2014 WI 80
SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP597
COMPLETE TITLE: Monica Ensley Partenfelder,
Plaintiff,
Managed Health Services Insurance
Corp./Healthcare
Recoveries, Inc.,
Involuntary-Plaintiff,
Scott Partenfelder,
Plaintiff-Appellant-Cross-Respondent,
v.
Steve Rohde,
Defendant-Respondent-Petitioner,
Soo Line Railroad Company,
Defendant-Respondent-Cross-Appellant-
Petitioner.
------------------------------------------------
League of Wisconsin Municipalities Mutual
Insurance,
Involuntary-Plaintiff,
Cyndi Krahn and John Krahn,
Plaintiffs-Appellants-Cross-
Respondents,
v.
Steve Rohde,
Defendant-Respondent-Petitioner,
Soo Line Railroad Company,
Defendant-Respondent-Cross-Appellant-
Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
347 Wis. 2d 385, 830 N.W.2d 115
(Ct. App. 2013 – Published)
PDC No: 2013 WI App 48
OPINION FILED: July 22, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 14, 2014
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Timothy M. Witkowiak
JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, C.J., BRADLEY, J., dissent. (Opinion
filed.)
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-respondent-cross-appellant-petitioner,
there were briefs by Timothy R. Thornton, Jonathan P. Schmidt,
and Briggs and Morgan, P.A., Minneapolis, and William H.
Frazier, Melinda A. Bialzik and Godfrey, Braun & Frazier, LLP,
Milwaukee, and oral argument by Timothy R. Thornton.
For the plaintiffs-appellants-cross-respondents, there was
a brief by Robert D. Crivello and Cannon & Dunphy, S.C.,
Brookfield, and Victor C. Harding and Warhafsky, Rotter,
Tarnoff, Bloch, S.C., Milwaukee, with oral argument by Robert D.
Crivello.
An amicus curiae brief was filed by Beth Ermatinger Hanan
and Gass Weber Mullins LLC, Milwaukee, and Daniel Saphire,
Washington, D.C., on behalf of the Association of American
Railroads.
2
2014 WI 80
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP597
(L.C. No. 2010CV4313 & 2011CV1010)
IN SUPREME
STATE OF WISCONSIN :
COURT
Monica Ensley Partenfelder,
Plaintiff,
Managed Health Services Insurance
Corp./Healthcare Recoveries, Inc.,
Involuntary-Plaintiff,
Scott Partenfelder,
Plaintiff-Appellant-Cross-Respondent,
v.
Steve Rohde, FILED
Defendant-Respondent-Petitioner, JUL 22, 2014
Soo Line Railroad Company, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Respondent-Cross-Appellant-
Petitioner.
------------------------------------------------
League of Wisconsin Municipalities Mutual
Insurance,
Involuntary-Plaintiff,
Cyndi Krahn and John Krahn,
Plaintiffs-Appellants-Cross-
No. 2012AP597
Respondents,
v.
Steve Rohde,
Defendant-Respondent-Petitioner,
Soo Line Railroad Company,
Defendant-Respondent-Cross-Appellant-
Petitioner.
REVIEW of a decision of the Court of Appeals. Reversed in
part, affirmed in part, and cause remanded.
¶1 DAVID T. PROSSER, J. This is a review of a
published decision of the court of appeals1 relating to the
applicability of federal preemption under the Federal Railroad
Safety Act (FRSA).
¶2 The FRSA and its accompanying federal regulations
normally preempt state law claims relating to train speed. 49
U.S.C. § 20106 (2006). However, there are exceptions. One
exception provides that regardless of the speed set by the
federal regulations, federal preemption does not foreclose a
lawsuit against a railroad for breaching the duty to slow or
stop when confronted with a "specific, individual hazard." See
1
Partenfelder v. Rohde, 2013 WI App 48, 347 Wis. 2d 385,
830 N.W.2d 115, reviewing a decision of the Milwaukee County
Circuit Court, Timothy M. Witkowiak, Judge.
2
No. 2012AP597
CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 675 n.15 (1993).
The question in this case is whether a parade and the resultant
parade traffic qualify for the "specific, individual hazard"
exception to preemption.
¶3 The case stems from a tragic collision between a train
and a minivan during a Memorial Day parade in the Village of Elm
Grove. Before the parade, the Elm Grove Police Department sent
a letter to rail police officer Steve Rohde (Rohde) asking him
to notify train conductors of potential hazards on the tracks
near the parade. Rohde passed along the information, and Soo
Line Railroad Company (Soo Line) issued an order for train crews
to sound the engine bell and look out for potential hazards at
the Elm Grove crossings. Unfortunately, a vehicle became stuck
on the tracks, and while Elm Grove Police Officer John Krahn
(Officer Krahn) and Scott Partenfelder (Scott) were trying to
remove Scott's child from the car seat in the back of the
vehicle, there was a collision in which the men were injured.
¶4 In two separate lawsuits that were eventually
consolidated, Scott, Officer Krahn, and Officer Krahn's wife,
along with their insurance companies, sued Soo Line, Rohde, and
unknown insurance companies for negligence. The plaintiffs
contended that Soo Line should have issued an order for trains
to go more slowly through the Elm Grove crossings because the
potential increase in traffic was a specific, individual hazard.
The defendants disagreed and asserted that the FRSA preempted
the plaintiffs' claims. Thus, the question for Wisconsin courts
has been whether the Memorial Day parade falls under the
3
No. 2012AP597
"specific, individual hazard" exception to preemption. See
Easterwood, 507 U.S. at 675 n.15.
¶5 We conclude the following.
¶6 First, the Elm Grove Memorial Day parade was not a
"specific, individual hazard" because the parade created only a
generally dangerous traffic condition. Imminence and
specificity are crucial components of the specific, individual
hazard exception to preemption. See Armstrong v. Atchison,
Topeka & Santa Fe Ry. Co., 844 F. Supp. 1152, 1153 (W.D. Tex.
1994); Hightower v. Kansas City S. Ry. Co., 70 P.3d 835, 847
n.21 (Okla. 2003). While the parade traffic in general may have
increased the likelihood of an accident, it did not create a
specific hazard, nor did the mere increase in traffic present an
imminent danger of a collision. The parade traffic in this case
is far afield of the paradigmatic specific, individual hazard of
a child or vehicle stuck on the tracks in front of an oncoming
train. Therefore, we reverse that portion of the court of
appeals decision that concluded that the Elm Grove parade was a
specific, individual hazard. In addition, we reverse the court
of appeals decision to the extent that it alters the circuit
court's dismissal of Rohde and to the extent that it alters the
circuit court's decision to exclude evidence of Soo Line's prior
notice of the parade, failure to issue a slow order, and failure
to hit the brakes prior to seeing the vehicle on the tracks.
See Hightower, 70 P.3d at 853-54.
¶7 Second, as Soo Line concedes, the vehicle on the
tracks in front of the approaching train was a specific,
4
No. 2012AP597
individual hazard. Thus, the question whether the train crew
was negligent in responding to the vehicle stuck on the tracks
remains, and we affirm that portion of the court of appeals
decision that determined that the circuit court properly denied
the defendants' summary judgment motion as it related to the
claims regarding the train's reaction to the vehicle on the
tracks.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
¶8 In 2009 the Village of Elm Grove's annual Memorial Day
Parade took place on May 25. In anticipation of the parade,
Sergeant Ryan A. Unger (Sergeant Unger) of the Elm Grove Police
Department sent a letter dated May 6 to Steve Rohde, a member of
the Canadian Pacific2 Rail Police. The letter was titled
"SPECIAL EVENTS NOTIFICATION" and said that Elm Grove would
celebrate Memorial Day with a parade that would begin at 10:30
a.m. and end around noon on Monday, May 25, 2009. In the
letter, Sergeant Unger stated that parade-related activities
might increase pedestrian traffic into the afternoon. The
letter asked Rohde to notify the conductors "of the potential
for pedestrian and vehicle hazards on the tracks" at the
Watertown Plank Road and Legion Drive crossing and at the Juneau
Boulevard crossing. The letter did not ask for trains to be
operated at reduced speeds.
2
Soo Line is a subsidiary of Canadian Pacific Railway
Company.
5
No. 2012AP597
¶9 When Sergeant Unger did not hear back from Rohde, he
sent an identical letter dated May 15 and followed up by calling
Rohde on May 22. Sergeant Unger claims that during the
conversation, Rohde said that he placed a lookout order to
conductors for train crossings in Elm Grove.3
¶10 Rohde sent an email memo to inform dispatch4 that Elm
Grove was having a Memorial Day parade and that the Elm Grove
Police Department asked that train crews be notified about the
parade. One of dispatch's functions is to create a document
called a Tabular General Bulletin Order (TGBO), which contains
specific instructions for train operators and supersedes the
3
Rohde disputes Sergeant Unger's version of events and
claims that he has no authority to place a lookout order; only
the dispatch center in Minneapolis could place that order.
There is also dispute as to whether Rohde said he would ask for
the trains to slow down. According to Sergeant Unger, Rohde
said that he put out a lookout order advising conductors to
decrease speeds and watch out for pedestrians. Rohde maintains
that he never told Sergeant Unger that he would ask conductors
to decrease their speed. In his email to dispatch, Rohde said
only that the trains should sound their engine bells and be on
the lookout for pedestrians.
Mark Fiereck (Fiereck), a superintendent of transportation
who oversees dispatch, testified at his deposition that after he
received Rohde's email, he called Rohde and asked for contact
information for someone involved with the Memorial Day parade.
According to Fiereck, he eventually spoke with a woman who was
involved with planning the parade, and when he asked her if she
wanted the trains to reduce their speed, she responded that she
wanted only that they look out for pedestrians and ring the bell
continuously.
4
A "train dispatcher" is "a railroad employee who directs
the movement of trains within a division and coordinates their
movement from one division to another with other dispatchers."
Webster's Third New International Dictionary 2424 (3d ed. 1986).
6
No. 2012AP597
general requirements based on unanticipated events or
conditions. The TGBO for the trains going through Elm Grove on
the day of the parade said, "SOUND ENG BELL CONTINUOUSLY AND
LOOKOUT FOR CROWDS OF PEOPLE WITHIN THESE LIMITS." The TGBO
listed the limits as milepost 94.5 and 96.0, an area that
included the Juneau Boulevard crossing where the accident
occurred.
¶11 On May 25, 2009, Scott and Monica Ensley-Partenfelder
(Monica) took their children to the Elm Grove Memorial Day
parade. Scott and Monica took separate vehicles because their
three children and the children's bicycles did not all fit into
one. Scott was in front with the two older children; Monica was
directly behind Scott in a 2000 Dodge Grand Caravan and had
their 23-month-old son in her vehicle. Travelling west on
Juneau Boulevard, Scott and Monica approached the Juneau
Boulevard railroad crossing. There are two sets of tracks at
the Juneau Boulevard crossing with 28 feet between them; trains
going eastward travel on the westernmost tracks. When Scott and
Monica came to the crossing, traffic stopped abruptly.
¶12 There are some inconsistencies in the accounts of what
happened next. Monica said that she and Scott had been stopped
at the tracks for a minute to a minute and a half when the
crossing gate began to lower and the bells began to sound. She
remembered that Scott was completely on the tracks and she was
only partially on the easternmost tracks when the gate lowered
onto the back of her van. An eyewitness said that the crossing
gate came down on the roof of Monica's van but that the van was
7
No. 2012AP597
still clear of the tracks.5 Monica could not back up because
there was a car close behind her. Monica said that traffic
started moving again, and she followed Scott, who was able to
drive clear of both sets of tracks.
¶13 Officer Krahn was at his assigned post roughly 150
feet west of the Juneau Boulevard crossing. When Officer Krahn
heard the railroad crossing bell, he went to check the crossing
and saw that there was a minivan straddling the tracks. Officer
Krahn told the driver to move to an open gravel area to the
right, but the right tire became stuck on the tracks. Officer
Krahn told the driver to accelerate, which caused the vehicle to
spin so that it was parallel to the tracks. The train crew
applied the emergency brakes, but there was not enough track
between the train and the vehicle for the train to stop before
reaching the crossing. Officer Krahn physically extracted
Monica from the vehicle and pushed her away from the tracks.
Monica informed Officer Krahn that her son was in the back of
the car, but Officer Krahn was unable to unlock the van's door.
At that point, Scott arrived and unlocked the door; he then
leaned in to unbuckle his son from the car seat. That is when
the train struck the van. Monica went to the van after the
collision and found that miraculously, her son was unharmed.
However, Officer Krahn and Scott were injured in the collision.
5
A claims representative for Canadian Pacific Railway
Limited took measurements of the crossing and determined that
the gate that came down on Monica's van was 22.5 feet to the
east of the easternmost rail and 58.4 feet from the eastern rail
of the tracks that the train was on.
8
No. 2012AP597
¶14 Following the accident, Trooper Ryan J. Zukowski of
the Wisconsin State Patrol——Technical Reconstruction Unit
prepared a Reconstruction Report & Collision Analysis
(Reconstruction Report) of the accident. The Reconstruction
Report discusses details related to Soo Line and the train that
collided with Monica's van. The Juneau Boulevard crossing is
located at milepost 95.36, where the speed limit for a non-
expedited freight train is 50 miles per hour. Between mileposts
93.7 and 96.6 there is a "continuous quiet zone" where trains
may not use engine horns or bells unless there is an emergency.
However, on May 25, 2009, the TGBO for the train that hit
Monica's vehicle at the Juneau Boulevard crossing required the
crew to sound the bell continuously and look out for people
between mileposts 96.0 and 94.5 between 9 a.m. and 3 p.m. As
the train entered the bell requirement area, it was travelling
at a speed of 42.5 miles per hour, less than the speed limit of
50 miles per hour.
¶15 The train's Event Data Recorder (Recorder) "records
information surrounding the train's operator inputs as well as
speed-related and location data." The Recorder demonstrated
that the train sounded the bell as required beginning at
milepost 95.965. The train collided with the van at
approximately 44.8 miles per hour6 around 9:36 a.m. The
6
The speed increase from 42.5 miles per hour to 44.8 miles
per hour is a normal effect of emergency activation. An
engineer on the train stated that he applied the train's
emergency brakes when he saw Monica's van move onto the tracks.
9
No. 2012AP597
Reconstruction Report concluded that both Juneau Boulevard and
the railroad grade crossing were maintained satisfactorily, and
the surrounding roads had the proper signage. The Elm Grove
Police Department conducted an investigation of the crash and
determined that the Soo Line train "was operating within Federal
Railway Administration guidelines at the time of the event."7
¶16 On March 24, 2010, Scott and Monica filed a complaint
in Milwaukee County Circuit Court. On July 27, 2010, Scott and
Managed Health Services Insurance Corp./Healthcare Recoveries,
Inc. as an involuntary plaintiff (collectively, "Partenfelder
plaintiffs"), filed an amended complaint against Soo Line
Railroad Company, AA Insurance Company (a fictitious name for an
unknown insurance company), and Rohde.8 The amended complaint
alleged that Sergeant Unger's letter informed Rohde that
increased parade traffic "would pose a unique local hazard" and
asked Soo Line to take safety precautions. The complaint
alleged that the defendants' negligence caused the collision of
the train with Monica's van and that Scott suffered various
injuries and expenses. In addition to the common law negligence
7
After reviewing materials from its investigation, the Elm
Grove Police Department issued a press release that stated that
Monica would receive a citation for violating Wis. Stat.
§ 346.52(1)(i) (2009-10), which prohibits stopping "[w]ithin 25
feet of the nearest rail at a railroad crossing." In addition,
the press release stated that Scott would be cited for operating
a motor vehicle without a license contrary to Wis. Stat.
§ 343.44(1) (2009-10).
8
Although Monica was originally a plaintiff, she was not a
party to the amended complaint, and the court allowed her to be
voluntarily dismissed on November 18, 2010.
10
No. 2012AP597
claim against all defendants, the complaint brought a safe place
claim9 against Soo Line.
¶17 On November 29, 2010, Soo Line and Rohde filed a joint
answer to the amended complaint and asserted various affirmative
defenses, one of which was that federal law preempted the claims
in the complaint.
¶18 On January 19, 2011, Officer Krahn and his wife, Cyndi
Krahn (collectively, "Krahns"), and League of Wisconsin
Municipalities Mutual Insurance as an involuntary plaintiff
(collectively, "Krahn plaintiffs") filed a complaint in
Milwaukee County Circuit Court against Soo Line, ABC Insurance
Company (a fictitious name for an unknown insurance company),
and Rohde. The complaint alleged that the collision between the
Soo Line train and Monica's vehicle was caused by Soo Line's
negligence in failing to reduce the train's speed in response to
the alleged specific, individual hazard of increased traffic.
9
Wisconsin Stat. § 101.11(1) (2009-10) provides:
Every employer shall furnish employment which
shall be safe for the employees therein and shall
furnish a place of employment which shall be safe for
employees therein and for frequenters thereof and
shall furnish and use safety devices and safeguards,
and shall adopt and use methods and processes
reasonably adequate to render such employment and
places of employment safe, and shall do every other
thing reasonably necessary to protect the life,
health, safety, and welfare of such employees and
frequenters. Every employer and every owner of a
place of employment or a public building now or
hereafter constructed shall so construct, repair or
maintain such place of employment or public building
as to render the same safe.
11
No. 2012AP597
The complaint also alleged that the Soo Line crew was negligent
for failing to look out and stop for the specific, individual
hazard of Monica's vehicle on the tracks and for failing to
apply the brakes as soon as the crew saw the vehicle.
¶19 Both cases were consolidated by a stipulation and
order signed by all parties and filed on August 15, 2011. The
consolidated cases proceeded in the Milwaukee County Circuit
Court before Timothy M. Witkowiak, Judge.
¶20 In filings dated October 3, 2011, Soo Line and Rohde
moved for summary judgment against the Krahn plaintiffs and
filed a supplemental brief in support of a summary judgment
motion that Soo Line and Rohde had filed on February 11, 2011,
against the Partenfelder plaintiffs. In the briefs supporting
the summary judgment motions, Soo Line and Rohde argued that the
FRSA preempted all plaintiffs' claims. After a hearing on
November 8, 2011, Judge Witkowiak denied the summary judgment
motions against all plaintiffs in a written order filed January
19, 2012. On February 15, 2012, in a decision on a motion for
clarification, the circuit court dismissed Rohde from the
lawsuit and prohibited evidence of Soo Line's notice of the
parade, the failure to issue a slow order, and any failure to
brake before seeing the Partenfelder vehicles. The court
reasoned:
To hold [Rohde] liable for the injury that resulted
from the "specific, individual hazard" identified by
the Court is to impose a duty before the collision
becomes imminent. Permitting this case to proceed
against Steve Rohde allows Plaintiffs to back-door a
12
No. 2012AP597
claim that is preempted by the Federal Railroad Safety
Act.
¶21 In a subsequent written order on March 7, 2012, the
court granted the motion for summary judgment as it related to
Rohde and granted in part Soo Line's motion for summary judgment
so that all claims relating to acts or omissions before the
Juneau Boulevard crossing became visible to the crew were
dismissed.
¶22 Scott and the Krahns filed a joint notice of appeal on
March 21, 2012. On April, 4, 2012, Soo Line cross appealed
those portions of the circuit court's order that were against
Soo Line and that denied Soo Line's motions for summary
judgment.
¶23 In a published decision, a divided court of appeals
affirmed in part, reversed in part, and remanded the case to the
circuit court. Partenfelder v. Rohde, 2013 WI App 48, 347
Wis. 2d 385, 830 N.W.2d 115. The court of appeals determined
that the parade was a specific, individual hazard because it was
a unique event that happened only once a year and "could cause
an accident to be imminent." Id., ¶¶37-38 (quoting Anderson v.
Wis. Cent. Transp. Co., 327 F. Supp. 2d 969, 978 (E.D. Wis.
2004)). Therefore, the court reversed the circuit court's
decision regarding preemption.10 Id., ¶38. The court of appeals
affirmed the portion of the circuit court's decision that
determined that the plaintiffs stated a claim for relief
10
The court of appeals did not specifically address the
claims against Rohde, but it appears as though the decision
would allow those claims to be reinstated.
13
No. 2012AP597
regarding the train crew's allegedly negligent response after
seeing Monica's van on the tracks. Id., ¶¶1, 39-40. The
dissent disagreed with the majority's conclusion on the
preemption issue, reasoning that the parade presented only a
"potential for danger" and was not a specific, individual
hazard. Id., ¶41 (Curley, P.J., dissenting in part, concurring
in part).
¶24 Soo Line petitioned this court for review, which we
granted on September 17, 2013.
II. STANDARD OF REVIEW
¶25 This court reviews summary judgment decisions de novo
but benefits from the analyses of the circuit court and court of
appeals. Yahnke v. Carson, 2000 WI 74, ¶10, 236 Wis. 2d 257,
613 N.W.2d 102. A court shall grant summary judgment if the
record demonstrates that "there is no genuine issue as to any
material fact and that the moving party is entitled to a
judgment as a matter of law." Wis. Stat. § 802.08(2) (2011-12).
"[W]hether federal preemption applies is a question of federal
law that we review independently." Blunt v. Medtronic, Inc.,
2009 WI 16, ¶13, 315 Wis. 2d 612, 760 N.W.2d 396 (citing Int'l
Ass'n of Machinists & Aerospace Workers v. U.S. Can Co., 150
Wis. 2d 479, 487, 441 N.W.2d 710 (1989)); see Miller Brewing Co.
v. DILHR, 210 Wis. 2d 26, 33, 563 N.W.2d 460 (1997).
III. DISCUSSION
¶26 The essential question in this case is whether the
FRSA preempts claims that Soo Line should have slowed its trains
because of the Memorial Day parade traffic. The Supreme Court
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No. 2012AP597
has outlined three instances in which preemption occurs: (1)
when Congress expressly sets forth a law's preemptive effect;
(2) when there is a reasonable inference that the subject matter
of the law in question is in a field in which Congress intended
federal law to have exclusive application; and (3) when state
law conflicts with federal law. English v. Gen. Elec. Co., 496
U.S. 72, 78-79 (1990). This case involves the FRSA's express
preemption.
¶27 The FRSA was created "to promote safety in every area
of railroad operations and reduce railroad-related accidents and
incidents." 49 U.S.C. § 20101 (2006). To facilitate
uniformity, the FRSA expressly preempts state law in areas
covered by the FRSA:
Laws, regulations, and orders related to railroad
safety and laws, regulations, and orders related to
railroad security shall be nationally uniform to the
extent practicable. A State may adopt or continue in
force a law, regulation, or order related to railroad
safety or security until the Secretary of
Transportation (with respect to railroad safety
matters), or the Secretary of Homeland Security (with
respect to railroad security matters), prescribes a
regulation or issues an order covering the subject
matter of the State requirement.
49 U.S.C. § 20106 (2006).
¶28 FRSA preemption applies to state common law claims as
well as statutory claims. Easterwood, 507 U.S. at 664.
Although the FRSA expressly preempts state law in covered areas,
it does provide an exception to preemption for "an essentially
local safety or security hazard":
15
No. 2012AP597
A State may adopt or continue in force an additional
or more stringent law, regulation, or order related to
railroad safety or security when the law, regulation,
or order——
(1) is necessary to eliminate or reduce an
essentially local safety or security hazard;
(2) is not incompatible with a law,
regulation, or order of the United States
Government; and
(3) does not unreasonably burden interstate
commerce.
49 U.S.C. § 20106 (2006) (emphasis added). In addition to this
exception in the text of the FRSA, there is an exception to
preemption for state claims alleging that a railroad was
negligent for failing to slow or stop a train in response to a
"specific, individual hazard."11 Easterwood, 507 U.S. at 675
n.15.
11
Courts have come to different conclusions as to whether a
"specific, individual hazard" is part of the "essentially local
safety or security hazard" exception to preemption listed in 49
U.S.C. § 20106 or whether it falls outside the scope of the
FRSA. See Myers v. Mo. Pac. R.R. Co., 52 P.3d 1014, 1026 n.43
(Okla. 2002) (citing cases that disagree as to whether the
essentially local safety or security hazard exception in 49
U.S.C. § 20106 is distinct from specific, individual hazards).
We conclude that a specific, individual hazard is separate from
the statutory local safety or security exception to preemption.
This view is supported by CSX Transp., Inc. v. Easterwood, 507
U.S. 658, 675 & n.15 (1993), where the Supreme Court determined
that an excessive speed claim did not fall under the statutory
"essentially local safety hazard" exception but suggested that a
"specific, individual hazard" might place an excessive speed
claim outside of FRSA preemption. The parties in this case
frame their arguments in terms of a "specific, individual
hazard" exception; therefore, we will not address the elements
of the "essentially local safety or security hazard" exception
in 49 U.S.C. § 20106 (2006).
16
No. 2012AP597
¶29 The FRSA requires the Secretary of Transportation
(Secretary) to "prescribe regulations and issue orders for every
area of railroad safety supplementing laws and regulations." 49
U.S.C. § 20103(a) (2006). Acting through the Federal Railroad
Administration, the Secretary promulgates regulations that set
forth maximum train speeds depending on the track class. See
Easterwood, 507 U.S. at 673; 49 C.F.R. §§ 1.49(m), 213.9 (2008).
¶30 Federal regulations under the FRSA preempt state law
only if they cover the same subject matter as the state law;
that is, state law is preempted "only if the federal regulations
substantially subsume the subject matter of the relevant state
law." Easterwood, 507 U.S. at 664 (citation omitted). The
Supreme Court has determined that 49 C.F.R. § 213.9(a) "cover[s]
the subject matter of train speed with respect to track
conditions . . . ." Easterwood, 507 U.S. at 675. "Thus, if a
train is involved in an accident while traveling under the
maximum speed prescribed by § 213.9(a), a state law claim based
on excessive speed is preempted." Anderson, 327 F. Supp. 2d at
975.
¶31 However, as mentioned above, negligence claims based
on a train's failure to slow or stop in the face of a "specific,
individual hazard" fall outside preemption. E.g., Easterwood,
507 U.S. at 675 n.15; Anderson, 327 F. Supp. 2d at 975. It is
undisputed that the Soo Line train involved in the collision was
travelling under the prescribed speed limit, and there is no
allegation of any violation of federal regulations.
Accordingly, Scott and the Krahns (collectively, "respondents")
17
No. 2012AP597
may pursue their claims that Soo Line should have slowed its
trains in response to the parade traffic only if this court
concludes that the Elm Grove Memorial Day parade was a specific,
individual hazard that removed the claims from the ambit of
preemption.
A. Defining "Specific, Individual Hazard"
¶32 The "specific, individual hazard" language originated
in Easterwood where the Supreme Court considered whether the
FRSA preempted a negligence claim based on a train's allegedly
excessive speed. Easterwood, 507 U.S. at 665, 675 n.15. In
Easterwood, a train struck and killed Thomas Easterwood as he
was driving across a set of railroad tracks in Cartersville,
Georgia. Id. at 661. His widow, the respondent, brought
several claims against the railroad, including a claim for
breaching the common law duty to operate the train at a safe
speed. Id. The Court determined that "the speed limits must be
read as not only establishing a ceiling, but also precluding
additional state regulation of the sort that respondent seeks to
impose on petitioner." Id. at 674. The Court rejected the
respondent's argument that a common law speed restriction falls
under the "essentially local safety hazard" exception but
suggested that the FRSA might not preempt speed claims based on
specific, individual hazards:
Petitioner is prepared to concede that the pre-emption
of respondent's excessive speed claim does not bar
suit for breach of related tort law duties, such as
the duty to slow or stop a train to avoid a specific,
individual hazard. As respondent's complaint alleges
only that petitioner's train was traveling too quickly
18
No. 2012AP597
given the "time and place," this case does not
present, and we do not address, the question of FRSA's
pre-emptive effect on such related claims.
Id. at 675 & n.15 (internal citations omitted).
¶33 Since Easterwood, courts have endeavored to define the
parameters of the "specific, individual hazard" exception to
preemption and generally have interpreted the exception
narrowly. Veit, ex rel. Nelson v. Burlington N. Santa Fe Corp.,
249 P.3d 607, 618 (Wash. 2011) (en banc). A Wisconsin federal
district court offered the following definition:
Generally speaking, . . . a specific, individual
hazard is a person, vehicle, obstruction, object or
event which is not a fixed condition or feature of a
crossing and cannot be addressed by a uniform,
national standard. See, e.g., Hightower, 70 P.3d at
847. A specific individual hazard is a unique
occurrence which could cause an accident to be
imminent rather than a generally dangerous condition.
A commonly cited example is a child standing on a
track. "Factors such as general knowledge that a
crossing is dangerous, traffic conditions, a
crossing's accident history, sight distances, multiple
crossings in close proximity, sun glare, a railroad's
internal policies regarding speed, and inadequate
signal maintenance are not specific, individual
hazards." Myers v. Mo. Pac. R.R. Co., 52 P.3d 1014,
1028 (Okla. 2002).
Anderson, 327 F. Supp. 2d at 978 (footnotes omitted) (internal
citations omitted). The definition suggests that a specific,
individual hazard: (1) is a unique,12 particular danger rather
than a "generally dangerous condition"; (2) poses a danger of an
imminent collision; and (3) "cannot be addressed by a uniform,
12
In this context, "unique" refers to occurrences that are
unusual rather than one-of-a-kind.
19
No. 2012AP597
national standard." Id. (citation omitted). These components
of a specific, individual hazard are interrelated, and we
discuss them in more detail below.
¶34 To fall under the specific, individual hazard
exception, the hazard must, as the name of the exception
indicates, be a specific rather than a general danger.
Armstrong, 844 F. Supp. at 1153 ("The 'specific, individual
hazard' identified by the Easterwood court logically relates to
the avoidance of a specific collision."). In addition, the
specific danger must pose the risk of an imminent collision.
Hightower, 70 P.3d at 847 n.21 (citation omitted) (agreeing with
courts that "have narrowly construed 'specific, individual
hazard' as an 'avoidance of an imminent collision with a
specific person or object'"). In keeping with the specificity
requirement, a specific, individual hazard is something that is
unique and could not have been taken into account by the
Secretary when promulgating uniform, national standards. See
Myers, 52 P.3d at 1027; Armstrong, 844 F. Supp. at 1152-53
(determining that a grade crossing without an automatic gate or
flashing lights in an area of heavy traffic was not a specific,
individual hazard in part because the Secretary took those
conditions into consideration).
¶35 Relying on the Anderson definition quoted above in
paragraph 33, the respondents attempt to characterize the parade
as a unique "event" that "could cause an accident" with a parade
attendee "to be imminent." The respondents fail to consider
Anderson's definition in its entirety. The alleged hazard in
20
No. 2012AP597
this case is more appropriately characterized as a traffic
condition rather than an event.13 The Memorial Day parade may
have increased the danger of a collision generally by
contributing to traffic congestion, but Anderson is clear that
"generally dangerous condition[s]" and "traffic conditions" are
not specific, individual hazards. Anderson, 327 F. Supp. 2d at
978.
¶36 Moreover, the idea that a specific, individual hazard
is something that "could cause an accident to be imminent," id.
(emphasis added), does not mean that a specific, individual
hazard is any hazard that could, in a cosmic sense, lead to an
imminent danger of an accident. Instead, that phrase must be
considered in context: "A specific individual hazard is a unique
occurrence which could cause an accident to be imminent rather
than a generally dangerous condition." Id. (emphasis added)
(citation omitted). Thus, imminence is related to a particular
danger. Cf. Myers, 52 P.3d at 1027 n.45 (emphasis added)
(agreeing with courts that "have concluded that the phrase
specific, individual hazard was used in Easterwood to describe
13
In fact, both complaints allege that the traffic is the
specific, individual hazard. The Partenfelder plaintiffs'
amended complaint alleges "that the pedestrian and vehicular
traffic would pose a unique local hazard." The Krahn
plaintiffs' complaint alleges "that the increased pedestrian and
vehicular traffic would pose a specific, individual hazard."
Although the complaints allege that the parade attracted the
traffic, they refer to the traffic as the hazard, not the
parade.
21
No. 2012AP597
the avoidance of an imminent collision with a specific person or
object").
¶37 For example, if the Elm Grove Police Department had
called Soo Line and said that there was a van stuck on the
tracks several miles ahead of the train, the van would have been
a specific, individual hazard that could have caused an accident
to be imminent as the train approached. The same is not true
for traffic congestion. Even as a train approaches a crowded
crossing, there is no imminent danger of a collision if
motorists and pedestrians are following the law. Thus, even if
an "event" can constitute a specific, individual hazard in some
circumstances, neither the parade in this case nor its resultant
traffic was such an event.
¶38 Perhaps because no case has determined that an event
like a parade is a specific, individual hazard, the respondents
analogize to a case in which the court determined that an
obstructed view was a specific, individual hazard. Mo. Pac.
R.R. Co. v. Lemon, 861 S.W.2d 501 (Tex. App. 1993). The analogy
is strained, and it is worth noting that at least one case that
used the "event" language has specifically rejected the
reasoning in Lemon. Myers, 52 P.3d at 1027 n.45 (stating that
although Lemon "may be justified in light of specific
peculiarities in [its] fact pattern[]," the case did not
"provide[] a sound rule of general applicability").
¶39 In Lemon, a train struck a vehicle and killed the
driver at a railroad crossing where railroad cars were illegally
parked to obstruct the view of both drivers and train operators.
22
No. 2012AP597
Lemon, 861 S.W.2d at 508-09. In addition to the fact that
illegally-parked train cars made the crossing less safe, the
crossing also was unlit, had no warning device for drivers to
alert them to a coming train, consisted of multiple tracks, was
above the level of the road, and had a curved road leading to
the tracks. Id. at 510. The train's engineer testified that he
would have seen the driver's car sooner if the illegally-parked
train cars had not been there. Id. at 509-10. The driver's
estate, among others, brought several claims against the
railroad including one for operating at an excessive speed. Id.
at 508. The railroad appellants argued that the FRSA preempted
the excessive speed claim. Id. at 509.
¶40 The court in Lemon determined that train cars that
obstructed the train operator's view were parked in violation of
an administrative code provision and that the engineer's
"realization that his view of one side of the crossing was
obstructed, coupled with his knowledge of this crossing,
triggered a duty for [the engineer] to slow his train . . . ."
Id. at 509-10. The court noted that the illegally-parked train
cars were not something that the Secretary of Transportation
took into consideration when setting train speed limits and
constituted a specific, individual hazard. Id. at 510.
Therefore, the excessive speed claim was not preempted. Id.
¶41 We agree with Myers that Lemon does not give a
generally applicable rule. Lemon's reasoning is suspect because
it relies in part on the engineer's knowledge that a crossing
had dangerous features. See id. But see Easterwood, 507 U.S.
23
No. 2012AP597
at 675 (stating that "§ 213.9(a) should be understood as
covering the subject matter of train speed with respect to track
conditions, including the conditions posed by grade crossings");
Anderson, 327 F. Supp. 2d at 978 (noting that general knowledge
of a crossing's danger and the fixed features of crossings do
not constitute a specific, individual hazard). Moreover, Lemon
came closer to falling within the specific, individual hazard
exception than the present case because the hazard in Lemon was
a specific obstruction that the Secretary could not have taken
into account. The railroad knew that the illegally-parked train
cars would obstruct the view of approaching trains and vehicles,
creating an imminent danger of a crash any time a train
traversed the crossing while a car was approaching. In
contrast, the parade traffic is more aptly categorized as a
generally dangerous condition because unlike the illegally-
parked train cars, the parade does not necessarily make the
crossing less safe.
¶42 In addition to citing cases that attempt to define
Easterwood's "specific, individual hazard" exception, the
respondents cite a pre-Easterwood case to argue that railroads
have a duty to slow their trains when they know of a temporary
and specific hazard. See Fla. E. Coast Ry. Co. v. Griffin, 566
So. 2d 1321 (Fla. Dist. Ct. App. 1990). In Griffin, a train hit
a child who tripped while trying to cross the railroad tracks.
Id. at 1322. There was evidence that the railroad and the
engineer operating the train knew that children commonly crossed
the tracks at the spot of the accident. Id. The court
24
No. 2012AP597
determined that the FRSA did not preempt claims relating to
"specific tortious acts in the face of hazardous conditions."
Id. at 1324. Thus, on retrial, the jury was allowed to consider
the fact that the railroad did not issue a slow order and that
the engineer did not slow down or stop when he saw the children.
Id.
¶43 Based on Griffin, the respondents in this case suggest
that the jury should be able to consider Soo Line's knowledge of
the increased traffic due to the Memorial Day parade and its
failure to issue a slow order. However, the persuasive value of
the opinion from a Florida court of appeals is minimal given the
fact that the Supreme Court subsequently addressed the issue.
Griffin is an outlier because it does not require that a
collision between a train and a specific hazard be imminent
before the specific, individual hazard exception applies. We
decline to follow the analysis in Griffin because it is no
longer the applicable law.
¶44 In a decision more analogous to the present case, a
U.S. District Court in Mississippi determined that a railroad
did not need to slow its trains based on knowledge that
construction workers would be working near the tracks and
frequently crossing the tracks. Baker v. Canadian Nat'l/Ill.
Cent. Ry. Co., 397 F. Supp. 2d 803, 814 (S.D. Miss. 2005). The
plaintiff argued that the railroad should have issued a slow
order in response to the workers' activities. Id. at 814 n.9.
The court rejected the plaintiff's claim and concluded that
"[i]t has been consistently emphasized that the kinds of
25
No. 2012AP597
conditions that could constitute a 'specific individual hazard'
are limited to transient conditions that could lead to an
imminent collision, such as a child standing on the
railway . . . ." Id. at 813. Therefore, the fact that the
workers had to cross the tracks frequently was not a specific,
individual hazard because such activity took place at many
sites.14 Id. at 814.
¶45 Similarly, events might cause increased traffic around
railroad crossings all over the country, and trains have no duty
to slow down for potential hazards unless the danger is
imminent. See Bashir v. Nat'l R.R. Passenger Corp. (Amtrak),
929 F. Supp. 404, 412 n.5 (S.D. Fla. 1996), aff'd sub nom.
Bashir v. Amtrak, 119 F.3d 929 (11th Cir. 1997) (declaring that
"a claim of failure to maintain a slow speed to avoid potential
hazards is simply another way of claiming that the train was
traveling at an excessive speed given the track type, location,
and conditions, which Easterwood precludes as preempted.").
14
Respondents argue that Soo Line slows its trains when it
knows that employees are working on the tracks and that it
should do the same when it knows the public will be near the
tracks. The fact that Soo Line slows its trains when it knows
that workers will actually be on the tracks does not give rise
to a duty for Soo Line to slow its trains when there is traffic
that might cause vehicles to become stuck on the tracks.
Respondents also argue that because in years past, Soo Line had
slowed down its trains, it knew that the parade was a specific,
individual hazard. However, because the specific, individual
hazard exception asks whether a collision is imminent, Soo
Line's past conduct is irrelevant. A plaintiff cannot use a
railroad's past voluntary act of caution to circumvent
preemption.
26
No. 2012AP597
B. Practical Concerns
¶46 The court of appeals supported its determination that
the parade was a specific, individual hazard by emphasizing that
the parade occurred only once a year. Partenfelder, 347
Wis. 2d 385, ¶37. Because the parade happens only once a year,
the court reasoned that it was unique and not a generally
dangerous condition like traffic related to frequent sporting
events. Id. Nonetheless, the fact that the parade is an event
that happens only once a year and "could cause an accident to be
imminent" in a broad sense is not sufficient to place it under
the specific, individual hazard exception.
¶47 Under the analysis espoused by the court of appeals
and the respondents, railroads would be captive to speculative
letters alleging that yearly "events" could cause an imminent
accident.15 It is not clear what standards railroads would have
to use to make the determination when an event rises to the
level of a specific, individual hazard. Letters could come to
the railroad asking for slow orders for events from birthday and
graduation parties to family reunions, to races and marathons,
all of which might happen only once a year. However, traffic
created by once-a-year events might not be appreciably different
15
Although it might seem clear, the concept of a unique
event is far too manipulable to provide a workable standard.
For example, if Elm Grove put on an Independence Day parade in
addition to the Memorial Day parade, would each parade be a
unique event? It is unclear whether we would look at the broad
categorization——parades——or at the underlying holiday or cause
for celebration to determine uniqueness. The same problem could
arise with other themed events or concerts.
27
No. 2012AP597
from traffic due to regularly held events like concerts, plays,
farmers' markets, or sporting events. As Amicus Curiae
Association of American Railroads points out, regular events
might even attract more traffic than unique events. Thus, to
carve out an exception for parade traffic would be to poke an
arbitrary hole in preemption. It may be a small hole at first,
but arbitrary holes are subject to expansion as litigants
attempt to wedge their claims into the exception.
¶48 If we were to accept the respondents' test, railroads
would face the constant dilemma of either slowing their trains
or risking prolonged litigation and potential liability.
Furthermore, encouraging trains to fluctuate their speeds might
be dangerous.
The safest train maintains a steady speed. Every time
a train must slow down and then speed up, safety
hazards, such as buff and draft forces, are
introduced. These kinds of forces can enhance the
chance of derailment with its attendant risk of injury
to employees, the traveling public, and surrounding
communities.
Track Safety Standards, 63 Fed. Reg. 33992, 33999 (June 22,
1998). In fact, slowing a train down might not prevent an
accident because "[t]he physical properties of a moving train
virtually always prevent it from stopping in time to avoid
hitting an object on the tracks regardless of the speed at which
the train is traveling." Id.
¶49 The idea that increased traffic constitutes a
specific, individual hazard is suspect in part because train
crews may assume that drivers will stop safely rather than cross
28
No. 2012AP597
a track when a train is approaching. See Van Gheem v. Chicago &
N.W. R.R. Co., 33 Wis. 2d 231, 243, 147 N.W.2d 237 (1967).
Wisconsin Stat. § 346.52(1)(i) (2009-10) prohibits drivers from
stopping "[w]ithin 25 feet of the nearest rail at a railroad
crossing." Drivers must stop at the signal of a warning device
at a railroad crossing and shall not cross the tracks when a
train is approaching. Wis. Stat. § 346.44 (2009-10). Thus,
even times of high traffic do not normally constitute a
specific, individual hazard because traffic laws provide
protection for motorists and facilitate the safe operation of
trains.16 Unfortunately, occasional accidents occur. Although
our compassion extends to all involved in the collision in this
case, we cannot allow our sympathies to alter our analysis. The
FRSA preempts state claims, and the parade in this case does not
fit within the exception for specific, individual hazards. To
hold otherwise would disregard the FRSA's express preemption and
create uncertainty and inefficiency for railroads.
¶50 In sum, the parade and its attendant traffic do not
constitute a specific, individual hazard; instead, the
circumstances of this case presented only a general danger of
traffic congestion. A specific, individual hazard exists when
there is a particular hazard that poses the risk of an imminent
16
Although slowing trains might prevent some accidents,
"Prevention of grade crossing accidents is more effectively
achieved through the use of adequate crossing warning systems
and through observance by the traveling public of crossing
restrictions and precautions." Track Safety Standards, 63 Fed.
Reg. 33992, 33999 (June 22, 1998).
29
No. 2012AP597
danger of a collision under circumstances that the Secretary
could not have taken into consideration when promulgating
uniform, national regulations. Here, those circumstances did
not arise until Monica's van was visible to the train crew.
Therefore, the inquiry on remand must focus on the train crew's
response once it saw Monica's van. See Hightower, 70 P.3d at
853-54 (footnote omitted) (citations omitted) (stating that when
the FRSA preempts negligence claims, "evidence pertinent to such
claims is likewise inadmissible when offered for purposes of
proof of culpability").
IV. CONCLUSION
¶51 We conclude the following.
¶52 First, the Elm Grove Memorial Day parade was not a
"specific, individual hazard" because the parade created only a
generally dangerous traffic condition. Imminence and
specificity are crucial components of the specific, individual
hazard exception to preemption. See Armstrong, 844 F. Supp. at
1153; Hightower, 70 P.3d at 847 n.21. While the parade traffic
in general may have increased the likelihood of an accident, it
did not create a specific hazard, nor did the mere increase in
traffic present an imminent danger of a collision. The parade
traffic in this case is far afield of the paradigmatic specific,
individual hazard of a child or vehicle stuck on the tracks in
front of an oncoming train. Therefore, we reverse that portion
of the court of appeals decision that concluded that the Elm
Grove parade was a specific, individual hazard. In addition, we
reverse the court of appeals decision to the extent that it
30
No. 2012AP597
alters the circuit court's dismissal of Rohde and to the extent
that it alters the circuit court's decision to exclude evidence
of Soo Line's prior notice of the parade, failure to issue a
slow order, and failure to hit the brakes prior to seeing the
vehicle on the tracks. See Hightower, 70 P.3d at 853-54.
¶53 Second, as Soo Line concedes, the vehicle on the
tracks in front of the approaching train was a specific,
individual hazard. Thus, the question whether the train crew
was negligent in responding to the vehicle stuck on the tracks
remains, and we affirm that portion of the court of appeals
decision that determined that the circuit court properly denied
the defendants' summary judgment motion as it related to the
claims regarding the train's reaction to the vehicle on the
tracks.
By the Court.—The decision of the court of appeals is
affirmed in part, reversed in part, and the cause is remanded to
the circuit court for further proceedings consistent with this
opinion.
31
No. 2012AP597.ssa
¶54 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). It is
important that trains run on time, but it is more important that
the people and property of the state be kept safe.
¶55 The public safety of the residents of Wisconsin and
our established tort law designed to promote public safety in
Wisconsin do not necessarily conflict with federal standards
under the Federal Railroad Safety Act (FRSA), which "promote[s]
safety in every area of railroad operations . . . ."1
¶56 Like the court of appeals, I recognize that the
Federal Railroad Safety Act does not fully replace or supersede
Wisconsin's tort law, which protects the residents of the state
from injury.2
¶57 By its very terms, the Federal Railroad Safety Act
does not completely preempt all claims arising from a motorist's
collision with a train. The text of the Act is evidence that
Congress did not intend to preempt all claims based in part on
the Federal Railroad Safety Act. In areas long occupied by
state law, there is a presumption against preemption "unless
[preemption] was the clear and manifest purpose of Congress."3
1
49 U.S.C. § 20101.
2
Partenfelder v. Rohde, 2013 WI App 48, ¶¶29-33, 347
Wis. 2d 385, 830 N.W.2d 115.
3
Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).
See also Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996).
1
No. 2012AP597.ssa
¶58 Although the Federal Railroad Safety Act does not
preempt all state claims related to railroad safety, it clearly
preempts some.
¶59 Section 20106 of the Federal Railroad Safety Act is
entitled "Preemption." A state's authority to regulate railroad
safety is displaced when the Secretary of Transportation
"prescribes a regulation or issues an order covering the subject
matter of the State requirement."4 The Federal Railroad Safety
Act grants the Secretary of Transportation broad authority to
prescribe regulations and issue orders for railroad safety.
¶60 A state may adopt or continue in force an additional
or more stringent law than provided in the Federal Railroad
Safety Act as long as it "(A) is necessary to eliminate or
reduce an essentially local safety or security hazard; (B) is
not incompatible with a law, regulation, or order of the United
States Government; and (C) does not unreasonably burden
interstate commerce."5
¶61 The Federal Railroad Safety Act, 49 U.S.C. § 20106,
authorizes States to adopt or continue in force more stringent
requirements related to railroad safety as follows:
(a) National uniformity of regulation.——(1) Laws,
regulations, and orders related to railroad safety and
laws, regulations, and orders related to railroad
security shall be nationally uniform to the extent
practicable.
(2) A State may adopt or continue in force a law,
regulation, or order related to railroad safety or
4
49 U.S.C. § 20106(a)(2).
5
49 U.S.C. § 20106(a)(2).
2
No. 2012AP597.ssa
security until the Secretary of Transportation (with
respect to railroad safety matters), or the Secretary
of Homeland Security (with respect to railroad
security matters), prescribes a regulation or issues
an order covering the subject matter of the State
requirement. A State may adopt or continue in force
an additional or more stringent law, regulation, or
order related to railroad safety or security when the
law, regulation, or order——
(A) is necessary to eliminate or reduce an essentially
local safety or security hazard;
(B) is not incompatible with a law, regulation, or
order of the United States Government; and
(C) does not unreasonably burden interstate commerce.
(b) Clarification 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 (with respect to
railroad safety matters), or the Secretary of Homeland
Security (with respect to railroad security matters),
covering the 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).
(2) This subsection shall apply to all pending State
law causes of action arising from events or activities
occurring on or after January 18, 2002.
(c) Jurisdiction.——Nothing in this section creates a
Federal cause of action on behalf of an injured party
or confers Federal question jurisdiction for such
State law causes of action.
3
No. 2012AP597.ssa
¶62 The majority opinion recognizes that the Federal
Railroad Safety Act does not preempt all tort claims against
railroads,6 yet treats the "specific, individual hazard" as the
only tort claim that survives preemption and addresses only the
issue of whether a "specific, individual hazard" existed in the
instant case, despite the plaintiffs' assertion that other tort
duties apply.7
¶63 On the contrary, in CSX Transportation, Inc. v.
Easterwood, 507 U.S. 658 (1993), the case the majority opinion
cites for the "specific, individual hazard" exception, the
United States Supreme Court acknowledged that preemption of an
excessive speed claim under the Federal Railroad Safety Act
"does not bar suit for breach of related tort law
duties . . . . "8 A "specific, individual hazard" is not to be
confused with the preemption exception in § 20106(a)(2)(A) for
an "essentially local safety or security hazard."9
¶64 Easterwood addressed whether a state wrongful death
claim based on excessive train speed was preempted by federal
regulations that set maximum allowable operating speeds for all
freight and passenger trains for each class of track. The
6
Majority op., ¶2.
7
See Response Brief of the Plaintiffs-Appellants-Cross-
Respondents at 3-4, 23-24 (stating there are multiple tort law
duties that will defeat federal preemption including, but not
limited to, slowing for a "specific, individual hazard.").
8
CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 675 n.15
(1993).
9
Dresser v. Union Pacific R.R. Co., 809 N.W.2d 713, 722
(Neb. 2011).
4
No. 2012AP597.ssa
United States Supreme Court reasoned that these speed limits
were adopted only after the hazards posed by track conditions
were taken into account and that thus, all state law claims for
excessive speed were subsumed by the regulations.10
¶65 A footnote in Easterwood noted that although the
railroad was "prepared to concede" that the "pre-emption of
[the] excessive speed claim [did] not bar suit for [its] breach
of related tort law duties, such as the duty to slow or stop a
train to avoid a specific, individual hazard," that issue was
not presented and thus would not be decided by the Court.
Easterwood, 507 U.S. at 675-76.
¶66 Wisconsin tort law's duty to exercise reasonable care
can be violated even if the train speed limits set under federal
law are being followed. The claim in the instant case relates
to a circumstance that is not a fixed condition or feature of
the railroad crossing. The local parade event could not have
been taken into account by the Secretary of Transportation in
the promulgation of uniform, national speed regulations under
the Federal Railroad Safety Act. The plaintiffs' claim in the
instant case is based on a unique occurrence that was likely to
result in a collision, namely large numbers of cars and people
would be on the tracks at a particular annual local event of
which the railroad had been given notice.
¶67 I disagree with the majority opinion's implicit broad
holding that the only state tort law claims that survive the
Federal Railroad Safety Act are those that allege a "specific,
10
Easterwood, 507 U.S. at 675.
5
No. 2012AP597.ssa
individual hazard." Such an interpretation is contrary both to
the federal statute and to our state's interest in protecting
tort victims.
¶68 For the foregoing reasons, I dissent.
¶69 I am authorized to state that Justice ANN WALSH
BRADLEY joins this dissent.
6
No. 2012AP597.ssa
1