OPINION
This action arises out of an accident that occurred in Gibson County, Tennessee, on October 3, 1993. Eddie Shanklin collided with, and was killed by, one of Norfolk Southern’s trains while he was driving his car east across the Oakwood Church Road Crossing. Dedra Shanklin (Eddie Shank-lin’s widow) brought claims-based on both Tennessee common law and statutory law-alleging that the accident was the result of Norfolk Southern’s negligence in: (1) operating its train at an excessive speed; (2) failing to sound the horn or apply the brakes in a timely fashion; (3) failing to remove vegetation from the area surrounding the crossing; (4) failing to install a “ditch light” on the train; and (5) failing to install adequate warning devices at the crossing.
Norfolk Southern moved for summary judgment, claiming that Shanklin’s claims are preempted by the Federal Rаilroad Safety Act (“FRSA”), 45 U.S.C. §§ 421-447, repealed, and recodified as 49 U.S.C. §§ 20101-20153. On April 17, 1996, the district court granted summary judgment to Norfolk Southern on the excessive speed and “ditch light” claims, holding that they were preempted by the FRSA and Boiler Inspection Act, respectively, but denied the motion in all other respects.
Thus, the claims concerning failure to apply the brakes, failure to sound the horn, failure to remove vegetation, and failure to install adequate warning devices went to a jury trial beginning on April 29, 1996. On May 7,1996, the jury returned a verdict finding that Shanklin and Norfolk Southern were both guilty of negligence. The jury assigned 30% negligence to Shanklin and 70% to Norfolk Southern. The jury further found the damages to be $615,379.00. Accordingly, a judgment was entered by the district court awarding Shanklin $430,765.30.
Norfolk Southern timely filed a motion for judgment as a matter of law or, in the alternative, for a new trial. The motion was denied on September 13, 1996, and Norfolk Southern timely filed a notice of appeal on September 25,1996.
I.
A.
In 1987, the Tennessee Department of Transportation (“TDOT”) installed reflec-torized crossbucks at the Oakwood Church Road Crossing as part of an improvement project including 196 crossings in 11 West Tennessee counties. Terry Cantrell, the TDOT employee in charge of Tennessee’s railroad crossing programs, testified that the improvements at the Oakwood Church Road Crossing were undertaken as part of a federally funded “minimum protection program” to bring crossings into compliance with 23 C.F.R. § 130(d). That section mandates that a state establish a schedule of crossing safety projects and that “[a]t a minimum, such schedulе shall provide signs for all railway-highway crossings.” 23 U.S.C. § 130(d). No evidence was produced that any federal employee was involved in the decision to install crossbucks, as opposed to active warning devices such as gates and flashing lights, at the Oakwood Church Road Crossing.
Furthermore, evidence was introduced at trial showing that the Oakwood Church Road Crossing exhibited the following dangerous conditions: (1) high speed train operations combined with limited sight distance; (2) moderately high railroad and highway traffic; (3) trucks carrying hazardous materials; and (4) a prior collision at the crossing.
B.
Eddie Shanklin was driving east along Oakwood Church Road at a speed of 20
Burnham also testified that “very possibly sight and sound of the approaching train could have been received by Shanklin at the same point in time. And as I’ve demonstrated earlier that point in time, 94 feet away from the rail, is just too late.” When Norfolk Southern tried to rebut Burnham’s horn-related testimony with an expert of their own, the results were less than stellar. Tom Rose opined that the train horn could have been heard at 400 feet, but he reached that opinion by doing tests in a car different from Shanklin’s, without radio or heater on, and sitting still on a flat road in Texas. Rose played a tape recording at trial, which he expected would establish that Mr. Shanklin would have been able to hear the train horn. The dеmonstration, however, was not very successful. At one point, Rose apologized:
I have a little egg on my face, as you heard ... the recording, as you can tell, is terrible. It’s extremely muddy. There was a malfunction, but I think you can still tell that the horn is-you can tell the horn is there sometimes and not there at others.
Expert testimony further suggested that the headlamp on the train may have been inadequate to warn Shanklin of the train’s approach. Burnham pointed out how the existence of street lights along the tracks could confuse a driver into thinking that the train’s headlamp was just another street light. Burnham further testified that the headlamp on Norfolk Southern’s train was designed “to give indication of the illumination in front of the train as opposed to being a warning to the traffic that here comes the train.”
II.
A.
Norfolk Southern contends that Shank-lin’s state law crossing warning device claim was preempted by the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20106 (formerly 45 U.S.C. § 434), and regulations issued under the Highway Safety Act, 23 U.S.C. § 101 et seq.
The FRSA was enacted “to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.” 49 U.S.C. § 20101. As an aid to developing solutions to safety problems posed by railroad grade crossings, the FRSA provides that the Secretary of Transportation “as necessary, shall prescribe regulations and issue orders for every area of railroad safety supplementing [existing] laws and regulations.” 49 U.S.C. § 20103.
Not long after enacting the FRSA, Congress enacted the Highway Safety Act of 1973, which makes federal funds available to the states to improve grade crossings. As a prerequisite to receiving federal funds, a state must “conduct and systematically maintain a survey of all highways to identify those railroad crossings which may require separation, relocation, or protective devices, and establish and implement a schedule of projects for this purpose.” 23 U.S.C. § 130(d). States may have to meet other requirements, as specified by regulations promulgated by the
The FRSA specifically provides for preemption, stating:
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 relаted to railroad safety until the Secretary of Transportation prescribes a regulation or issues an order covering the subject matter of the State requirement.
49 U.S.C. § 20106.
In CSX Transportation, Inc. v. Easterwood, the Supx-eme Court addressed the preemptive force of the FRSA with respect to state warning device claims for accidents at grade crossings.
The Easterwood Court first held that the regulations contained in 23 C.F.R. §§ 646.214(b)(3) and (4) provided the only potential sources for preemption in the circumstances of that case. Those sections apply, however, only to grade crossings in which “Federal-aid funds participate in the installation of the [warning] devices.” See 23 C.F.R. §§ 646.214(b)(3) and (4). With respect to such federally funded crossings or federally funded projects to improve or create such crossings, § 646.214(b)(2) states that “the crossing shall not be opened for unrestricted use by traffic or the project accepted by the FHWA until adequate warning devices for the crossing are installed and functioning properly.” 23 C.F.R. § 646.214(b)(2) (emphasis added).
Subsections (b)(3) and (4) outline the types of warnings deemed adequate for certain types of crossings. Subsection (b)(3)(i) mandates that automatic gates with flashing lights be installed at all grade crossings where one or more of the following conditions exists:
(A) Multiple main line railroad tracks.
(B) Multiple tracks at or in the vicinity of the crossing which may be occupiеd 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.
23 C.F.R. § 646.214(b)(3)(i). Subsection (b)(3)(ii) further provides that “[i]n individual cases where a diagnostic team justifies that gates are not appropriate, FHWA may find that the above requirements are not applicable.” 23 C.F.R. § 646.214(b)(3)(h) (emphasis added). If the requirements of (b)(3) arе not applicable, then (b)(4) applies. According to subsection (b)(4), “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.” 23 C.F.R. § 646.214(b)(4) (emphasis added).
Taken together, then, subsections (b)(3) and (4) make-it clear that there are only two types of crossings for which some federal funds have been used to supply warning devices: those that require active
The state law claims were not preempted in Easterwood, however, because the facts of that case failed to establish the preconditions for the application of either subsection (b)(3) or (b)(4). Specifically, the record failed to “establish that federal funds ‘participate^] in the installation of the [warning] devices.’ ” Id. at 672,
Courts have not uniformly interpreted the holding in Easterwood. The Fifth, Eighth, and Tenth Circuits have each interpreted Easterwood to hold that federal funding is both a necessary and a sufficient condition for the preemption of state law. See Armijo v. Atchison, Topeka and Santa Fe Ry. Co.,
The Seventh Circuit, on the other hand, has interpreted Easterwood to hold that preemption analysis begins, but does not end, with the federal funding issue. See Shots v. CSX Transp.,
In either case [ (b)(3) or (b)(4) ], the Secretary has determined that the railroads shall not be made to pay any portion of installation costs. In short, for projects in which federal funds participate in the installation of warning devices, the Secretary has determined the devices to be installed and the means by which railroads are to participate in their selection. The Secretary’s regulations therefore cover the subject matter of state law which ... seeks to impose an independent duty on a railroad to identify and/or repair dangerous crossings.
Easterwood,
Based on this language from Easter-wood, the Fifth, Eighth, and Tenth Circuits all agree that “the Secretary of Transportation’s authorization of passive warning devices was tantamount to a determination ... that only passive, rather than active, warning devices were sufficient.” Armijo,
With respect to the same passage from Easterwood, however, the Seventh Circuit stated:
Read literally, as a blanket statement that the regulation prescribes the safety devices for all crossings at which federal funds have been used for the installation of some safety device, this passage supports the railroad’s position. But we do not think the literal reading is the correct one. The regulation does not specify particular safety devices at particular crossings. Rather, it establishes criteria for determining which safety devices are required at particular crossings. Because the Supreme Court in Easterwood found that federal funds had not participated in the project at issue in that case, it had no occasion to considеr the application of the regulation to particular crossings.
Shots,
Despite establishing that federal funds had participated in the installation of re-flectorized crossbucks at the crossing at issue in that case, the Shots Court found that the Secretary had not made a determination that reflectorized' crossbucks were adequate for that particular crossing. Rather, the crossbucks had been installed as a result of an agreement between the State of Indiana and the Secretary of Transportation to place reflectorized cross-bucks at 2,638 crossings that either lacked
Minimum is not a synonym for optimum, or even adequate.... The task was to maximize grade-crossing safety in the state as a whole, subject to a budget constraint, so it was to be expected that adequate safety might be sacrificed at some crossings to enable minimum safety to be achieved at all.... [Thus,] the agrеement was a step on the road to adequate safety rather than a determination by the State of Indiana or the federal Secretary of Transportation as to what safety devices would be adequate at each of the thousands of crossings covered by it.
Id. at 308-09.
Thus, the Seventh Circuit in Shots announced a two-part test for preemption in grade crossing cases: (1) establish whether subsection (b)(3) or (4) applies at all {i.e., whether federal funding participated in the installation of warning devices at the crossing in question); and (2) establish whether the Secretary or one of his agents actually determined that active warnings were needed pursuant to (b)(3) or that only passive warnings were needed pursuant to (b)(4). In other words, a court must first establish that (b)(3) and (b)(4) are applicable, and then establish that either (b)(3) or (b)(4) was, in fact, applied.
Although alone among circuit courts, the Seventh Circuit is not the only federal court to refuse to accept the fiction of constructive approval; that is, the fiction that federal funding is the equivalent of a determination that the devices being funded are adequate protection at a particular crossing. In Heizelman v. Southern Pacific Transportation Co., the District of Oregon adopted the findings and recommendation of the magistrate judge, who had explained:
To characterize the happenstance method by which FHWA funds were approved for the [safety measures in question] as an act which triggered preemption is to ignore, it seems, the whole point of the Easterwood doctrine .... [I]t makes no sense to find that the railrоad has been excused from its common law duty to maintain safe crossings simply because, without any analysis by anyone regarding what devices were required at [the particular crossing] under the federal regulatory scheme, FHWA signed off on a request for funds, a portion of which came to be applied to defray the cost to the county of installing these [safety measures].
Heizelman v. Southern Pac. Transp. Co., Case No. 91-6134-TC, Findings and Recommendation of the Magistrate Judge, slip op. at *8-*9 (D.Or. Dec. 9, 1993). According to the Heizelman Court, “[t]he key point is that there must be an evaluation of the adequacy of the warning devices in place at a crossing under both subsections (b)(3) and (b)(4) before preemption applies.” Heizelman v. Southern Pacific Transportation Co., Case No. 91-6134-TC, Order of the District Court, slip op. at *7 (D. Or. June 8,1994).
The vital difference between the approach adopted by the Fifth, Eighth, and Tenth Circuits and that adopted by. the Seventh Circuit is that the former accepts the doctrine of constructive approval, while the latter rejects it. The fiction of constructive approval, noted Judge Posner, is not only unrealistic, but unwise:
Indeed, it would have been an extraordinary act of irresponsibility for the Secretary of Transportation, by approving the agreement, to preclude tort liability for the railroad’s failing to have active warnings at any of the thousands of crossings covered by the agreement, or otherwise to prevent the state from requiring adequate safety devices at the busiest or*394 most dangerous of these crossings, when no one in the federal government had made a determination that the improvements to be made would bring all the crossings up to a level of safety adequate to satisfy federal standards.
Shots,
For the reasons that follow, we agree with the Seventh Circuit.
According to the Supreme Court, preemption analysis must “start with the assumption that the historic police powers of the States [were] not to be superseded by [the] Federal Act unless that [was] the clear and manifest purpose of Congress.” Cipollone v. Liggett Group, Inc.,
The presumption against preemption looms even larger in the present context, where no analogous federal remedy exists. See, e.g., Silkwood v. Kerr-McGee Corp.,
Of course, the Supreme Court has already determined that the FRSA can and does preempt state law, where applicable, and this Court is bound by that determination. The Supreme Court did not, however, determine the preclusive effect of the FRSA in cases, such as the present one, where the record establishes nothing more than the bare fact that federal funding participated in the installation of warning devices at a particular crossing. It is appropriate, therefore, that this Court bear in mind both the strong presumption against preemption and the mandate that, even where Congress has explicitly provided for preemption, courts should adopt “a narrow interpretation of such an express command.... ” Medtronic, Inc. v. Lohr,
The Seventh Circuit’s more reasoned (and more reasonable) approach succeeds on this score, while the approach of the other circuits fails. The Seventh Circuit’s narrow approach limits federal preemption in grade crossing cases to only those instances where federal regulatory authority has been exerсised. The more expansive approach of the other circuits turns any decision to spend federal money on railroad warning devices into an eradication of
In addition to being in harmony with the presumption against preemption, the narrow approach is more faithful to the Supreme Court’s holding in Easterwood. We think it is illogical to read Easterwood, as the Fifth, Eighth, and Tenth Circuits have done, for the broad proposition that state law is preempted whenever and wherever federal funding has participated in the installation of railroad devices, because the holding in that case did not begin to go so far. Indeed, the Supreme Court never reached the issue because there was no evidence in that case of federal funding.
Moreover, the narrow approach is more consistent with the FRSA’s goals of promoting railroad safety, reducing railroad accidents, and reducing deaths and injuries as a result of such accidents. As Judge Posner noted in Shots, focusing on federal funding as the only criterion for preemption would, in many cases, have the effect of removing the protections of state law from large numbers of crossings which have not yet been analyzed in accordance with subsections (b)(3) and (4). These subsections set up specific guidelines for the installation of warning devices at grade crossings-guidelines which, if followed, should lead to safer crossings and fewer accidents.
Subsections (b)(3) and (4) embody a system of incentives designed to increase sаfety at grade crossings. In exchange for improving warning devices at a particular crossing, the states get federal funding for the improvement and the railroad (in addition to having the improvement underwritten by a state request for federal money) receives immunity from state tort actions related to that crossing. In effect, the railroads get a huge benefit if they work with the state to take the desired action. As evidenced by the Amicus Brief filed by the American Association of Railroads (“AAR”), immunity from state tort actions is no small prize. Under the narrow approach announced by the Seventh Circuit, railroads receive that prize only if they have, in fact, taken the desired action. Under the expansive approach, however, railroads get the prize whether or not they have taken the desired action. It takes nothing more than a rudimentary understanding of economics to see that an incentive-based system does not work unless the reward is somehow tied to performance of the desired action.
This is not to say that the expansive approach lacks any redeeming value. Brightline rules are both easier to understand and easier to administer. Moreover, the expansive approach would likely reduce the number of warning device tort claims, to the relief of overloaded state courts and the dismay of personal injury lawyers. One need look no further than the Amicus Brief of the American Association of Trial Lawyers to see how important the preemption issue is to personal injury lawyers.
Norfolk Southern and Amicus AAR present several other arguments in favor of preemption. First, they argue that the fiction of constructive approval is statutorily mandated by 23 U.S.C. § 109 and 23 C.F.R. § 630.114(b) (1996) (amended and recodified at 23 C.F.R. § 630.106(a) (effective Feb. 14, 1997)). Section 109(e) provides that “[n]o funds shall be approved for expenditure ... unless proper safety protective devices complying with the standards determined by the Secretary at that time as being adequate shall be installed or be in operation at any highway and railroad crossing....” 23 U.S.C. § 109(e). Section 630.114(b) states that “FHWA issuance of an authorization to proceed with the work on any phase of a highway project ... can be given only after applicable prerequisite requirements of Fеderal laws, and implementing regulations and directives have been satisfied.” 23 C.F.R. § 630.114(b).
From these two sources, Norfolk Southern and AAR argue that any approval of federal funding for grade crossing im
Norfolk Southern further argues that railroads will be unable to meet the burden of proof required by the narrow approach. It is well established that the party seeking shelter under the umbrella of preemption bears the burden of showing that preemption applies. See Silkwood v. Kerr-McGee Corp.,
Such a showing would be impоssible, argues Norfolk Southern, because 23 U.S.C. § 409 prohibits the discovery of or admission into evidence of “reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying!,] evaluating, or planning the safety enhancement of ... railway-highway crossings, pursuant to sections 130, 144, and 152 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds_” 23 U.S.C. § 409 (footnote omitted). Apparently, this provision was designed “to foster the free flow of safety-related information between the railroad industry and its regulatory bodies by precluding the possibility that such information would be discoverable and admissible in civil suits.” Sawyer v. Illinois Cent. Gulf R. Co.,
The narrow approach is unworkable, the argument goes, because § 409 renders it impossible for a railroad to demonstrate that a diagnostic team determined active warnings to be unnecessary at a crossing where (b)(3) conditions exist. Yet, railroads need not depend on diagnostic team reports at all. Subsections (b)(3) and (4) unambiguously require FHWA approval for any crossing that does not have active warnings. The reason for the absence of active warnings-ie., either the dangerous (b)(3) conditions do not exist, or such dangerous conditions do exist, but a diagnostic team has determined active warnings to be unnecessary-is quite irrelevant. Either subsection (b)(3) is applicable, in which case active warnings are required, or it is not applicable, in which case FHWA approval is requirеd.
We conclude that Norfolk Southern misreads the requirements of § 409. As we have noted above, that section, in pertinent part, prohibits discovery and admission into evidence of “reports, surveys, schedules, lists, or data compiled or collected ... pursuant to sections 130, 144, and 152 of this title....” 23 U.S.C. § 409. Section 130, dealing with payment of costs of railway-highway crossings, among other things requires the state to conduct particular surveys, see 23 U.S.C. § 130(d); to establish and implement particular schedules, see id.; and to make annual reports which include lists and compilation and analysis of data, see 23 U.S.C. § 130(g). Section 144, dealing with highway bridge replacement programs, among other
In order for preemption to apply, Norfolk Southern was required to demonstrate that either subsection (b)(3) or (b)(4) was applied to the Oakwood Church Road Crossing. Because the crossing had passive, rather than active, warnings, Norfolk Southеrn was forced to demonstrate the application of (b)(4). In order to do so, however, Norfolk Southern needed to show that the FHWA approved passive warnings at the Oakwood Church Road Crossing. Norfolk Southern failed to do so, because, as we have held, federal funding alone is insufficient to make such a showing.
For these reasons, we AFFIRM the lower court’s decision that federal law does not preempt Shanklin’s state law negligence claim for failure to maintain adequate warning devices.
B.
In addition to arguing that Shanklin’s claims are preempted by the FRSA, Norfolk Southern contends that the evidence failed, as a matter of law, to establish Shanklin’s right to recover. The evidence was insufficient, argues Norfolk Southern, in that it failed to establish thаt Shanklin’s comparative fault was less than its own. Under Tennessee law, a plaintiff may recover if his negligence is less than that of the defendant, but not if his negligence equals or exceeds that of defendant.
In a state law action in which diversity forms the basis for federal jurisdiction, this Court looks to the state law to determine the standard under which to review a motion for a directed verdict. See Miller’s Bottled Gas, Inc. v. Borg-Warner Corp.,
Norfolk Southern contends that the only conclusion reasonable minds could have reached in this case is that Shanklin was at least as negligent as Norfolk Southern, or that Norfolk Southern was not negligent at all. Specifically, Norfolk Southern claims that Shanklin (1) should have seen the train coming, (2) should have heard the whistle blowing, and, therefore, (3) should have yielded the right of way as required by Tennessee law.
Evidence was presented at trial that Shanklin could have had an unobstructed view of the train when he was 85 feet from the crossing, thus giving him a mere 2.7 seconds in which to stop the car and avoid the collision. Moreover, there was extensive expert testimony that the limited sight distance caused by vegetation, terrain, and the proximity of a house created a “trap” which made it impossible for Shanklin to see the train in time to avoid the collision. Experts also testified that the train’s headlamp was inadequate because it pointed straight down the track, rather than at an angle that would provide warning to a person approaching the crossing. There was also testimony that the headlamp could be confused with an ordinary street light if seen at night. Indeed, the engineer of the train testified that he never saw Shanklin’s vehicle prior to the accident, and the other two crew members testified that they only saw Shanklin’s car when it was too late to stop.
As for Shanklin’s ability to hear the train, the record shows that he had his heater fan on, his car windows up, and his radio playing. Norfolk Southern chose to use at trial a taped recording of the train’s whistle to demonstrate that Shanklin could have heard the train. The jury could not hear the whistle, despite the fact that the tape was made in a car without the radio or heater fan on while the car was sitting still. Norfolk Southern did not give the jury much to help it arrive at the eonclusion Norfolk Southern now claims is inescapable.
Although no direct evidence was presented about the precautions taken by Shanklin as he approached the crossing, the record did establish that he was driving a mere 20 miles per hour. This, combined with the evidence about his inability to see and hear the train, makes it quite clear that reasonable minds could differ as to whether and to what extent Shanklin was negligent. So, too, reasonable minds could differ about whether and to what extent Norfolk Southern was negligent. Under these circumstances — looking at the evidence in the light most favorable to Shanklin and discarding all countervailing evidence — we cannot say that reasonable minds could not differ regarding the amount of negligence of both Shanklin and Norfolk Southern.
CONCLUSION
For the reasons stated above, the decision of the district court is AFFIRMED in all respects.