Railroads have long defended certain state law tort claims in crossing accident and trespasser cases by invoking the doctrine of federal preemption. The past year is no exception. Although the discussion of the cases below is organized by topic, it is important to note that most of these cases actually involve more than one preemption issue.
1. Train Speed
As a general matter, “federal law necessarily preempts state law excessive speed claims of any nature, regardless of their basis.” Veit, ex rel. Nelson v. Burlington N. Santa Fe Corp., 171 Wn.2d 88, 103, 249 P.3d 607, 615 (2011). Nonetheless, plaintiffs continue to assert inventive theories to avoid the effect of preemption and novel issues sometimes arise. Recent cases of interest analyzing train speed claims include:
2. Horn Audibility
Federal regulations establish the requirements for locomotive horn audibility and the accompanying procedure to test compliance with those requirements. See, e.g., 49 C.F.R. 229.129. Cases that have recently evaluated horn audibility claims include:
3. Crew Training
The standards for the “eligibility, training, testing, certification and monitoring of all locomotive engineers” are also a subject of federal regulation. 49 C.F.R. § 240.1(b). These regulations establish a detailed procedure that a railroad must follow to obtain Federal Railroad Administration (FRA) approval of its engineer and conductor certification programs, including its criteria for continuing education, testing, training, and monitoring of performance. Recent cases in which plaintiffs have asserted negligence claims based on allegedly inadequate crew training include:
4. Adequacy of Warning Devices at Grade Crossings
If the Federal Highway Administration approves a crossing improvement project, a state installs the warning devices using federal funds, and the devices are in operation, federal regulations governing the adequacy of warning devices apply and state tort law is preempted. See, e.g., CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 670 (1993); Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344, 354 (2000). Cases that have applied this rule in the past year include:
Federal preemption will nearly always be at issue in railroad crossing and trespasser cases. By keeping abreast of the most preemption cases, lawyers representing railroads can bring the full scope of preemption-based defenses to bear and effectively counter creative theories developed to avoid these defenses.
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