. Dennis
chose to
in a differ-
Representatives (July
the U.S. House of
ent title of the United States Code. We
11, 2003), http://testimony.ost.dot.gov/fmal/
regard
drafting
meaningful.
choice as
rail04.pdf.
Department
Transporta-
Congress may
stronger
well have had a
tion urged Congress
pass legislation
states,
in protecting
interest
rather than
railroads,
Guillen,
that would force states and
to fill
litigation.
railroads
from
gaps.
eventually
Id. Congress
(indicating
re- U.S. at
were collected damages resulting from civil action for Here, there is safety project. construction report. in matter mentioned Diller Avenue re- no indication pro- particular collected for a ports were re- that the accident parties agree The they were collected to estab- ject instead, carrier” by a railroad ports were “filed — might used lish a national database that be § 20901. But Zimmer- under 49 U.S.C. projects. part in future The second privilege excludes argues man apply. § 409 does accident, not the nine only report of his argument is textual: reports. other His sum, In Zimmerman has nine re- not exclude accident privilege does the Norfolk Southern reports suggest merely ex- all civil cases. It ports from it entered going train was too fast when civil cases that result reports cludes from crossing. Diller Avenue The District report.” mentioned “from matter reports all nine under Court excluded view, “civil action for should, however, In have excluded § 409. It statutory privilege. on 49 C.F.R. 9. The District Court also relied 225.7(b), merely repeats regulation but this part the accident men- The second of 409 excludes damages” arose from reports they develop if were collected to but it did not arise report, tioned in his “any safety improve construction highway mentioned the re- from the accidents project may implemented ment which be agree that maining reports. nine We highway utilizing Federal-aid funds.” As privilege. reports these fall outside the above, language we concluded excludes broadly urges us to Norfolk Southern only those documents that were collected In interpret the term “matter.” particular highway-safety for a construc view, “matter mentioned in the Southern’s reports Like in the Na project. tion simply mean “the acci- report” does not Crossing Inventory, reports tional accident report,” mentioned in the as Zimmer- dent variety are collected for a of reasons. One man It also means “the implicitly argues. provide safety reason is to data for future report.” location mentioned The cases, however, projects. In most accident reports, all ten privilege therefore excludes reports are not for a particular collected since Zimmerman’s lawsuit is “a civil ac- highway-safety project. construction Nor damages resulting tion for from a mat- point does Norfolk Southern evi location, the Diller ter” —or Avenue cross- dence that the Diller Avenue re accident report[s].” in the This —“mentioned ports particular pro were collected for a argument unpersuasive because Norfolk Therefore, ject. nine of the ten accident Southern takes word “matter” com- reports are admissible. pletely phrase out context. “dam- foregoing, Based on the we conclude ages resulting appears directly from” be- *16 that crossing reports most of the and acci- “matter,” indicating fore the word that a reports dent are admissible. These re- “matter” is the event that caused the harm ports suggest that at speed limit report. discussed See Lee v. Nat’l or, crossing was ten per equiva- miles hour (Amtrak), Passenger Corp. R.R. No. 3:10— lently, that the track was Class 1. That cv-00392, 2012 *2 WL said, Zimmerman’s claim is far from a (S.D.Miss. 2012) (holding Jan. that suggests slam-dunk. Other evidence that § apply prior 20903 does not to accident the track was Class or Class 3. Norfolk reports at the crossing). same We con- Southern claims that it reclassified the § clude that report 20903 excludes the of update track but failed to Zimmerman’s accident but not the nine reports. claim This is consistent with the reports. other reports reports accident most recent —the list the track as Class or Class 3. But Norfolk Southern argues also that acceptance rejection or of Norfolk South- § privilege excludes the accident re- explanation province ern’s a jury. is the ports. Again, privilege parts. has two now, For conflicting evidence results part The first reports excludes collected to excessive-speed claim sur- evaluate, identify, plan safety or “the en- viving summary judgment. sites, potential hancement of accident haz- conditions, roadway railway- ardous or Zimmerman’s alternative claim A highway crossings, pursuant to sections preempt- track misclassification 130, 144, part and 148 of [Title 23].” This ed. plainly apply does not because the accident reports pursuant were collected to 49 Zimmerman advances an alterna pursuant U.S.C. 20901—not to argument. sec- tive If the track was in fact tion of Title 23. classified as 2 or Zimmer- Class Class regulations pt. should The man claims Norfolk Southern C.F.R. According liable for misclassification. subsume Zimmerman’s misclassification be Zimmerman, regulations These sight varying the limited distance claim. establish requirements tracks-gov- a on Norfolk Southern for each class of imposed alinement, higher. erning everything gage, track from classify the as Class elevation, crossties, speed, curve out, turns question and, first as it The — joints. §§ rail See 213.53 49 C.F.R. Zimmer- question only whether —is proper (explaining method for measur- preemption. claim avoids man’s alternative 213.55 ing gage), (creating alinement stan- argues that Southern dards), (establishing 213.57 the maximum a federal of care. See 49 violated standard on track speed based elevation and curva- 20106(b)(1)(A). points to 49 He U.S.C. ture), (requiring 213.109 more crossties for regulations which pt. contains C.F.R. classes), higher (noting track 213.121 class of But none of the for each tracks. joints “be of structurally rail must sound Zim- visibility. discuss regulations track design”). curiously regulations merman cites two nothing visibility. regulations are a broad part that have do with §§ tracks. (setting standards scheme standardize railroad 49 C.F.R. 234.203 circuits), Admittedly, there is (regulating regulation no for control 234.225 tracks based warning systems). sight He classifies distance. the activation regulation implies to a in Title 23 that But the breadth the scheme points also classify term 23 decision not to on that basis. At “sight mentions the distance.” 646.214(E). least, very implies that the federal regulation But this C.F.R. that a did not to decide merely flashing signal might government states want states if “un- how tracks would be doubt necessary sight distance is classified. We be require government that the federal would create usually restricted.” It does not system expectation on a detailed railroads to select track class based impose would extra re- sight any regulation distance —nor does states classification *17 risk that sight necessary quirements especially given for establish distance — Quite requirements vary track class. no rele- would from state simply, each regulatory preempts state. This scheme vant federal standard of care exists. Zimmerman’s misclassification claim. Despite the a stan absence of federal care, may of still avoid dard B if his claim falls outside the preemption that Nor- Zimmerman’s second claim is original scope preemption of FRSA failed maintain a safe folk Southern 20106(a)(2). § As provision. See U.S.C. before, ad- crossing area. As we must clear, previously we have made state question preemp- the threshold of dress within scope provi claims are of this Zimmer- then consider whether tion. We regulations if federal “cover” or “sub sion produced man sufficient to avoid evidence of stantially subject subsume” matter summary judgment. (cit Strozyk, at 273 the claims. 358 F.3d Easterwood, 20106(a)(2); § ing 49 U.S.C. 1. Zimmerman’s claim of failure 1732). 664, at 507 U.S. 113 S.Ct. a is not crossing maintain area safe regulations must more than “touch do preempted. subject relate to matter.” upon or Easterwood, 664, allega 113 S.Ct. Zimmerman makes two U.S. at omitted). (internal unsafe-crossing quotation support marks tions subject adequacy that Norfolk that the matter is the
claim. The first is Southern devices, crossing warning maintained the de- not the considerations in negligently particular, choosing negli at Diller Avenue—in “the volved them or state vices approaching gence sign broadly.... that warned of the cross- law more The bare branches, sight was covered tree the mention of such as dis [conditions existed, pavement markings longer no does not an to regu tance] indicate intent Strozyk, had been allowed to fall late those crossbucks conditions.” 358 F.3d disrepair.” Appellant’s into Br. at 43. at 273. allegation
Zimmerman’s second The 2007 amendment not su- FRSA did provide Norfolk Southern failed to ade- persede Strozyk,11 parts and thus both quate sight distance.10 unsafe-crossing claim avoid (“[The There, Strozyk directly point. we preemption. plain- See id. at 277 a claim wrongful considered for death re claims that failed to tiffs’] [the defendant] sulting crossing. grade from crash at a railroad maintain a safe ... crossing relatedly sight 358 F.3d 270. The decedent’s estate failed to ensure clear lines alleged keep oncoming that the railroad had failed to preempted.”). trains are not interpreted safe. if Strozyk binding, We what is Even were not Zimmer- (a) preemp negligent-maintenance now subsection of the FRSA man’s allegation provision explained tion rail avoid preemption “[a] would because 49 C.F.R. may § road still be negligent liable other 234.245 creates a federal standard of conduct, such as the failure to maintain a care governing the maintenance of cross- ” working crossing 20106(b)(1)(A); arm.... Id. at 276 bucks. 49 U.S.C. see 49 (“Each (quoting §§ Evans Timber sign Co. Cent. Ga. C.F.R. 234.245 mounted on Co., R.R. Ga.App. highway-rail 519 S.E.2d grade crossing signal post (1999)); 709-10 see also Terrell v. Soo shall in good be maintained condition and Co., 2:04-cv-095, user.”), Line R.R. No. highway WL be visible to the 234.3 (S.D.Ind. 2005) Sept. at *7 (indicating that responsible railroads are 234.245).12 (noting that preemption improperly signs would for maintaining under if insulate railroads “even the crossbucks produced 2. Zimmerman ev- had sufficient ground fallen to the and were unob idence that Southern motorist”). failed by passing servable We also to maintain the devices 646.214(b)(3) concluded that 23 C.F.R. sight and that the distance was in- claims, preempt sight-distance does not adequate. though regulation even “un mentions *18 usually sight restricted distance” as a fac agreed The District Court that at might require tor that states to install part least of Zimmerman’s claim second flashing lights. preemption. We reasoned that “the avoided The Court neverthe plain language” regulation of the granted summary “indicates less judgment on his alleges produced Zimmerman also that Norfolk 12.Zimmerman a also document 10. duty from the by failing pro- Southern violated Federal Railroad Administration that this to suggested necessary sight the distance was flashing lights crossing. vide at the As we document, 376 feet. See J.A. 697. This how- below, pre- conclude in Part III.C the FRSA ever, does not create a standard of care for emption provision inadequate bars claims of preemption purposes because the document is crossing devices. regulation by “a or order the not issued Sec- retary Transportation.” of 49 U.S.C. supra 11. See Part II. § 20106.
189
claim,
good
in a
public crossing
repair.”);
that he
failed
state
concluding
had
entire
Conner,
(stating
In
see also
191 Fallon, Pennsylvania personal 697. In the remove the obstruction. The at Id. up found sufficient evidence contact be Supreme Court should followed with a let- ter, negligence plaintiffs’ where the view to copy appropriate with a the state by a 279 A.2d at building. obstructed agency.” fails, was appeal J.A. 1051. If the court, to the “it was diffi- According 167. “the matter should be referred to Law the adequate if not to an impossible gain id, cult Department guidance,” presumably for put- track without view west-bound to decide whether to use eminent domain ting dangerously one’s car in or close to (allowing under 15 Pa. 1511 Cons.Stat. Id.; oncoming the swath of an train.” see public utility corporations such rail- as (“[I]t Buchecker, 412 A.2d also at 156-57 is domain). roads to use eminent jury for to into consider- proper the take jury The can decide also whether at the physical ation the conditions cross- Norfolk should have the Southern enlisted nature the ing ... the surround- [and] help of the emi Commonwealth used R.R., Cummings Pa. ings.”) (citing jury nent And if that domain. the decides 590, (1930)). 39, Pa. 151 A. To be its Nor duty, Southern breached sure, expressly Pennsylvania no court has folk policy Southern’s Pa. Cons. duty that railroads a clear to held have might Stat. be evidence of causa buildings. cases modify private But such suggest They tion. that Norfolk Southern and Fallon have indicated that as Johnson improved could have conditions jury privately should consider owned way in a prevent that would have deciding buildings when whether rail- ed the accident.16 duty to provide adequate road breached its is Zimmerman’s second claim far from sight distance. overwhelming- is disrepair evidence —the building this We conclude and it Nor- conflicting, is unclear whether in deciding case is relevant whether Nor- sight folk caused Southern’s inaction sight provided adequate folk Southern dis- inadequate. distance to remain All jury tance. The can decide whether Nor- same, we must construe evidence asked the folk Southern should have most to Zimmerman. light favorable building’s sign to owner remove There sufficient evidence each ele- is along Diller Avenue. Norfolk South- go forward. ment to allow claim doing so: “If an policy ern even had a right-of-way, obstruction is located off the C containing the owners of the land the ob- third and final claim personally be contacted struction should per negligent Norfolk Southern was appeal and an made the landowner to negligent." Judge longstanding Buchecker v. Read- is not Aldisert invokes failure Co., look, Pa.Super. 412 A.2d duty "stop, argues and listen” (1979) added). (emphasis an not have obli- that Norfolk Southern did provide adequate sight gation in case to this explicitly from District Court refrained Co., distance. Briach v. Pa. R.R. 462 F.2d negligent. deciding whether Zimmerman was Cir.1972); 3341(a). (3d 75 Pa.C.S. Zimmerman, n. 34 2011 WL at *21 supposedly violated this be- ("I addi- not need consider defendant’s do stop he not cause did before compara- arguments plaintiff was tional true, might be but Zimmerman’s by failing comply tracks. This tively negligent separate law.”). negligence question. As the Pennsylvania neither side has And explained, negli- Pennsylvania Superior question has of Zimmerman’s addressed look, stop, appeal. af- gence will We therefore refuse to "one who fails to and listen grounds. precluded recovery these be from where the firm on *21 requirements ongoing duty instead, “displacéis] an violating se for various — 646.214(b).17 particular, § In private decisionmaking C.F.R. sub- state and authori- (b)(3)® crossings with ty.” section states Henning, (quoting 530 F.3d at sight high limited and train Easterwood, distance at 507 U.S. 113 S.Ct. “adequate 1732) (internal speeds warning omitted). must have de- quotation marks vices,” defined in the statute as automatic (b)(3) importantly, More subsection gates flashing lights. And subsection “place[s] responsibility implement- (b)(1) all states that “traffic control de- State, ing adequate devices on warning with the Manual comply vices” must on thereby any cause of preempting action Uniform Devices. Zim- Traffic Control alleging properly railroad failed install Norfolk merman asserts that Southern vio- Grade, adequate an device.” warning provisions. lated both The District Court cannot, F.3d at 686. Railroads “as mat- preempted. decided that the claim was law, comply” ter of fail with subsection (b)(3). Henning, Id. (quoting 530 F.3d at agree We that Zimmerman’s third claim 1215). starters, is preempted. regu- For neither lation creates a federal standard of care. reasoning persuasive. We find this The 20106(b)(1)(A). See 49 U.S.C. We ana- Pennsylvania Commonwealth of installed lyze regulations separately. Subsec- crossbucks at Diller crossing Avenue (b)(3)(i)(C) tion states: with the use of federal funds and the help Adequate warning devices ... on of the crossing’s previous owner. Norfolk project where funds partici- Federal-aid Southern, owner, as the current has a duty pate the installation of the devices are to maintain the devices. See gates include automatic with flashing Strozyk, 358 F.3d at But the Com- light signals ... the following when con- ultimately monwealth responsible for en- High Speed ditions exist: ... train op- suring that comply the devices with sub- sight eration combined limited dis- (b)(3). result, section aAs subsection single tance at either or multiple track (b)(3) impose does not Norfolk South- crossings. ern a federal standard care. (b)(3) argues Zimmerman that subsection (b)(1). The same is of subsection true creates a federal standard of care—one Zimmerman tries to avoid Grade and Hen-
that requires Southern to install ning by asserting that Norfolk Southern gates flashing automatic lights —be- (b)(1): also violated subsection cause at sight distance the Diller Ave- All proposed traffic control devices shall nue crossing is limited. comply with the latest edition of the Eighth and Tenth Circuits have re- Manual on Uniform Traffic Control De- jected Grade, arguments. similar Highways vices for supple- Streets and F.3d at (concluding 686-87 that 23 C.F.R. applicable by mented to the extent State (4) 646.214(b)(3) preempt claims standards. against installing railroads for inadequate (b)(1) warning at railroad Zimmerman crossings); argues devices that subsection (same). Henning, imposes 530 F.3d an ongoing duty Sub- on railroads (b)(3) impose update section not does on railroads their devices. Norfolk 17. Zimmerman also identifies a cause number of he fails to show internal rules were suppos- internal rules that Norfolk Southern pursuant regulation "created ato or order.” edly supposed violated. These violations do 20106(b)(1)(B). 49 U.S.C. help preemption avoid be-
193 inconsistent, it is duty by internally nonetheless supposed this violated Southern has Congress the scheme established. comply crossbucks to update failing Traffic on Uniform latest Manual with the IV argument is incon- This Devices.
Control text, that requires which with the sistent Accordingly, will reverse the District we existing already devices—not “proposed” summary on grant judgment of Court’s the manual. More- comply with devices— Zimmerman’s first and second claims but (b)(1) over, the same part is of subsection summary grant judgment its on affirm (b)(3). Both subsec- as subsection scheme claim. Zimmerman’s third obey to states must create rules that tions ALDISERT, imposes Judge, Dissenting, Neither on federal funds. receive Circuit care. Concurring a standard of in Part. railroads and standard, Zimmerman Absent federal appeals Robert from an or- if no only Court, there are preemption avoid granted can which der of District subject cover the regulations that Corporation’s federal motion for Norfolk Southern claim. 49 inadequate-device of his summary judgment. matter He had a civil filed 20106(a)(2). Unfortunately for against U.S.C. complaint Norfolk Southern Cor- Zimmerman, Southern”) (“Norfolk has al Supreme Court Dis- poration (b)(3) that subsections ready injuries concluded seeking damages for trict Court (b)(4) subject of such cover the matter abruptly and his applied when he sustained Shanklin, 352-53, 529 at claims. See U.S. motorcycle at a railroad brakes Easterwood, handlebars, 507 U.S. (citing motorcycle’s S.Ct. flew over and 1732). regulations at 113 S.Ct. These colliding with lead train en- the side they “displace preemptive are because He crossing. over the gine proceeding authority private decisionmaking injury and personal against state his claim bottomed requirement (1) by establishing a federal-law negligent failure to the railroad (2) installed protective train; certain devices be negli- an approaching warn obtained.” Easter approval or federal a safe cross- grade failure to maintain gent wood, (3) 1732. area; at S.Ct. U.S. and for ing negligence per se by escape preemption Zimmerman tries to violating portions various of 23 C.F.R. devices). Supreme 646.214(b) citing the statement warning Court’s (adequate (b)(1) pre-empt “does not state subsection of the judgment I affirm the United would Shanklin, actions.” at tort U.S. Dis- District Eastern States this does language 1467. But Pennsylvania entirety. S.Ct. in its trict of claim—subsections not save Zimmerman’s portion Accordingly, join I (b)(4) (b)(3) clearly inade preempt District majority opinion that affirms the It is no conse claim. quate-device determination Court’s (b)(1) does the quence whether subsection claim, forth as per set above negligence se same. I concur issue, preempted. the third analyz- approach to majority’s also in the preemp- Zimmerman is unable avoid Act Safety Railroad the Federal that Norfolk Southern asserting tion (“FRSA”) provision, codified warning preemption wrong devices'—even installed agree I am unable though preemption he to avoid 49 U.S.C. was able judg- majority’s reversal of asserting Southern failed that Norfolk presented issues III.B.l. ment on two other supra them. See Part maintain II III C of join Parts may us. therefore seem that this scheme While opinion protects as to southbound motorists with a majority dissent B. crossbuck1 on the side road in Parts III A and *23 on accordance with the Manual Uniform (“MUTCD”). Control Traffic Devices This I. a reflectorized installed in was crossbuck evening of Robert On the June placed Norfolk also 1987. Southern motorcycle operating Zimmerman was his black-and-yellow railroad-grade crossing Diller in Hol- southward on Avenue New sign approximately 150 feet north of the land, wearing He was Pennsylvania. crossing. company possesses The neither full-face with a visor famil- helmet and was in property nor controls land or the with Diller cross- iar the Avenue railroad of the vicinity crossing Diller Avenue other ing because he had traveled down Diller right-of-way. than its through crossing Avenue and the “hun- Romberger posi- Train conductor was App. dreds” of before this times incident. in the of a tioned lead locomotive two- approximately p.m. 00230. At that eve- side, train. on engine Positioned the left ning, two locomotives owned motorcycle approaching he the saw when Engine Engine and Southern — approximately Zimmerman was 50 feet approached Diller Avenue. The en- 5656— that, crossing, from the and he realized gineer, Eppley, Douglas and the conduc- “given speed[,] Mr. ... Zimmerman’s he tor, Stephen Romberger, were stationed going App. was to collide with us.” 00113. locomotive, Engine the head of the lead body collided with the fuel 5657. As the train entered the Diller Ave- engine tank the lead the approx- of of train Zimmerman, nue crossing, who had been imately leading 30 feet from front edge. its traveling motorcycle on his approximately crossing only The 29 feet wide. The hour, per applied 30 to 35 abruptly miles therefore, engine, lead was already his brakes flew over and the handlebars of through crossing the at the time Zimmer- motorcycle. body his His the side struck man collided with the train. portion engine. the fuel tank of the lead Zimmerman has no present recollection collision, aAs result of the independent incident.2 Two wit- injuries sustained was air- extensive and nesses, Huyard Kaufman, Seth Chad lifted to Lancaster General Hospital. He traveling approxi- who were in a truck subsequently was rehabili- transferred to a mately feet behind Zimmerman on Dil- center, tation where he until his remained Avenue, ler both “heard the train blowing discharge in October 2008. He was left they its as approached horn” railroad partially paralyzed. crossing. App. Huyard, 00520-00521. driver, operates Norfolk Southern the railroad truck’s stated that “as the train at Diller Avenue. motorcycle entered intersection the X-shaped sign 1. A an majority opinion crossbuck is that reads: of the side train. The Crossing,” “requires “Railroad road seventy- that "[w]hen states he was less than yield right-of-way users to traffic at to rail away, six he that a train feet noticed was grade highway-rail crossing.” Dept. U.S. approaching. stop, He but tried to his front Admin., Transp. Highway Fed. Manual on handlebars, locked brake and he flew over Devices, (2009). Control Uniform Traffic colliding headfirst with a locomotive.” Ma- Opinion jority deposi- 174. In Zimmerman’s testify 2. Because Zimmerman was unable to tion, seeing stated not event, he that he did recall aspects about the relevant night App. on the the accident. reject majority opinion’s train to his reference alleged observations before his collision 00236-00237. granting motion his brake trict Court erred apply front appeared rider He summary judgment. the handlebars.” asserts causing go him to over (1) Kaufman, riding negligence claims of inade- who his based App. 00520. (2) truck, speed cross Diller Ave- are quate signals “the train excessive saw into motorcycle go also preempted. saw the He contends that the nue. then [He] finding no App. train.” District Court erred in the side of the issue of material fact exists as to genuine collision, locomo- At the time of each negligence claims on a com- based digital recording with a equipped tive was *24 (3) owed duty mon-law the railroad to device, Data an Recorder known as Event (4) crossing reasonably maintain a safe and (“EDR”), such which recorded information sight Finally, provide adequate distance. According speed and horn activation. as the argues he that District Court erred EDR, traveling the train was to the documents, to holding that certain relevant per 24 hour at approximately miles speed allegation, privi- excessive were his re- The EDR also time of the collision. follow, I For that leged. reasons horn was activated corded that the train judg- would affirm District Court’s one- point approximately at a of beginning ment. crossing and prior mile to quarter crossing, sounding through the continued District I would conclude that the Court for a total of 45 seconds. of properly held that Zimmerman’s claims 14, 2010, filed a Zimmerman May On on negligence inadequate signals based against complaint civil Norfolk four-count speed preempted. and excessive are With 31, 2011, March Norfolk Southern. On regard common-law judg- summary a Southern filed motion that Norfolk failed to claims Southern ment, August granted which the Court reasonably a crossing maintain safe timely appealed. distance, adequate sight I would provide conclude that District furthermore
II. summary did err in granting Court Southern, a reviewing grant In district court’s judgment in favor Norfolk summary judgment, plenary we exercise a because Zimmerman failed establish Phila., City negligence review. Gallo v. fade claim of and there- prima (3d Cir.1998). apply We material fact ex- genuine F.3d fore no issue of see applies, as a district court I that Finally, same test ists. would conclude (3d Shuta, F.2d correctly v. held the documents Court that Waldorf Cir.1990), if no will speed allegation affirm “there to his excessive related genuine dispute Summary judgment as to material fact privileged. were a judgment and, as the movant is entitled as stated here- appropriate therefore 56(a), law,” tofore, Rules matter Federal affirm Rule would the entire District Facts must be viewed judgment. of Civil Procedure. most to the non- light favorable Beard,
moving v. party. See Monroe IV. (3d Cir.2008) (citation 198, 206 omit- F.3d ted). claims, Zim- part negligence For of his alleges merman Norfolk Southern
III. crossing a at Diller failed maintain safe neg- the railroad alleges He a number of reasons Avenue. Zimmerman offers devices, Dis- maintained the support ligently that the contention train, to provide and that the railroad failed ade distance and the railroad rea- distance, sight thereby son of quate preventing speed its nearness to the cross- train seeing ing, him from that he struck is a hazard. him until it was too late for to avoid the Moreover, ruling Pennsylvania case law of long recognized collision. We have teaches: provide railroads have safe approaches When a motorist a railroad crossing, adequate including sight dis train, occupied by Strozyk Corp., tances. See S. whether is traveling the train or station- (3d Cir.2004) (“A 358 F.3d rail ary, only duties involved are those of ordinary
road must
care
‘exercise
at a
motorist, namely:
crossing by
reasonably
adopting a
safe and
method,
effective
commensurate with the
(2) “to stop, look and listen
en-
before
dangers
particular crossing,
of a
of warn
tering upon
crossing.”
approach
travelers of the
*25
”)
576,
(quoting
Freight
Corp.,
train.’
v.
Krentz v. Consol. Rail
Nat’l
Se. Pa.
589 Pa.
(E.D.Pa.
(2006)
Auth.,
added)
Transp.
74,
20,
F.Supp.
(emphasis
698
78
910 A.2d
28
(3d
1988),
Cir.1989)).
aff'd,
(citing Hogg
A.2d 697 rule, Under ‘a railroad company can time, At not ordinarily negligent the same a motorist be found planning to because it guards car, failed to through crossing required light drive a is station or to the or respect give the Pennsylvania warning presence common law of otherwise of its ” in highway,’ and the relevant of the id. (quoting statutes v. Pa. state. Cella Co., Thus, 82, R.R. upon sounding 638, the of the 364 Pa. 70 A.2d train’s horn, (1950)), obey applies Zimmerman and this rule of regardless had the follow- 3341(a): provisions whether train is moving stationary, of 75 Pa.C.S.A. the or 639). Cella, (citing id. 27 n. 9 70 A.2d at
Whenever person driving a vehicle The train’s in presence the is crossing approaches grade a railroad crossing “sufficient presence notice its to warn ... the driver of the vehicle shall stop any person using highway with ordi within 50 feet but not less than 15 feet nary care.” at 27. Id. from the nearest rail the railroad and shall proceed until it can be done duty The look stop, and listen before safely. foregoing requirement The shall entering a crossing, particularly crossing a apply upon the occurrence of ... occupied, expressed best by following ]: circumstance! Pennsylvania Supreme Court’s statement Co., N.E. Lehigh and R. Serfas (3) (1921): A railroad train Pa. approaching within A. 370-371 “The 1,500 approximately highway [plaintiff] feet of the openly violated the inflexible crossing look, emits a signal audible from that rule requiring stop, the traveler to him duty to warn was in fact owed to upon railroad entering before and listen evidence, given the railroad the circumstances of not a rule of but ‘It is track.... Krentz, 910 A.2d at law, absolute and accident. See peremptory, a rule jury per can never be unbending and the Zimmerman, upon reaching grade it, it, pare it ignore to evade mitted to abruptly applied his brakes and crossing, ” exceptions.’ away distinctions motorcycle, flew of his over handlebars Aiken, 130 Pa. Pa. R.R. Co. v. (quoting moving moving train. That striking (1889)). 380, 18 A. occupied crossing train at the time he it, long triggering application has a struck of the Oc- Crossing Rule Occupied Crossing Pennsyl- cupied previous- Rule. As stated history in the Commonwealth an vania, ly, approaching occupied a motorist dating back the Court’s 1938 Co., look, stop, duty v. Pa. R.R. 330 Pa. has Everetts opinion curiam). (1938) crossing; listen entering A. Al- before (per duty has no to warn of an occu- during the rule arose era railroad though Id. contributory pied crossing. has As the Krentz Court negligence, survived footnote, *26 approximately 30 from train at a feet negligence point that cannot be found rule ”) at engine, crossing a the of its a impose duty’ the does not front lead where law feet This a only Rail that wide. is neither Sprenkel Corp., Consol. (quoting contributory comparative matter of nor Pa.Super. 666 A.2d (1995)). rather, negligence; Zimmerman cannot of negligent maintain his maintenance allegation that the cross- Zimmerman’s crossing devices claim because negligently maintained is ing devices were duty no to warn of an occu- Southern had argues claim. He that a failure warn crossing.3 pied duty breached Norfolk Southern sight inadequate distance devices because warning maintain railroad also, core, at its to warn claim is failure sign approaching that warned of the “the branches, adequate sight distance is one by the claim. An crossing covered tree was warning existed, providing motorists with markings longer no and means of pavement Here, approaching. as with to fall that a train is crossbucks had been allowed the crossing de- negligent the maintenance disrepair.” Appellant Brief of into main- Zimmerman cannot allegation, the railroad vices contends that Because he claim inadequate sight tain distance danger him of at the failed to warn train that Zimmerman struck any because the crossing, must determine whether we duty approaching have a to warn roads still majority's footnote 13 states that 3. The here, trains; Crossing apply that Occupied Rule does not be- before us shows record “[h]ere, the train rushed into view headlight cause engine’s was on "full” the lead second,” and "the train was not visi- the last blowing one-quarter had been horn Zimmerman to avoid acci- ble time for seconds, mile, people such that two or 45 did arrive at the The train indeed dent[.]” traveling Zimmerman could 60 feet behind it, crossing shortly struck before Zimmerman approached the horn as the train hear the fully occupied crossing at the mo- but crossing. Diller Avenue states, majority impact. As the rail- ment of crossing, applica- occupied triggering that Zimmerman to establish failed that (1) Occupied Crossing tion of Rule. a duty Norfolk Southern: had to re- a privately building, move owned located by This issue is not controlled contro- off of the right-of-way, po- railroad’s precepts verted facts but fundamental lines; (2) tentially sight obscured neg- negligence, under which a must plaintiff ligently failed to a reasonably maintain first in fact establish that defendant does crossing. Accordingly, safe the District Here, duty. application have a the Oc- held that genuine Court there was no issue Crossing cupied compel Rule would us to fact summary material and that judg- summary hold judgment appro- appropriate. ment was Whereas the ma- priate because the railroad had no “[tjhere jority states that is sufficient evi- warn presence of the train that of each dence element to allow the claim to occupied at Diller Avenue. forward,” go Majority Opinion dis- Nevertheless, specific to address agree and would hold the District points majority, made I now turn to correctly granted summary judg- the common-law duties to maintain a safe ment. adequate sight provide dis- tances.
VI.
V.
In determining
summary judg-
whether
I would hold that
the District Court
here,
appropriate
ment was
I must there-
properly granted summary
judgment
any genuine
fore determine whether
issue
because,
favor of Norfolk Southern
even of material fact exists as to Norfolk South-
assuming that the railroad owed duties to ern’s common-law duties of care.
Zimmerman under the circumstances of
prima
To establish a
negli
facie case for
accident,
genuine
no
material
issue of
gence under the
theory
common-law
fact exists as to those duties.
*27
Norfolk Southern faded to maintain a rea
The
Court
District
noted “that the Third
sonably safe crossing by negligently main
646.214(b)
Strozyk
Circuit in
held that
taining the crossing
failing
devices and
only preempts
regarding
claims
the ade-
distance,
provide adequate sight
Zimmer
quacy
devices,
warning
and does not
man
had
adduce facts that demonstrate:
preempt
duty
the common-law
maintain
(1) duty or obligation recognized by law;
grade crossing.”
safe
App. 00032. The
(2)
(3)
duty;
a breach of that
a causal
that
explained
“railroads continue to
connection between the breach and the
have the
duty
common-law
‘to
provide
(4)
resulting injury;
actual
suf
loss
reasonably
grade crossing,’
safe
‘such as
Rooney
fered
him.
v. City
See
Phi
keep
the duty
visibility
at grade cross-
la.,
(E.D.Pa.2009).
F.Supp.2d
”
ings
(quot-
free from obstructions.’
Id.
276-277).
ing
I,
Strozyk, 358 F.3d at
A.
along
majority, agree
with the
with the
District Court’s conclusion that this claim
Zimmerman asserts that Norfolk South-
preempted.
was not
Although the claim ern
warnings
allowed the
at
the Diller
was
preempted,
not
the District Court nev-
crossing
disrepair,
Avenue
to fall
into
granted
ertheless
mo- breaching
Southern’s
its
to maintain warning
summary
tion for
judgment
Zim-
at
because
the crossing. According
devices
to the
merman
prima
had not made a
claim majority,
facie
supports
allega-
record
his
for negligence. The Court determined
the warning sign
tions that
was covered
branches,
paint
evidence of fresh
that
pavement markings
no
2011 means
tree
existed,
the crossbucks
point prior
and that
the lines existed
some
to the
longer
disrepair.
accident,
to fall into
permitted
they
had been
but later faded such that
regard to the
Majority Opinion 190. With
repainting.
needed
branches,
failed to
Zimmerman has
tree
majority rejects
The
Norfolk Southern’s
competent evidence demonstrat-
put forth
argument,
causation
but
it
here
has mis-
his view of the
foliage
that the
blocked
testimony
construed Zimmerman’s own
re-
day
warning sign on the
advance
garding
impact
many crossings
of his
Curiously,
majority points
accident.
crossing. According
at the Diller Avenue
support
taken in 2011 to
photographs
majority, “in
deposition,
to the
Zim-
blocked the
proposition
tree branches
merman said that he had crossed the track
at the
warning sign
view of the
many times before the accident and that
only competent
of the accident. The
time
he believed the
was inactive.”
foliage
of the condition of the
evidence
00235).
Majority Opinion
(citing App.
the accident is set forth at
near the time of
majority
The
states also that from Zim-
Appendix.
00503-00519 of
pages
testimony,
merman’s
combined with evi-
photographs,
day
these
taken the
From
poor
crossing,
dence of
maintenance of the
accident,
appears
that the fo-
after the
“it is reasonable to infer that state of
warning
liage did
block the advanced
disrepair at least contributed to his belief
taken 191
sign.
App.
(picture
that the
was inactive.” Id. at 190.
if
crossing).
north of the
Even we
feet
However,
reading
a closer
of the cited
taken in
photographs
were to use the
portions
deposition
testi-
warning sign
ap-
the advanced
does not
stated,
mony is instructive. Zimmerman
by foliage from at
pear to be obscured
did not know that
track had a
“[I]
least as far as 300 feet north of the cross-
regular train on it.
I have never seen a
ing.
track,
train on
and so I don’t know
majority refers to tree branches
actually
I would
what—when
have
looked
crossbucks,
covering the
but Zimmerman’s
coming.
certainly
if a train
I
to see
is that
regarding
assertion
crossbucks
expecting
my knowledge, it was
wasn’t
—to
they
not that
too
they
“disrepair,”
were
Later, he
App.
an unused track.”
by foliage.
were covered
As to this asser-
mean,
said,
I
expect-
stated “I
like
never
tion,
competent
he likewise has offered no
*28
App.
a train there.”
00236.
ed to see
in
evidence that the crossbucks were
disre-
Zimmerman now wishes to recharacterize
pair
Finally,
at the time of the accident.
crossing
believing
that the
reason
that
although
majority
has determined
of Norfolk
was inactive to be the result
a
“[pjhotographs suggest there once was
warning
failure to maintain
de-
Southern’s
that
crossing,
white line north of the
but
testimony makes it
deposition
vices. His
the line had faded”
the time
clear, however, that he believed the cross-
accident,
189, I
Majority Opinion
conclude
he had never seen
ing was inactive because
competent
to
there is no
evidence
track,
years
a train on that
over his
I
support
proposition.
agree
this
Diller
trips
area and hundreds of
down
appear
not
to have been a
there does
Avenue.
painted
crossing
line north of the
hold that the Dis-
Accordingly, would
taken one
judging
photographs
from the
summary
correctly granted
trict Court
Interpreting facts
day after the accident.
Zimmerman,
negligent failure to main-
judgment on the
light
in the
most favorable to
Zimmer-
however,
crossing
portion
tain
devices
require
does not
us to decide that
Del.,
R.R.
Lackawanna & W.
crossing
a
of Reeves v.
maintain
safe
failure to
man’s
(Pa.1858),
Co.,
“the court
Pa. 454
where
claim.
public
a
that a traveler on
determined
B.
out for
highway
stop
‘is bound to
and look
” Briach,
Later
trains.’
462 F.2d
Next,
that Nor-
Zimmerman contends
stop and look
held that failure to
cases
failed to main-
negligently
folk Southern
se,
the re-
negligence per
constituted
to re-
crossing when
failed
tain a safe
to the rule
to listen was added
quirement
obstruction,
though the
even
move an
By
in 1867.
Id. at 268-269.
located on the rail-
was not
obstruction
Pennsylvania
“stated that
Supreme Court
Indeed, Norfolk
right-of-way.
road’s
duty
look and listen’ was an
‘stop,
con-
possessed nor
neither
Southern
‘unbending’ rule of law and failure to com-
right-
narrow
any
beyond
land
its
trolled
one of the three absolutes
ply
Diller Avenue
of-way in the area of the
negligence as a matter of law.”
constituted
on Fallon
Although he relies
crossing.
Beale,
(quoting
at 269
Pa. R.R. Co. v.
Id.
Co.,
444 Pa.
Transp.
v. Penn Cent.
(1873)).
By
Pa. 504
this Court
(1971),
support
his con-
undue reliance on
Sociological Jurispru-
advocates
[T]he
Law,
upon
aspect
this
of Bent-
In
Oliver Wendell
dence seized
The Path
him,
message.
they insisted
gently
Holmes
admonished:
ham’s
Like
practical,
public policy.
real world mor- of
The philosophical
that law has
under-
*33
they
pinnings
of
Cardozo
purpose,
though
al
defined
what
described as the
justice,
sociological
in
results method run counter
purpose more
terms of social
interests,
widely
public
to the
held notion that the
balancing
and the
of social
policy should
promul-
be formulated and
greatest happi-
than
“the
[Bentham’s]
gated only by
legislative
branch of
greatest
of the
number.”
ness
government.
judges
When
rather
than
Woodard, Thoughts on the Inter-
Calvin
legislators
public
declare
policy, their
Mod-
play
Morality
Between
and Law in
produce
declarations
local and national
Legal Thought,
em
64 Notre Dame L.Rev.
judges
tensions. When
utilize this meth-
(1989).
784, 795
od, laymen
lawyers
and some
label them as
judicial
that had
Typical of
utterances
“activists,” “liberals,” “loose construction-
Holmes, Pound,
disturbed
and Cardozo
ists,”
epithets, gentle
and a host of other
by Maryland
Appeals
of
was one
and otherwise.
sound,
“Obviously
in
if
principle,
1895:
jurisprudence
But modern American
ought
applied
logically
to be
wherever it
method, although
more than the results
its
leads, without reference to ulterior
re
strongly
influence is
felt.
legal
The
real-
Baltimore,
81 Md.
sults.” Gluck
ists of the 1930s and 40s worried about
(1895).
contrast,
A.
In
the same
they
performance
what
called “the social
of
year that
delivered the
Cardozo
Storrs
law.” Those same concerns are said to lie
Yale,
opportunity
Lecture at
he seized the
close to
the heart
Critical Studies
put
theory
practice by
his new
into
sure,
Movement as well. To be
the Law
publicly rejecting
conceptual juris
blind
and Economics school can be said to be
prudence
Hynes
v. New York Central
result-oriented, but it stresses “economic
Co.,
Railroad
231 N.Y.
had from land owned legal system, value of a or indeed of the company, fendant railroad the court held itself, than life quality rule of law of of the defendant to the lower standard subject ap- of to it? And if this those trespasser. care to a re owed Cardozo results, morality proach stresses the of jected analysis, describing this it as an puts huge moral burden on the also of a maxim or a “extension definition hand that the tool of law. wields to £a disregard consequences relentless dryly logical approximate extreme.’ The Woodard, at 796. supra, and relative became the definite abso foregoing, From the this railroad lute.” Id. case, may not stop, look and listen of a opinion Hynes proto- is a be cast aside as in the former era
Cardozo’s (we jurisprudence concepts won’t meet type, and his The Nature the Judicial judge trial did not apologia, decision-making appeal Process an it on because the it). judicial concepts concepts jurispru- meet In modern based on result-oriented per miles trains should not exceed ten to run in the face of this is ignore dence to tracks, twenty-five miles on hour Class words, judges “I think that Holmes’s tracks, on.” and so per hour Class adequately to rec- have failed themselves Majority Opinion 180. consider- duty weighing their ognize however, advantage. majority’s disagree, with the ations of social excessive-speed holding that Zimmerman’s inevitable, also the words of ...” And by § 213.9 because preempted claim is not important and most “The most Pound: *34 fact to a triable issue of as he has raised with all of dissatisfaction constant cause Avenue whether the track at the Diller is to be found law at all times only 1 track-—-the crossing was a Class operation legal necessarily mechanical speed train’s class of track for which the words of Cardozo finally And rules.” federally mandat- have exceeded the would you Railroad: should in New York Central 213.9, only § limit and the class ed under maxim or a definition with not extend “a claim of track for which Zimmerman’s ‘a consequences disregard relentless preempted by ” not be would therefore dryly logical extreme.’ § I hold that Zimmerman 213.9. would Jones, Pro- By Harry W. Cardozo any evidence provide competent failed to School, Law of Law at Columbia fessor that the tracks were classified as Class teach us: would because, held, District as the Court sake; of art for art’s Law is not a form sought Zimmerman to in- limited evidence social, nothing are more its ends-in-view purpose privileged was troduce for this nothing less than the establishment and § 409 or 49 under either 23 U.S.C. U.S.C. of a environment and maintenance social § Zimmerman is left without 20903. can of human life be quality in which the Norfolk competent evidence rebut unimpaired. spirited, improving testimony that the track was Southern’s both have either Class or Class which Jones, Harry An Invitation to Juris- W. than the speed greater maximum limits 1023, 1025 prudence, 74 Colum. L.Rev. speed traveling, the train was and there- (1974) excessive-speed fore Zimmerman’s claim is listen Pennsylvania stop, look and §by summary judg- 213.9 and preempted brooding pres- omnipresent rule was an proper. ment was my I head put ence in this case. will not it. ignore in the sand and A. sought to introduce two VIII. challenge groups of documents The next issue is whether the District testimony that the track at is- Southern’s granted Norfolk South- properly was a 2 or Class 3 track: inven- sue Class summary judgment ern’s motion for tory Department documents from the claim. excessive-speed Crossing Inven- Transportation’s National majority agree opinion with the insofar as tory reports dating and accident back excessive-speed claims are
it holds that inventory 1975. I would hold that preempted traveling a train is below when under privileged documents were Majori- federally speed mandated limit. reports § 409 and that the accident U.S.C. ty Opinion agree 180. I also with the § under 49 U.S.C. privileged were majority that 49 213.9 creates C.F.R. B. speed by estab-
federally mandated
limits
of care that railroads
lishing
degree
group
“the
of documents Zimmer-
The first
were nine doc-
sought
each class of tracks: man
to introduce
must exercise on
In-
DOT-Crossing
uments titled “U.S.
the Crossings Program promulgated
23 U.S.C.
130. See Pierce
ventory
Eight
Cnty.
Information.”
of these
Guillen,
129, 133-134,
537 U.S.
123 S.Ct.
a maximum permissible
documents state
(2003).
720,
was enacted programs to facilitate includ compiled, tion was obtained railroads, provides used unrelated to one same forms purposes for and utilized inventory support further that the docu- identified in the programs the three of § 409. statute, Guillen, privileged ments are under at see 537 U.S. here, inquiry the relevant S.Ct. in- Congress clearly emphatically applies, § 409 determining whether this enacting prohibit § 409 to tended inventory the information whether federally keeping record type required collected, generated documents litigation.” used as a “tool in being from pursuing compiled purpose Guillen, 123 S.Ct. U.S. promul- objectives program of the federal § 409 (explaining Congress amended § gated by “to make to include “or collected” in order formerly § includ- [a clear section agree District now ed in the text 409 as 130 is “surveys,” inventory documents were an was not intended to be effort- included] “compiled collected” “for were which litigation against free tool state safety purposes planning ... Additionally, be- governments.”). local railway-highway cross- enhancement inventory cause the documents at issue pursuant which ings,” and done “compiled and for the were collected” U.S. systemat- requires states “conduct and In- Highway-Rail Crossing National DOT survey highways maintain a of all ically ventory Program, purpose of which is identify crossings those which railroad *36 ” provide “to for the of a national existence may require [improvements].... ... inventory database that can be used App. 00047. ... ... planning implementing] for and inventory at issue The documents were I crossing improvement programs,” would DOT compiled and collected for the U.S. collected, gener- hold the documents were Highway-Rail Crossing Invento- National compiled § for purposes ated or the ry Program, began which in the 1970s affirm. and would passage after of The Federal-Aid Highway purpose Act. of the U.S. “The D. Crossing In- Highway-Rail DOT National documents, inventory In addition to the ventory Program provide for the exis- attempted Zimmerman ten to introduce inventory of a national tence database that reports involving accident the Diller Ave- can ... used ... planning be for and crossing, nue five involve acci- of which implementation crossing improvement ” dents from the and the track is 1970s state Railroad Adminis- programs.... Federal track. a Class 1 would hold that The tration, Highway-Rail U.S. DOT National correctly District Court determined Crossing Inventory: Policy, Procedures reports privileged pur- these accident were Instructions States Railroads § in to 49 U.S.C. which states suant (2007), http://www.fra.dot.gov/downloads/ part: safety/RXIPolicyInstructions0807.pdf part report No of an incident accident or Moreover, “2007 [hereinafter Manual”]. filed under section railroad carrier Program current rail- Manual instructs in may 20901 of ... be used [Title 49] inventory roads to send completed their damages resulting civil action for from In- appropriate documents to “State report. matter mentioned in ventory portion Contact” so that the last railroad, may pursuant be A completed the form state. to 49 U.S.C. 20901(a), monthly Manual 6. participation required The state’s in to file a Inventory Program, report Secretary Transporta- and its use of the with the claim, “on all accidents incidents negligence tion result- facie and therefore no individual,” injury in or death to an genuine issue of material fact exists. parties dispute and the do not Finally, I would hold that the District reports at here were pursuant issue filed properly concluded that Zimmer- §to man’s excessive-speed claim is preempted majority opinion limits privilege this by § 213.9 because Zimmerman cannot es- encompass only report filed direct tablish that there is a material issue of fact response to Zimmerman’s accident while as to whether speed the train’s exceeded leaving open possibility that all other the federal permitted limit at the Diller reports filed before or after —whether Avenue without inventory -may be used accident— documents and reports, accident which I against lawsuit Norfolk Southern. would hold privileged. are Summary holding general purpose Such a defeats the judgment was therefore appropriate and I privileges such as pro- which would affirm the judgment District Court’s public safety by mote encouraging candor. respects. all hold, therefore, I would that all the acci- reports dent to intro- seeks privilege.
duce fall within the
E. inventory Without documents and reports, accident there is no evidence that tracks Diller Avenue were classified as Class with a maximum permissible CONNELLY, Appellant, Patrick S. And, speed of 10 per miles hour. because *37 undisputed it is that the train was travel- per at miles hour—which permis- The STEEL VALLEY SCHOOL sible on both Class and Class 3 tracks— DISTRICT. genuine no issue of material fact exists as No. 11-4206. to whether the train speed exceeded the Therefore, permissible under 213.9. Zim- Appeals, United States speed merman’s claim of excessive Third Circuit. preempted summary judgment was proper. Argued Oct. 2012. ‡ % % sjí s{i Filed: Jan. I would conclude that the District Court properly held that Zimmerman’s claims of (1)
negligence based on inadequate signals (2) excessive speed preempted. are would conclude also that the District Court granting summary
did not err in judgment in favor of Norfolk Southern for Zimmer- (3)
man’s claims that the railroad failed to
(4)
reasonably
maintain a
safe
distance,
provide adequate sight
because
Zimmerman failed to establish a prima
notes
railroads
in fact
comparative negli-
of the
in a
do
adoption
the 1978
approaching
have
to warn of
trains.
Pennsylvania.
gence doctrine
“
Here, however,
Krentz,
‘the
Id. at n. 10.
the lead en-
(stating