Amicus Curiae Brief — Easterwood v. CSX Transportation (No. 91-1206)

‘AdO9 JTAVTWAY 1S98

——_—_—— —-

QUESTION PRESENTED

Whether federal statutes and regulations relating

to railroad-highway grade crossings preempt a state

law cause of action against a railroad based on the

alleged breach of the railroad’s duty to provide ad-

equate safety devices at grade crossings.’

‘This brief does not address the other question presented by

this case, namely: Whether federal regulations setting speed lim-

its for trains on all classes of track nationwide preempt a state

law cause of action against a railroad for operating its trains

at unreasonable speeds. ,

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TABLE OF CONTENTS

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INTEREST OF THE AMERICAN AUTOMOBILE

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SUMMARY OF THE ARGUMENT ...........cccccscccssscessseeees

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TABLE OF AUTHORITIES

Cases: Page

California v. ARC America Corp., 490 U.S. 93

STINE ceietdidedndnticinnstenindaidédncieniamenmindndemennnieiants 3

Cincinnati, New Orleans, & Texas Pacific Ry. v.

Bohon, 200 U.S. 221 (1906)... eeeeeeeeeeeeees 3

Cipollone v. Liggett Group, Inc., 112 S. Ct. 2608

SEIT. setevensimnanusunisinnseietisiapedminiedetenineeiedensemmenin 7

English v. General Electric Co., 496 U.S. 72

ENED? setsbeiieedciniisedesenadnntencetaprenereenbepemmstediinaeain 3

Gibbons v. Ogden, 22 U.S. (9 Wheat) 1 (1824) ...... 3

Ingersoll-Rand Co. v. McClendon, 111 S. Ct. 478

SEITE antsinnensnnasnsnnninesnssesecemmeneninienidaitmienetomtinness 7

ERUPT stcdscspesscasstaceecnsmasninipiosibenesapeeusnmepeneoiagees

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96 (1963) ooecccccccccccccscssevesesesesvevevevesesesceceveveveccse. .

Constitutional Provisions:

U.S. Comst. art. VI, ch. 2 coccccccccccccccecccecceccecceecceeeeee 3

Statutes:

Federal Railroad Safety Act of 1970, Pub. L. No.

91-458, 84 Stat. 971 oo... ececcceceeceeeeeees 2,4,5,7,8,9

Highway Safety Act of 1973, Pub. L. No. 93-87,

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5

5

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Be Stns TE stirariereneninnintenenennennnestianseicéninsininitdnens 4

ie US UUIIED traiietnsescnnicesniescononsccennedduccssncnonientai 5

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Table of Authorities Continued

Page

Regulations:

Manual on Uniform Traffic Control Devices (adopted

) Bef 8 ae 2,4,6,7

A renee 6

23 C.F.R. $§655.601-655.603 .................seccccccoeseseees 6

ee Sa PD ceceninssvicstinscnnennstecnianonntnnsonainn BS)

Reports:

H.R. Rep. No. 1194, 91st Cong., 2d Sess., reprinted

in 1970 U.S. Code Cong. & Admin. News

GSE nsvinrnnrnrtintemetetinantnaniiainnapneinmnisiimnss 8

Fed. Highway Admin., Rail-Highway Crossings

Study (1989) ..cccccccccscccscscsssscsesesesesessrscsesesececeres 8

Fed. R.R. Admin., Rail-Highway Crossing Accident/

Incident and Inventory Bulletin No. 18 .......... 8

INTEREST OF THE AMERICAN AUTOMOBILE

ASSOCIATION

The American Automobile Association (““AAA’’), a

not-for-profit corporation, represents more than 33

million motorists in the United States and Canada.’

Eighteen percent of the U.S. driving population are

AAA members, and 21 percent of all cars registered

in the U.S. belong to AAA members. These members

are served by a network of more than 1,000 AAA

offices, which provide travel, insurance, financial, and

automobile services. AAA is also one of the largest

travel information publishers in the world, producing

more than 350 million copies of travel-related publi-

cations annually.

Since its founding in 1902, AAA has been a leading

advocate for motorist and pedestrian safety. The

AAA-sponsored School Safety Patrol—children pro-

tecting their classmates from traffic dangers—was es-

tablished in 1920 and has become a nationwide

movement of a half million volunteers. AAA was

among the first to introduce traffic safety education

into elementary and junior high schools. AAA also

pioneered driver education in high schools, driver test-

ing, and training of driver education teachers. During

the 1930’s, AAA became involved in improvement of

pedestrian safety and inaugurated its annual Pedes-

trian Safety Inventory—a program recognizing cities

and states for outstanding pedestrian safety records.

AAA has a strong interest in this case because of

the impact the Court’s decision will have on traffic

* AAA has obtained written consent from both parties to file

this brief. Copies of the letters of consent have been filed with

the Clerk pursuant to United States Supreme Court Rule 37.

to

safety. Railroad-highway grade crossings present a

substantial danger to AAA’s members, and to the

motoring public generally. The outcome of this case

could determine whether railroads have any respon-

sibility to ensure that grade crossings are safe.

SUMMARY OF THE ARGUMENT

The Federal Railroad Safety Act of 1970 authorized

the Secretary of Transportation to make rules and

regulations for all areas of railroad safety. However,

Congress explicitly permitted states to adopt or con-

tinue in force any law relating to railroad safety until

the Secretary has adopted a rule or regulation cov-

ering the subject matter of the state law.

The Secretary has not adopted rules or regulations

requiring any safety devices at grade crossings that

have not been improved with federal funds. None of

the regulations issued under the Railroad Safety Act

relates to grade crossings. The Secretary has pro-

mulgated regulations concerning grade crossings un-

der the Highway Safety Act of 1973. However, those

regulations pertain only to grade crossings involved

in federally-funded highway projects. The regulations

do not cover crossings that, like the one in this case,

have not been improved with the use of federal funds.

The Secretary has also incorporated into the Code of

Federal Regulations the Manual on Uniform Traffic

Control Devices. The Manual provides standards for

the design of grade crossing safety devices, but does

not mandate the use of safety devices at particular

crossings.

Preservation of state law tort actions against rail-

roads is consistent with Congress’ purpose in enacting

the Railroad Safety Act, which was “to promote

safety in all areas of railroad operations and to reduce

railroad-related accidents.”” Preemption of state laws

would immunize railroads from potential tort liability

and would thus diminish the incentive of railroads to

maintain adequate warning devices. Indeed, because

no federal statute or regulation requires safety de-

vices at crossings that are not a part of federally-

funded projects, preemption of state laws would per-

mit railroads to leave such crossings completely un-

protected.

ARGUMENT

I. STATE LAWS REGULATING MATTERS OF TRADI-

TIONAL STATE CONCERN ARE PRESUMED VALID

ABSENT A CLEAR AND MANIFEST INTENTION OF

CONGRESS TO PREEMPT THEM

Under the Supremacy Clause of the Constitution,

art. VI, cl. 2, state laws that “interfere with, or are

contrary to the laws of congress, made in pursuance

of the constitution,” are invalid. Gibbons v. Ogden, 22

U.S. (9 Wheat) 1, 211 (1824). The question presented

in this case is whether federal law preempts a state

law cause of action against a railroad for alleged neg-

ligence in failing to provide adequate safety devices

at grade crossings. The provision of remedies for acts

of negligence is traditionally a matter of state con-

cern. See, e.g., Cincinnati, New Orleans, & Texas Pa-

cific Ry. v. Bohon, 200 U.S. 221, 226 (1906). A

presumption exists against finding preemption of state

law in areas traditionally regulated by the states. Cal-

yornia v. ARC America Corp., 490 U.S. 93, 101

(1989). In such situations, congressional intent to

supersede state law must be “‘clear and manifest.”’

English v. General Electric Co., 496 U.S. 72, 79

(1990). In this case, accordingly, state law must be

presumed valid, unless it is shown that preemption is

consistent with the clear and manifest intent of Con-

gress.

Il. FEDERAL LAW HAS NOT PREEMPTED STATE LAWS

REQUIRING RAILROADS TO PROVIDE ADEQUATE

SAFETY DEVICES AT GRADE CROSSINGS THAT

HAVE NOT BEEN IMPROVED WITH FEDERAL FUNDS

The Petitioner/Cross-Respondent, CSX Transpor-

tation, Inc., cites three sources of federal law which,

in its view, preempt state law: (1) the Federal Rail-

road Safety Act of 1970; (2) regulations implementing

the Highway Safety Act of 1973; and (3) the federal

Manual on Uniform Traffic Control Devices. Contrary

to CSX’s view, none of these laws explicitly or im-

plicitly preempts state laws of the type involved in

this case. In fact, none of these federal laws purports

to address the subject matter of the pertinent state

law—the requirement to provide safety devices at a

grade crossing that has not been improved with fed-

eral funds.

A. The Federal Railroad Safety Act Expressly Preserves

State Laws Until They Are Displaced by Federal Reg-

ulations Covering the Same Subject Matter

The Federal Railroad Safety Act of 1970, Pub. L.

No. 91-458, 84 Stat. 971, authorized the Secretary of

Transportation (‘‘Secretary’’) to promulgate rules,

regulations, and standards for all areas of railroad

safety, ‘“‘supplementing provisions * law and regu-

lations in effect on the date of enactment [October

16, 1970].”" 45 U.S.C.A. §431(a) (1992). Section 205

of the Act expressly permits states to ‘‘adopt or con-

tinue in force any law, rule, regulation, order, or

standard relating to railroad safety until such time

as the Secretary has adopted a rule, regulation, order,

or standard covering the subject matter of such State

requirement.” 45 U.S.C.A. §434 (1992). Thus, Con-

gress explicitly chose not to preempt state railroad

safety laws until the Secretary adopted a rule ‘“‘cov-

ering’’ the same ‘‘requirement.”’

The determinative question in this case is whether

the Secretary has adopted regulations covering the

requirement to provide adequate safety devices at

grade crossings that, like the one here, have not been

improved with federal funds. The answer is no. The

Secretary has not used the rulemaking authority

granted by the Railroad Safety Act to promulgate

any regulations regarding grade crossings. See 49

C.F.R. §§200-240 (1992). It is clear, therefore, that

the Railroad Safety Act has not resulted in the

preemption of any state law.

B. Regulations Implementing the Highway Safety Act Are

Inapplicable to Grade Crossings That Have Not Been

Improved with Federal Funds

The Secretary has adopted certain regulations re-

lating to grade crossings in connection with federally-

funded highway projects. Those regulations were is-

sued under the authority of the Highway Safety Act

of 1973. Pub. L. No. 93-87, 87 Stat. 282. The High-

way Safety Act established a safety program for grade

crossings. See 23 U.S.C.A. §130 (1992). That program

provides states with federal funds ‘‘for the elimination

of hazards of railway-highway crossings.”’ 23 U.S.C.A.

§130(a) (1992). In order to participate in the program,

states are required to “conduct and systematically

maintain a survey of all highways to identify those

railroad crossings which may require separation, re-

location, or protective devices, and establish and im-

plement a schedule of projects for this purpose.’’ 23

U.S.C.A. §130(d) (1992). The states are then eligible

to use federal highway funds to aid the improvements.

23 U.S.C.A. §130(a) (1992).

The regulations which the Secretary has issued pur-

suant to the Highway Safety Act govern the selection

of warning devices at grade crossings that are im-

proved with the use of federal funds. 23 C.F.R.

§646.214(b) (1992). For projects involving federal

money, the Secretary requires installation of ‘‘auto-

matic gates with flashing light signals’’ whenever

specified conditions exist at the crossing, such as mul-

tiple main line tracks. 23 C.F.R. §646.214(b\3\i)

(1992). These regulations are inapplicable to grade

crossings that, like the one in this case, have not

been improved with federal funds. The regulations do

not “‘cover,”’ and therefore do not preempt, state laws

respecting grade crossings that do not involve federal

funds.

C. The Manual on Uniform Traffic Control Devices Does

Not Require the Use of Safety Devices at Grade Cross-

ings

In 1974, the Secretary incorporated into the Code

of Federal Regulations the Manual on Uniform Traffic

Control Devices (‘““MUTCD”’). See 23 C.F.R. §§655.601-

655.603 (1992). The MUTCD established national

standards for highway traffic signals and warning de-

vices. Jd. In 1977 the MUTCD was amended to in-

clude standards for traffic control devices at railroad

grade crossings. MUTCD §1A-4.

The MUTCD merely provides standards for the

“design and application” of traffic control devices. Jd.

It does not provide any rules or guidelines as to which

safety devices are to be used at particular crossings.

The MUTCD states only that “t]he decision to use

a particular device at a particular location should be

made on the basis of an engineering study of the

location.” Id.

The MUTCD is not relevant here. This case con-

cerns the duty to select and install adequate safety

devices at grade crossings. The MUTCD does not re-

quire the use of any safety devices; it merely pre-

scribes the form of the devices when they are used.

Therefore, the MUTCD does not preempt state laws

imposing a duty of care upon railroads in selecting

the safety devices to be used at grade crossings.

Ill. PRESERVATION OF STATE LAW TORT ACTIONS

AGAINST RAILROADS IS CONSISTENT WITH CON-

GRESS’ PURPOSE OF PROMOTING RAIL SAFETY

This Court recently restated the proposition that

‘the purpose of Congress is the ultimate touchstone

of preemption analysis.”’ Cipollone v. Liggett Group,

Inc., 112 S. Ct. 2608, 2617 (1992); see also Malone v.

White Motor Corp., 435 U.S. 497, 504 (1978); Retail

Clerks Intl. Ass’n v. Schermerhorn, 375 U.S. 96, 103

(1963). Discerning Congress’ intent requires exami-

nation of the explicit statutory language and the

structure and purpose of the statute. Ingersoll-Rand

Co. v. McClendon, 111 S. Ct. 478, 482 (1990).

Both the terms and the legislative history of the

Railroad Safety Act demonstrate that the overriding

concern of Congress was to improve railroad safety.

In Section 101 of the Act, Congress declared that its

purpose was “‘to promote safety in all areas of rail-

road operations and to reduce railroad-related acci-

dents.”” 45 U.S.C.A. §421 (1992).

The legislative history reveals that Congress was

particularly concerned with the rising number of

deaths at railroad crossings. The report of the Inter-

state and Foreign Commerce Committee of the House

of Representatives states:

The committee is aware that grade cross-

ing accidents constitute one of the major

causes of fatalities connected with rail op-

erations. The need to do something about

these terrible accidents which have one of the

highest incidents of death and serious injury

per accident, necessitates an immediate at-

tack on the grade crossing problem as soon

as possible.

H.R. Rep. No. 1194, 91st Cong., 2d Sess., reprinted

in 1970 U.S. Code Cong. & Admin. News 4104, 4116.

Twenty-two years after enactment of the Railroad

Safety Act, railroad grade crossings remain danger-

ous places. According to statistics compiled by the

Federal Railroad Administration, in 1990 there were

5,713 accidents at grade crossings in the United

States, resulting in 698 deaths and 2,407 injuries.

Fed. R.R. Admin., Rail-Highway Crossing Accident/

Incident and Inventory Bulletin No. 13, at 2 (1991).

One of the best predictors of train-vehicle accidents

at grade crossings is the type of warning devices

installed. See Fed. Highway Admin., Rail-Highway

Crossings Study, at 2 (1989). Despite the importance

of warning devices, 67 percent of the 176,572 public

grade crossings in the United States are not equipped

with active warning devices (gates, flashing lights,

bells, or highway signals). See Fed. R.R. Admin., Rail-

Highway Crossing Accident/Incident and Inventory

Bulletin No. 13, at 59 (1991).

Preemption of state law tort actions against rail-

roads would impair, rather than promote, efforts to

improve safety at grade crossings. Railroads, because

of their expertise and familiarity with local conditions,

are in the best position to identify and correct safety

problems at grade crossings. Immunizing railroads

from potential tort liability would undermine highway

safety by diminishing their incentive to maintain ad-

equate warning devices. Indeed, because no federal

statute or regulation requires safety devices at cross-

ings that are not a part of federally-funded projects,

preemption of state laws would permit railroads to

leave such crossings completely unprotected. This

would turn Congress’ purpose in enacting the Rail-

road Safety Act on its head. Since congressional pur-

pose is the “‘touchstone’”’ of preemption analysis,

preemption is clearly inappropriate in this case.

CONCLUSION

. This Court should affirm the court of appeals’ hold-

ing that federal law does not preempt a railroad’s

state law duty to provide adequate warning devices

at a grade crossing that has not been improved with

federal funds.

Respectfully submitted,

PAUL R. VERKUIL, ESQUIRE

Counsel of Record

President

AMERICAN AUTOMOBILE ASSOCIATION

1000 AAA Drive

Heathrow, Florida 32746

407-444-7111

Counsel for Amicus Curiae