Federal preemption analysis under the 2007 Amendments of the Federal Railroad Safety Act’s (FRSA) 49 U.S.C. § 20106 (2006 & Supp. I 2009) contains two steps as articulated by the Third Circuit in Zimmerman v. Norfolk Southern Corporation, 706 F.3d 170 (2013). The court must first determine whether the defendant allegedly violated either a federal standard of care or an internal rule created to adhere to a federal regulation. If yes, there is no preemption. If no, then the court must determine whether federal regulation covers the plaintiff’s claim. If yes, then the federal regulation preempts.
The Third Circuit interpreted the evidentiary privilege of 23 U.S.C.A. § 409 to exclude state reports collected pursuant to 23 U.S.C.A. § 130 and documents collected for a particular highway-safety construction project. The Third Circuit also interpreted the evidentiary privilege of 49 U.S.C.A. § 20903 to exclude only reports filed by the railroad carrier in connection with the incident that is the basis of the civil action.
Robert Zimmerman v. Norfolk Southern Corporation (pdf)
Introduction
In Zimmerman v. Norfolk Southern Corporation,[1] the Third Circuit provided a “framework for analyzing preemption under the amended FRSA.”[2] In this case, a motorcyclist brought several Pennsylvania tort law claims against a railroad company in relation to an accident in which the motorist collided with a locomotive.[3] The Third Circuit concluded that the amended FRSA allows claimants to avoid preemption by alleging a violation of either a “federal standard of care” or a railroad’s “own plan, rule, or standard that it created pursuant to a regulation or order.”[4] Otherwise, the amendment upholds the traditional analysis for determining whether a federal regulation preempts state law.[5] The Third Circuit applied this framework to Zimmerman’s claims and held that: (1) the excessive-speed claim was not preempted because 49 C.F.R. § 213.9 created a federal standard of care;[6] (2) the claim of failure to maintain a safe crossing was not preempted because 49 C.F.R. § 234.245 created a federal standard of care;[7] and (3) the claim that Norfolk Southern was negligent per se for not providing “adequate warning devices” was preempted because there was no federal standard of care and 23 C.F.R. § 646.214(b) covered the subject matter of his claim.[8]
Furthermore, the Third Circuit also narrowly interpreted the evidentiary privilege in 23 U.S.C.A. § 409 by holding that the district court improperly excluded eight crossing reports that indicated the train’s excessive speed.[9] The Third Circuit also narrowly interpreted the evidentiary privilege in 49 U.S.C.A. § 20903 by holding that the district court improperly excluded nine accident reports that were not related to Zimmerman’s incident.[10]
Therefore, the Third Circuit provided a “clarification” of FRSA preemption by articulating a new framework for preemption analysis. The Third Circuit also interpreted the evidentiary privilege in 23 U.S.C.A. § 409 to exclude only state-submitted reports pursuant to § 130 and the evidentiary privilege in 49 U.S.C.A. § 20903 to exclude only accident reports made in connection with the incident at issue in the civil action.
Background of Relevant Law
The Third Circuit covers two major areas of law in Zimmerman v. Norfolk Southern Corporation: (1) federal preemption under the 2007 amendments of the FRSA and (2) interpretations on the evidentiary privileges in 23 U.S.C.A. § 409 and 49 U.S.C.A. § 20903.
The Federal Railroad Safety Act and the 2007 Amendment
The Federal Railroad Safety Act (FRSA) contains a clause that outlines its preemption powers.[11] The scope of preemption is contained in section (a), stating “[l]aws, regulations, and orders related to railroad safety and . . . railroad security shall be nationally uniform to the extent practicable.”[12] However, states may “adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation . . . or the Secretary of Homeland Security . . . prescribes a regulation or issues an order covering the subject matter of the State requirement.”[13] A state may also adopt a more stringent law related to railroad safety or security provided that: (1) it is necessary to eliminate a local safety hazard; (2) is not incompatible with a federal law or regulation; and (3) does not unreasonably burden interstate commerce.[14] The Third Circuit has interpreted these provisions to mean that a federal regulation preempts state law when the regulation “substantially subsume[s] the subject matter of the relevant state law.”[15]
In 2007, Congress amended the FRSA by adding subsection (b) as a “[c]larification regarding State law causes of action.”[16] Subsection (b) provides that there is no preemption where a claimant alleges that a defendant:
(A) has failed to comply with the Federal standard of care established by regulation or order issued by the Secretary of Transportation . . . or the Secretary of Homeland Security . . . 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).[17]
The Tenth and Eighth Circuits both ruled that the 2007 amendment does not overrule previous law interpreting preemption under the original FRSA.[18]
The Rail Safety Improvement Act and the Evidentiary Privileges
In 2008, Congress passed the Rail Safety Improvement Act to create an independent obligation for both states and railroads in submitting information to the National Crossing Inventory.[19]
The evidentiary privilege of 23 U.S.C.A. § 409 excludes any reports from discovery or evidence in a court proceeding for “damages arising from any occurrence at a location mentioned” in the report if: (1) the report was 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 (2) “for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds . . . .”[20]
23 U.S.C.A. § 130 requires states to conduct and maintain a “survey of all highways to identify those railroad crossings which may require separation, relocation, or protective devices . . . .”[21] Thus, by including section 130 in the evidentiary privilege, Congress sought to protect “state and local governments.”[22]
Section 20903 of the 49 U.S.C.A. states that “[n]o part of an accident or incident report filed by a railroad carrier . . . may be used in a civil action for damages resulting from a matter mentioned in the report.”[23]
Zimmerman’s Procedural History
In the summer of 2008, Robert Zimmerman approached a railroad crossing on his motorcycle.[24] Because it was dark and a building obscured his vision of the tracks, Zimmerman did not notice a crossing Norfolk Southern train until it was too late.[25] When he tried to stop, his front brake locked and he collided headfirst into the train.[26] The resulting collision left him partially paralyzed.[27]
Zimmerman sued Norfolk Southern in the E.D. of Pennsylvania listing four counts under Pennsylvania tort law.[28] He asserted that Norfolk Southern was liable for failure to warn, failure to maintain a safe crossing, failure to ensure that crossing devices complied with federal regulations, and punitive damages.[29]
Eastern District of Pennsylvania’s Holding
On August 17, 2011, the district court concluded that some of Zimmerman’s claims were preempted and his other claims did not present a genuine issue of material fact.[30]
The district court held that federal law preempted Zimmerman’s claim that Norfolk Southern maintained inadequate crossing signals because federal funds were used in the installation of warning devices.[31] The district court found that 23 C.F.R. § 646.214(b)(2) provided guidelines for federally funded crossing devices.[32] Therefore, the district court held that federal law preempted state and private decision-making authority regarding signal-crossing devices.[33] As to Zimmerman’s claim that Norfolk Southern was negligent in not providing adequate sight distance, the district court acknowledged that railroads have a common law duty to keep crossing visibility free from obstruction.[34] However, the district court concluded that Zimmerman did not establish a prima facie claim for negligence and granted Norfolk Southern summary judgment on these claims.[35]
The district court held that federal law preempted Zimmerman’s excessive speed claim because the federal standard of care established in 49 C.F.R. § 213.9 preempted any additional common law duties to operate the train at a slower speed.[36]
Zimmerman also produced nine documents that indicated that the track was classified as Class 1; thereby proving that the train was using excessive speeds by traveling above the Class 1 speed limit.[37] There documents were submitted by Norfolk Southern to the National Crossing Inventory pursuant to the Rail Safety Improvement Act.[38] The district court used the evidentiary privilege in 23 U.S.C.A. § 409 to preclude the use of Zimmerman’s documents.[39] Zimmerman also produced accident reports from his accident as well as accident reports that indicated the track was a Class 2 track.[40] The district court precluded the use of the accident report from Zimmerman’s own accident under the evidentiary privilege of 49 U.S.C.A. 20901 and ruled that the other accident reports presented no dispute of material fact.[41] The Court concluded that, even if the track was classified as Class 2, Zimmerman did not argue that the accident would not have occurred if the train had complied with the Class 2 speed limit.[42]
The district court struck down Zimmerman’s third claim of negligence per se and concluded that the standard of care established in federal regulations preempt any common law duties to warn.[43]
Zimmerman filed a timely notice for appeal to the Third Circuit.[44] The Third Circuit reversed the district court’s grant of summary judgment as to Zimmerman’s excessive speed and failure to maintain a safe crossing claim and affirmed the grant of summary judgment on Zimmerman’s negligence per se claim.[45]
Third Circuit’s Analysis
The Third Circuit held that the 2007 Amendments created a two-step preemption analysis.[46] First, the court must determine whether the defendant allegedly violated either a federal standard of care or an internal rule that was created to comply with a federal regulation.[47] If yes, then the claim avoids preemption.[48] If no, then the court must move to the second part of the analysis and determine whether any federal regulation covers the claim.[49]
The Third Circuit also held that the evidentiary privilege in 23 U.S.C.A. § 409, to the extent that it invokes 23 U.S.C.A. § 130, applies only to state-issued reports and the privilege in 49 U.S.C.A. § 20903 applies narrowly to reports issued in connection with the incident that gave rise to the civil action.[50]
Zimmerman’s Excessive Speed Claim and Preclusion of Crossing and Accident Reports
Applying the first step of preemption analysis, the Third Circuit held that Zimmerman’s excessive speed claim was not preempted because a federal standard of care for train speed existed.[51] The Court reasoned that 49 C.F.R. § 213.9 created a federal standard by establishing speed limits for classes of tracks: ten miles per hour on Class 1 tracks, twenty-five miles per hour on Class 2 tracks, and forty miles per hour on Class 3 tracks.[52] Because 49 C.F.R. § 213.9 established a degree of care that made railroads responsible for exercising, rather than the state, the Third Circuit held that Zimmerman’s excessive speed claim was not preempted.[53]
The Third Circuit then held that the district court improperly excluded eight crossing reports and nine accident reports that were favorable to Zimmerman’s claim of excessive speed.[54] The Court reasoned that the evidentiary privilege in 23 U.S.C.A. § 409 protected state-submitted reports, not railroad-submitted reports.[55] State reports were submitted pursuant to 23 U.S.C.A. § 130(1), which was covered by the evidentiary privilege of 23 U.S.C.A. § 409.[56] The railroad reports were submitted pursuant to 49 U.S.C.A. § 20160, which was not covered by 23 U.S.C.A. § 409. Therefore, the Third Circuit held that the 2010 Pennsylvania report was privileged, but the report submitted by Norfolk Southern was not.[57] Furthermore, the Court interpreted the language in 49 U.S.C.A. § 20903 to only exclude only those accident reports that resulted from incident giving rise to the civil action.[58] Therefore, the Third Circuit held that the nine incident reports that were not directly related to Zimmerman’s accident were improperly excluded.[59]
Zimmerman’s Claim of Failure to Maintain a Safe Crossing Area
The Third Circuit held that Zimmerman’s failure to maintain a safe crossing claim was not preempted.[60] The Third Circuit used precedent established in Strozyk v. Norfolk Southern Corporation[61] and the federal standard of care in 49 C.F.R. § 234.245 to hold that Zimmerman’s claim was not preempted.[62] In Strozyk, the Third Circuit held that a railroad can still be liable for negligent conduct “such as the failure to maintain a working crossing arm . . . .”[63] The Strozyk Court also concluded that 23 C.F.R. § 646.214(b)(3), which mentions “unusually restricted sight distance”[64] as a factor to install flashing lights, does not show intent to regulate sight-distance conditions.[65] Therefore, the Third Circuit ruled that Zimmerman’s tort claim of Norfolk Southern’s negligence in maintaining inadequate crossing devices was not preempted.[66]
Zimmerman’s Negligence Per Se Claim
The Third Circuit held that federal law preempted Zimmerman’s claim that Norfolk Southern was negligent per se for violating certain requirements in 23 C.F.R. § 646.214(b).[67] Section 646.214(b)(3)(i) states that crossings with limited sight distance and high train speeds must have “adequate warning devices” and that such devices funded by Federal-aid funds must have “flashing light signals.”[68]
Applying the first step of preemption analysis, the Third Circuit held that 23 C.F.R. § 646.214(b) did not create a federal standard of care.[69] The Third Circuit referred to recent decisions in the Eighth and Tenth Circuits that similarly held that section 646.214(b) did not create a federal standard of care.[70] Because the Commonwealth of Pennsylvania installed the crossing devices with the use of federal funds, the Third Circuit reasoned that the state was ultimately responsible for the compliance under section 646.214(b)(1).[71]
Applying the second step of preemption analysis, the Third Circuit held that the subsections in 23 C.F.R. § 646.214(b) preempted Zimmerman’s inadequate-device claim.[72] The Third Circuit referred to the Supreme Court’s decision in Norfolk Southern Railway Company v. Shanklin[73] in concluding that subsections in 646.214(b) cover the subject matter of inadequate-device claims.[74]
Therefore, by applying its newly articulated framework for preemption analysis, the Third Circuit reversed the District Court’s grant of summary judgment on Zimmerman’s claims for excessive speed and inadequate maintenance of crossing devices and affirmed the grant of summary judgment on Zimmerman’s negligence per se claim.[75]
Impact of Zimmerman on Future Railroad Tort Cases
The Third Circuit established important precedent for two areas of railroad tort law: (1) preemption analysis under the amended provisions of the FRSA and (2) the scope of the evidentiary privileges contained in 23 U.S.C.A. § 409 and 49 U.S.C.A. § 20903.
As the Third Circuit acknowledged in Zimmerman, the 2007 amendment does not supersede prior precedent regarding federal preemption.[76] Instead, the amendment adds that, even if a federal rule covers the subject matter of a claim, the claim can avoid preemption if there is a violation of a federal standard of care or an internal rule created to comply with a federal regulation.[77] The analysis of whether a railroad is liable under a federal standard of care seems to be determined by whom the regulation places compliance responsibility upon. Because 49 C.F.R. § 213.9 established speed limits that placed responsibility on railroad companies to follow, the Third Circuit concluded that Zimmerman’s excessive speed claim was not preempted.[78] On the other hand, the Third Circuit concluded that Zimmerman’s claim for inadequate warning devices was preempted because 23 C.F.R. § 646.214(b) placed responsibility for the installation of adequate warning devices on the state.[79]
Going forward, practitioners should examine closely where federal regulations place the burden of compliance. Even if a federal regulation seems to cover the subject matter of a certain claim of railroad negligence, the claim may avoid preemption if the federal regulation places responsibility of compliance on the railroad.[80]
The Third Circuit also narrowed the evidentiary privileges of 23 U.S.C.A. § 409 and 49 U.S.C.A. § 20903.[81] The Third Circuit performed a text-based approach and recognized the difference between state-submitted reports and railroad-submitted reports.[82] Though both types of reports were submitted to the National Crossing Inventory pursuant to the Rail Safety Improvement Act in 2008, the Third Circuit held that the source of the reports is definitive in deciding whether the evidentiary privilege applies.[83] As to the evidentiary privilege in 49 U.S.C.A. § 20903, the Third Circuit implemented a narrow construction of the rule by applying it only to reports that derive from the specific incident at issue in the civil action.[84]
This narrow interpretation of the evidentiary privilege allows the inclusion of crossing reports filed by a railroad and accident reports that are unrelated to the accident at issue in the litigation. Railroad companies must be aware that crossing reports filed pursuant to the Railroad Safety Act of 2008 are not protected under evidentiary privilege.
Matthew J. Quan
Temple University School of Law, J.D. Candidate 2014
[1] 706 F.3d 170 (2013).
[2] Zimmerman, 706 F.3d at 176.
[3] Id. at 174.
[4] Id. at 177 (citing 49 U.S.C. § 20106(b)(1)(A)-(B)).
[5] Id.
[6] Id. at 180.
[7] Id. at 188.
[8] Id. at 192-3.
[9] Id. at 185.
[10] Id. at 186.
[11] 49 U.S.C.A. § 20106 (2012).
[12] Id. § 20106(a)(1).
[13] Id. § 20106(a)(2).
[14] Id. § 20106(a)(2)(A)-(C).
[15] Strozyk v. Norfolk S. Corp., 358 F.3d 268, 271 (3d Cir. 2004) (quoting CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993)).
[16] 49 U.S.C.A. § 20106(b).
[17] Id. § 20106(b)(1)(A)-(C).
[18] See Grade v. BNSF Ry. Co., 676 F.3d 680, 686 (8th Cir. 2012) (holding that “the 2007 Amendment has no effect on the prior case law relating to those regulations.”); Henning v. Union Pac. R.R. Co., 530 F.3d 1206, 1216 (10th Cir. 2008) (stating that “the amendment is labeled as a ‘clarification’ which indicates Congress sought to resolve an ambiguity rather than effect substantive change.”).
[19] 49 U.S.C.A. § 20135 (2012).
[20] 23 U.S.C.A. § 409 (2012).
[21] 23 U.S.C.A. § 130(d) (2012).
[22] Pierce County, Wash. v. Guillen, 537 U.S. 129, 147 (2003).
[23] 49 U.S.C.A. § 20903 (2012).
[24] Zimmerman v. Norfolk S. Corp., 706 F.3d 170, 174 (2013).
[25] Id.
[26] Id.
[27] Id.
[28] Id. at 175.
[29] Id.
[30] Zimmerman v. Norfolk S. Corp., No. 10-cv-02267, 2011 WL 3625039, at *1 (E.D. Pa. August 17, 2011).
[31] Id. at *10.
[32] Id.
[33] Id.
[34] Id. at *9 n.3.
[35] See id. (“Plaintiff has not established that defendant has a duty to remove a privately owned building that potentially obscure sight lines, where the building is located off of the railroad’s right of way. . . . Plaintiff cites no authority for the proposition that defendant had a duty to modify or remove a privately owned building which is located off the railroad’s right of way.”).
[36] Id. at *12.
[37] Id. at *15.
[38] Id. at *15.
[39] Id. at *18.
[40] Id.
[41] Id.
[42] Id. at 19.
[43] Id. at *20-21.
[44] Zimmerman v. Norfolk S. Corp., 706 F.3d 170, 175 (2013).
[45] Id. at 193.
[46] Id. at 178.
[47] Id.
[48] Id.
[49] Id.
[50] Id. at 182.
[51] Id. at 180.
[52] Id. at 179 (citing 49 C.F.R. § 213.9).
[53] Id. at 180.
[54] Id. at 185-6.
[55] Id. at 182-3.
[56] Id. at 183 (quoting 23 U.S.C.A. § 409, “reports, surveys, schedules, lists, or data compiled or collected . . . pursuant to sections 130, 144, and 148 of this title . . . .”).
[57] Id.
[58] Id. at 185-6.
[59] Id. at 186.
[60] Id. at 188.
[61] 358 F.3d 268 (3d Cir. 2004).
[62] Zimmerman, 706 F.3d at 188.
[63] Strozyk, 358 F.3d at 276.
[64] 23 C.F.R. § 646.214(b)(3).
[65] Strozyk, 358 F.3d at 273.
[66] Zimmerman, 706 F.3d at 188. The Third Circuit further ruled that Zimmerman produced sufficient evidence to establish a prima facie claim for Norfolk Southern’s negligence in inadequate signal maintenance and sight-distance. Id. at 191.
[67] Id. at 192.
[68] 23 C.F.R. § 646.214(b)(3)(i)(C).
[69] Zimmerman, 706 F.3d at 192.
[70] Id. (citing Grade v. BNSF Ry. Co., 676 F.3d 680 (8th Cir. 2012) and Henning v. Union Pac. R.R. Co., 530 F.3d 1206 (10th Cir. 2008)).
[71] Id.
[72] Id.
[73] 529 U.S. 344 (2000).
[74] Zimmerman, 706 F.3d at 193 (citing Shanklin, 529 U.S. at 352-53).
[75] Id.
[76] Id. at 177.
[77] Id.
[78] Id. at 180.
[79] Id. at 192.
[80] Id. at 180, 192.
[81] Id. at 181-186.
[82] Id. at 182.
[83] Id. at 182-3.
[84] Id. at 185-6.