Gordon R. Ellingson, as next of kin and trustee of the heirs of Adrienne H. Ellingson, Appellant, vs. Burlington Northern and Santa Fe Railway Company, a Delaware corporation, Respondent, Merit Chevrolet Company, Plaintiff.
Annotate this CaseThis opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
A05-650
Gordon R. Ellingson,
as next of kin and
trustee of the heirs of Adrienne H. Ellingson,
Appellant,
vs.
Burlington Northern and Santa Fe Railway Company,
a Delaware
corporation,
Respondent,
Merit Chevrolet Company,
Plaintiff.
Filed March 21, 2006
Affirmed
Wright, Judge
Isanti County District Court
File No. C7-02-712
William F. Mohrman, Erick G. Kaardal, Charles R. Shreffler; Mohrman & Kaardal, P.A., 33 South Sixth Street, Suite 4100, Minneapolis, MN 55402 (for appellant)
Julius W. Gernes, JoAnn C. Toth; Spence, Ricke, Sweeney & Gernes, P.A., 600 Degree of Honor Building, 325 Cedar Street, St. Paul, MN 55101 (for respondent)
Considered and decided by Wright, Presiding Judge; Minge, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
WRIGHT, Judge
FACTS D E C I S I O NOn appeal from summary judgment, we consider whether genuine issues of material fact exist and whether the district court erred in its application of the law. Prior Lake Am. v. Mader, 642 N.W.2d 729, 735 (Minn. 2002); State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). This consideration views the evidence in the light most favorable to the nonmoving party and resolves any doubts on the existence of material-fact issues against the moving party. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).
Because it is dispositive of the negligence claim at issue here, we first address whether this claim is preempted by federal law. In the context of warning devices at railroad crossings, it is well established that certain tort claims are preempted through a combination of federal statutes and accompanying regulations. Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344, 120 S. Ct. 1467 (2000); CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 113 S. Ct. 1732 (1993). Specifically, under the Federal Railroad Safety Act of 1970,[2] the Highway Safety Act of 1973,[3] and 23 C.F.R. § 646.214 (2005), "state tort claims concerning the adequacy of all warning devices installed with federal funds" are preempted. Shanklin, 529 U.S. at 357, 120 S. Ct. at 1476.
(3)(i) Adequate warning devices, under § 646.214(b)(2) or on any project where Federal-aid funds participate in the installation of the devices[,] are to include automatic gates with flashing light signals when one or more of the following conditions exist:
(A) Multiple main line railroad tracks.
(B) Multiple tracks at or in the vicinity of the crossing which may be occupied by a train or locomotive so as to obscure the movement of another train approaching the crossing.
(C) High Speed train operation combined with limited sight distance at either single or multiple track crossings.
(D) A combination of high speeds and moderately high volumes of highway and railroad traffic.
(E) Either a high volume of vehicular traffic, high number of train movements, substantial numbers of schoolbuses or trucks carrying hazardous materials, unusually restricted sight distance, continuing accident occurrences, or any combination of these conditions.
(F) A diagnostic team recommends them.
(ii) In individual cases where a diagnostic team justifies that gates are not appropriate, FHWA may find that the above requirements are not applicable.
(4) For crossings where the requirements of § 646.214(b)(3) are not applicable, the type of warning device to be installed, whether the determination is made by a State regulatory agency, State highway agency, and/or the railroad, is subject to the approval of FHWA.
23 C.F.R. § 646.214(b)(3), (4).
In its order granting BNSF's motion for summary judgment, the district court concluded that the regulatory scheme in 23 C.F.R. § 646.214(b) did not preempt Ellingson's negligence claim because the claim was based on the location of the warning device, not on the type of warning device used. The district court wrote that Ellingson's claim did not fall "within the purview of any federal regulations concerning grade crossings."
At the time of its opinion, however, the district court did not have the benefit of our decision in Hernandez. The plaintiffs in Hernandez claimed that the passive warning devices in that case were inadequate and that the location of the stop sign made conditions hazardous for motorists approaching the crossing because of sight obstructions. Second Amended Compl. ¶¶ 68-73, Hernandez v. State (No. 42-C1-01-51) (Lyon County Dist. Ct., Aug. 16, 2001). We held that federal preemption extends not only to claims that a different type of warning device should have been installed at a particular crossing, but also to claims based on the negligent location of a stop sign at a crossing. Hernandez, 680 N.W.2d at 113-14 (stating that "for the same reasons that we concluded that federal law preempted a state-law negligence action for inadequate warning devices, we conclude that federal law preempts Hernandez's state-law claim alleging negligent placement of the stop sign").
Ellingson attempts to distinguish his stop-sign-location claim from that in Hernandez. Ellingson presented an expert affidavit to the district court in an effort to establish that BNSF had a duty to locate the stop sign in conformity with standards in the Manual on Uniform Traffic Control Devices (MUTCD). Subsection (b)(1) of 23 C.F.R. § 646.214 states: "All traffic control devices proposed shall comply with the latest edition of the Manual on Uniform Traffic Control Devices for Streets and Highways supplemented to the extent applicable by State standards." Ellingson reasons that, because his claim is based on BNSF's failure to locate the stop sign in compliance with the MUTCD, which is mentioned in subsection (b)(1) but not in subsection (b)(3) or subsection (b)(4), his claim is not preempted. Indeed, Easterwood and Shanklin make clear that, in contrast to subsections (b)(3) and (b)(4), subsection (b)(1) does not preempt state law. "The MUTCD provides a description of, rather than a prescription for, the allocation of responsibility for grade crossing safety between Federal and State Governments and between States and railroads,' and hence disavows any claim to cover the subject matter of that body of law.'" Shanklin, 529 U.S. at 352, 120 S. Ct. at 1473 (quoting Easterwood, 507 U.S. at 669-70, 113 S. Ct. at 1740).
Ellingson's argument based on subsection (b)(1), however, is unavailing for two reasons. First, Shanklin establishes that the relevant analysis for preemption is not an examination of whether states or railroads in fact meet the exact standards in subsections (b)(3) or (b)(4) or in the MUTCD, but rather whether the warning devices were approved and funded by the FHWA. Id. at 357-58, 120 S. Ct. at 1476 ("It is [the] displacement of state law concerning the devices' adequacy, and not the State's or the FHWA's adherence to the standard set out in §§ 646.214(b)(3) and (4) or to the requirements of the MUTCD, that pre-empts state tort actions."). Second, Hernandez held that negligence claims based on the location of warning devices fall within the ambit of federal-preemption principles articulated in Easterwood and Shanklin. 680 N.W.2d at 113-14.
The record demonstrates that the stop sign at the 273rd Avenue crossing was approved by the FHWA and was paid for with federal funds. Accordingly, Ellingson's negligence suit is preempted. The decision to grant BNSF's motion for summary judgment was correct, although for reasons other than those stated by the district court. Because we affirm on preemption grounds, we need not address Ellingson's other claims of error.
Affirmed.
[1] A crossbuck is a sign with an "X" and the words "railroad crossing."
[2] Pub. L. No. 91-458, 84 Stat. 971 (codified as amended 49 U.S.C. §§ 20101-21304 (2000)).
[3] Pub L. No. 93-87, 87 Stat. 250 (codified as amended in scattered section of 23 U.S.C. (2000)).
[4] Ellingson also argues that BNSF was negligent when it failed to clear vegetation from its right of way. But the vegetation claim and the stop-sign claim cannot logically be separated. Not only did Ellingson claim that vegetation obstructed visibility up the tracks, but he also claimed that there was a hill obstructing motorists' visibility. Ellingson admits that the railroad had no duty to raze the hill, and his own expert stated in an affidavit that recent relocation of the stop sign to within 15 feet of the crossing provided a virtually unlimited sight distance for motorists, regardless of the hill and vegetation.
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