In Norfolk Southern Railway Co. v. Shanklin (No. 99-312, decided April 17, 2000), the nation’s highest court determined that state law claims regarding inadequate warning devices at rail crossings may be preempted by federal law if the installation of certain equipment designated was federal funded.

Two justices, Ruth Bader Ginsburg and John Paul Stevens, strongly dissented, stating that the "outcome defies common sense and sound policy." Frankly, I agree.

Although the decision carves but a small niche in complaints filed against railroads in crossing accident cases, the decision, nonetheless, is disturbing in its shielding the very party that may have contributed to the injury, and thereby eradicating state sovereignty, regardless of how or why certain safety decisions were implemented.

Since 1973, the federal government has provided money for states to improve railroad crossings. Illinois has a total of 17,439 railroad crossing with 1999 accidents recorded in 1998. That makes it the third highest in the nation, according to the latest statistics available from the Federal Railroad Administration. It is not immediately known how many of these crossings have been upgraded nor how many improvements have been funded with federal tax dollars.

Without commenting on specific pending lawsuits involving tragic rail accidents in Illinois, one thing is certain: The Shanklin decision is sure to elicit a flurry of motions across the country.

The Shanklin decision does not affect accidents involving the lack of proper maintenance of safety devices nor crossings where funding has not been committed or spent. But the most disturbing part of the majority’s decision is that the warning or safety devices that are installed may represent a mere minimum standard or perhaps even be an action taken without much thought as to their propriety of adequacy for that particular intersection.

It was a point not lost on the dissenters.

In Shanklin, the crossing had a reflectorized sign but no gates to signal a train’s approach. Eddie Shanklin was driving 20 miler per hour as he traveled over a rail crossing in Gibson County, Tenn., when a train struck his car, killing him. Apparently he did not hear the train’s whistle because he had the car radio playing and the windows were rolled up.

The plaintiff argued the railroad failed to install adequate warning devices under Tennessee law. The railroad, however, contended that the warning sign had been erected under a state project approved and financed by the Federal Highway Administration. Such funding, it argued, automatically immunized railroads from liability, thereby displacing statutory and common law.

Taken to its logical extreme, this could mean that even if the character or traffic patterns of an intersection changed significantly, thereby warranting additional safety devices, a federally funded intersection, nonetheless, is arguably granted carte blanche immunity from state tort law liability. The clear inequity of this scenario is magnified as safety devices over the decades improve with developments in technology.

Justice Ginsburg, in writing for the dissent, attacked the majority’s displacement of sate negligence laws "with no substantive federal standard of conduct to fill the void." And that’s correct.

Furthermore, that leaves railroads not only with no responsibility to pay for any grade crossing improvements, but also with a shield against state tort liability, "even for the inadequacy of devices designed only to secure the minimum protection Congress envisioned for all crossings," as the dissent writes.

The 7^th U.S. Circuit Court of Appeals apparently had recognized this distinction and found where safety devices were merely "passive," such as mere reflective crossbucks, state tor liability was not preempted. Shots v. CSX Transportation, Inc., 38 F.3d 304 (7^th Cir. 1994).

In other words, the Secretary of transportation’s decision to fund crossing devices did not necessarily imply federal approval of particular measures taken at particular crossings; thereby the preemption of state law is not warranted. 38 F.3d at 306-07.

Given that courts recognize a presumption against finding federal preemption of state law, and that preemption will not lie unless it is the clear and manifest purpose of Congress, the decision in Shanklin was most surprising.

The Federal Railway Safety Act, 49 U.S.C.A.sect. 20106, allows for preemption only if the Secretary of Transportation prescribes the regulation or issues orders covering the subject matter of the state requirement. Here, it simply hasn’t been demonstrated whether the federal government’s participation is deliberate or merely casual.

The real non-sequitur is that the Court held that state law is preempted even where the state itself made the determination under 23 C.F.R.sect. 656.214(b)(4) as to what devices are needed to be installed and the feds merely footed the bill.

All rail companies have conducted safety studies over the years to carry out their business. It is they who are in the superior position to the traveling public in its knowledge of the dangers and safety needs of grade crossings.

To automatically immunize a group of defendants merely because a state can get a federal bureaucrat to sign off on funding flies in the face of accountability and responsibility. Therefore, the Shanklin decision should be narrowly construed.