Railroad Legal Issues and Resources (2015)

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46 5. Construction of a Spur Track over a Pipeline on an Easement 345 In Travis County v. Flint Hills Res., L.P.,186 the Fifth Circuit held that Texas law on the interpretation of contracts also applies to easements; however, because the easement at issue was silent on who should pay the cost to lower a pipeline for the construction of a spur track, the Texas Health and Safety Code governed responsibility for cost. Articles 346 6. Short Line Sales and Employee Protection Provisions 346 An article on the rise in recent years of short line railroads in the United States, published prior to the creation of STB, discusses ICC’s more permissive approach to the regulation of railroad obligations to employees and the protection of employees in sales agreements.187 7. Shifting Bargaining Power Between Passenger Rail Lines and 347 Freight Rail Lines Through STB Regulation An article in the Transportation Law Journal explains that when it is in the public interest, STB may require the use of track facilities of one carrier for another carrier and that when the parties are unable to negotiate the terms, the board may establish the necessary conditions.188 XIV. CROSSINGS AT RAILROADS 349 A. Introduction 349 This part of the digest is devoted to several aspects of the important topic of highway- railway grade crossings. Section B discusses federal and state law on improvements to highway- railway grade crossings and the elimination of grade-crossings, as well as the government’s right to require changes to grade crossings in the public interest. Section C discusses defective conditions at railroad crossings, such as inadequate warnings, uneven road and rail conditions, and vegetation obstructing a motorist’s view of an oncoming train. Section D discusses a motorist’s obligation to make a full stop at a railroad crossing in response to warning signals or a stop sign that may indicate an approaching train. Section E discusses the liability of railroads for defective conditions at railroad crossings and FRSA’s preemption of some tort claims under state law. Section F covers the rights of utilities to use or cross certain railroad rights-of-way. Section 186 456 Fed. Appx. 410, 413, 415 (5th Cir. 2011) (citing TEX. HEALTH & SAFETY CODE ANN. § 756.122 (2005)). 187 Paul Stephen Dempsey & William G. Mahoney, The U.S. Short Line Railroad Phenomenon: The Other Side of the Tracks, 24 U. TOL. L. REV. 425, 428–30 (1993). 188 Charles A. Spitulnik & Jamie Palter Rennert, Use of Freight Rail Lines for Commuter Operations: Public Interest, Private Property, 26 TRANSP. L.J. 319, 329 (1999).

47 G discusses compensation for damage occasioned by the construction, relocation, or closure of crossings. Section H addresses whether railroads may be held liable for accidents at private crossings. B. Improvements to or Elimination of Highway–Railway 350 Grade Crossings Statutes and Regulations 350 1. Railway–Highway Crossings and Safety 350 When needed for safer crossings, DOT will pay the cost of “projects for the elimination of hazards of railway-highway crossings, including the separation or protection of grades at crossings, the reconstruction of existing railroad grade crossing structures, and the relocation of highways to eliminate grade crossings.”189 Article 351 2. Railroad Obligations Under State Law on Grade Crossings 351 Except when federal law preempts state law, “[m]ost aspects of jurisdiction over highway-rail grade crossings reside with the states.”190 For example, a Mississippi statute requires that when a railroad is constructed across a highway such that the highway must be raised or lowered, the railroad company is responsible to make and maintain a “proper and easy” grade for the crossing.191 Cases 352 3. Compensation When a Local Government and a Railroad 352 Company Agree on a Change of Grade As noted in Bercel Garages, Inc. v. Macomb County Road Comm’n,192 Michigan recognizes the ability of a road authority and a railroad to enter into agreements for a change of grade, including separation of a grade at crossings, and the responsibility to compensate adjacent landowners.193 189 23 U.S.C. § 130(a) (2014). 190 L. STEPHEN JENNINGS, THE COMPILATION OF STATE LAWS AND REGULATIONS AFFECTING HIGHWAY-RAIL GRADE CROSSINGS ii (5th ed. 2009), available at http://www.plsc.net/docs/compilationofstatelawsRR2009.pdf (last accessed Mar. 31, 2015). 191 MISS. CODE ANN. § 77-9-251 (2014). 192 190 Mich. App. 73, 475 N.W.2d 840 (Mich. Ct. App. 1991). 193 MICH. COMP. LAWS §§ 102.7, 462.321 (2014).

48 Articles 353 4. Elimination or Modification of Railroad Crossings 353 A law review article discussing the construction or elimination of railroad grade crossings notes that the New York Commissioner of Transportation may approve the installation, elimination, or relocation of grade crossings.194 5. Compilation of State Laws and Regulations on Matters Affecting 353 Highway–Rail Crossings A compilation of state laws and regulations on matters affecting highway–rail crossings summarizes the law in each state on the processes and procedures required and the roles of the state or local government and the railroads when undertaking elimination, relocation, construction, repair, or improvement of grade crossings.195 C. Defective Conditions at Railroad Crossings 354 Statutes and Regulations 354 1. Safety Standards for Railroad Tracks, Roadbeds, and 354 Nearby Areas Federal regulations require the railroad track, roadbed, and the areas around the roadbed to be inspected and meet certain safety standards.196 2. Duty to Maintain a Crossing Beyond the Crossties and 355 the Crossing In Georgia a railroad is responsible for that part of the road 4 ft beyond the “traveled way or flush with the edge of the paved shoulder.”197 194 Matthew R. Atkinson, On the Wrong Side of the Railroad Tracks: Public Access to the Hudson River, 13 PACE ENVTL. L. REV. 747, 801 (1996). 195 JENNINGS, supra note 190. 196 49 C.F.R. § 213.1 (2014); 49 C.F.R. § 213.233 (2014). 197 GA. CODE ANN. § 32-6-190 (2014).

49 3. Applicability of the Manual on Uniform Traffic Control Devices 356 to Railroad Crossings The Manual on Uniform Traffic Control Devices (MUTCD) requires that certain devices must be used at highway and rail or light rail transit crossings and identifies the specific types of signs to use.198 Cases 357 4. Requirement of Notice of a Defective Condition at a Crossing 357 to Hold a Railroad Liable for the Condition In Goebel v. Salt Lake City S. R. Co.,199 the Supreme Court of Utah held that because the alleged condition at a railroad crossing was not one that the railroad installed or created, there had to be evidence that the railroad had notice of the alleged defective condition. 5. Whether a Road Condition at a Crossing Is an Unusually 358 Dangerous Condition In Illinois Cent. Gulf R. Co. v. Travis,200 in which an oncoming train struck a motorist’s truck at a railroad crossing, the railroad was held not liable for the accident because the grade was not unusually steep and the crossing lacked other defects that would prevent one from seeing or hearing a train. 6. Applicability of a Statute to a Crossing that Was Installed After 359 the Road’s Construction In Bowman v. CSX Transportation, Inc.,201 involving a Mississippi statute providing that it was a railroad’s duty “to make proper and easy grades in the highway,” a Mississippi appellate court interpreted the statute to apply only to railroad crossings installed after the construction of the road. 198 FHWA, MANUAL ON UNIFORM TRAFFIC CONTROL DEVICES, §§ 8A and 8A.01 (2009), available at http://mutcd.fhwa.dot.gov/pdfs/2009r1r2/part8.pdf (last accessed Mar. 31, 2015). 199 104 P.3d 1185, 1193 (Utah 2004), aff’d, Utah Transit Auth. v. Salt Lake City S. R.R. Co., Inc., 2006 UT App 46, 2006 Utah App. LEXIS 15 (2006). 200 106 So. 3d 320, 340 (Miss. 2012), rehearing denied, 2013 Miss. LEXIS 93 (Miss., Feb. 14, 2013). 201 931 So. 2d 644, 652, 664–65 (Miss. Ct. App. 2006).

50 Article 360 7. Maintaining a Crossing and Crossing Signs and Warning Devices 360 The use of federal funds to upgrade crossings results in federal preemption of claims under state law that allege that railroad crossing warnings were inadequate.202 D. Failure by Motorists to Stop at Railroad Crossings 361 Statutes and Regulations 361 1. Full Stop Required at a Crossing When a Signal Indicates an 361 Approaching Train A Vermont statute requires motorists to make a complete stop 50 ft from the nearest rail of a railroad crossing when an approaching train is visible, when an approaching train has sounded its horn, when a crossing gate is down, when a signal warns of an approaching train, or when a stop sign is posted.203 Cases 362 2. Passenger’s Duty to Watch for Approaching Trains and Warn the 362 Driver to Stop In Smith v. Union Pac. R. Co.,204 the issue on appeal was whether the passenger-plaintiff was contributorily negligent in failing to watch for and warn the driver of an approaching train. The Supreme Court of Kansas held, inter alia, that if a passenger sees an approaching train and fails to warn the driver to stop, the passenger may be held to be contributorily negligent.205 3. Railroad Conductor’s Duty to Watch for Motorists Who May 363 Fail to Stop In Illinois Cent. Gulf R. Co. v. Travis,206 supra, Part XIV.C.5, the court held that Mississippi law requires that a crew on a moving train watch for vehicles approaching the tracks, but that the law also allows the crew to assume that motorists will obey the traffic laws. 202 Brent M. Timberlake, Railroad Law, 43 U. RICH. L. REV. 337, 361 (2008). 203 23 V.S.A. § 1071 (2014). 204 564 P.2d 514 (Kan. 1977). 205 Id. at 519. 206 106 So. 3d 320, 329–330 (2014).

51 E. Liability of Railroads for Defective Conditions at Crossings 364 Statutes and Regulations 364 1. Telephone Reporting of Problems at Crossings 364 Federal law requires that each railroad carrier “establish and maintain a toll-free telephone service for rights-of-way over which it dispatches trains[] to directly receive calls reporting” malfunctions and other problems at crossings207 and to “ensure the placement at each grade crossing on rights-of-way that it owns of appropriately located signs with a “a toll-free telephone number to be used for placing calls” regarding malfunctions and other problems “to the railroad carrier dispatching trains on that right-of-way.”208 Cases 365 2. Preemption of Claims Under State Law Alleging Defective 365 Warning Devices In Norfolk S. Ry. Co. v. Shanklin,209 the Supreme Court held that when a state has used federal funds to install devices at a crossing, a railroad is not liable for an alleged failure to maintain adequate warning devices at the crossing. 3. Two-Step Approach in Determining Whether Tort Claims Under 366 State Law Are Preempted by the Federal Railroad Safety Act In Zimmerman v. Norfolk S. Corp.,210 the Third Circuit held that if Norfolk Southern violated a federal standard of care created by a federal regulation or by an internal rule, Zimmerman’s claim was not preempted. 4. Liability for a Defect in a Crossing that Causes Personal Injury 367 In Alumbaugh v. Union Pac. R. Co.,211 the Eighth Circuit reversed the trial court’s grant of a summary judgment for Union Pacific on the plaintiff’s negligence claim because the 207 See 49 U.S.C. §§ 20152(a)(1)(A)–(D) (2014). 208 See 49 U.S.C. §§ 20152(a)(5)(A)–(C) (2014). The requirement for toll-free telephone service may be waived for Class II and Class III rail carriers when “the Secretary determines that toll-free service would be cost prohibitive or unnecessary.” 49 U.S.C. § 20152(b) (2014). 209 529 U.S. 344, 358–359, 120 S. Ct. 1467, 146 L. Ed. 2d 374 (2000). 210 706 F.3d 170, 178 (3d Cir. 2013) (citing 49 U.S.C. §§ 20106(b)(1)(A)–(B) (2007)). 211 322 F.3d 520, 525–526 (8th Cir. 2003).

52 evidence was sufficient for the jury to find that Union Pacific should have known of the alleged defective condition. 5. Liability of a Railroad for Failure to Keep a Crossing Clear 368 of Vegetation Bryant v. Tenn-Ken R.R. Co., Inc.212 involved a Tennessee statute that required railroad companies to “cut down all trees standing on its lands which are six (6) or more inches in a diameter two feet above the ground of sufficient height to reach the roadbed if they should fall.”213 However, the Sixth Circuit held that the statute was not intended to protect motorists.214 6. No Preemption of a State Law When the Federal Law Does Not 369 Subsume the Subject Matter Regulated by State Law In Strozyk v. Norfolk S. Corp.,215 the driver of a truck was killed in a collision with a Norfolk Southern train at a railroad crossing. The Third Circuit held that the federal regulations that address adequate warning devices did not “substantially subsume” the subject area of an obstruction impairing visibility; therefore, the regulations did not preempt the plaintiff’s claim based on an obstruction to visibility.216 7. Whether State Law that Applied to Crossings Was Preempted 370 by a Federal Statute When Federal Regulations Had Not Been Issued In Langemo v. Montana Rail Link, Inc.,217 the court ruled that 49 U.S.C. § 20153, enacted in 1994, did not preempt state law because federally required “‘regulations requiring that a locomotive horn shall be sounded while each train is approaching and entering upon each public highway-rail grade crossing’” were not in effect at the time of the accident, as they were not issued until January 2000.218 212 108 Fed. Appx. 256, 262 (6th Cir. 2004). 213 Id. at 259 (quoting TENN. CODE ANN. § 65-6-132 (2004)). 214 Id. at 260, 262. 215 358 F.3d 268 (3d Cir. 2004). 216 Id. at 273. 217 2001 ML 370, 2001 Mont. Dist. LEXIS 2131, at *1 (Mont. First Jud. Ct. 2001). 218 Id. at *15 (quoting 49 U.S.C. 20153 (1994)).

53 8. Whether the Public Utilities Commission Controlled a Railroad 371 Crossing and Owed a Duty to the Plaintiffs Because the Crossing Was a Dangerous Condition of Public Property In Public Utilities Commission v. The Superior Court of Los Angeles County,219 the plaintiffs alleged that a railroad crossing constituted a dangerous condition of public property. However, a California appellate court held that the California Public Utilities Commission’s (PUC) “regulatory authority over the crossing does not establish control of that property within the meaning of section 830”;220 that “the PUC’s right to inspect the crossing for safety violations and to close the crossing to vehicular and pedestrian (but not railroad) traffic does not establish control”;221 and that “no evidence was offered that the PUC ever actively maintained the railroad crossing through any form of maintenance or repair.”222 Articles 372 9. Preemption of State Tort Claims Under the Easterwood, Shanklin, 372 and Henning Cases An article discusses the railroad industry’s support of the FRSA’s preemption of state law claims and the Supreme Court’s decisions in CSX Transp., Inc. v. Easterwood223 and Norfolk Southern R.R. Co. v. Shanklin224 that interpreted federal preemption.225 219 181 Cal. App. 4th 364, 375, 376, 105 Cal. Rptr. 3d 234, 243 (Cal. App. 2010). 220 Id., 181 Cal. App. 4th at 375, 105 Cal. Rptr. 3d at 243. 221 Id., 181 Cal. App. 4th at 376, 105 Cal. Rptr.3d at 243. 222 Id., 181 Cal. App. 4th at 379, 105 Cal. Rptr. 3d at 246 (emphasis in original). 223 507 U.S. 658, 113 S. Ct. 1732, 123 L. Ed. 2d 387 (1993). 224 529 U.S. 344, 120 S. Ct. 1467, 146 L. Ed. 2d 374 (2000), superseded by statute as stated in Hunter v. Canadian Pac. Ry. Ltd., 2007 U.S. Dist. LEXIS 85110 (D. Minn. Nov. 16, 2007). 225 Aaron Ries, Railroad Tort Liability after the ‘Clarifying Amendment:’ Are Railroads Still Protected by Preemption?, 77 DEF. COUNS. J. 92, 103 (2000).

54 F. State Laws on the Rights of Utilities to Use or Cross Certain 374 Rights-of-Way Statutes and Regulations 374 1. Rights of a Public Utility in California 374 Under California law, when a public utility is authorized to use eminent domain for the construction of a utility line but a railroad already occupies the same space, the utility may request that the section of railroad be removed.226 2. Rights of Utilities in Michigan 374 Although not mentioning railroads, a Michigan statute provides in part that “[e]xcept as otherwise provided under subsection (2)…public utility companies…may enter upon, construct, and maintain telegraph, telephone, or power lines, pipe lines, wires, cables, poles, conduits, sewers or similar structures upon, over, across, or under any public road, bridge, street, or public place, including, longitudinally within limited access highway rights-of-way.”227 3. Dispute Process to Petition the DOT for Hearing Before an 375 Administrative Law Judge Regarding a Utility Crossing Michigan’s Railroad Code § 62.265 provides for notice to a railroad company and railroad authority for “crossings within the right-of-way of a public street, highway, road, or alley, notification” and for a similar notice “[f]or crossings at any other location not within the right-of-way of a public street, highway, road, or alley.”228 The statute further provides that “[i]n case of a dispute emanating…which the parties cannot resolve within a reasonable time, either party may petition the department for a hearing,” which has jurisdiction to settle disputes.229 Cases 376 4. Waiver of Immunity of a Commuter Rail Line from an Action 376 by a Utility to Condemn a Right-of-Way In Oncor Electric Delivery Co. LLC v. Dallas Rapid Transit,230 the Supreme Court of Texas held that the subject rail lines did not come within the exception for state-owned land in a 226 CAL. PUB. UTIL. CODE § 7557 (2014). 227 MICH. COMP. LAWS § 247.183(1) (2014). 228 MICHIGAN RAILROAD CODE §§ 462.265(1)(a) and (b) (2014). 229 MICHIGAN RAILROAD CODE § 462.265(3) (2014). 230 369 S.W.3d 845, 848 (Tex. 2012).

55 newly enacted Texas statute that provided that “the rights extended to an electric corporation…include all public land, except land owned by the state.”231 5. Utility’s Expropriation of Land for a Crossing as a Public Use 377 In Exxon Mobil Pipeline Co. v. Union Pac. R.R. Co.,232 ExxonMobil sought to expropriate a permanent right-of-way across Union Pacific’s property.233 The Supreme Court of Louisiana held that the use of the expropriated property would benefit the public because the road would allow the pipeline company to inspect its pipeline, which provides petroleum to the public.234 Therefore, ExxonMobil was held to have the ability to expropriate a right-of-way across the rail line.235 6. Whether an Independent Transmission Company Could Avail 378 Itself of a “Pay-and-Go” Procedure Used by Utilities to Cross a Railroad Right-of-Way Hawkeye Land Company v. Iowa Utilities Board236 involved an Iowa statute that authorized a “pay-and-go” procedure and payment of a legislatively predetermined $750 standard crossing fee a utility could pay to the owner of a railroad right-of-way. The Supreme Court of Iowa held that an independent transmission company is not a public utility and therefore is not allowed to use the pay-and-go procedure.237 Article 379 7. Railroad Abandonment of Property Also Used by a Utility 379 An article in the Ecology Law Quarterly discusses ways in which a utility may be able to continue having an easement after a railroad has abandoned a rail line and also notes that some states have statutes that allow utilities to remain on a property even after a railroad company abandons it.238 231 Id. at 848 (quoting TEX. UTIL. CODE ANN. § 37.053(d)). 232 Id. at 194. 233 Id. at 195. 234 Id. at 197–99, 202. 235 Id. at 202. 236 847 N.W.2d 199, 201 (Iowa 2014). 237 Id. at 219. 238 Danaya C. Wright & Jeffrey M. Hester, Pipes, Wires, and Bicycles: Rails-to-Trails, Utility Licenses, and the Shifting Scope of Railroad Easements From the Nineteenth to the Twenty-First Centuries, 27 ECOLOGY L.Q. 351, 440 (2000).

56 G. Compensation for Damage Occasioned by the Construction, 381 Relocation, or Closure of Crossings In Pennsylvania, compensation for damages, after proper notice and hearing, is determined by the Pennsylvania Public Utility Commission.239 Cases 382 H. Railroad Liability for Injuries at Private Crossings 382 1. Whether a Railroad Has Assumed a Duty of Care at a 382 Private Crossing As stated in Calhoun v. CSX Transportation, Inc.,240 although generally a railroad has no duty at a private crossing, a duty may arise when “a different duty was assumed; if the crossing is, or becomes, ultra-hazardous; or where, by pervasive use, the character of a private crossing has changed to a public one.”241 2. Whether a Railroad Has a Duty at a Private Crossing Alleged To Be 383 Extra-Hazardous In Gaw v. CSX Transportation, Inc.,242 although a federal district court in Kentucky granted CSX’s motion for summary judgment, the court held that “[i]f there is habitual and pervasive public use of an otherwise private crossing, Kentucky common law provides that this may impose a duty to warn, keep lookout, or slacken locomotive speed on the railroad” to protect the public at private crossings that are “extra-hazardous.” 243 239 66 PA. CONS. STAT. § 2704(a) (2014). 240 331 S.W.3d 236 (Ky. 2011). 241 Id. at 238. 242 2008 U.S. Dist. Lexis 23131, at *1 (W.D. Ky. 2008), aff’d, 2009 U.S. App. Lexis 11334 (6th Cir. 2009). 243 Id. at *12.

57 3. Railroad’s Duty at an Extra-Hazardous Private Crossing 384 In Illinois Central Railroad Company v. White,244 the Supreme Court of Mississippi held that although a railroad generally has no statutory duty at private crossings, the record “support[ed] plaintiffs’ assertion that the crossing was ‘extra-hazardous.’”245 4. Railroad’s Right to Submit Evidence that It Was Not Required to 385 Apply Safety Standards and Recommendations at a Private Crossing In Webb v. Union Pacific Railroad Company,246 although an Illinois appellate court held that on remand the trial would have to determine whether control was an issue, the trial court had not “abused its discretion in permitting some evidence on the issue of the Railroad’s control over and maintenance of the subject crossing.”247 5. Whether a Railroad Is Liable After Failing to Maintain Whistle 386 Posts and Crossing Signs at a Railroad Crossing Believed To Be a Private Crossing In Cook v. CSX Transportation, Inc.248 a federal district court in Ohio rejected a claim “that CSXT was negligent because the crossbucks at the railway crossing do not comply with Ohio law” for the reason that the state law “is preempted by the Federal Railroad Safety Act..”249 6. Whether the State DOT Has Jurisdiction to Close a 387 Private Crossing In B&W Lumber Company, Inc. v. Norfolk Southern Corporation,250 involving the plaintiff’s action to prohibit the closure of the crossing following a fatal accident, a federal district court in South Carolina held that the language in S.C. Code Ann. Section 58-15-1625 was not “so clear as to foreclose the possibility that a court will interpret the statute to allow (or require) SCDOT to assume jurisdiction over a private crossing.”251 244 610 So. 2d 308 (Miss. 1992). 245 Id. at 317. 246 2012 Ill. App. Unpub. LEXIS 494, at *1, 2012 Ill. App. (5th) 100607-U (Ill. App. 2012). 247 Id., 2012 Ill. App. Unpub. LEXIS 494, at *33, 2012 Ill. App. (5th) 100607-U at P41. 248 2014 U.S. Dist. LEXIS 147661, at *1 (N.D. Ohio 2014). 249 Id. at *11. 250 2009 U.S. Dist. LEXIS 51732, at *1 (D. S.C. 2009). 251 Id. at *15, N 7.