Robert Zimmerman v. Norfolk Southern Corporation

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-3369

_____________

ROBERT ZIMMERMAN,

Appellant

v.

NORFOLK SOUTHERN CORPORATION

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Court No. 05-10-cv-02267

District Judge: The Honorable James Knoll Gardner

Argued September 10, 2012

Before: SMITH, CHAGARES, and ALDISERT, Circuit

Judges

(Filed: January 23, 2013 )

Joshua M. Autry

Dennis E. Boyle [ARGUED]

Boyle, Autry & Murphy

4660 Trindle Road

Suite 200

Camp Hill, PA 17001

Emily M. Bell

Jeffrey A. Conrad

Clymer, Musser, Brown & Conrad

408 West Chestnut Street

Lancaster, PA 17603

Counsel for Appellant

Richard K. Hohn [ARGUED]

Robert M. Stroh

Hohn & Scheuerle

1700 Market Street

Suite 3242

Philadelphia, PA 19103

Counsel for Appellee

________________

OPINION

________________

SMITH, Circuit Judge.

Robert Zimmerman was riding his motorcycle on a

summer evening in 2008. He approached a railroad crossing,

but it was dark and a building obscured the tracks. When he

2

was less than seventy-six feet away, he noticed that a train

was approaching. He tried to stop, but his front brake locked

and he flew over the handlebars, colliding headfirst with a

locomotive. The collision left him partially paralyzed. He

sued Norfolk Southern Corporation in federal court, asserting

three state tort claims.1

Railroads are among the most heavily regulated

American industries. Unfortunately for Zimmerman, many of

these regulations preempt state tort claims. The Federal

Railroad Safety Act (―FRSA‖) contains a provision that

outlines the scope of preemption. 49 U.S.C. § 20106. The

District Court for the Eastern District of Pennsylvania relied

on this provision in granting summary judgment for Norfolk

Southern, concluding that most of Zimmerman’s claims were

preempted. We will reverse in part and affirm in part.

I

Diller Avenue is a two-lane road that runs diagonally

through New Holland, Pennsylvania. In the southern part of

town, Diller Avenue intersects a railroad track owned and

1

The proper party to this action appears to be Norfolk

Southern Railway Company, a subsidiary of Norfolk

Southern Corporation, but neither party has moved to amend

the caption. See Zimmerman v. Norfolk S. Corp., No. 10-cv-

02267, 2011 WL 3625039, at *1 n.1 (E.D. Pa. Aug. 17,

2011). We refer throughout to the appellee as Norfolk

Southern.

3

operated by Norfolk Southern. Because of the location of a

tavern northwest of the crossing, southbound motorists have a

difficult time seeing eastbound trains. For example, a motorist

who is seventy-six feet away can see only sixty-five feet

down the tracks. The speed limit on Diller Avenue is thirty-

five miles per hour, while the speed limit on the tracks is

subject to some disagreement. Norfolk Southern argues that

the limit is at least twenty-five and maybe forty miles per

hour, but Zimmerman argues that it is ten miles per hour.

The Diller Avenue crossing has been the scene of a

number of accidents over the years. Five accidents were

reported at the crossing in the 1970s. A decade later, the

Commonwealth of Pennsylvania and the crossing’s former

owner installed two white railroad-crossing signs, called

crossbucks, with the use of federal funds. Since the

installation of these signs, five more accidents have been

reported. At the time of Zimmerman’s accident, there was a

crossbuck fixed on each side of the track; there was also a

yellow warning sign on Diller Avenue, 150 feet north of the

crossing, together with painted warnings on the street.

Zimmerman contends that these warnings had fallen into

disrepair—tree branches covered the signs on the north side

and the street markings had faded.

On June 12, 2008, Zimmerman celebrated his thirty-

eighth birthday. After a game of church softball and a trip to

his mother’s house, he headed for home on his motorcycle. It

was dark, and Zimmerman was wearing a helmet and riding

within the speed limit. He turned south onto Diller Avenue

4

and approached the crossing—a crossing he did not believe

was still active. Meanwhile, an eastbound Norfolk Southern

train consisting of only two engines approached the crossing

travelling twenty-four miles per hour. It sounded its horn.

Zimmerman apparently failed to notice that the train

was about to enter the crossing until he was less than seventy-

six feet away.2 At that point, he was too close to the track to

stop.3 One of the train operators noticed Zimmerman around

this time but could not stop the train soon enough to avoid the

collision. Zimmerman aggressively applied the brake of his

motorcycle, causing the front wheel to lock. He flipped over

the handlebar and flew headfirst into the gas tank of the lead

engine. The collision left him partially paralyzed.

Zimmerman sued Norfolk Southern in the Eastern

District of Pennsylvania under Pennsylvania tort law. His

complaint listed four counts: failure to warn; failure to

maintain a safe crossing; failure to ensure that the crossing

devices complied with federal regulations; and punitive

damages. On August 17, 2011, the District Court granted

2

Zimmerman has only a vague recollection of the

events, so the experts have attempted to recreate the crash.

One of Zimmerman’s experts concluded that ―[w]hen

Zimmerman was 76 to 97 feet away from the point of

collision, the train was not visible.‖ J.A. 687.

3

According to Zimmerman’s expert, a vehicle

travelling thirty-five miles per hour needs at least seventy-six

feet to stop.

5

Norfolk Southern’s motion for summary judgment,

concluding that some of Zimmerman’s claims were

preempted and that others did not create a genuine issue of

material fact.

Zimmerman filed a timely notice of appeal.4 We

exercise plenary review over the District Court’s decision to

grant a motion for summary judgment. Orvosh v. Program of

Grp. Ins. for Salaried Emps. of Volkswagen of Am., 222 F.3d

123, 129 (3d Cir. 2000). We construe the evidence in the light

most favorable to Zimmerman, Matsushita Elec. Indus. v.

Zenith Radio Corp., 475 U.S. 574, 587–88 (1986), and we

affirm ―if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment

as a matter of law,‖ Fed. R. Civ. P. 56(a). A ―genuine

dispute‖ exists if a reasonable jury could find for the

nonmoving party. Fakete v. Aetna, Inc., 308 F.3d 335, 337

(3d Cir. 2002).

II

The doctrine of preemption permeates Zimmerman’s

appeal. Norfolk Southern argues that various federal

regulations preempt Zimmerman’s claims under the FRSA

preemption provision. 49 U.S.C. § 20106. We have

interpreted the provision a few times over the years, but

Congress changed it in 2007. We begin our discussion by

4

The District Court had jurisdiction under 28 U.S.C.

§ 1332, and we have jurisdiction under 28 U.S.C. § 1291.

6

providing a framework for analyzing preemption under the

amended FRSA. We do so because we have yet to interpret

the amendment and because this analysis is relevant to each

of Zimmerman’s claims. We then turn to those claims.

The Supremacy Clause of the United States

Constitution is the source of preemption. U.S. Const. art. VI,

cl. 2. Under the Supremacy Clause, federal law trumps or

preempts state law whenever the two are in conflict.

Preemption can be express or implied—either way, the effect

is the same: preemption renders the relevant state law invalid.

See Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98

(1992); Holk v. Snapple Beverage Corp., 575 F.3d 329, 334

(3d Cir. 2009) (recognizing that implied preemption comes in

two varieties: field preemption and conflict preemption). We

tend to interpret federal statutes in a way that avoids implied

preemption. Holk, 575 F.3d at 334 (citing Bates v. Dow

Agrosciences LLC, 544 U.S. 431, 449 (2005)). The same is

not true of express preemption.

Here, the FRSA expressly preempts state railroad law.

Subsection (a) outlines the scope of FRSA preemption:

―Laws, regulations, and orders related to railroad safety . . .

shall be nationally uniform to the extent practicable.‖ 49

U.S.C. § 20106(a)(1). Yet the FRSA does not preempt all

state railroad law: ―A State may adopt or continue in force a

law, regulation, or order related to railroad safety or security

until the Secretary of Transportation . . . prescribes a

regulation or issues an order covering the subject matter of

the State requirement.‖ Id. § 20106(a)(2). Moreover, states

7

may adopt a ―more stringent law‖ if it is necessary to

eliminate a ―local safety or security hazard.‖ Id.

§ 20106(a)(2)(A). As the Supreme Court has noted, the FRSA

―displays considerable solicitude for state law.‖ CSX Transp.,

Inc. v. Easterwood, 507 U.S. 658, 665 (1993); see also

Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344, 352–54 (2000).

Before the 2007 amendment, we held that a federal

regulation preempts state law under subsection (a) if the

regulation ―substantially subsume[s] the subject matter of the

relevant state law.‖ Strozyk v. Norfolk S. Corp., 358 F.3d 268,

271 (3d Cir. 2004) (quoting Easterwood, 507 U.S. at 664)

(quotation marks omitted). The regulation must do more than

simply ―touch upon or relate to [the] subject matter‖ of the

state law. Id. at 273 (quoting Easterwood, 507 U.S. at 664)

(internal quotation marks omitted).

Congress amended the FRSA preemption provision in

2007 by adding subsection (b), which is a ―[c]larification

regarding State law causes of action‖:

(1) Nothing in this section shall be construed to

preempt an action under State law seeking

damages for personal injury, death, or property

damage alleging that a party—

(A) has failed to comply with the Federal

standard of care established by a regulation

or order issued by the Secretary of

Transportation . . . or the Secretary of

Homeland Security . . . , covering the

8

subject matter as provided in subsection (a)

of this section;

(B) has failed to comply with its own plan,

rule, or standard that it created pursuant to a

regulation or order issued by either of the

Secretaries; or

(C) has failed to comply with a State law,

regulation, or order that is not incompatible

with subsection (a)(2).

49 U.S.C. § 20106(b)(1).

The question before us is how to interpret the FRSA

preemption provision in light of the 2007 amendment.

Zimmerman argues that the amendment restricts the scope of

preemption and thus supersedes all prior cases interpreting

subsection (a), including our decision in Strozyk and the

Supreme Court’s decisions in Shanklin and Easterwood.

Norfolk Southern agrees that the amendment restricts

preemption in some respects but argues that it preserves cases

interpreting the phrase ―covering the subject matter of the

State requirement.‖ Id. § 20106(a)(2). We agree with Norfolk

Southern’s interpretation.

Statutory interpretation requires that we begin with a

careful reading of the text. See Bruesewitz v. Wyeth Inc., 561

F.3d 233, 244 (3d Cir. 2009) (noting that this Court

―decline[s] to employ legislative history if a statute is clear on

its face‖); Hay Grp., Inc. v. E.B.S. Acquisition Corp., 360

9

F.3d 404, 406 (3d Cir. 2004). The scope of the amendment is

clear from the text: it clarifies that claimants can avoid

preemption by alleging a violation of either a ―Federal

standard of care‖ or the railroad’s ―own plan, rule, or standard

that it created pursuant to a regulation or order.‖ 49 U.S.C.

§ 20106(b)(1)(A)–(B). The amendment otherwise preserves

the analysis for deciding whether a regulation preempts state

law.

For starters, the amendment did not change the

language of subsection (a). Federal regulations still preempt

state law if they ―cover[] the subject matter.‖ Id.

§ 20106(a)(2). The continued use of this language indicates

that the analysis remains the same. In fact, the amendment

explicitly preserves the right to seek damages for violating

state law, as long as the law is compatible with subsection

(a)(2). See id. § 20106(b)(1)(C). Moreover, the title of the

new subsection (b) is ―Clarification regarding State law

causes of action.‖ The word ―clarification‖ suggests that the

amendment attempted to resolve an ambiguity rather than

change substantive law. See Henning v. Union Pac. R.R. Co.,

530 F.3d 1206, 1216 (10th Cir. 2008) (―[T]he [title] . . .

indicates Congress sought to resolve an ambiguity rather than

effect a substantive change.‖). The amendment thus preserves

cases such as Strozyk and Shanklin that analyzed whether a

regulation covers state law. The amendment is significant for

a different reason: it clarifies that even when a regulation

covers the subject matter of a claim, the claim can avoid

preemption if the railroad violated a federal standard of care

10

or its internal rule. See 49 U.S.C. § 20106(b)(1)(A)–(B).5

5

Although the amendment’s plain text resolves the

question before us, its history is entirely consistent with our

analysis. In 2002, a train carrying anhydrous ammonia

derailed in Minot, North Dakota. Toxins filled the air, forcing

many local residents to evacuate. The toxins killed one person

and injured at least a hundred others. Two federal district

courts considered tort claims arising from the derailment.

Lundeen v. Canadian Pac. Ry. Co., 507 F. Supp. 2d 1006,

1009 (D. Minn. 2007); Mehl v. Canadian Pac. Ry., Ltd., 417

F. Supp. 2d 1104, 1106 (D.N.D. 2006). In both cases, the

courts interpreted the FRSA and concluded that the plaintiffs’

tort claims were preempted, even though the plaintiffs alleged

that the railroad violated federal regulations and its own

internal rules. See Mehl, 417 F. Supp. 2d at 1116–17 (holding

that the plaintiffs’ claims were preempted despite allegations

that the railroad violated federal regulations); Lundeen, 507 F.

Supp. 2d at 1011–12 (holding that the plaintiffs’ claims were

preempted despite allegations that the railroad violated its

internal rules).

Congress renounced these interpretations by passing

the 2007 amendment. A conference report stated that the goal

was ―to rectify the Federal court decisions related to the

Minot, North Dakota accident that are in conflict with

precedent.‖ H.R. Rep. No. 110-259, at 351 (2007), reprinted

in 2007 U.S.C.C.A.N. 119, 119. The report also states that the

―restructuring is not intended to indicate any substantive

change in the meaning of the provision.‖ Id.

11

We therefore conclude that the preemption analysis

under the amended FRSA requires a two-step process. We

first ask whether the defendant allegedly violated either a

federal standard of care or an internal rule that was created

pursuant to a federal regulation. If so, the plaintiff’s claim

avoids preemption. See 49 U.S.C. § 20106(b)(1)(A)–(B).

Otherwise, we move to the second step and ask whether any

federal regulation covers the plaintiff’s claim. See id.

§ 20106(a)(2). A regulation covers—and thus preempts—the

plaintiff’s claim if it ―substantially subsume[s] the subject

matter‖ of that claim. Easterwood, 507 U.S. at 664 (noting

that the regulation must do more than ―touch upon or relate to

[the] subject matter‖). In this step, we rely on precedent—

including cases that predate the 2007 amendment. This two-

step approach is consistent with the text of the amended

FRSA and its history, and is similar to approaches in the

Eighth and Tenth Circuits. Grade v. BNSF Ry. Co., 676 F.3d

680, 686 (8th Cir. 2012); Henning, 530 F.3d at 1216.

III

We address each of Zimmerman’s claims in turn.

A

Zimmerman’s first claim is that Norfolk Southern

negligently failed to warn him of the approaching train. In

Zimmerman’s complaint, this claim has at least three parts:

(1) the train failed to obey the speed limit; (2) the train failed

to use its light and horn; and (3) Norfolk Southern failed to

provide motorists with an adequate view of the track. But

12

Zimmerman conceded during oral argument that he lacks

evidence that the train failed to use its light and horn, and the

duty to provide adequate sight distance is a separate duty, as

discussed in Part III.B. Zimmerman’s first claim thus boils

down to a single claim: excessive speed.

1. Zimmerman’s excessive-speed claim is not

preempted because 49 C.F.R. § 213.9 creates

a federal standard of care.

Railroads have a duty under Pennsylvania law to warn

motorists of approaching trains. Wilson v. Pa. R.R. Co., 219

A.2d 666, 668–69 (Pa. 1966). This duty requires railroads to

avoid excessive speeds, since motorists are less likely to see

speeding trains, and sight is an important warning method.

See id. (explaining the relationship between a train’s speed

and its warning and noting that speeding trains have less time

to stop); see also Conner v. Pa. R.R. Co., 263 F.2d 944, 945–

46 (3d Cir. 1959).

Norfolk Southern allegedly violated this duty by

operating its train at more than double the speed limit. A

federal regulation establishes the speed limit for each class of

tracks: ten miles per hour for freight trains on Class 1 tracks,

twenty-five miles per hour on Class 2 tracks, forty miles per

hour on Class 3 tracks, and so on. 49 C.F.R. § 213.9. Both

sides agree that the train was travelling no more than twenty-

five miles per hour when it entered the crossing. Zimmerman

alleges that the track at the crossing was Class 1, which

would mean the train was travelling in excess of the speed

limit. Norfolk Southern responds that the track was Class 2 or

13

3, which would mean the train was travelling within the limit.

The initial question is whether 49 C.F.R. § 213.9

preempts Zimmerman’s excessive-speed claim. We note at

the outset that no other federal court of appeals has

considered whether such claims are preempted under the

amended FRSA provision. Before the 2007 amendment, the

Supreme Court held that speeding claims are preempted when

a train is travelling below the federally mandated speed limit.

Easterwood, 507 U.S. at 673–75 (concluding that the

plaintiff’s claim was preempted when the train was travelling,

at most, fifty miles per hour on tracks with a limit of sixty

miles per hour); see also Waymire v. Norfolk & W. Ry. Co.,

218 F.3d 773, 776 (7th Cir. 2000) (relying on Easterwood to

conclude that an excessive-speed claim was preempted under

the FRSA when the train was travelling below the speed

limit). But Easterwood is inapposite here because

Zimmerman alleges that the train he collided with was

travelling above the speed limit.

Zimmerman’s excessive-speed claim avoids

preemption if § 213.9 creates a federal standard of care. A

regulation creates a standard of care for FRSA preemption

purposes if it establishes the degree of care that the

defendant—in most cases, the railroad—must exercise. See

Black’s Law Dictionary 1441 (8th ed. 2004) (defining

―standard of care‖ as ―the degree of care that a reasonable

person should exercise‖); see also Henning, 530 F.3d at 1216

(concluding there is no federal standard of care if the

regulation takes the ―final authority to decide‖ what action is

14

needed ―out of the railroad’s [hands]‖ (internal quotations

marks and citations omitted)); Grade, 676 F.3d at 686 (same).

The Minot derailment cases provide a good example of

regulations that create a federal standard of care. Indeed, at

least some members of Congress had these cases in mind

when amending the FRSA. See H.R. Rep. No. 110-259, at

351 (2007), reprinted in 2007 U.S.C.C.A.N. 119, 119 (noting

that the goal of the FRSA amendment was ―to rectify the

Federal court decisions related to the Minot, North Dakota

accident that are in conflict with precedent‖). The plaintiffs in

Mehl v. Canadian Pacific Railway alleged that the railroad

had violated a number of regulations, including 49 C.F.R.

§§ 215.11 and 215.13, which require railroads to inspect

tracks and freight cars. See 417 F. Supp. 2d 1104, 1115 & n.5

(D.N.D. 2006). In prescribing how these inspections should

be carried out, the regulations create a federal standard of care

because they establish the degree of care that railroads must

exercise. By contrast, a regulation does not establish a federal

standard of care if the state is responsible for compliance. See

Grade, 676 F.3d at 686 (concluding that various regulations

did not create a federal standard of care because they ―place

the responsibility for implementing adequate warning devices

on the State, thereby preempting any cause of action alleging

a railroad failed to properly install an adequate warning

device‖). After all, if the state is responsible, railroads cannot,

―as a matter of law, fail to comply‖ with the regulation. Id.

(citation and internal quotation marks omitted).

We conclude that the speed limits in § 213.9 create a

15

federal standard of care. Section 213.9 establishes the degree

of care that railroads must exercise on each class of tracks:

trains should not exceed ten miles per hour on Class 1 tracks,

twenty-five miles per hour on Class 2 tracks, and so on. Like

the regulations in Mehl and unlike the regulations in Grade,

railroads are ultimately responsible for compliance—they

must ensure that their trains are travelling within the limit. As

a result, Zimmerman’s speeding claim is not preempted.

Because his claim avoids preemption in the first step of the

FRSA preemption analysis, we need not consider the second

step.

2. The District Court improperly excluded eight

crossing reports.

Zimmerman’s excessive-speed claim has cleared the

preemption hurdle, but it must also clear an evidentiary

hurdle. Zimmerman acknowledges that the train was

travelling within the speed limit for Class 2 and Class 3

tracks. He alleges, however, that the track was Class 1. There

is some evidence to support this allegation.

The record contains two types of documents that help

Zimmerman: crossing reports from the Department of

Transportation’s National Crossing Inventory and accident

reports from a similar database. The crossing reports state that

the speed limit is ten or fifteen miles per hour, and at least

some of the accident reports suggest that the track is Class 1.

The District Court nevertheless excluded these documents

based on two evidentiary privileges: 23 U.S.C. § 409 and 49

U.S.C. § 20903. Zimmerman argues that the District Court

16

misconstrued these privileges. We consider the crossing

reports here and the accident reports in the next section.

The National Crossing Inventory is a database of

highway-railroad crossings in the United States. The

inventory contains reports on each crossing, which include

information such as the number of trains that pass through

daily, the typical train speed, and the maximum speed.

Zimmerman accessed the database and obtained nine reports

on the Diller Avenue crossing—the oldest from 1970 and the

most recent from 2010. The nine reports were submitted to

the national inventory by different entities: four by the

Commonwealth of Pennsylvania, two by Norfolk Southern,

and two by Conrail, the prior owner of the crossing. It is

unclear who submitted the initial report. The reports state that

the typical train speed over the crossing is five to ten miles

per hour and that the ―Maximum Time Table Speed‖ is ten or

fifteen miles per hour.6

According to these crossing reports, Norfolk

Southern’s train was travelling too fast at the time of the

collision. Nevertheless, the District Court excluded them

based on the privilege created by 23 U.S.C. § 409:

Notwithstanding any other provision of law,

6

Eight crossing reports state that the ―Maximum Time

Table Speed‖ is ―10‖—presumably meaning miles per hour.

J.A. 995–1012. The ninth report states that the maximum

speed is ―15.‖ Id. at 1008–09.

17

reports, surveys, schedules, lists, or data

compiled or collected for the purpose of

identifying, evaluating, or planning the safety

enhancement of potential accident sites,

hazardous roadway conditions, or railway-

highway crossings, pursuant to sections 130,

144, and 148 of this title or for the purpose of

developing any highway safety construction

improvement project which may be

implemented utilizing Federal-aid highway

funds shall not be subject to discovery or

admitted into evidence in a Federal or State

court proceeding or considered for other

purposes in any action for damages arising from

any occurrence at a location mentioned or

addressed in such reports, surveys, schedules,

lists, or data.

Though pleonastically expressed, this statutory

privilege clearly has two parts. The first part excludes reports,

data, and the like if they were compiled or collected to

identify, evaluate, or plan ―the safety enhancement of

potential accident sites, hazardous roadway conditions, or

railway-highway crossings, pursuant to sections 130, 144, and

148 of [Title 23].‖ The second part excludes such documents

if they were compiled or collected to develop ―any highway

safety construction improvement project which may be

implemented utilizing Federal-aid highway funds.‖ The

District Court concluded that the crossing reports were

privileged under the first part of § 409.

18

Like all evidentiary privileges, we interpret this

privilege narrowly. Pierce Cnty. v. Guillen, 537 U.S. 129, 144

(2003) (concluding that courts should interpret § 409

narrowly because it ―impede[s] the search for the truth‖).

Moreover, the party invoking an evidentiary privilege has the

burden of proof. See In re Grand Jury Investigation, 918 F.2d

374, 385 n.15 (3d Cir. 1990) (―[A] party who asserts a

privilege has the burden of proving its existence and

applicability.‖).

We begin with the first part of the § 409 privilege.

Both sides agree that the reports from the National Crossing

Inventory were collected to evaluate railway-highway

crossings. They disagree, however, that the reports were

collected ―pursuant to sections 130, 144, and 148 of [Title

23].‖ Zimmerman asserts that collection of the reports was

not pursuant to any section, while Norfolk Southern asserts

that they were collected pursuant to § 130.

Congress passed the Federal-Aid Highway Act in

1973. Pub. L. No. 93-87, 87 Stat. 250 (1973). The Act created

the Federal Railroad Administration and imposed various

safety-related obligations on states that accept federal funds.

Some of these obligations are now codified in 23 U.S.C.

§ 130. In particular, subsection (d) requires states to maintain

an inventory of railroad crossings within their borders:

Each State shall conduct and systematically

maintain a survey of all highways to identify

those railroad crossings which may require

separation, relocation, or protective devices, and

19

establish and implement a schedule of projects

for this purpose. At a minimum, such a

schedule shall provide signs for all railway-

highway crossings.

23 U.S.C. § 130(d). When it was first passed, the Act did not

require any federal agency to maintain a national crossing

inventory.

Despite the absence of a statutory requirement, various

federal agencies, state highway departments, and private

railroad associations ―formed a voluntary cooperative effort‖

to create the National Crossing Inventory. Federal Railroad

Administration, U.S. DOT National Highway-Rail Crossing

Inventory: Policy, Procedures and Instructions for States and

Railroads 3 (2007),

http://www.fra.dot.gov/downloads/safety/RXIPolicyInstructio

ns0807.pdf [―2007 Manual‖]. Railroads and the Department

of Transportation agreed to share the costs, and the Federal

Railroad Administration became responsible for maintaining

the national inventory. See Federal Railroad Administration,

Highway-Rail Crossing Inventory Instructions and

Procedures Manual 1-3 to 1-4 (1996),

http://www.fra.dot.gov/rrs/pages/fp_1499.shtml [―1996

Manual‖].

Over the next few decades, states and railroads

voluntarily submitted information to the inventory. The

submission process changed over time—states and railroads

sometimes submitted information independently, and

railroads sometimes submitted information to states, which

20

then passed it along to the national inventory. Compare id. at

4-1 (―[T]he State transportation agency should be the party

who forwards all data item changes for any and all crossings

to the [Federal Railroad Administration].‖ (emphasis

omitted)), with 2007 Manual at 44–45 (indicating that

railroads should send some information directly to the Federal

Railroad Administration). Many states willingly submitted

information to the national inventory because they were able

to meet their duty to create a statewide inventory under

§ 130(d) by participating in the national inventory. See 1996

Manual at 1-1.

The cooperative effort notwithstanding, gaps remained

in the National Crossing Inventory thirty years later. See

Letter from Norman Y. Mineta, U.S. Sec’y of Transp., to J.

Dennis Hastert, Speaker of the U.S. House of Representatives

(July 11, 2003), http://testimony.ost.dot.gov/final/rail04.pdf.

The Department of Transportation urged Congress to pass

legislation that would force states and railroads to fill the

gaps. Id. Congress eventually responded by passing the Rail

Safety Improvement Act of 2008, Pub. L. No. 110-432, 122

Stat. 4848. This Act requires states and railroads to

independently submit information to the Secretary of

Transportation on a regular basis. Significantly, the Act

codified the submission requirements in separate places: the

state-reporting requirement in 23 U.S.C. § 130(l) and the

railroad-reporting requirement in 49 U.S.C. § 20160.

As noted above, the record in this case contains two

reports submitted to the National Crossing Inventory after the

21

passage of the Rail Safety Improvement Act in 2008. Both

were submitted in 2010, one by the Commonwealth of

Pennsylvania, the other by Norfolk Southern. J.A. 995–98.

The question, again, is whether they were collected or

compiled pursuant to § 130.

We conclude that after the 2008 Act, state-submitted

reports are collected pursuant to § 130, but railroad-submitted

reports are not. As a result, only state reports are privileged

under the first part of § 409. Our conclusion is textually

based: states must submit crossing reports to the national

inventory under 23 U.S.C. § 130(l) (which § 409 references),

while railroads must submit under 49 U.S.C. § 20160 (which

§ 409 does not reference). State reports are thus collected

―pursuant to section[] 130,‖ and railroad reports are not.

Congress could have placed the railroad-reporting

requirement in § 130 alongside the state requirement—in that

case, railroad reports would be similarly privileged. But

Congress instead chose to place the requirement in a different

title of the United States Code. We regard that drafting choice

as meaningful. Congress may well have had a stronger

interest in protecting states, rather than railroads, from

litigation. See Guillen, 537 U.S. at 147 (indicating that the

primary goal of § 409 is to protect ―state and local

governments‖). Whatever the reason, the text is plain.

Accordingly, the 2010 Pennsylvania report is privileged

under the first part of § 409 and the 2010 Norfolk Southern

report is not.

The record also contains seven reports submitted prior

22

to the passage of the Rail Safety Improvement Act of 2008—

some submitted by the Commonwealth of Pennsylvania,

others by various railroads including Norfolk Southern. At

first blush, the analysis is straightforward. Neither 23 U.S.C.

§ 130(l) nor 49 U.S.C. § 20160 existed before 2008. States

and railroads voluntarily participated in the National Crossing

Inventory, so they did not submit reports pursuant to § 130 or

any other statute. Even so, a few factors complicate the

analysis.

The first complication is that § 130(d) has long

required states to maintain statewide inventories of railroad

crossings. State inventories are thus ―compiled . . . pursuant

to section[] 130‖ and so are privileged under § 409. To be

sure, the pre-2008 reports in this case are from the national

inventory. But states presumably rely on their own

inventories when submitting reports to the national inventory.

It is therefore possible that the pre-2008 Pennsylvania reports

from the national inventory either were originally collected

pursuant to § 130 or rely on data originally collected pursuant

to § 130.7

7

Another complication is that some states meet their

duty to create a state inventory by participating in the national

inventory. See 1996 Manual at 1-1. This means that for some

states, the privileged state inventories are their submissions to

the national inventory. In that case, the reports from the

national inventory might be privileged. We need not take on

this issue because Pennsylvania has its own crossing

23

The second complication is that before the 2008 Act,

railroads often submitted crossing reports directly to the

states. The states used the railroad reports to create their

inventories and then passed them along to the national

inventory. See 1996 Manual at 4-1. Such railroad reports

were thus ―collected‖ by the states ―pursuant to section[]

130.‖ Again, the pre-2008 railroad reports in this case are

from the national inventory, but it is possible that the

Commonwealth originally collected these reports to create its

own inventory pursuant to § 130(d).

These complications raise the following question: Do

reports originally collected pursuant to § 130(d)—and

therefore privileged under § 409—lose the privilege when

voluntarily submitted by a state to the federal government?

Zimmerman contends that the answer is found in Guillen.

There, the county sheriff prepared an accident report after a

deadly car crash. 537 U.S. at 136–40. The county public

works department later acquired the report and used it to

apply for funding under 23 U.S.C. § 152, which was one of

the statutes listed in § 409 at the time. The Court concluded

that the report was privileged in the hands of the public works

department because the department collected it pursuant to

§ 152. Id. at 144–46. The Court nevertheless concluded that

the same report was not privileged in the hands of the sheriff

because he did not collect it pursuant to any statute listed in

inventory. See Pennsylvania Department of Transportation,

Grade Crossing Electronic Document Management System

(2012), https://www.dot14.state.pa.us/gcedmsweb/home.jsp.

24

§ 409. Id.

Guillen indicates that the question is whether the

immediate source of the documents—here, the Federal

Railroad Administration—―collected‖ them ―pursuant to

sections 130, 144, and 148 of [Title 23].‖ 23 U.S.C. § 409.

But there is one important difference between the case before

us and Guillen. The pre-2008 reports in our case might have

been originally collected pursuant to § 130(d), whereas the

report in Guillen was not originally collected pursuant to any

statute listed in § 409. See 537 U.S. at 144–46. The Eighth

Circuit has suggested that this difference is meaningful. See

Robertson v. Union Pac. R.R. Co., 954 F.2d 1433, 1435 (8th

Cir. 1992) (excluding a newspaper article that relied on

privileged data to prevent ―circumvent[ing] the purpose of the

statute‖).

We need not decide this difficult question. Norfolk

Southern bears the burden of proving that the privilege

applies. See In re Grand Jury Investigation, 918 F.2d at 385

n.15. And it has failed to show that the seven national reports

from before 2008 were ever ―collected . . . pursuant to

section[] 130.‖ As we have pointed out, it is certainly possible

that the reports either were originally collected pursuant to

§ 130(d) or relied on data collected pursuant to § 130(d). But

Norfolk Southern has offered no evidence that they were, and

we construe the available evidence in the light most favorable

to Zimmerman. As a result, we conclude that the District

Court improperly excluded the seven pre-2008 crossing

reports at the summary-judgment stage.

25

Although eight crossing reports are not covered by the

first part of the privilege, they will still be inadmissible if they

fall within the second part—that is, if they were ―compiled or

collected . . . 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. We turn to this second part.

There are two plausible interpretations of the relevant

language in § 409. The broad interpretation is that a report

was ―collected . . . for the purpose of developing any highway

safety construction improvement project‖ if the agency

collected the report with the understanding that someone

might use it to improve highway safety in a later construction

project.8 The narrow interpretation is that a report was

collected for the statutory purpose if the agency collected it

with the intent to use it for a particular construction project.

In short, the broad interpretation would privilege any

document that was collected to improve highway safety—

such as reports in a database—while the narrow interpretation

would privilege only those documents that were collected for

a particular project.

We follow the Supreme Court’s example and adopt the

narrow interpretation. See Guillen, 537 U.S. at 144–45

8

Despite the surfeit of modifiers, we interpret the

phrase ―highway safety construction improvement project‖ to

mean simply a construction project that improves highway

safety.

26

(noting two plausible interpretations of a separate clause in

§ 409 and adopting the ―narrower view‖). First, ―statutes

establishing evidentiary privileges must be construed

narrowly because privileges impede the search for the truth.‖

Id.; see also In re Grand Jury Investigation, 918 F.2d at 386

(recognizing ―the general constructional rule that evidentiary

privileges should be narrowly construed‖).

Furthermore, the narrow interpretation is more faithful

to the text. The broad interpretation renders much of § 409

redundant: if the second part privileges any document that

might be used to improve highway safety in a later

construction project, there would be no need for the first part

to privilege documents ―compiled or collected for the purpose

of identifying, evaluating, or planning the safety enhancement

of potential accident sites, hazardous roadway conditions, or

railway-highway crossings.‖ After all, these specific purposes

all deal with information that might be used to improve safety

in a later project. So every document that is privileged under

the first part would also be privileged under the second part.

We eschew the broad interpretation to avoid redundancy. See

Gustafson v. Alloyd Co., 513 U.S. 561, 574 (1995) (―[T]he

Court will avoid a reading which renders some words

altogether redundant.‖); Ki Se Lee v. Ashcroft, 368 F.3d 218,

223 (3d Cir. 2004) (recognizing ―the goal of avoiding

surplusage in construing a statute‖).

And the privilege uses different verbs in the first and

second parts—―identifying, evaluating, or planning‖ in the

first and ―developing‖ in the second. The first part seems to

27

privilege documents that deal with both potential and actual

projects, while the second part appears to privilege only those

documents that deal with actual projects. Or to put it another

way, the second part privileges documents prepared when the

agency already has a construction project in mind—and not

simply documents that might be used to plan later projects.

We conclude that the second part of § 409 excludes

only those documents that were collected for a particular

highway-safety construction project. Here, there is no

indication that the Diller Avenue reports were collected for a

particular project—instead, they were collected to establish a

national database that might be used in future projects. The

second part of § 409 does not apply.

In sum, Zimmerman has nine crossing reports that

suggest the Norfolk Southern train was going too fast when it

entered the Diller Avenue crossing. The District Court

excluded all nine reports under § 409. It should, however,

have excluded only the 2010 Pennsylvania report. We now

consider Zimmerman’s other evidence of excessive speed.

3. The District Court improperly excluded nine

accident reports.

Zimmerman obtained ten Department of

Transportation accident reports. The reports cover accidents

that occurred at the Diller Avenue crossing over the past few

decades, from a minor collision in 1975 to Zimmerman’s

crash in 2008. The reports describe the conditions of the

accident—weather, number of injuries, time of day, and so

28

on. And they list the classification of the track at the crossing:

four reports state that the track was Class 2, one that it was

Class 3, and five—all from the 1970s—that it was Class 1.

The ten reports provide at least mixed evidence that the

crossing was Class 1 and thus that the Norfolk Southern train

was speeding. Even so, the District Court excluded the reports

based on another evidentiary privilege: that contained in 49

U.S.C. § 20903.9 This statute states in part:

No part of an accident or incident report filed

by a railroad carrier under section 20901 of

[Title 49] . . . may be used in a civil action for

damages resulting from a matter mentioned in

the report.

The parties agree that the accident reports were ―filed

by a railroad carrier‖ under 49 U.S.C. § 20901. But

Zimmerman argues that the privilege excludes only the report

of his accident, not the nine other reports. His argument is

textual: the privilege does not exclude accident reports from

all civil cases. It merely excludes reports from civil cases that

result ―from a matter mentioned in the report.‖ In

Zimmerman’s view, his ―civil action for damages‖ arose from

the accident mentioned in his report, but it did not arise from

the accidents mentioned in the remaining nine reports. We

agree that these reports fall outside the privilege.

9

The District Court also relied on 49 C.F.R.

§ 225.7(b), but this regulation merely repeats the § 20903

statutory privilege.

29

Norfolk Southern urges us to broadly interpret the term

―matter.‖ In Norfolk Southern’s view, ―matter mentioned in

the report‖ does not simply mean ―the accident mentioned in

the report,‖ as Zimmerman implicitly argues. It also means

―the location mentioned in the report.‖ The privilege

therefore excludes all ten reports, since Zimmerman’s lawsuit

is ―a civil action for damages resulting from a matter‖—or

location, the Diller Avenue crossing—―mentioned in the

report[s].‖ This argument is unpersuasive because Norfolk

Southern takes the word ―matter‖ completely out of context.

The phrase ―damages resulting from‖ appears directly before

the word ―matter,‖ indicating that a ―matter‖ is the event that

caused the harm discussed in the report. See Lee v. Nat’l R.R.

Passenger Corp. (Amtrak), No. 3:10-cv-00392, 2012 WL

130267, at *2 (S.D. Miss. Jan. 17, 2012) (holding that

§ 20903 does not apply to prior accident reports at the same

crossing). We conclude that § 20903 excludes the report of

Zimmerman’s accident but not the nine other reports.

Norfolk Southern also argues that the § 409 privilege

excludes the accident reports. Again, the privilege has two

parts. The first part excludes reports collected to identify,

evaluate, or plan ―the safety enhancement of potential

accident sites, hazardous roadway conditions, or railway-

highway crossings, pursuant to sections 130, 144, and 148 of

[Title 23].‖ This part plainly does not apply because the

accident reports were collected pursuant to 49 U.S.C.

§ 20901—not pursuant to any section of Title 23.

The second part of § 409 excludes reports if they were

30

collected to develop ―any highway safety construction

improvement project which may be implemented utilizing

Federal-aid highway funds.‖ As we concluded above, the

language excludes only those documents that were collected

for a particular highway-safety construction project. Like the

reports in the National Crossing Inventory, accident reports

are collected for a variety of reasons. One reason is to provide

data for future safety projects. In most cases, however,

accident reports are not collected for a particular highway-

safety construction project. Nor does Norfolk Southern point

to any evidence that the Diller Avenue accident reports were

collected for a particular project. Therefore, nine of the ten

accident reports are admissible.

Based on the foregoing, we conclude that most of the

crossing reports and accident reports are admissible. These

reports suggest that the speed limit at the crossing was ten

miles per hour or, equivalently, that the track was Class 1.

That said, Zimmerman’s claim is far from a slam-dunk. Other

evidence suggests that the track was Class 2 or Class 3.

Norfolk Southern claims that it reclassified the track but

failed to update the crossing reports. This claim is consistent

with the accident reports—the most recent reports list the

track as Class 2 or Class 3. But acceptance or rejection of

Norfolk Southern’s explanation is the province of a jury. For

now, the conflicting evidence results in Zimmerman’s

excessive-speed claim surviving summary judgment.

31

4. Zimmerman’s alternative claim of track

misclassification is preempted.

Zimmerman advances an alternative argument. If the

track was in fact classified as Class 2 or Class 3, Zimmerman

claims that Norfolk Southern should be liable for

misclassification. According to Zimmerman, the limited sight

distance imposed a duty on Norfolk Southern to classify the

track as Class 2 or higher.

The first question—and, as it turns out, the only

question—is whether Zimmerman’s alternative claim avoids

preemption. Zimmerman argues that Norfolk Southern

violated a federal standard of care. See 49 U.S.C.

§ 20106(b)(1)(A). He points to 49 C.F.R. pt. 213, which

contains regulations for each class of tracks. But none of the

regulations discuss track visibility. Zimmerman curiously

cites two regulations that have nothing to do with visibility.

See 49 C.F.R. §§ 234.203 (setting standards for control

circuits), 234.225 (regulating the activation of warning

systems). He also points to a regulation in Title 23 that

mentions the term ―sight distance.‖ 23 C.F.R. § 646.214(E).

But this regulation merely states that a flashing signal might

be necessary if the sight distance is ―unusually restricted.‖ It

does not require railroads to select a track class based on sight

distance—nor does any regulation establish the sight distance

necessary for each track class. Quite simply, no relevant

federal standard of care exists.

Despite the absence of a federal standard of care,

Zimmerman may still avoid preemption if his claim falls

32

outside the scope of the original FRSA preemption provision.

See 49 U.S.C. § 20106(a)(2). As we have previously made

clear, state claims are within the scope of this provision if

federal regulations ―cover‖ or ―substantially subsume‖ the

subject matter of the claims. Strozyk, 358 F.3d at 273 (citing

49 U.S.C. § 20106(a)(2); Easterwood, 507 U.S. at 664). The

regulations must do more than ―touch upon or relate to that

subject matter.‖ Easterwood, 507 U.S. at 664 (internal

quotation marks omitted).

The regulations in 49 C.F.R. pt. 213 subsume

Zimmerman’s misclassification claim. These regulations

establish varying requirements for each class of tracks—

governing everything from gage, alinement, and elevation, to

crossties, curve speed, and rail joints. See 49 C.F.R.

§§ 213.53 (explaining the proper method for measuring

gage), 213.55 (creating alinement standards), 213.57

(establishing the maximum speed based on track elevation

and curvature), 213.109 (requiring more crossties for higher

track classes), 213.121 (noting that rail joints must ―be of a

structurally sound design‖).

The regulations are part of a broad scheme to

standardize railroad tracks. Admittedly, there is no regulation

that classifies tracks based on sight distance. But the breadth

of the scheme implies a decision not to classify on that basis.

At the very least, it implies that the federal government did

not want states to decide how tracks would be classified. We

doubt that the federal government would create a detailed

system with the expectation that states would impose extra

33

classification requirements—especially given the risk that the

requirements would vary from state to state. This regulatory

scheme preempts Zimmerman’s misclassification claim.

B

Zimmerman’s second claim is that Norfolk Southern

failed to maintain a safe crossing area. As before, we must

address the threshold question of preemption. We then

consider whether Zimmerman produced sufficient evidence to

avoid summary judgment.

1. Zimmerman’s claim of failure to maintain a

safe crossing area is not preempted.

Zimmerman makes two allegations in support of his

unsafe-crossing claim. The first is that Norfolk Southern

negligently maintained the crossing devices at Diller

Avenue—in particular, ―the sign that warned of the

approaching crossing was covered by tree branches, the

pavement markings no longer existed, and the crossbucks had

been allowed to fall into disrepair.‖ Appellant’s Br. at 43.

Zimmerman’s second allegation is that Norfolk Southern

failed to provide adequate sight distance.10

10

Zimmerman also alleges that Norfolk Southern

violated this duty by failing to provide flashing lights at the

crossing. As we conclude in Part III.C below, the FRSA

preemption provision bars claims of inadequate crossing

devices.

34

Strozyk is directly on point. There, we considered a

claim for wrongful death resulting from a crash at a railroad

crossing. 358 F.3d at 270. The decedent’s estate alleged that

the railroad had failed to keep the crossing safe. We

interpreted what is now subsection (a) of the FRSA

preemption provision and explained that ―[a] railroad may

still be liable for other negligent conduct, such as the failure

to maintain a working crossing arm . . . .‖ Id. at 276 (quoting

Evans Timber Co. v. Cent. of Ga. R.R. Co., 519 S.E.2d 706,

709–10 (Ga. Ct. App. 1999)); see also Terrell v. Soo Line

R.R. Co., No. 2:04-cv-095, 2005 WL 4882750, at *7 (S.D.

Ind. Sept. 1, 2005) (noting that preemption would improperly

insulate railroads ―even if the crossbucks had fallen to the

ground and were unobservable by a passing motorist‖). We

also concluded that 23 C.F.R. § 646.214(b)(3) does not

preempt sight-distance claims, even though the regulation

mentions ―unusually restricted sight distance‖ as a factor that

might require states to install flashing lights. We reasoned

that ―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 bare mention of [conditions such

as sight distance] does not indicate an intent to regulate those

conditions.‖ Strozyk, 358 F.3d at 273.

The 2007 FRSA amendment did not supersede

Strozyk,11 and thus both parts of Zimmerman’s unsafe-

crossing claim avoid preemption. See id. at 277 (―[The

11

See supra Part II.

35

plantiffs’] claims that [the defendant] failed to maintain a safe

grade crossing . . . and relatedly failed to ensure clear sight

lines of oncoming trains are not preempted.‖). Even if Strozyk

were not binding, Zimmerman’s negligent-maintenance

allegation would avoid preemption because 49 C.F.R.

§ 234.245 creates a federal standard of care governing the

maintenance of crossbucks. 49 U.S.C. § 20106(b)(1)(A); see

49 C.F.R. §§ 234.245 (―Each sign mounted on a highway-rail

grade crossing signal post shall be maintained in good

condition and be visible to the highway user.‖), 234.3

(indicating that railroads are responsible for maintaining signs

under § 234.245).12

2. Zimmerman produced sufficient evidence that

Norfolk Southern failed to maintain the

crossing devices and that the sight distance

was inadequate.

The District Court agreed that at least part of

Zimmerman’s second claim avoided preemption. The Court

nevertheless granted summary judgment on his entire claim,

concluding that he had failed to satisfy the elements of

12

Zimmerman also produced a document from the

Federal Railroad Administration that suggested the necessary

sight distance was 376 feet. See J.A. 697. This document,

however, does not create a standard of care for preemption

purposes because the document is not ―a regulation or order

issued by the Secretary of Transportation.‖ 49 U.S.C.

§ 20106.

36

negligence. In particular, the Court concluded that Norfolk

Southern did not have ―a duty to remove a privately owned

building that potentially obscure[s] sight lines.‖ Zimmerman

v. Norfolk S. Corp., No. 10-cv-02267, 2011 WL 3625039, at

*12 n.9 (E.D. Pa. Aug. 17, 2011). Zimmerman argues that the

District Court ignored his inadequate-maintenance allegation

and misconstrued Pennsylvania law on the question of sight

distance. We agree with Zimmerman—both parts of his

second claim survive summary judgment.

We first consider Zimmerman’s allegation that the

warnings had fallen into disrepair. The well-worn elements of

common-law negligence are, of course, duty, breach,

causation, and damages. Under Pennsylvania law, railroads

have a duty to maintain railroad warning devices. Geelen v.

Pa. R.R. Co., 161 A.2d 595, 598 (Pa. 1960) (―A railroad

company is under a duty to maintain a public crossing in a

state of good repair.‖); see also Conner, 263 F.2d at 946

(stating that under Pennsylvania law, a railroad might be

liable for failing to maintain crossing devices); Buchecker v.

Reading Co., 412 A.2d 147, 153 (Pa. Super. Ct. 1979)

(considering ―evidence that the signal was not operating at the

time‖ of the accident).13

13

Judge Aldisert invokes the occupied-crossing rule to

argue that Norfolk Southern did not have a duty to maintain

the crossing devices. Neither party has mentioned this rule,

and for good reason: it does not apply here. As the

Pennsylvania Supreme Court has explained, the rule applies

37

According to Zimmerman, Norfolk Southern breached

this duty because ―the sign that warned of the approaching

crossing was covered by tree branches, the pavement

markings no longer existed, and the crossbucks had been

allowed to fall into disrepair.‖ Appellant’s Br. at 43. Viewed

in the light most favorable to Zimmerman, the record

supports these allegations.

Photographs suggest that there once was a white line

north of the crossing, but that the line had faded by the time

only when ―an engine or a draft of cars is on the crossing or

street or highway and is visible to such highway users.‖ Cella

v. Pa. R. Co., 70 A.2d 638, 640 (Pa. 1950) (emphasis added).

When both elements are met, ―the presence of the engine or

draft on the crossing or street [is] sufficient warning to

[motorists] of the dangers incident thereto.‖Id. But a train’s

presence does not provide ―sufficient warning‖ when it enters

the crossing only after motorists have reached the point of no

return. See Krentz v. Consol. Rail Corp., 910 A.2d 20, 28 n.10

(Pa. 2006) (noting that, despite the occupied-crossing rule,

―the law does impose a duty on railroads to warn of

approaching trains‖).

Here, the train rushed into view at the last second.

Because the train was not visible in time for Zimmerman to

avoid the accident, see J.A. 687, the rule does not apply. A

contrary holding would imply that a train racing down the

tracks at double the speed limit would avoid liability

whenever a motorist ran into it—even when the train’s speed

effectively prevented motorists from avoiding the collision.

38

of Zimmerman’s collision. See J.A. 508, 716, 983.14 Other

photographs indicate that tree branches covered both the

crossbuck and the yellow advanced warning sign. For

example, a 2008 photograph shows that tree branches covered

the yellow warning sign—although the picture is too dark and

grainy to be conclusive. See id. 516. And a series of

photographs from 2011 show that a tree standing next to the

warning sign partially obscures the crossbuck—at least from

the perspective of someone who is more than 250 feet away.

See id. at 719–20.15 Both parties cite an expert’s statement

that tree branches covered the crossbuck, see Appellant’s Br.

at 43 (citing J.A. 690); Appellee’s Br. at 31 n.11 (same), but

14

There is no painted line in a 2008 photograph, but

there is a line in a 2011 photograph. See J.A. 508, 716, 983.

Of course, subsequent remedial measures are inadmissible to

prove negligence. See Fed. R. Evid. 407. Yet the paint in the

2011 photograph suggests that the pavement was painted

before the 2008 accident, but that the marking faded and

required a fresh coat of paint. This is not the only possible

inference from the facts, but it is a ―reasonable inference,‖

which is all that is necessary at this stage. InterVest, Inc. v.

Bloomberg, L.P., 340 F.3d 144, 159–60 (3d Cir. 2003)

(explaining the standard for summary judgment).

15

According to Judge Aldisert, Zimmerman did not

argue that tree branches covered the crossbuck—only that the

crossbuck had fallen into disrepair. But if Norfolk Southern in

fact allowed tree branches to cover the crossbuck, it seems

accurate to say that it ―allowed‖ the crossbuck ―to fall into

disrepair.‖ Appellant’s Br. at 43.

39

the expert’s report mysteriously contains no such statement.

Either way, a reasonable jury could accept Zimmerman’s

narrative based on the photographs.

Norfolk Southern also argues that there is insufficient

evidence of causation. Darkness had fallen by the time

Zimmerman began riding home. He may well have hit the

train even if the obscuring branches had been pruned and the

white line had been repainted. Yet in his deposition,

Zimmerman said that he had crossed the track many times

before the accident and that he believed the crossing was

inactive. J.A. 235 (―[I] did not know that that track had a

regular train on it. I have never seen a train on that track . . . .

I certainly wasn’t expecting—to my knowledge, it was an

unused track.‖). From this testimony—and from the other

evidence that the crossing was poorly maintained—it is

reasonable to infer that state of disrepair at least contributed

to his belief that the crossing was inactive. See InterVest, Inc.

v. Bloomberg, L.P., 340 F.3d 144, 159–60 (3d Cir. 2003)

(―When analyzing the sufficiency of the evidence, the court

must view the facts and any reasonable inferences drawn

therefrom in the light most favorable to the party opposing

summary judgment.‖). As a result, it is also reasonable to

infer that on the night of the accident, he approached the

crossing with less caution than he otherwise would have.

We now turn to the allegation that Norfolk Southern

failed to provide adequate sight distance. This allegation also

survives summary judgment. Under Pennsylvania law,

railroads have a duty to ensure that motorists are able to see

40

approaching trains. See Fallon v. Penn Cent. Transp. Co., 279

A.2d 164, 167 (Pa. 1971). The District Court cited our

opinion in Strozyk and concluded that the duty merely

requires railroads to remove excess vegetation, as there is no

―duty to modify or remove a privately owned building which

is located off the railroad’s right of way.‖ Zimmerman, No.

10-cv-02267, 2011 WL 3625039, at *12 n.9 (citing Strozyk,

358 F.3d at 276–77).

But Pennsylvania courts have held that the duty

extends well beyond the removal of vegetation. In Johnson v.

Pa. R.R. Co., 160 A.2d 694 (Pa. 1960), a motorist’s view was

obstructed by buildings, utility poles, and a hedge. The

Pennsylvania Supreme Court concluded:

A railroad company may, in some instances

have no choice as to location of crossings, . . .

but where, as here, physical conditions visually

blanket the speeding train until several short

seconds before it sweeps, like a steel and iron

tornado, into a crossing, a due responsibility for

the safety of mankind dictates that something be

done to alert the public of the omnipresent

danger . . . .

Id. at 697. In Fallon, the Pennsylvania Supreme Court found

sufficient evidence of negligence where the plaintiffs’ view

was obstructed by a building. 279 A.2d at 167. According to

the court, ―it was difficult if not impossible to gain an

adequate view of the west-bound track without putting one’s

car in or dangerously close to the swath of an oncoming

41

train.‖ Id; see also Buchecker, 412 A.2d at 156–57 (―[I]t is

proper for the jury to take into consideration the physical

conditions at the crossing . . . [and] the nature of the

surroundings.‖) (citing Cummings v. Pa. R.R., 151 A. 590,

591 (Pa. 1930)). To be sure, no Pennsylvania court has

expressly held that railroads have a clear duty to modify

private buildings. But cases such as Johnson and Fallon have

indicated that the jury should consider privately owned

buildings when deciding whether the railroad breached its

duty to provide adequate sight distance.

We conclude that the building in this case is relevant

in deciding whether Norfolk Southern provided adequate

sight distance. The jury can decide whether Norfolk Southern

should have asked the building’s owner to remove a sign that

was along Diller Avenue. Norfolk Southern even had a policy

for doing so: ―If an obstruction is located off the right-of-way,

the owners of the land containing the obstruction should be

contacted personally and an appeal made to the landowner to

remove the obstruction. The personal contact should be

followed up with a letter, with a copy to the appropriate state

agency.‖ J.A. 1051. If the appeal fails, ―the matter should be

referred to the Law Department for guidance,‖ id.,

presumably to decide whether to use eminent domain under

15 Pa. Cons. Stat. § 1511 (allowing public utility corporations

such as railroads to use eminent domain).

The jury can also decide whether Norfolk Southern

should have enlisted the help of the Commonwealth or used

eminent domain. And if the jury decides that Norfolk

42

Southern breached its duty, Norfolk Southern’s policy and 15

Pa. Cons. Stat. § 1511 might be evidence of causation. They

suggest that Norfolk Southern could have improved

conditions at the crossing in a way that would have prevented

the accident.16

Zimmerman’s second claim is far from

overwhelming—the evidence of disrepair is conflicting, and it

is unclear whether Norfolk Southern’s inaction caused the

16

Judge Aldisert invokes the longstanding duty to

―stop, look, and listen‖ and argues that Norfolk Southern did

not have an obligation in this case to provide adequate sight

distance. See Briach v. Pa. R.R. Co., 462 F.2d 266, 268 (3d

Cir. 1972); 75 Pa. C.S. § 3341(a). Zimmerman supposedly

violated this duty because he did not stop before crossing the

tracks. This might be true, but Zimmerman’s negligence is a

separate question. As the Pennsylvania Superior Court has

explained, ―one who fails to stop, look, and listen will not be

precluded from recovery where the failure is not negligent.‖

Buchecker v. Reading Co., 412 A.2d 147, 154 (Pa. Super.

1979) (emphasis added).

The District Court explicitly refrained from deciding

whether Zimmerman was negligent. Zimmerman, 2011 WL

3625039, at *21 n.34 (―I do not need to consider defendant’s

additional arguments that plaintiff was comparatively

negligent by failing to comply with Pennsylvania law.‖). And

neither side has addressed the question of Zimmerman’s

negligence on appeal. We therefore refuse to affirm on these

grounds.

43

sight distance to remain inadequate. All the same, we must

construe the evidence in the light most favorable to

Zimmerman. There is sufficient evidence of each element to

allow the claim to go forward.

C

Zimmerman’s third and final claim is that Norfolk

Southern was negligent per se for violating various

requirements in 23 C.F.R. § 646.214(b).17 In particular,

subsection (b)(3)(i) states that crossings with limited sight

distance and high train speeds must have ―adequate warning

devices,‖ defined in the statute as automatic gates and

flashing lights. And subsection (b)(1) states that all ―traffic

control devices‖ must comply with the Manual on Uniform

Traffic Control Devices. Zimmerman asserts that Norfolk

Southern violated both provisions. The District Court decided

that the claim was preempted.

We agree that Zimmerman’s third claim is preempted.

For starters, neither regulation creates a federal standard of

care. See 49 U.S.C. § 20106(b)(1)(A). We analyze the

regulations separately. Subsection (b)(3)(i)(C) states:

17

Zimmerman also identifies a number of internal

rules that Norfolk Southern supposedly violated. These

supposed violations do not help Zimmerman avoid

preemption because he fails to show the internal rules were

―created pursuant to a regulation or order.‖ 49 U.S.C.

§ 20106(b)(1)(B).

44

Adequate warning devices . . . on any project

where Federal-aid funds participate in the

installation of the devices are to include

automatic gates with flashing light signals when

. . . the following conditions exist: . . . High

Speed train operation combined with limited

sight distance at either single or multiple track

crossings.

Zimmerman argues that subsection (b)(3) creates a federal

standard of care—one that requires Norfolk Southern to

install automatic gates and flashing lights—because the sight

distance at the Diller Avenue crossing is limited.

The Eighth and Tenth Circuits have rejected similar

arguments. See Grade, 676 F.3d at 686–87 (concluding that

23 C.F.R. § 646.214(b)(3) and (4) preempt claims against

railroads for installing inadequate warning devices at railroad

crossings); Henning, 530 F.3d at 1215 (same). Subsection

(b)(3) does not impose on railroads an ongoing duty—instead,

it ―displace[s] state and private decisionmaking authority.‖

Henning, 530 F.3d at 1212 (quoting Easterwood, 607 U.S. at

670) (internal quotation marks omitted). More importantly,

subsection (b)(3) ―place[s] the responsibility for

implementing adequate warning devices on the State, thereby

preempting any cause of action alleging a railroad failed to

properly install an adequate warning device.‖ Grade 676 F.3d

at 686. Railroads cannot, ―as a matter of law, fail to comply‖

with subsection (b)(3). Id. (quoting Henning, 530 F.3d at

1215).

45

We find this reasoning persuasive. The

Commonwealth of Pennsylvania installed crossbucks at the

Diller Avenue crossing with the use of federal funds and the

help of the crossing’s previous owner. Norfolk Southern, as

the current owner, has a duty to maintain the crossing

devices. See Strozyk, 358 F.3d at 276. But the Commonwealth

is ultimately responsible for ensuring that the devices comply

with subsection (b)(3). As a result, subsection (b)(3) does not

impose on Norfolk Southern a federal standard of care.

The same is true of subsection (b)(1). Zimmerman tries

to avoid Grade and Henning by asserting that Norfolk

Southern also violated subsection (b)(1):

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.

Zimmerman argues that subsection (b)(1) imposes on

railroads an ongoing duty to update their crossing devices.

Norfolk Southern violated this supposed duty by failing to

update the crossbucks to comply with the latest Manual on

Uniform Traffic Control Devices. This argument is

inconsistent with the text, which requires that ―proposed‖

devices—not already existing devices—comply with the

manual. Moreover, subsection (b)(1) is part of the same

scheme as subsection (b)(3). Both subsections create rules

that states must obey to receive federal funds. Neither

imposes on railroads a standard of care.

46

Absent a federal standard, Zimmerman can avoid

preemption only if there are no federal regulations that cover

the subject matter of his inadequate-device claim. 49 U.S.C.

§ 20106(a)(2). Unfortunately for Zimmerman, the Supreme

Court has already concluded that subsections (b)(3) and (b)(4)

cover the subject matter of such claims. See Shanklin, 529

U.S. at 352–53 (citing Easterwood, 507 U.S. at 670). These

regulations are preemptive because they ―displace state and

private decisionmaking authority by establishing a federal-

law requirement that certain protective devices be installed or

federal approval obtained.‖ Easterwood, 507 U.S. at 670.

Zimmerman tries to escape preemption by citing the Supreme

Court’s statement that subsection (b)(1) ―does not pre-empt

state tort actions.‖ Shanklin, 529 U.S. at 352. But this

language does not save Zimmerman’s claim—subsections

(b)(3) and (b)(4) clearly preempt his inadequate-device claim.

It is of no consequence whether subsection (b)(1) does the

same.

Zimmerman is unable to avoid preemption by asserting

that Norfolk Southern installed the wrong warning devices—

even though he was able to avoid preemption by asserting

that Norfolk Southern failed to maintain them. See supra Part

III.B.1. While it may seem that this scheme is internally

inconsistent, it is nonetheless the scheme Congress has

established.

IV

Accordingly, we will reverse the District Court’s grant

of summary judgment on Zimmerman’s first and second

47

claims but affirm its grant of summary judgment on

Zimmerman’s third claim.

48

ALDISERT, Circuit Judge, Dissenting, and Concurring in

Part

Robert Zimmerman appeals from an order of the

District Court, which granted Norfolk Southern Corporation‟s

motion for summary judgment. He had filed a civil complaint

against Norfolk Southern Corporation (“Norfolk Southern”)

in the District Court seeking damages for injuries sustained

when he abruptly applied his motorcycle brakes at a railroad

crossing and flew over the motorcycle‟s handlebars, colliding

with the side of a lead train engine proceeding over the

crossing. He bottomed his personal injury claim against the

railroad on (1) negligent failure to warn of an approaching

train; (2) negligent failure to maintain a safe grade crossing

area; and (3) negligence per se for violating various portions

of 23 C.F.R. § 646.214(b) (adequate warning devices). I

would affirm the judgment of the United States District Court

for the Eastern District of Pennsylvania in its entirety.

Accordingly, I join that portion of the majority

opinion that affirms the District Court‟s determination that

Zimmerman‟s negligence per se claim, set forth above as the

third issue, is preempted. I concur also in the majority‟s

approach to analyzing the Federal Railroad Safety Act

(“FRSA”) preemption provision, codified at 49 U.S.C.

§ 20106. I am unable to agree with the majority‟s reversal of

the judgment on the two other issues presented to us. I

therefore join Parts II and III C of the majority opinion and

dissent as to Parts III A and B.

I.

1

On the evening of June 12, 2008, Robert Zimmerman

was operating his motorcycle southward on Diller Avenue in

New Holland, Pennsylvania. He was wearing a full-face

helmet with a visor and was familiar with the Diller Avenue

railroad crossing because he had traveled down Diller Avenue

and through the crossing “hundreds” of times before this

incident. App. 00230. At approximately 10 p.m. that evening,

two locomotives owned by Norfolk Southern—Engine 5657

and Engine 5656—approached Diller Avenue. The engineer,

Douglas Eppley, and the conductor, Stephen Romberger,

were stationed in the head of the lead locomotive, Engine

5657. As the train entered the Diller Avenue crossing,

Zimmerman, who had been traveling on his motorcycle

approximately 30 to 35 miles per hour, abruptly applied his

brakes and flew over the handlebars of his motorcycle. His

body struck the side of the fuel tank portion of the lead

engine. As a result of the collision, Zimmerman sustained

extensive injuries and was airlifted to Lancaster General

Hospital. He was subsequently transferred to a rehabilitation

center, where he remained until his discharge in October

2008. He was left partially paralyzed.

Norfolk Southern operates the railroad crossing at

Diller Avenue. The crossing protects southbound motorists

with a crossbuck1 on the side of the road in accordance with

the Manual on Uniform Traffic Control Devices

(“MUTCD”). This was a reflectorized crossbuck installed in

1

A crossbuck is an X-shaped sign that reads: “Railroad

Crossing,” and “requires road users to yield the right-of-way

to rail traffic at a highway-rail grade crossing.” U.S. Dept. of

Transp. Fed. Highway Admin., Manual on Uniform Traffic

Control Devices, 542 (2009).

2

1987. Norfolk Southern also placed a black-and-yellow

railroad-grade crossing sign approximately 150 feet north of

the crossing. The company neither possesses nor controls any

land or property in the vicinity of the Diller Avenue crossing

other than its right-of-way.

Train conductor Romberger was positioned in the lead

locomotive of a two-engine train. Positioned on the left side,

he saw the motorcycle approaching when Zimmerman was

approximately 50 feet from the crossing, and he realized that,

“given Mr. Zimmerman‟s speed[,] . . . he was going to collide

with us.” App. 00113. Zimmerman‟s body collided with the

fuel tank of the lead engine of the train approximately 30 feet

from its front leading edge. The crossing is only 29 feet wide.

The lead engine, therefore, was already through the crossing

at the time Zimmerman collided with the train.

Zimmerman has no present recollection of the

incident.2 Two independent witnesses, Seth Huyard and Chad

Kaufman, who were traveling in a truck approximately 60

feet behind Zimmerman on Diller Avenue, both “heard the

train blowing its horn” as they approached the railroad

2

Because Zimmerman was unable to testify about the

relevant aspects of the event, I reject the majority opinion‟s

reference to his alleged observations before his collision with

the side of the train. The majority opinion states that “[w]hen

he was less than seventy-six feet away, he noticed that a train

was approaching. He tried to stop, but his front brake locked

and he flew over the handlebars, colliding headfirst with a

locomotive.” Majority Opinion 2-3. In Zimmerman‟s

deposition, he stated that he did not recall seeing the train on

the night of the accident. App. 00236-00237.

3

crossing. App. 00520-00521. Huyard, the truck‟s driver,

stated that “as the train entered the intersection the

motorcycle rider appeared to apply his front brake causing

him to go over the handlebars.” App. 00520. Kaufman, who

was riding in the truck, saw “the train cross Diller Avenue.

[He] then saw the motorcycle go into the side of the train.”

App. 00521.

At the time of the collision, each locomotive was

equipped with a digital recording device, known as an Event

Data Recorder (“EDR”), which recorded information such as

speed and horn activation. According to the EDR, the train

was traveling at approximately 24 miles per hour at the time

of the collision. The EDR also recorded that the train horn

was activated beginning at a point of approximately one-

quarter mile prior to the crossing and continued through the

crossing, sounding for a total of 45 seconds.

On May 14, 2010, Zimmerman filed a four-count civil

complaint against Norfolk Southern. On March 31, 2011,

Norfolk Southern filed a motion for summary judgment,

which the Court granted on August 17, 2011. Zimmerman

timely appealed.

II.

In reviewing a district court‟s grant of summary

judgment, we exercise plenary review. See Gallo v. City of

Phila., 161 F.3d 217, 221 (3d Cir. 1998). We apply the same

test as a district court applies, see Waldorf v. Shuta, 896 F.2d

723, 728 (3d Cir. 1990), and will affirm if “there is no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law,” Rule 56(a), Federal

4

Rules of Civil Procedure. Facts must be viewed in the light

most favorable to the non-moving party. See Monroe v.

Beard, 536 F.3d 198, 206 (3d Cir. 2008) (citation omitted).

III.

Zimmerman offers a number of reasons in support of

his contention that the District Court erred in granting the

motion for summary judgment. He asserts that his claims of

negligence based on (1) inadequate signals and (2) excessive

speed are not preempted. He contends also that the District

Court erred in finding that no genuine issue of material fact

exists as to his claims of negligence based on a common-law

duty the railroad owed to (3) maintain a reasonably safe

crossing and (4) provide adequate sight distance. Finally, he

argues that the District Court erred in holding that certain

documents, relevant to his excessive speed allegation, were

privileged. For the reasons that follow, I would affirm the

District Court‟s judgment.

I would conclude that the District Court properly held

that Zimmerman‟s claims of negligence based on inadequate

signals and excessive speed are preempted. With regard to

Zimmerman‟s common-law claims that Norfolk Southern

failed to maintain a reasonably safe crossing and provide

adequate sight distance, I would furthermore conclude that

the District Court did not err in granting summary judgment

in favor of Norfolk Southern, because Zimmerman failed to

establish a prima facie claim of negligence and therefore no

genuine issue of material fact exists. Finally, I would

conclude that the Court correctly held that the documents

related to his excessive speed allegation were privileged.

5

Summary judgment was therefore appropriate and, as stated

heretofore, I would affirm the entire District Court judgment.

IV.

For part of his negligence claims, Zimmerman alleges

that Norfolk Southern failed to maintain a safe crossing at

Diller Avenue. He alleges that the railroad negligently

maintained the crossing devices, and that the railroad failed to

provide adequate sight distance, thereby preventing him from

seeing the train that he struck until it was too late for him to

avoid the collision. We have long recognized that railroads

have a duty to provide a safe crossing, including adequate

sight distances. See Strozyk v. Norfolk S. Corp, 358 F.3d

268, 277 (3d Cir. 2004) (“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.‟”)

(quoting Nat‟l Freight v. Se. Pa. Transp. Auth., 698 F. Supp.

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

Indeed, where “physical conditions visually blanket the

speeding train until several short seconds before it sweeps . . .

into a crossing, a due responsibility for the safety of mankind

dictates that something be done to alert the public . . . above

that of asking it to stop, look, and listen.” Johnson v. Penn.

R.R. Co., 160 A.2d 694, 697 (Pa. 1960).

At the same time, a motorist planning to drive through

a crossing is required to respect the common law of

Pennsylvania and the relevant statutes of that state. Thus,

upon the sounding of the train‟s horn, Zimmerman had to

obey the following provisions of 75 Pa. C.S.A. § 3341(a):

6

Whenever any person driving a vehicle

approaches a railroad grade crossing . . . the

driver of the vehicle shall stop within 50 feet

but not less than 15 feet from the nearest rail of

the railroad and shall not proceed until it can be

done safely. The foregoing requirement shall

apply upon the occurrence of . . . the following

circumstance[]:

...

(3) A railroad train approaching within

approximately 1,500 feet of the highway

crossing emits a signal audible from that

distance and the railroad train, by reason of its

speed or nearness to the crossing, is a hazard.

Moreover, ruling case law of Pennsylvania teaches:

When a motorist approaches a railroad crossing

that is occupied by a train, whether the train is

traveling or stationary, the only duties involved

are those of the motorist, namely:

...

(2) “to stop, look and listen before entering

upon the crossing.”

Krentz v. Consol. Rail Corp., 910 A.2d 20, 28 (Pa.

2006) (emphasis added) (citing Hogg v. Bessemer &

Lake Erie R.R. Co., 96 A.2d 879, 884 (Pa. 1953)).

Krentz was the Pennsylvania Supreme Court‟s latest

application of the venerable Occupied Crossing Rule, which

7

“is as securely affixed to [Pennsylvania] jurisprudence as

train tracks are to the land that they traverse.” Krentz, 910

A.2d at 27. Under that rule, “„a railroad company cannot

ordinarily be found negligent because it failed to station

guards or light the car, or otherwise give warning of its

presence in the highway,‟” id. (quoting Cella v. Pa. R.R. Co.,

70 A.2d 638, 640 (Pa. 1950), and this rule applies regardless

of whether the train is moving or stationary, id. at 27 n.9

(citing Cella, 70 A.2d at 639). The train‟s presence in the

crossing is “sufficient notice of its presence to warn any

person using the highway with ordinary care.” Id. at 27.

The duty to stop, look and listen before entering a

crossing, particularly a crossing that is occupied, is best

expressed by the Pennsylvania Supreme Court‟s statement in

Serfas v. Lehigh and N.E. R. Co., 113 A. 370, 370-371 (Pa.

1921): “The [plaintiff] openly violated the inflexible rule

requiring the traveler to stop, look, and listen before entering

upon a railroad track . . . . „It is not a rule of evidence, but a

rule of law, peremptory, absolute and unbending and the jury

can never be permitted to ignore it, to evade it, or to pare it

away by distinctions and exceptions.‟” (quoting Pa. R.R. Co.

v. Aiken, 18 A. 619, 620 (Pa. 1889)).

The Occupied Crossing Rule has a long history in the

Commonwealth of Pennsylvania, dating back to the Court‟s

1938 opinion in Everetts v. Pa. R.R. Co., 198 A. 796 (Pa.

1938) (per curiam). Although the rule arose during the era of

contributory negligence, it has survived the 1978 adoption of

the comparative negligence doctrine in Pennsylvania. See

Krentz, 910 A.2d at 28 (stating that “„the enactment of the

Comparative Negligence Act does not change the well

established rule that negligence cannot be found where the

8

law does not impose a duty‟”) (quoting Sprenkel v. Consol.

Rail Corp., 666 A.2d 1099, 1102 (Pa. Super. 1995)).

Zimmerman‟s allegation that the crossing devices were

negligently maintained is a failure to warn claim. He argues

that Norfolk Southern breached a duty to maintain railroad

warning devices because “the sign that warned of the

approaching crossing was covered by tree branches, the

pavement markings no longer existed, and the crossbucks had

been allowed to fall into disrepair.” Brief of Appellant 43.

Because he contends that the railroad failed to warn him of

the danger at the crossing, we must determine whether any

duty to warn was in fact owed to him by the railroad given the

circumstances of the accident. See Krentz, 910 A.2d at 28.

Zimmerman, upon reaching the grade crossing,

abruptly applied his brakes and flew over the handlebars of

his motorcycle, striking a moving train. That moving train

occupied the crossing at the time he struck it, triggering

application of the Occupied Crossing Rule. As stated

previously, a motorist approaching an occupied crossing has

the duty to stop, look, and listen before entering the crossing;

the railroad has no duty to warn of an occupied crossing. Id.

As the Krentz Court notes in a footnote, railroads do in fact

have a duty to warn of approaching trains. Id. at n.10. Here,

however, the lead engine already occupied the crossing at the

time Zimmerman struck it. He struck the train at a point

approximately 30 feet from the front of its lead engine, at a

crossing that is only 29 feet wide. This is neither a matter of

contributory nor comparative negligence; rather, Zimmerman

cannot maintain his negligent maintenance of crossing

9

devices claim because Norfolk Southern had no duty to warn

of an occupied crossing.3

Zimmerman‟s inadequate sight distance claim is also,

at its core, a failure to warn claim. An adequate sight distance

is one means of providing motorists with warning that a train

is approaching. Here, as with the negligent maintenance of

crossing devices allegation, Zimmerman cannot maintain his

inadequate sight distance claim because the train that

Zimmerman struck occupied the crossing, triggering

application of the Occupied Crossing Rule.

This issue is not controlled by controverted facts but

by fundamental precepts of negligence, under which a

plaintiff must first establish that a defendant does in fact have

a duty. Here, application of the Occupied Crossing Rule

would compel us to hold that summary judgment was

appropriate because the railroad had no duty to warn of the

presence of the train that occupied the crossing at Diller

Avenue. Nevertheless, to address the specific points made by

3

The majority‟s footnote 13 states that the Occupied Crossing

Rule does not apply because “[h]ere, the train rushed into

view at the last second,” and “the train was not visible in time

for Zimmerman to avoid the accident[.]” The train did indeed

arrive at the crossing shortly before Zimmerman struck it, but

it fully occupied the crossing at the moment of impact. As the

majority states, railroads still have a duty to warn of

approaching trains; here, the record before us shows that the

lead engine‟s headlight was on “full” and the horn had been

blowing for one-quarter mile, or 45 seconds, such that two

people traveling 60 feet behind Zimmerman could hear the

horn as the train approached the Diller Avenue crossing.

10

the majority, I now turn to the common-law duties to

maintain a safe crossing and provide adequate sight distances.

V.

I would hold that the District Court properly granted

summary judgment in favor of Norfolk Southern because,

even assuming that the railroad owed duties to Zimmerman

under the circumstances of the accident, no genuine issue of

material fact exists as to those duties.

The District Court noted “that the Third Circuit in

Strozyk held that § 646.214(b) only preempts claims

regarding the adequacy of warning devices, and does not

preempt the common-law duty to maintain a safe grade

crossing.” App. 00032. The Court explained that “railroads

continue to have the common-law duty „to provide a

reasonably safe grade crossing,‟ „such as the duty to keep

visibility at grade crossings free from obstructions.” Id.

(quoting Strozyk, 358 F.3d at 276-277). I, along with the

majority, agree with the District Court‟s conclusion that this

claim was not preempted. Although the claim was not

preempted, the District Court nevertheless granted Norfolk

Southern‟s motion for summary judgment because

Zimmerman had not made a prima facie claim for negligence.

The Court determined that Zimmerman failed to establish that

Norfolk Southern: (1) had a duty to remove a privately owned

building, located off of the railroad‟s right-of-way, that

potentially obscured sight lines; and (2) negligently failed to

maintain a reasonably safe crossing. Accordingly, the District

Court held that there was no genuine issue of material fact

and that summary judgment was appropriate. Whereas the

majority states that “[t]here is sufficient evidence of each

11

element to allow the claim to go forward,” Majority Opinion

44, I disagree and would hold that the District Court correctly

granted summary judgment.

VI.

In determining whether summary judgment was

appropriate here, I must therefore determine whether any

genuine issue of material fact exists as to Norfolk Southern‟s

common-law duties of care.

To establish a prima facie case for negligence under

the common-law theory that Norfolk Southern failed to

maintain a reasonably safe crossing by negligently

maintaining the crossing devices and failing to provide

adequate sight distance, Zimmerman had to adduce facts that

demonstrate: (1) a duty or obligation recognized by law; (2) a

breach of that duty; (3) a causal connection between the

breach and the resulting injury; and (4) actual loss suffered by

him. See Rooney v. City of Phila., 623 F. Supp. 2d 644, 660

(E.D. Pa. 2009).

A.

Zimmerman asserts that Norfolk Southern allowed the

warnings at the Diller Avenue crossing to fall into disrepair,

breaching its duty to maintain warning devices at the

crossing. According to the majority, the record supports his

allegations that the warning sign was covered by tree

branches, that pavement markings no longer existed, and that

the crossbucks had been permitted to fall into disrepair.

Majority Opinion 38. With regard to the tree branches,

Zimmerman has failed to put forth competent evidence

12

demonstrating that the foliage blocked his view of the

advance warning sign on the day of the accident. Curiously,

the majority points to photographs taken in 2011 to support

the proposition that tree branches blocked the view of the

warning sign in 2008 at the time of the accident. The only

competent evidence of the condition of the foliage near the

time of the accident is set forth at pages 00503-00519 of the

Appendix. From these photographs, taken the day after the

accident, it appears that the foliage did not block the

advanced warning sign. See App. 00515 (picture taken 191

feet north of the crossing). Even if we were to use the

photographs taken in 2011, the advanced warning sign does

not appear to be obscured by foliage from at least as far as

300 feet north of the crossing.

The majority refers to tree branches covering the

crossbucks, but Zimmerman‟s assertion regarding the

crossbucks is that they were in “disrepair,” not that they too

were covered by foliage. As to this assertion, he likewise has

offered no competent evidence that the crossbucks were in

disrepair at the time of the accident. Finally, although the

majority has determined that “[p]hotographs suggest there

once was a white line north of the crossing, but that the line

had faded” by the time of the accident, Majority Opinion 38-

39, I conclude that there is no competent evidence to support

this proposition. I agree that there does not appear to have

been a painted line north of the crossing in 2008, judging

from the photographs taken one day after the accident.

Interpreting facts in the light most favorable to Zimmerman,

however, does not require us to decide that evidence of fresh

paint in 2011 means that the lines existed at some point prior

to the accident, but later faded such that they needed

repainting.

13

The majority rejects Norfolk Southern‟s causation

argument, but here it has misconstrued Zimmerman‟s own

testimony regarding the impact of his many crossings at the

Diller Avenue crossing. According to the majority, “in his

deposition, Zimmerman said that he had crossed the track

many times before the accident and that he believed the

crossing was inactive.” Majority Opinion 40 (citing App.

00235). The majority states also that from Zimmerman‟s

testimony, combined with evidence of poor maintenance of

the crossing, “it is reasonable to infer that state of disrepair at

least contributed to his belief that the crossing was inactive.”

Id. at 40. However, a closer reading of the cited portions of

Zimmerman‟s deposition testimony is instructive.

Zimmerman stated, “[I] did not know that that track had a

regular train on it. I have never seen a train on that track, and

so I don‟t know what—when I would have actually looked to

see if a train was coming. I certainly wasn‟t expecting—to my

knowledge, it was an unused track.” App. 00235. Later, he

stated “I mean, like I said, I never expected to see a train

there.” App. 00236. Zimmerman now wishes to

recharacterize his reason for believing that the crossing was

inactive to be the result of Norfolk Southern‟s failure to

maintain warning devices. His deposition testimony makes it

clear, however, that he believed the crossing was inactive

because he had never seen a train on that track, over his years

in the area and hundreds of trips down Diller Avenue.

Accordingly, I would hold that the District Court

correctly granted summary judgment on the negligent failure

to maintain crossing devices portion of Zimmerman‟s failure

to maintain a safe crossing claim.

14

B.

Next, Zimmerman contends that Norfolk Southern

negligently failed to maintain a safe crossing when it failed to

remove an obstruction, even though the obstruction was not

located on the railroad‟s right-of-way. Indeed, Norfolk

Southern neither possessed nor controlled any land beyond its

narrow right-of-way in the area of the Diller Avenue crossing.

Although he relies on Fallon v. Penn Cent. Transp. Co., 279

A.2d 164 (Pa. 1971), to support his contention that Norfolk

Southern had a duty to remove the building, the teachings of

Fallon do not support this position. That case states that

railroads have a special duty of care towards those who use a

crossing with a “dangerously limited view,” and that duty is

to “regulate the running of its trains as to make it possible for

a driver to cross the tracks in safety if, when just before

entering upon them, he stopped, looked and listened, and no

train was within sight or sound.” Id. at 167 (emphasis added)

(internal quotation marks and citations omitted). The

majority, paraphrasing Fallon, states broadly that under

Pennsylvania law, “railroads have a duty to ensure that

motorists are able to see approaching trains.” Majority

Opinion 40-41. As is clear from the emphasized language

above, this is an incomplete statement of the law.

The stop, look and listen rule, like the Occupied

Crossing Rule, has a long history in Pennsylvania. In Briach

v. Pa. R.R. Co., 462 F.2d 266 (3d Cir. 1972), this Court traced

the origins of the stop, look and listen rule, noting that

“[d]evelopment of the so-called „stop, look and listen‟

doctrine originated over a century ago,” in the case of Reeves

v. Del., Lackawanna & W. R.R. Co., 30 Pa. 454 (Pa. 1858),

where “the court determined that a traveler on a public

15

highway „is bound to stop and look out for trains.‟” Briach,

462 F.2d at 268. Later cases held that failure to stop and look

constituted negligence per se, and the requirement to listen

was added to the rule in 1867. Id. at 268-269. By 1873, the

Pennsylvania Supreme Court “stated that the duty to „stop,

look and listen‟ was an „unbending‟ rule of law and failure to

comply with any one of the three absolutes constituted

negligence as a matter of law.” Id. at 269 (quoting Pa. R.R.

Co. v. Beale, 73 Pa. 504 (1873)). By 1972, this Court noted

that recent case law from the Pennsylvania Supreme Court

affirmed and utilized the stop, look and listen rule. Id.

All of these cases, as well as Briach, pre-dated the

Legislature‟s adoption of the Comparative Negligence Act.

However, like the Occupied Crossing Rule, “the common law

„stop, look, and listen‟ rule has survived the Legislature‟s

abolishment of contributory negligence.” Krentz, 910 A.2d at

29. Although under the Comparative Negligence Act a

plaintiff‟s failure to stop, look and listen no longer constitutes

an absolute bar to recovery in all railroad-crossing cases, here

the long-standing obligation is embedded within the

railroad’s duty to provide an adequate sight distance. The

special duty under Fallon, which is triggered when a

dangerously limited view exists, requires a railroad to make it

possible for a driver to safely cross the tracks if that driver

stops, looks and listens, and no train is within sight or sound.

At a crossing with a dangerously limited view, a

railroad is only required to regulate the running of its trains to

make safe crossing possible for drivers who stop, look and

listen. This is not to say that Zimmerman cannot recover

because he did not stop, look and listen; I would hold that

where a plaintiff cannot show that a railroad violated its duty

16

under Fallon—that is, the duty to run its trains in a manner

that makes it safe for a driver to cross tracks after stopping,

looking and listening for trains—summary judgment is

appropriate. Based on the record, Zimmerman presented no

evidence to establish that Norfolk Southern violated its

special duty under Fallon.

The record before us shows that the lead engine‟s

headlight was on “full” and the horn had been blowing for

one-quarter of a mile, or 45 seconds, such that two people

traveling 60 feet behind Zimmerman could hear the horn as

the train approached the Diller Avenue crossing. Zimmerman

does not, and cannot, maintain that he stopped, looked and

listened prior to crossing the tracks or that, even if he had, he

would have nonetheless been harmed. He has represented that

he has no present recollection of the events concerning his

approach to the crossing and the collision. Not a whit of

evidence was provided that he complied with the venerable

stop, look and listen precepts of Pennsylvania law. Moreover,

no contention is presented by brief or oral argument that he

did so.

It must be noted that the requirement to stop, look and

listen is not abrogated merely because the motorist‟s view is

obstructed at one point but not another. See Benner v. Phila.

& R. Ry. Co., 105 A. 283, 285 (Pa. 1918) (“It is further

argued that [plaintiff] was relieved from the obligation to stop

because of the obstructions which prevented his view before

crossing . . . but, if this be true, another duty was imposed

upon him. It was his duty to alight and go to a point where he

could make a proper observation.”). Zimmerman admitted

that he could have seen the approaching train when he was

“within less than forty feet of the crossing.” App. 00073. But,

17

when he came to that point where he could have seen the

train, he did not “stop, look and listen,” as required by

Pennsylvania law. He now asks us to hold the railroad at fault

for his own failure to follow the law. I would not do so.

Zimmerman offered no evidence that he had obeyed a

fundamental maxim of the law formidably designed to

prevent him from crashing into the side of a passing train.

Accordingly, no genuine issue of material fact exists as to

whether Norfolk Southern met its duty of care.

C.

I conclude therefore that no genuine issue of material

fact exists regarding Norfolk Southern‟s maintenance of the

Diller Avenue crossing.

Notwithstanding my conclusion that Zimmerman

failed to establish a prima facie claim of negligence under

state law, he asserts that a claim was nevertheless made, and

thus a genuine issue of material fact exists, based on the

railroad‟s violation of its internal policy to contact

landowners with obstructions located off of the railroad‟s

right-of-way, which was “created pursuant to [federal]

regulation.” See 49 U.S.C. § 20106(b)(1)(B). This argument

is unpersuasive. He contends that the railroad‟s policy

regarding sight obstructions was issued pursuant to 49 C.F.R.

§§ 217.7, 217.11, and 218.1. These regulations, however, do

not require railroads to create specific policies but merely

require a railroad to keep copies of its operating rules and

timetables, see § 217.7, and to keep records of its program of

instruction to help employees learn the railroad‟s operating

rules, see § 217.11. Section 218.1 merely states that the

regulations provide minimum requirements and that railroads

18

are free to prescribe more stringent rules. He has failed to

identify any regulation requiring Norfolk Southern to adopt

the alleged policy at issue.

Furthermore, nothing in 49 U.S.C. § 20106 creates a

private right of action for a railroad‟s failure to comply with

any internal policy which it created and which was not

otherwise created pursuant to a federal regulation.

Zimmerman‟s broad interpretation of § 20106, such that

Norfolk Southern‟s internal policy was “created pursuant to a

regulation,” is not supported by the statute‟s text. As the

District Court properly noted, “[s]uch an interpretation would

discourage railroads from otherwise implementing internal

policies in order to avoid additional self-imposed duties of

care.” App. 00033.

I conclude, therefore, that although the common-law

duty to maintain a safe crossing area—including the duties to

maintain crossing devices and to provide adequate sight

distance—is not preempted by federal law, the District Court

nevertheless properly granted summary judgment as to this

claim because Zimmerman failed to establish a prima facie

claim that the railroad breached its duty.

VII.

The majority elects not to confront the critical

Pennsylvania stop, look and listen rule, stating:

The District Court explicitly refrained from

deciding whether Zimmerman was negligent.

Zimmerman, 2011 WL 3625039 at *21 n. 34 (“I

do not need to consider defendant‟s additional

19

arguments that plaintiff was comparatively

negligent by failing to comply with

Pennsylvania law.”). And neither side has

addressed the question of Zimmerman‟s

negligence on appeal. We therefore refuse to

affirm on these grounds.

Majority Opinion 43 n.16.

The majority‟s position requires special attention.

First, “stop, look and listen” is language that appears in more

than one place and for more than one reason: it is used not

only to impose a duty on motorists, see 75 Pa. C.S.A. §

3341(a), but also to limit the duty owed by railroads, see

Fallon v. Penn Cent. Transp. Co., 279 A.2d 164 (Pa. 1971). I

do not affirm the District Court‟s judgment on the ground that

Zimmerman was negligent, but on the ground that even if we

accept as true all Zimmerman has alleged in connection to his

inadequate-sight-distance claim, he cannot establish that the

railroad breached its limited common law duty to “regulate

the running of its trains as to make it possible for a driver to

cross the tracks in safety if, when just before entering upon

them, he stopped, looked and listened, and no train was

within sight or sound.” Id. at 167 (emphasis added) (internal

quotation marks and citations omitted).

Second, I wish to make clear that my colleagues did

not suggest that I lacked jurisdiction to discuss the

implications of the stop, look and listen rule. Instead, they

choose to “refuse to affirm on these grounds.” Had the

majority challenged this Court‟s jurisdiction to consider this,

they would have gotten nowhere, for an appellate court is

authorized to affirm a district court‟s judgment for reasons

20

other than those stated by the trial court, as long as the record

supports the judgment. See Guthrie v. Lady Jane Collieries,

Inc., 722 F.2d 1141, 1145 n.1 (3d Cir. 1983) (citing Helvering

v. Gowran, 302 U.S. 238, 245 (1937). Similarly, an appellate

court is not shackled to the briefs or oral argument of counsel.

An appellate court is not stripped of jurisdiction to discuss an

important—if not the most important—relevant precept of

law where, as here, a motorist operates his vehicle into the

side of a railroad train proceeding though a street crossing

merely because (1) a district court refuses to discuss it even

though raised by the defendant, and (2) the appellate lawyers

decide not to discuss it by brief or oral argument. The issue

was raised in the District Court. That vests in me the authority

to consider it on appeal.

In electing to refuse to consider the impact of

Zimmerman‟s failure to “stop, look and listen” as a grounds

that may warrant affirming the District Court, the majority

reflects a theory of jurisprudence that has been rejected in

America for almost 100 years. This jurisprudence of concepts

was known by the Germans as Begriffsjurisprudenz, and was

the theory behind the 17th Century movement to codify the

law in much of Europe. Later, the prominent German

jurisprudent Rudolf von Ihering insisted that the first question

should be how will a rule or a decision operate in practice and

advocated a jurisprudence of results. For example, if a rule of

commercial law were in question, the search should be for the

rule that best accords with and gives effect to sound business

practice. Rudolf von Ihering titled this jurisprudence

Wirklichkeitsjurisprudenz. Roscoe Pound, Mechanical

Jurisprudence, 8 Colum. L. Rev. 605, 608, 610 (1908). See

also Rudolf von Ihering, Der Geist des romischen Rechts

(1907). Whatever had been possible procedural restrictions on

21

appeal at one time in the Civil Law countries of European

Nations utilizing the jurisprudence of concepts, at least until

the end of the 19th century, as I will demonstrate below, we

should not adhere to this now disfavored approach.

In the beginning of the 20th century the great masters

of American Jurisprudence—Oliver W. Holmes, Jr.,

Benjamin N. Cardozo and Professor Roscoe Pound—rejected

the jurisprudence of concepts for what they called a

jurisprudence of results. Because this discussion has not often

appeared in many judicial opinions, if any at all, I will

summarize how the great change came about, a change in the

nature of jurisprudence doctrine that our courts have now

followed for almost 100 years, a change that was advocated

by these great American masters.

In his classic The Nature of the Judicial Process,

Cardozo explained hornbook doctrine that sometimes the

source of the law to be embodied in a judgment is obvious, as

when the Constitution or a statute applies. Benjamin N.

Cardozo, The Nature of the Judicial Process 14 (1921). In

these situations, the judge simply obeys the constitutional or

statutory rule. But when no constitutional or statutory

mandate controls, the judge must compare that case with the

precedents, “whether stored in his mind or hidden in the

books.” Id. at 19. If the comparison yields a perfect fit, if both

the law and its application are clear, the task is simple. If the

law is unclear, it is necessary to “extract from the precedents

the underlying principle” and then “determine the path or

direction along which the principle is to move and develop, if

it is not to wither and die.” Id. at 28. Cardozo cautioned that

decisions “do not unfold their principles for the asking. They

yield up their kernel slowly and painfully.” Id. at 29. He

22

discussed what he called the “organons” of the judicial

process—the instruments by which we fix the bounds and

tendencies of that principle's development and growth. He

also discussed the use of history and customs, and then

promulgated what in 1921 was considered a revolutionary

technique of decision-making—the method of sociology, a

jurisprudence that concentrated on results.

By describing the elements at work in the caldron,

Cardozo was performing the valued task of a traditional

common law judicial analyst. That he ranks with Oliver

Wendell Holmes, Jr. as one of our greatest common law

judges is scarcely now debatable. But to the extent that he

developed, persuasively and gracefully, a legitimation for

result-oriented jurisprudence, he became more a legal

philosopher than a common law judge. He sought what ought

to be the law, in contrast with what is.

Although Cardozo is not generally listed as a member

of the enthusiastic corps of American Realists, he must be

ranked with Holmes, as an elder statesman of that exciting

cadre of reformers. In the last quarter of the 20th century

critics were quick to recognize the legitimacy of decisions

based on social welfare, but in 1921 Cardozo's arguments

brought respectability to what theretofore had been

condemned as blatant result-oriented jurisprudence. He was

neither timid nor uncertain in espousing his self-styled

method of sociology. To him it was “the power of social

justice,” and among all principles of the decision-making

process, it was “the force which in our day and generation is

becoming the greatest.” Id. at 65-66. To him the preferred

gap-filler in addressing novel questions of law was the social

welfare, defined “as public policy, the good of the collective

23

body,” or “the social gain that is wrought by adherence to the

standards of right conduct, which find expression in the

mores of the community.” Id. at 71-72.

Accustomed as we are today to lavish reliance by

prestigious courts on judicial concepts of public policy,

Cardozo's statements in the early 1920s must be placed in the

context of judicial process of that era. Judges then were

disciples of what Rudolph von Ihering styled as a

jurisprudence of concepts, and as early as 1897 American

courts were being chided for undue reliance on concepts.

In The Path of the Law, Oliver Wendell Holmes gently

admonished:

I think that the judges themselves have failed

adequately to recognize their duty of weighing

considerations of social advantage. The duty is

inevitable, and the result of the often

proclaimed judicial aversion to deal with such

considerations is simply to leave the very

ground and foundation of judgments

inarticulate, and often unconscious . . . .

O.W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457,

467 (1897).

Within a decade Roscoe Pound was trumpeting the

same theme: “The most important and most constant cause of

dissatisfaction with all law at all times is to be found in the

necessarily mechanical operation of legal rules.” Roscoe

Pound, The Causes of Popular Dissatisfaction with the

24

Administration of Justice, 40 Am. L. Rev. 729 (1906),

reprinted in 8 Baylor L. Rev. 1 (1956).

Critics labeled this blind adherence to precedents, or to

the rules and principles derived from them, “mechanical

jurisprudence” and “slot machine justice.” Pound called for a

new look at what he described as “pragmatism as a

philosophy of law,” and stated vigorously: “The nadir of

mechanical jurisprudence is reached when conceptions are

used, not as premises from which to reason, but as ultimate

solutions. So used, they cease to be conceptions and become

empty words.” Roscoe Pound, Mechanical Jurisprudence, 8

Colum. L. Rev. 605, 608, 610 (1908).

Yet founders of the Results Jurisprudence—Holmes,

Pound and Cardozo—had early historical support for their

advocacy. Professor Calvin Woodard of the University of

Virginia suggests that their theory draws on Jeremy

Bentham's utilitarian thesis:

[T]he advocates of Sociological Jurisprudence

seized upon this aspect of Bentham‟s message.

Like him, they insisted that law has a practical,

real world moral purpose, though they defined

that purpose more in terms of social justice, and

the balancing of social interests, than

[Bentham's] “the greatest happiness of the

greatest number.”

Calvin Woodard, Thoughts on the Interplay Between

Morality and Law in Modern Legal Thought, 64 Notre Dame

L. Rev. 784, 795 (1989).

25

Typical of judicial utterances that had disturbed

Holmes, Pound, and Cardozo was one by the Maryland Court

of Appeals in 1895: “Obviously a principle, if sound, ought to

be applied wherever it logically leads, without reference to

ulterior results.” Gluck v. Baltimore, 32 A. 515, 517 (Md.

1895). In contrast, the same year that Cardozo delivered the

Storrs Lecture at Yale, he seized the opportunity to put his

new theory into practice by publicly rejecting blind

conceptual jurisprudence in Hynes v. New York Central

Railroad Co., 131 N.E. 898 (1921). A sixteen-year-old boy

had been injured while using a crude springboard to dive into

the Harlem River. The trial court had ruled that if the youth

had climbed on the springboard from the river before

beginning his dive, the defendant landowner would have been

held to the test of ordinary care, but because the boy had

mounted from land owned by the defendant railroad

company, the court held the defendant to the lower standard

of care owed to a trespasser. Cardozo rejected this analysis,

describing it as an “extension of a maxim or a definition with

relentless disregard of consequences to „a dryly logical

extreme.‟ The approximate and relative became the definite

and absolute.” Id. at 900.

Cardozo's opinion in Hynes is a prototype, and his The

Nature of the Judicial Process an apologia, for decision-

making based on result-oriented judicial concepts of public

policy. The philosophical underpinnings of what Cardozo

described as the sociological or results method run counter to

the widely held notion that the public policy should be

formulated and promulgated only by the legislative branch of

government. When judges rather than the legislators declare

public policy, their declarations produce local and national

tensions. When judges utilize this method, laymen and some

26

lawyers label them as “activists,” “liberals,” “loose

constructionists,” and a host of other epithets, gentle and

otherwise.

But modern American jurisprudence is more than the

results method, although its influence is strongly felt. The

legal realists of the 1930s and 40s worried about what they

called “the social performance of law.” Those same concerns

are said to lie close to the heart of the Critical Studies

Movement as well. To be sure, the Law and Economics

school can be said to be result-oriented, but it stresses

“economic efficiency” rather than social justice.

Modern American jurisprudence constantly seeks the

answers to the serious questions presented by the theories of

adjudication, theories both old and new. We must keep in

mind the central question put to us by the thoughtful

Professor Woodard:

What better measure is there of the value of a

legal system, or indeed of the rule of law itself,

than the quality of life of those subject to it?

And if this approach stresses the morality of

results, it also puts a huge moral burden on the

hand that wields the tool of law.

Woodard, supra, at 796.

From the foregoing, in this railroad crossing case, stop,

look and listen may not be cast aside as in the former era of a

jurisprudence of concepts (we won‟t meet it on appeal

because the trial judge did not meet it). In modern concepts of

jurisprudence to ignore this is to run in the face of Holmes‟s

27

words, “I think that the judges themselves have failed

adequately to recognize their duty of weighing considerations

of social advantage. The duty is inevitable, . . . ” And also the

words of Pound: “The most important and most constant

cause of dissatisfaction with all law at all times is to be found

in the necessarily mechanical operation of legal rules.” And

finally the words of Cardozo in New York Central Railroad:

you should not extend “a maxim or a definition with

relentless disregard of consequences to „a dryly logical

extreme.‟”

By 1974 Harry W. Jones, Cardozo Professor of Law at

Columbia Law School, would teach us:

Law is not a form of art for art‟s sake; its ends-

in-view are social, nothing more and nothing

less than the establishment and maintenance of

a social environment in which the quality of

human life can be spirited, improving and

unimpaired.

Harry W. Jones, An Invitation to Jurisprudence, 74 Colum. L.

Rev. 1023, 1025 (1974)

The Pennsylvania stop, look and listen rule was an

omnipresent brooding presence in this case. I will not put my

head in the sand and ignore it.

VIII.

The next issue is whether the District Court properly

granted Norfolk Southern‟s motion for summary judgment on

Zimmerman‟s excessive-speed claim. I agree with the

28

majority opinion insofar as it holds that excessive-speed

claims are preempted when a train is traveling below a

federally mandated speed limit. Majority Opinion 14. I also

agree with the majority that 49 C.F.R. § 213.9 creates

federally mandated speed limits by establishing “the degree

of care that railroads must exercise on each class of tracks:

trains should not exceed ten miles per hour on Class 1 tracks,

twenty-five miles per hour on Class 2 tracks, and so on.”

Majority Opinion 16.

I disagree, however, with the majority‟s holding that

Zimmerman‟s excessive-speed claim is not preempted by

§ 213.9 because he has raised a triable issue of fact as to

whether the track at the Diller Avenue crossing was a Class 1

track—the only class of track for which the train‟s speed

would have exceeded the federally mandated limit under

§ 213.9, and the only class of track for which Zimmerman‟s

claim would therefore not be preempted by § 213.9. I would

hold that Zimmerman failed to provide any competent

evidence that the tracks were classified as Class 1 because, as

the District Court held, the limited evidence Zimmerman

sought to introduce for this purpose was privileged under

either 23 U.S.C. § 409 or 49 U.S.C. § 20903. Zimmerman is

left without any competent evidence to rebut Norfolk

Southern‟s testimony that the track was either Class 2 or

Class 3, which both have maximum speed limits greater than

the speed the train was traveling, and therefore Zimmerman‟s

excessive-speed claim is preempted by § 213.9 and summary

judgment was proper.

A.

29

Zimmerman sought to introduce two groups of

documents to challenge Norfolk Southern‟s testimony that the

track at issue was a Class 2 or Class 3 track: inventory

documents from the Department of Transportation‟s National

Crossing Inventory and accident reports dating back to 1975.

I would hold that the inventory documents were privileged

under 23 U.S.C. § 409 and that the accident reports were

privileged under 49 U.S.C. § 20903.

B.

The first group of documents Zimmerman sought to

introduce were nine documents titled “U.S. DOT-Crossing

Inventory Information.” Eight of these documents state a

maximum permissible speed of 10 miles per hour for trains

crossing Diller Avenue, and one states a maximum

permissible speed of 15 miles per hour. If admitted into

evidence, these documents would create a genuine issue of

material fact as to whether the operation of the train was

negligent per se, given that it was traveling at a speed of 24

miles per hour at the time of the collision. Furthermore, they

would establish the possibility that Zimmerman‟s excessive-

speed claim is not preempted by § 213.9 because they would

demonstrate that Norfolk Southern may have exceeded the

federally mandated speed limit set for the Diller Avenue

crossing.

To determine whether the Inventory documents are

admissible, both the majority and I must analyze carefully 23

U.S.C. § 409, which states:

[R]eports, surveys, schedules, lists, or data

compiled or collected for the purpose of

30

identifying, evaluating, or planning the safety

enhancement of . . . railway-highway crossings,

pursuant to sections 130, 144, and 148 of this

title or for the purpose of developing any

highway safety construction improvement

project which may be implemented utilizing

Federal-aid highway funds shall not be subject

to discovery or admitted into evidence in a

Federal or State court proceeding or considered

for other purposes in any action for damages

arising from any occurrence at a location

mentioned or addressed in such reports,

surveys, schedules, lists, or data.

(emphasis added).

The Supreme Court teaches that § 409 was enacted to

facilitate programs including the Crossings Program

promulgated by 23 U.S.C. § 130. See Pierce Cnty. v. Guillen,

537 U.S. 129, 133-134 (2003). The Crossings Program was

enacted to assist states in identifying highways and railways

in need of improvements. It makes funds available to states

for the “cost of construction of projects for the elimination of

hazards of railway-highway crossings.” § 130(a). To

participate, states 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.” § 130(d). Because participation in these

programs required states to disclose safety-related

information that could expose them to civil liability, such as

information related to accident sites, Congress adopted § 409

to encourage disclosure. See Guillen, 537 U.S. at 133-134.

31

Additionally, in Guillen, the Supreme Court concluded

that § 409 protected all data collected by an agency in support

of the Federal Hazard Elimination Program (“§ 152”),

regardless of the source of the information. See id. at 145-

146. At the time, § 152 appeared within the text of § 409 as a

program falling within the statute‟s coverage, just as § 130

appeared and still appears to this day within the text of § 409.

For this reason, I would hold that the teachings of Guillen

apply equally to § 130 programs and would hold that § 409

protects all data collected by an agency in support of § 130,

regardless of the source of information. Because I conclude

that the inventory documents sought to be introduced here fall

within § 409, they are inadmissible and I would affirm the

District Court‟s holding.

C.

Because § 409 does not protect information that was

compiled, collected, obtained and utilized for purposes

unrelated to one of the three programs identified in the

statute, see Guillen, 537 U.S. at 146, the relevant inquiry

here, in determining whether § 409 applies, is whether the

information in the inventory documents was collected,

generated or compiled for the purpose of pursuing the

objectives of the federal program promulgated by § 130.

I agree with the District Court that the inventory

documents were “surveys,” which were “compiled and

collected” “for the purposes of . . . planning the safety

enhancement of railway-highway crossings,” and done

pursuant to § 130, which requires states to “conduct and

systematically maintain a survey of all highways to identify

32

those railroad crossings which may require

[improvements] . . . .” See App. 00047.

The inventory documents at issue were compiled and

collected for the U.S. DOT National Highway-Rail Crossing

Inventory Program, which began in the 1970s after the

passage of The Federal-Aid Highway Act. “The purpose of

the U.S. DOT National Highway-Rail Crossing Inventory

Program is to provide for the existence of a national inventory

database that can be . . . used . . . for planning and

implementation of crossing improvement programs . . . .”

Federal Railroad Administration, U.S. DOT National

Highway-Rail Crossing Inventory: Policy, Procedures and

Instructions for States and Railroads 3 (2007),

http://www.fra.dot.gov/downloads/safety/RXIPolicyInstructio

ns0807.pdf [hereinafter “2007 Manual”]. Moreover, the

current Program Manual instructs railroads to send their

completed inventory documents to the appropriate “State

Inventory Contact” so that the last portion of the form may be

completed by the state. 2007 Manual 6. The state‟s

participation in the Inventory Program, and its use of the

same forms used by the railroads, provides further support

that the inventory documents are privileged under § 409.

Congress clearly and emphatically intended by

enacting § 409 to prohibit this type of federally required

record keeping from being used as a “tool in litigation.” See

Guillen, 537 U.S. at 146 (explaining that Congress amended

§ 409 to include “or collected” in order “to make clear that §

152 [a section formerly included in the text of § 409 as § 130

is now included] was not intended to be an effort-free tool in

litigation against state and local governments.”). Additionally,

because the inventory documents at issue were “compiled and

33

collected” for the U.S. DOT National Highway-Rail Crossing

Inventory Program, the purpose of which is “to provide for

the existence of a national inventory database that can be . . .

used . . . for planning and implement[ing] . . . crossing

improvement programs,” I would hold the documents were

collected, generated or compiled for the purposes of § 130

and would affirm.

D.

In addition to the inventory documents, Zimmerman

attempted to introduce ten accident reports involving the

Diller Avenue crossing, five of which involve accidents from

the 1970s and state the track is a Class 1 track. I would hold

that The District Court correctly determined that these

accident reports were privileged pursuant to 49 U.S.C.

§ 20903, which states in part:

No part of an accident or incident report filed

by a railroad carrier under section 20901 of

[Title 49] . . . may be used in a civil action for

damages resulting from a matter mentioned in

the report.

A railroad, pursuant to 49 U.S.C. § 20901(a), is

required to file a monthly report with the Secretary of

Transportation “on all accidents and incidents resulting in

injury or death to an individual,” and the parties do not

dispute that the reports at issue here were filed pursuant to §

20901.

The majority opinion limits this privilege to

encompass only the report filed in direct response to

34

Zimmerman‟s accident while leaving open the possibility that

all other reports—whether filed before or after Zimmerman‟s

accident—may be used in his lawsuit against Norfolk

Southern. Such a holding defeats the general purpose of

privileges such as § 20903, which promote public safety by

encouraging candor. I would hold, therefore, that all the

accident reports Zimmerman seeks to introduce fall within the

§ 20903 privilege.

E.

Without the inventory documents and accident reports,

there is no evidence that the tracks at Diller Avenue were

classified as Class 1, with a maximum permissible speed of

10 miles per hour. And, because it is undisputed that the train

was traveling at 24 miles per hour—which is permissible on

both Class 2 and Class 3 tracks—no genuine issue of material

fact exists as to whether the train exceeded the speed

permissible under § 213.9. Therefore, Zimmerman‟s claim of

excessive speed is preempted and summary judgment was

proper.

*****

I would conclude that the District Court properly held

that Zimmerman‟s claims of negligence based on (1)

inadequate signals and (2) excessive speed are preempted. I

would conclude also that the District Court did not err in

granting summary judgment in favor of Norfolk Southern for

Zimmerman‟s claims that the railroad failed to (3) maintain a

reasonably safe crossing and (4) provide adequate sight

distance, because Zimmerman failed to establish a prima facie

negligence claim, and therefore no genuine issue of material

35

fact exists.

Finally, I would hold that the District Court properly

concluded that Zimmerman‟s excessive-speed claim is

preempted by § 213.9 because Zimmerman cannot establish

that there is a material issue of fact as to whether the train‟s

speed exceeded the federal limit permitted at the Diller

Avenue crossing without the inventory documents and

accident reports, which I would hold are privileged. Summary

judgment was therefore appropriate and I would affirm the

District Court‟s judgment in all respects.

36