Strozyk v. Norfolk Southern Corp.

Opinions of the United

2004 Decisions States Court of Appeals

for the Third Circuit

1-20-2004

Strozyk v. Norfolk S Corp

Precedential or Non-Precedential: Precedential

Docket No. 02-3957

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PRECEDENTIAL

Filed January 20, 2004

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-3957

CLAIR STROZYK, Individually, as Parent of, and as

Co-Administrator of the Estate of Christopher Strozyk;

DENISE STROZYK, Individually, as Parent of, and as

Co-Administratrix of the Estate of Christopher Strozyk,

Appellants

v.

NORFOLK SOUTHERN CORP.;

JOSEPH SULLIVAN

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 01-cv-02478)

District Court Judge: Honorable Ronald L. Buckwalter

Argued October 2, 2003

Before: RENDELL, WEIS and GARTH, Circuit Judges.

(Filed: January 20, 2004)

Frederick E. Charles [ARGUED]

441 Linden Street

Allentown, PA 18101

Stephen L. Shields

104 West Fourth Street

P.O. Box 5456

Bethlehem, PA 18015

Counsel for Appellants

2

Paul F.X. Gallagher [ARGUED]

Gallagher, Rowan & Egbert

1500 Walnut Street

Suite 1600

Philadelphia, PA 19102

Counsel for Appellees

OPINION OF THE COURT

RENDELL, Circuit Judge.

Christopher Strozyk was killed at a railroad crossing

when a train owned and operated by Norfolk Southern

collided with the truck he was driving. Subsequently,

Strozyk’s parents filed suit against Norfolk, alleging, inter

alia, the railroad’s negligence for inadequate warning

devices at the grade crossing, excessive speed of the train,

and failure to provide proper sight lines for motorists

crossing the track. Norfolk moved the District Court for

summary judgment, arguing that much of the Strozyks’

complaint was preempted by virtue of the Federal Railroad

Safety Act of 1970 (“FRSA”), 84 Stat. 971, as amended, 49

U.S.C. § 20101 et seq. The District Court held that federal

regulations setting forth guidelines for the installation of

adequate warning devices, 23 C.F.R. §§ 646.214(b)(3) and

(b)(4), compelled the dismissal of most of the Strozyks’

claims. On appeal, the Strozyks contend that while several

allegations such as the inadequacy of warning devices may

have been properly dismissed, the District Court improperly

struck other claims arguably unrelated to the scope of

§ 646.214, namely, claims concerning limited sight lines

and failure to maintain a safe grade crossing. Because we

agree with the Strozyks that § 646.214 does not cover

claims of limited visibility and negligent maintenance of a

grade crossing, we will reverse.

I.

The fatal collision took place on May 8, 2000 at a railroad

crossing that intersects Smith Lane in Alburtis,

Pennsylvania. The District Court found that warning

3

devices, specifically crossbucks—the X-shaped signs placed

on posts that read “RAILROAD CROSSING”—were installed

at the Smith Lane crossing around June of 1987. These

warning signs were installed under the auspices of a

federal-state crossbuck replacement program and paid for

in part with federal funds, and were in place at the time of

Strozyk’s accident, thirteen years later. These facts are

unchallenged on this appeal.

Following the accident, in March of 2001, the Strozyks

filed a wrongful death and survival action in Pennsylvania

state court, asserting various claims of negligence against

Norfolk.1 After removing the case to the District Court

based on diversity jurisdiction, Norfolk then moved for

summary judgment. It argued that the FRSA preempted

state tort claims where federal funding was involved in the

improvement of the grade crossing. Norfolk contended that

the crossbucks at the Smith Lane crossing were installed in

part with federal money and that, consequently, the

Strozyks’ claims were preempted. In an order issued on

June 5, 2002, the District Court agreed, and granted

Norfolk’s motion for partial summary judgment, eliminating

all but two of the Strozyks’ claims as preempted. The

Strozyks do not appeal the District Court’s finding that the

warning devices at the Smith Lane crossing were installed

with federal funds nor do they appeal what follows from

that finding, i.e., that they may not challenge the warning

devices’ adequacy.

However, going beyond the claims relating to warning

devices, the District Court reasoned that § 646.214(b)

compelled the dismissal of several other claims unrelated to

warning devices, only two of which are the subject of this

1. The Strozyks’ complaint included numerous allegations including that

Norfolk: 1) failed to provide proper warning devices at the railroad

crossing; 2) failed to give proper sound, signal or warning of the presence

of its train; 3) failed to yield to the decedent’s right of way; 4) violated

local and federal laws concerning safety at railroad crossings; 5) operated

its train at excessive speed; 6) failed to provide proper sight lines for

vehicles crossing the tracks; 7) failed to adopt and install necessary

protective measures to safeguard against fatal accidents; 8) created a

foreseeable risk of injury to individuals crossing the tracks; and, 9) failed

to hire, employ, or retain personnel qualified to operate its trains.

4

appeal. First, the Strozyks claim that Norfolk violated its

duty of care under Pennsylvania law to maintain a safe

grade crossing. Second, and relatedly, the Strozyks claim

that obstructed sight lines at the grade crossing restricted

the ability to see oncoming trains. Indeed, the Strozyks’

principal allegation appears to be that excess vegetation,

which Norfolk had a duty to control, obscured decedent’s

view of the oncoming train.

After the District Court’s June 5 order, only two claims

remained: a) failing to give proper sound, signal, or warning

of the presence of the train prior to collision and b) violating

the decedent’s right of way. Norfolk then filed a motion for

summary judgment with respect to these claims, arguing

that its engineer had sounded a horn on its approach to the

Smith Lane Crossing. In responding to this motion, the

Strozyks conceded that a horn was blown and stated that

Norfolk’s motion was “unopposed.” Consequently, the

District Court, in an order issued on September 27, 2001,

granted Norfolk’s second motion for summary judgment

and dismissed the case.2 “Because the grant of summary

judgment and the dismissal of the complaint are

inconsistent,” we will disregard the District Court’s

reference to dismissal of the Strozyks’ complaint and treat

the record instead as a summary judgment record.

Cheminor Drugs, Ltd. v. Ethyl Corp., 168 F.3d 119, 121 n.2

(3d Cir. 1999).

2. In their reply brief, the Strozyks contend for the first time that the

District Court also erred with respect to the dismissal of the two

remaining claims, i.e., “failing to give proper sound, signal or warning of

the presence of [the] train prior to its collision with Plaintiffs’ decedent’s

vehicle under the circumstances” and “violating the Plaintiffs’ decedent,

Christopher Strozyk’s right of way under the circumstances.” But, as we

have repeatedly instructed, this Court requires appellants to set forth

issues and arguments raised on appeal in their opening brief. Thus, the

Strozyks’ challenge of the second summary judgment order was “one

brief too late.” Republic of Phil. v. Westinghouse Elec. Corp., 43 F.3d 65,

71 n.5 (3d Cir. 1994). Not only did the Strozyks fail to properly challenge

the second summary judgment on appeal, they did not, as already noted,

oppose the motion at the District Court level. We therefore decline to

disturb the District Court’s order in this regard.

5

II.

The District Court had subject matter jurisdiction

pursuant to 28 U.S.C. § 1332. Our jurisdiction for review of

the District Court’s final order is based on 28 U.S.C.

§ 1291. We review summary judgment motions de novo,

using the same test applicable to a district court. Mass.

Sch. of Law v. ABA, 107 F.3d 1026, 1032 (3d Cir. 1997).

A.

We are asked to determine whether 23 C.F.R.

§ 646.214(b) preempts the subject matter of state

negligence law regarding the maintenance of a safe grade

crossing, including duties with respect to restricted sight

lines. Subsections §§ 646.214(b)(3) and (4) set forth

guidelines for selecting the appropriate warning devices for

installation at grade crossings improved with federal

funding.3 These guidelines preempt state law by virtue of

3. Sections 646.214(b)(3) and (4) provide:

(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.

6

the FRSA’s express preemption provision. Pursuant to this

provision, state laws, regulations, and common law duties

concerning railroad safety remain in force until the

Secretary of Transportation promulgates regulations or

orders that “cover[ ] the subject matter of the State

requirement.” 49 U.S.C. § 20106. The Supreme Court has

observed that the FRSA’s preemption clause “displays

considerable solicitude for state law” and that preemption

will lie only if the federal regulations, in our case,

§§ 646.214(b)(3) and (4), “substantially subsume the subject

matter of the relevant state law.” CSX Transp., Inc. v.

Easterwood, 507 U.S. 658, 664–65 (1993). Particularly, the

Court in Shanklin v. Norfolk S. Ry. Co., 529 U.S. 344

(2000), has held that by virtue of the FRSA, these

regulations preempt state tort claims challenging the

adequacy of warning devices that are installed in part with

federal funds.

After first concluding that federal funds were expended

for the installation of the crossbucks at the Smith Lane

crossing, the District Court considered which of the

Strozyks’ claims were preempted by the FRSA. The District

Court dismissed the Strozyks’ claims that the crossbucks at

the grade crossings were inadequate—a determination

which the Strozyks do not challenge. But the District Court

went on to dismiss other claims which the Strozyks argue

were not within the subject matter of § 646.214(b). Reading

Shanklin broadly, the District Court held that § 646.214(b)’s

subject matter covered not only warning device claims, but

other negligence claims arising out of a grade crossing

accident. The Court set forth two rationales for its dismissal

of the Strozyks’ claims concerning limited sight lines and

failure to maintain a safe grade crossing. On appeal,

Norfolk posits a third ground for affirmance.

(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) (2003).

7

First, with respect to the Strozyks’ limited visibility claim,

the District Court observed that § 646.214(b) lists

“unusually restricted sight distance” as a factor mandating

the installation of active warning devices. The District Court

reasoned that the standard set by the regulation

encompasses not just the ultimate selection of a warning

device but “all the considerations set forth in section

646.214(b)(3)(A) through (F), including the appropriate

response to limited sight distance or unusually restricted

sight distance.” The Court concluded that because the

federal regulation’s subject matter includes visibility, the

Strozyks’ limited sight lines claim was preempted.

Second, with respect to the Strozyks’ claim that Norfolk

did not maintain a safe grade crossing, the District Court

held that it would “defy logic to allow preemption in the

case of a specific allegation that a railroad failed to

maintain adequate warning devices, rendering a grade

crossing unsafe, but not the general allegation that a

railroad failed to maintain a safe grade crossing.” After

concluding that the specific claims concerning warning

devices and the general claims of a safe grade crossing were

“one in the same [sic]”, the District Court dismissed the

Strozyks’ general maintenance claims as preempted. Id.

Norfolk urges that, in addition to adopting the District

Court’s reasoning regarding the scope of the regulation, we

should affirm on different grounds, namely, that Norfolk

met its duty of care to the decedent. Indeed, on appeal

Norfolk appears to sidestep the substance of the District

Court’s preemption determination, and instead, challenges

the merits of the Strozyks’ claims under Pennsylvania

negligence law. Norfolk contends that Pennsylvania

common law establishes an either/or standard for due care

at a grade crossing: sounding a horn obviates a railroad’s

duty to provide proper sight lines and vice versa. Pointing

to the Strozyks’ concession to the District Court that the

train engineer did sound a horn 1,500 to 1,800 feet from

the crossing, Norfolk argues that even in the absence of

preemption, the fact that it gave the sound warning

necessarily means that it prevails as a matter of law on the

Strozyks’ claims, regardless of any limited sight lines or

failure to maintain a safe grade crossing.

8

We consider each argument in turn.

B.

The District Court’s reading of § 646.214(b) framed the

basis for its dismissal of the Strozyks’ limited sight lines

claim. Thus, we begin with the language and intent of the

regulation. Section 646.214(b), promulgated under the

authority of both the FRSA and the Highway Safety Act of

1973, sets forth the design standards of the Federal

Railway-Highway Crossings Program (“Crossings Program”),

23 U.S.C. § 130, which offers states federal funding to

improve grade crossings. Subsections (b)(3) and (4), in

particular, require the installation of automatic gates with

flashing light signals given certain conditions, such as high

speed train operation, high volume of automobile traffic,

and restricted sight distance.

We can find nothing in the text of the regulation that

dictates that the Strozyks’ visibility claim was preempted

along with their claims regarding the adequacy of the

warning devices. To the contrary, the plain language of the

regulation indicates that the subject matter is the adequacy

of warning devices, not the considerations involved in

choosing them or state negligence law more broadly. The

regulations provide that “[a]dequate warning devices . . . are

to include automatic gates with flashing light signals when

one or more of the following conditions exist . . . .” The bare

mention of these conditions, including limited visibility,

does not indicate an intent to regulate those conditions. By

this reasoning, each of the listed considerations, e.g.,

schoolbus traffic, high speed trains, or trucks freighted

with hazardous materials, would be the subject matter of

the regulation. The plain meaning of the regulation defies

such an expansive reading.

To be certain, the regulations before us do involve the

issue of limited sight distance. But the Supreme Court has

cautioned that a showing that certain FRSA regulations

preempt state law requires “more than that they ‘touch

upon’ or ‘relate to’ that subject matter . . . .” Easterwood,

507 U.S. at 664. For preemption to be found, the regulation

must “substantially subsume[ ]” a subject area of state law.

9

Id. The mere listing of various conditions that would require

active warning devices as a matter of federal law does not

constitute substantial subsumption requiring the

displacement of related state law. We therefore find that the

District Court erred in its reading of the regulation and its

dismissal of the Strozyks’ limited sight distance claim.

C.

With respect to the Strozyks’ claim regarding general

maintenance of a safe grade crossing, the District Court

held that it was illogical to preempt claims of inadequate

warning devices while leaving untouched such a general

negligence claim, concluding that the warning devices claim

and the general maintenance claim essentially collapsed

into each other. But, we do not believe that the text of the

regulation, discussed above, or its interpretation by the

Supreme Court, compels this result.

In the two principal Supreme Court opinions that guide

our analysis in this area, Easterwood and Shanklin, the

plaintiffs sued a railroad for, among other claims,

inadequate warning signals at grade crossings. The

Supreme Court held that once federal funding has been

used to install warning devices, the railroad is relieved of

liability as to those claims. See Shanklin, 529 U.S. at 358;

Easterwood, 507 U.S. at 670. The Court held that with

federally funded grade crossing improvements, a railroad’s

state law obligations with respect to appropriate warning

devices are superseded by federal requirements as set forth

in §§ 646.214(b)(3) and (4).

In Easterwood, a widow brought a wrongful death action

under Georgia law on behalf of her husband, who died in

a grade crossing collision. She sued the railroad for, among

other things, failing to maintain adequate warning devices

at the grade crossing and operating the train at excessive

speed. 507 U.S. at 661. The Supreme Court considered

whether several regulations promulgated under the FRSA

preempted Easterwood’s claims. First, it considered the

provisions of 23 C.F.R. pt. 924, the regulations that outline

“the general terms of the bargain between the Federal and

State Governments.” Id. at 667. The Court ruled that

10

nothing on the face of these regulations indicated an

intention to alter the states’ traditional role in regulating

railroads. Id. at 667-68. Second, the Court ruled that 23

C.F.R. § 646.214(b)(1)’s requirement that states comply with

the Manual on Uniform Traffic Control Devices for Streets

and Highways (“Manual”) did not preempt the Easterwood’s

claims. “Rather than establishing an alternative scheme of

duties incompatible with existing Georgia negligence law,

the Manual disavows any claim to cover the subject matter

of that body of law.” Id. at 670.

Lastly, the Court considered the regulations that form the

basis of the appeal before us: §§ 646.214(b)(3) and (4). The

Court held that these regulations “displace state and

private decisionmaking authority by establishing a federal-

law requirement that certain protective devices be installed

or federal approval obtained.” Id. Hence, these regulations

preempt, when applicable, claims challenging the adequacy

of warning devices. Yet, because the federal Crossing

Program warning devices were never actually installed at

the accident site, the Court ultimately found that

Easterwood’s warning device claims were not preempted.4

The Court in Shanklin followed the path it had forged in

the Easterwood case. Like the decedents in Easterwood and

the case at bar, Eddie Shanklin died when his truck

collided with a train at a grade crossing. Unlike the grade

crossing in Easterwood, there were indeed warning devices

at the grade crossing which were installed with federal

participation. The defendant railroad appealed an adverse

verdict for, inter alia, the inadequacy of those warning

devices. Guided by Easterwood, the Court ruled for the

railroad, holding that existence of warning devices installed

under the auspices of the Crossings Program preempted

claims challenging the adequacy of those warning devices.5

4. The Court ruled, however, that Easterwood’s state law excessive speed

claim was preempted by 49 C.F.R. § 213.9(a), which sets maximum

allowable operating speeds for all freight and passenger trains.

Easterwood, 507 U.S. at 673. Easterwood had conceded that the train

that killed her husband was traveling under the speed limit prescribed

by this federal regulation. Id.

5. Like the Strozyks, the plaintiff in Shanklin also alleged that Norfolk

had been negligent by failing to remove vegetation from the area

11

See Shanklin, 529 U.S. at 358 (holding that “once

[railroads] have installed federally funded devices at a

particular crossing—[states may not] hold the railroad

responsible for the adequacy of those warning devices”).

Moreover, the Court settled a division among the Circuit

Courts of Appeals by clarifying that an individualized

determination ensuring the adequacy of warning devices at

a particular crossing is not a necessary precondition to

preemption. Id. at 356. Rather, the Court held in both

Easterwood and Shanklin that state law challenges to the

adequacy of warning devices installed pursuant to

§ 646.214(b) are preempted.

Unfortunately, the Court made a few broad

pronouncements in these opinions that seemingly point to

a blanket preemption of state tort law. The Court in

Easterwood stated that § 646.214(b) “therefore cover[s] the

subject matter of state law which, like the tort law on which

respondent relies, seeks to impose an independent duty on

a railroad to identify and/or repair dangerous crossings.”

507 U.S. at 671; see also Shanklin, 529 U.S. at 353

(quoting this language). Even more broadly, the Court

stated that “[e]xamination of these regulations

[§ 646.214(b)(3) and (4)] demonstrates that, when they are

applicable, state tort law is pre-empted.” Easterwood, 507

U.S. at 670. Read in isolation, these sentences seem to

support the District Court’s reasoning and the sweeping

proposition that § 646.214(b) relieves railroads of any

common law duty, including duties to maintain a safe

grade crossing that are unrelated to the adequacy of

warning devices.

surrounding the crossing. Norfolk conceded, however, in its Supreme

Court brief that Shanklin’s vegetation claim was not preempted by

federal law. See Brief for Petitioner at 47 n.25, Shanklin v. Norfolk S. Ry.

Co., 529 U.S. 344 (2000) (No. 99-312) (“[T]here is no dispute that Ms.

Shanklin is entitled on remand to a trial on her three remaining theories

of petitioner’s liability under state law: namely, the alleged failure of

petitioner to (1) sound the horn in a timely fashion; (2) apply the brakes

in a timely fashion; and (3) remove vegetation from the crossing.”

(emphasis added)). That is, of course, inconsistent with the position

Norfolk has assumed in the Strozyks’ lawsuit.

12

But these passages should not be read out of context.

Read in their totality, neither opinion speaks of supplanting

the negligence regime of the fifty states; nor do these cases

intimate that they are relieving railroads of any and all

state duties of care with respect to grade crossing safety in

general. Instead, the Supreme Court recognized that “the

scheme of [state] negligence liability could just as easily

complement” the basic division of state and federal

responsibilities under the Crossings Program regulations.

Easterwood, 507 U.S. at 668 (interpreting regulations

contained in 23 C.F.R. pt. 924). Indeed, the Court noted

that “with respect to grade crossing safety, the

responsibilities of railroads and the State are, and

traditionally have been, quite distinct.”6 Id. After

acknowledging the states’ traditional role in the regulation

of railroad safety, and invoking the presumption against

preemption, id. at 668, it would be odd indeed if the Court

intended its construction of § 646.214 to entirely displace

state law assuring safety at grade crossings, separate and

apart from the adequacy of warning devices. And, in fact,

the last chapter of the Shanklin litigation makes this clear.

After the Supreme Court’s remand order, the plaintiff

proceeded with, and prevailed in, a jury trial with respect to

a limited sight lines/tort vegetation claim, similar to that

alleged by the Strozyks. Shanklin v. Norfolk S. Ry. Co., No.

94-1212, slip op. at 3, (W.D. Tenn. Oct. 24, 2001).

6. By virtue of the FRSA, § 646.214(b) did, of course, modify the

traditional scheme of railroad negligence liability. Prior to the FRSA, the

railroad generally was required to identify hazardous crossings, help

select adequate warning devices, seek state approval for, and when

necessary, finance the installation of, those warning devices. Brief of

Amicus Curiae United States at 17, CSX Transp., Inc. v. Easterwood, 507

U.S. 658 (1993) (Nos. 91-790 and 91-1206). The Supreme Court has

observed that participation in the federal Crossings Program altered this

division of responsibility. The federal government by virtue of

§ 646.214(b) has “effectively set the terms under which railroads are to

participate in the improvement of crossings.” Easterwood, 507 U.S. at

670. And it is this federal involvement that relieves the railroad from

suits challenging the adequacy of warning devices. While § 646.214(b)

effected changes in the improvement of grade crossings, it did not

eliminate other long-standing responsibility imposed on railroads by the

various states.

13

Our reading also comports with the interpretation given

to the regulation by the Federal Highway Administration

(“FHWA”), which the Supreme Court has quoted with

approval. In Shanklin, the Court noted that it had earlier

adopted as authoritative the FHWA’s construction of

§ 646.214(b). Id. at 356 (“Thus, Easterwood adopted the

FHWA’s own understanding of the application of

§§ 646.214(b)(3) and (4), a regulation that the agency had

been administering for 17 years.”) (citing Brief of Amicus

Curiae United States at 24, CSX Transp., Inc. v.

Easterwood, 507 U.S. 658 (1993) (Nos. 91-790 and 91-

1206) (“U.S. Brief ”)). The FHWA’s declaration made clear

the limited scope of § 646.214(b). “[W]e do not believe

federal grade crossing regulations cover the entire subject

matter of a railroad’s duty to provide a reasonably safe

grade crossing.” U.S. Brief at 18. “As a result,

§§ 646.214(b)(3) and (4) ‘cover the subject matter of

adequate safety devices at crossings that have been

improved with the use of federal funds.’ ” Shanklin, 529

U.S. at 354 (quoting U.S. Brief at 23). Thus, the ambit of

§ 646.214(b) is limited to the adequacy of warning devices,

nothing more.

And, the courts have recognized that state law duties to

maintain a safe grade crossing remain viable. In dicta, the

Supreme Court observed that Georgia law imposes a duty

on railroads to “take all reasonable precautions to maintain

grade crossing safety.” Easterwood, 507 U.S. at 665 n.5

(citing Southern R. Co. v. Georgia Kraft Co., 373 S.E.2d 774,

776 (Ga. Ct. App. 1988), overruled by Evans Timber Co.,

Inc. v. Central of Ga. R.R. Co., 519 S.E.2d 706, 709 (Ga. Ct.

App. 1999)). Georgia’s laws on railroads have changed since

Easterwood, but as noted by the Georgia Court of Appeals

“[w]ithout question, the common-law duty of the railroad,

except with respect to initiating and authorizing the

installation of protective devices at a railroad crossing,

remains in effect . . . . A railroad may still be liable for

other negligent conduct, such as the failure to maintain a

working crossing arm or obstructing vision at a crossing.”

Evans Timber, 519 S.E.2d at 709-10. Similarly, in a case

that involved, as here, allegations of excessive vegetation,

the Supreme Court of Mississippi held that “[t]he language

and discussion [in Shanklin] throughout refer exclusively to

14

the installation and maintenance of warning devices alone

and not the maintenance of the general track conditions.”

Clark v. Ill. Cent. Ry. Co., 794 So.2d 191, 196 (Miss. 2001).

For these reasons, we decline to adopt an expansive view

of §§ 646.214(b)(3) and (4).7 While, as Easterwood and

Shanklin make clear, §§ 646.214(b)(3) and (4) substantially

altered the landscape of railroad liability, by restricting tort

plaintiffs from interposing state law obligations concerning

appropriate warning devices, the regulations do not eclipse

those duties ensuring safe grade crossings that are

unrelated to warning devices, such as the duty to keep

visibility at grade crossings free from obstructions. As those

regulations cover the subject matter of warning devices, the

Strozyks’ claims that Norfolk failed to maintain a safe grade

crossing, apart from the warning devices, and relatedly

failed to ensure clear sight lines of oncoming trains are not

preempted.

D.

Norfolk’s principal argument on appeal is that

Pennsylvania common law establishes an either/or

standard of due care at a grade crossing: sounding a horn

obviates a railroad’s duty to provide proper sight lines and

vice versa. Given the Strozyks’ concession that a horn was

7. The Strozyks averred that excessive vegetation existed at the crossing

when the accident occurred, thirteen years after the warning devices

were installed there. The District Court reasoned that because

§ 646.214(b) prescribes automatic gates for limited sight conditions, the

installation of crossbucks at the Smith Lane Crossing indicates that no

limited sight problem existed there. This inference does not necessarily

follow; however accurate the assessment of the grade crossing may have

been in 1987, much may have changed since, including an overgrowth

of vegetation. In any event, such an inference should be read in the light

most favorable to the Strozyks as nonmovants challenging summary

judgment. S.E.C. v. Hughes Capital Corp., 124 F.3d 449, 452 (3d Cir.

1997). We note, however, that despite any change of conditions, claims

regarding the inadequacy of warning devices remain preempted.

Shanklin, 529 U.S. at 357-58 (“Whether the State should have originally

installed different or additional devices, or whether conditions at the

crossing have since changed such that automatic gates and flashing

lights would be appropriate, is immaterial to the pre-emption question.”).

15

sounded, Norfolk argues that irrespective of our decision on

preemption, it should ultimately prevail as a matter of law.

This challenge to the Strozyks’ claims is made for the

first time on this appeal. While in its second motion for

summary judgment, Norfolk had made a similar argument

regarding Pennsylvania common law, that motion only dealt

with the two remaining claims of failure to give proper

sound, signal, or warning of the presence of the train prior

to collision and violation of decedent’s right of way; the

remaining claims had been already preempted.

Axiomatically, we decline to pass on issues not decided by

the lower court. Peachlum v. City of York, Pa., 333 F.3d

429, 439-40 (3d Cir. 2003) (“It is the general rule, of

course, that a federal appellate court does not consider an

issue not passed upon below.” (quoting Singleton v. Wulff,

428 U.S. 106, 120 (1976))). We leave it for the District

Court to address the merits of Norfolk’s argument with

respect to Pennsylvania common law on this issue.

We note that, were this a pure matter of law, we might

view the situation differently, and seek supplemental

briefing so as to resolve this issue. However, the case law

cited by Norfolk does not appear to us to draw as clear a

line as Norfolk urges.8 Instead, the caselaw renders the

determination as to the railroad’s duty of care to be heavily

fact-contingent, with all the conditions being relevant. A

railroad must “exercise ordinary care at a crossing by

adopting a reasonably safe and effective method,

commensurate with the dangers of a particular crossing, of

warning travelers of the approach of the train.” Nat’l

Freight, Inc. v. Southeastern Pa. Transp. Auth., 698 F. Supp.

74, 78 (E.D. Pa. 1988), aff ’d, 872 F.2d 413 (3d Cir. 1989)

(discussing Pennsylvania common law); McGlinchey v.

Baker, 356 F.Supp. 1134, 1142 (E.D.Pa. 1973) (Becker, J.).

Pennsylvania cases wrestle with the effect of all types of

8. Indeed, Norfolk conceded in oral argument that the cases it relies

upon for this proposition establish merely that railroads have a duty to

warn. Since warnings can either be visual or auditory, Norfolk

extrapolated its rule that its sounding of a horn discharged in full its

duty of care to the decedent. Pennsylvania case law does not however

appear to clearly state the principle urged by Norfolk.

16

conditions and obstructions, such as vegetation or

embankments, the speed of the oncoming train, and

whether a whistle was sounded; none base a determination,

as a matter of law, on one factor alone such as a horn

warning. See, e.g., Buchecker v. Reading Co., 412 A.2d 147,

153 (Pa. Super. Ct. 1979) (“[T]he sound warnings, by

whistle and bell, if given, were given in a deep ditch or cut

where the sound waves could only be impeded by the sides

of the embankment and so deflected that they could not

adequately warn [motorists].”). Thus, the adequacy of any

warning, visual or auditory, depends on the circumstances

at the crossing such as visibility and terrain, and not a

single factor such as auditory or visual cues. We will leave

the issue of whether or not the railroad met its duty of care,

and the relevant standard, for the District Court and the

fact finder on remand.

III.

As § 646.214(b) only covers the subject matter of warning

devices, we will reverse the District Court’s order granting

summary judgment to Norfolk.9 In light of the limited scope

of the Strozyks’ appeal, we reinstate only those claims

relating to limited sight conditions, namely excessive

vegetation, and general maintenance of a safe grade

crossing, apart from the adequacy of warning devices. We

will therefore remand for further proceedings in accordance

with this opinion.

9. Our decision today is limited to the regulation considered by the

District Court, namely § 646.214(b). We note another federal regulation

promulgated under the FRSA requires railroads to control vegetation on

railroad property which is on or immediately adjacent to the roadbed. 49

C.F.R. § 213.37. Additionally, the Pennsylvania Public Utility

Commission requires railroads to control vegetation within 200 feet of a

grade crossing to ensure visibility by motorists. 66 Pa. Cons. Stat. Ann.

§ 2702(b). However, the District Court did not consider nor do we

express any opinion as to the applicability of these or any other

regulations to the case at bar.

17

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit