                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 04-2780
FIFTH THIRD BANK, by and through its
Trust Officer, as Special Administrator
of the ESTATE OF KACIE BECHARD, Deceased,
SHERYL M. BECHARD, and STEPHEN BECHARD,
                                           Plaintiffs-Appellants,
                                v.

CSX CORPORATION, CSX TRANSPORTATION
CORPORATION, NEWTON COUNTY HIGHWAY
DEPARTMENT, NEWTON COUNTY, by and
through its Board of Commissioners,
and the NATIONAL RAILROAD PASSENGER
CORPORATION, also known as AMTRAK,
                                          Defendants-Appellees.
                          ____________
        Appeal from the United States District Court for the
         Northern District of Indiana, Hammond Division.
                 No. 02 C 9—Allen Sharp, Judge.
                          ____________
    ARGUED FEBRUARY 10, 2005—DECIDED JULY 22, 2005
                    ____________



  Before MANION, EVANS, and SYKES, Circuit Judges.
  SYKES, Circuit Judge. This case arises from a tragic
train-car collision that caused serious injuries to the driver
of the car and killed her three-and-one-half-year-old
2                                                No. 04-2780

daughter, a passenger. The daughter’s estate and her
mother and father brought a personal injury and wrongful-
death action in Indiana state court, which the defendants—
the owner of the railroad crossing, Newton County and its
Highway Department, the railroad, and the State of
Indiana and its Department of Transportation—removed to
federal district court. The suit asserted that railroad
warning devices at the crossing were inadequate, that the
defendants negligently failed to remove vegetation that ob-
structed the ability to view oncoming trains, and also that
Newton County negligently failed to maintain other signage
at the crossing.
   On the defendants’ motions for summary judgment, the
district court concluded that the case was controlled by
Norfolk Southern Railroad Co. v. Shanklin, 529 U.S. 344
(2000); applying Shanklin, the court held that the plaintiffs’
inadequate warnings claims were preempted by federal law.
We agree. Under Shanklin and the facts of this case, the
Federal Railroad Safety Act (“FRSA”), 49 U.S.C. §§ 20101
et seq., preempts the plaintiffs’ claims to the extent they are
premised upon the alleged inadequacy of the warning
devices at the crossing. The district court also held that the
plaintiffs’ negligence claim against Newton County for
obstruction of view and failure to maintain signage was
factually insufficient to survive summary judgment. We
affirm that decision as well.


                      I. Background
  At approximately 9:45 a.m. on January 13, 2000, an au-
tomobile operated by Sheryl Bechard was struck by a train
operated by the National Passenger Railroad Association
(“Amtrak”). The accident occurred on County Road (“CR”)
400 East in Newton County, Indiana, at a rail crossing
owned and maintained by CSX Transportation Corporation.
Sheryl Bechard suffered serious injuries in the collision but
No. 04-2780                                                3

survived; her daughter Kacie, a passenger in the vehicle,
died three days later from injuries sustained in the acci-
dent.
  At the time of the accident, the CR 400 crossing was
marked by advance warning signs and reflectorized cross-
bucks facing northbound and southbound traffic. Cross-
bucks are the familiar white boards marked with the words
“RAILROAD CROSSING” in black letters assembled in a
large “X” configuration. These warning devices were in-
stalled pursuant to a 1976 agreement between the State of
Indiana and the Louisville & Nashville Railroad Company,
a predecessor to CSX Transportation Corporation. The
agreement enabled the disbursement of federal funds under
the Federal Railway-Highway Crossings Program, 23 U.S.C.
§ 130, which helps the states pay for projects designed to
eliminate hazards at railway-highway crossings. Under
federal regulations, warning signs installed under the
Crossings Program must conform to the latest edition of the
Manual on Uniform Traffic Control Devices for Streets and
Highways (“MUTCD”), supplemented to the extent applica-
ble by state standards. See 23 C.F.R. § 646.214(b)(1) (2005).
It is undisputed that 90% of the cost of the warning devices
installed at the CR 400 crossing was paid for using federal
funds.
   Kacie’s mother and father, as individuals, and Fifth Third
Bank, as the administrator of Kacie’s estate, filed suit in
Indiana state court against CSX Corporation and CSX
Transportation Corp. (jointly “CSX”), as well as Newton
County and the Newton County Highway Department
(jointly “the County”). The complaint was later amended to
include Amtrak and the State of Indiana and the Indiana
Department of Transportation. Amtrak removed the case to
federal court pursuant to 28 U.S.C. § 1441, the general
removal statute, and 28 U.S.C. § 1349, which confers
federal jurisdiction over suits involving corporations when
one-half of the capital stock in that corporation is owned by
4                                               No. 04-2780

the United States. See Lynch v. Household Fin. Corp., 405
U.S. 538, 550 n.17 (1972). Attached to Amtrak’s removal
motion were consent letters from the other defendants. See
Doe v. GTE Corp., 347 F.3d 655, 657 (7th Cir. 2003). The
letter from the State of Indiana and the Indiana Depart-
ment of Transportation was signed by an Indiana Assistant
Attorney General. After the case was docketed in federal
court, the plaintiffs moved to remand to state court on the
ground that Indiana’s consent to removal did not validly
waive its Eleventh Amendment immunity to federal suit.
The court denied the motion and the proceedings continued.
  The plaintiffs’ complaint, as amended, alleged four counts
of negligence. In the first count the plaintiffs claimed that
CSX negligently failed to install and maintain adequate
warning devices at the CR 400 crossing and failed to re-
move obstructions from the right-of-way for which it was
responsible. In the second count the plaintiffs alleged that
the County negligently maintained the CR 400 crossing in
an extrahazardous and unreasonably dangerous condition.
The third count leveled the same allegation against Indiana
and its Department of Transportation. In the fourth count
the plaintiffs claimed that Amtrak negligently trained the
crew and negligently operated the train involved in the
accident. Each of the four counts sought damages for the
injuries sustained by Kacie, Sheryl, and Stephen Bechard.
The plaintiffs later stipulated to the dismissal of the State
of Indiana and the Indiana Department of Transportation.
  CSX and Amtrak moved jointly for summary judgment;
the County filed a separate summary judgment motion.
Applying Shanklin, the district court held that insofar as
the plaintiffs’ claims were premised upon the alleged inade-
quacy of the warning devices at the crossing, they were
preempted by federal law. Fifth Third Bank v. CSX Corp.,
306 F. Supp. 2d 841, 848-52 (N.D. Ind. 2004). The court
accordingly granted summary judgment to all defendants
with respect to claims premised on the inadequacy of the
No. 04-2780                                                    5

warning devices. As for the plaintiffs’ negligence claim
against the County for failure to remove vegetation ob-
structions from its right-of-way, the court held there was no
factual basis in the record to conclude that but for an
obstruction of view, Bechard would have seen the train and
stopped. Id. at 846. The court also held there was no factual
basis for the plaintiffs’ claim that the County was negligent
in failing to properly maintain its signage on the public
road approach to the crossing. In the alternative, the court
held that the County was entitled to immunity under the
Indiana Tort Claims Act, IND. CODE § 34-13-3-3(7) (2005).
  The district court denied summary judgment on the
plaintiffs’ obstruction-of-view claim against CSX and
Amtrak, concluding that although the plaintiffs “had an
extremely steep uphill climb” under Indiana statutory and
case law on this remaining claim, summary judgment was
inappropriate. As is relevant to this claim, the court de-
clined to resolve a dispute between the parties over Sheryl
Bechard’s competence to testify due to head injuries suf-
fered in the collision; the court concluded that until the
competence question was resolved, disputed issues of fact
precluded summary judgment on the obstruction-of-view
claim against CSX and Amtrak.1 The district court then
issued an order pursuant to Rule 54(b), FED. R. CIV. P., and
this appeal followed.


                       II. Discussion
  The plaintiffs raise four arguments on appeal. First, they
contend that federal law does not preempt their inadequate


1
  The plaintiffs appear to have abandoned their claim against
Amtrak for negligent training of railroad personnel and negligent
operation of the train. The obstruction-of-view claim against CSX
and Amtrak is referred to in a stipulation of the parties as the
“sole remaining claim” in the case.
6                                                No. 04-2780

warnings claims, because the defendants failed to prove
that the railroad warning signs at the crossing were
properly installed, approved, adequate, and operating. Sec-
ond, they argue that summary judgment was improperly
granted on their claim against the County for obstruction of
view and failure to maintain signage—including stop signs
and pavement markings—because the district court rested
its decision in part on Sheryl Bechard’s testimony, even
though it separately held that the unresolved competence
issue precluded summary judgment on the obstruction-of-
view claim against CSX and Amtrak. Third, the plaintiffs
argue that the County is not entitled to immunity under the
Indiana governmental immunity statute. Finally, the
plaintiffs contend that this case should not have been in
district court at all because Indiana’s consent to removal
did not validly waive its Eleventh Amendment immunity.
   Summary judgment is appropriate if the pleadings,
depositions, answers to interrogatories and admissions on
file, together with any affidavits, demonstrate that there is
no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. FED. R. CIV. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Federal preemption is an affirmative defense upon which
the defendants bear the burden of proof. Fort Howard Paper
Co. v. Standard Havens, Inc., 901 F.2d 1373, 1377 (7th Cir.
1990). Our review of all the issues presented is de novo.


    A. Jurisdiction
  The plaintiffs renew in this court their objection to federal
jurisdiction, contending that Indiana did not waive its
Eleventh Amendment immunity when it consented to
removal. In their opening brief they relied on Ford Motor
Co. v. Department of Treasury of Indiana, 323 U.S. 459, 467
(1945), which held that the Indiana Attorney General’s
appearance in and defense of a case did not waive the
No. 04-2780                                                   7

state’s immunity, because the statute under which the
plaintiffs sued did not expressly indicate the state’s consent
to suit. However, the Supreme Court overruled Ford in
relevant part three years ago:
    A rule of law that finds waiver through a state attorney
    general’s invocation of federal-court jurisdiction avoids
    inconsistency and unfairness. A rule of federal law that,
    as in Ford, denies waiver despite the state attorney
    general’s state-authorized litigating decision, does the
    opposite. For these reasons . . . we consequently over-
    rule Ford insofar as it would otherwise apply.
Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S.
613, 623 (2002). Under Lapides, the letter from the Indiana
Assistant Attorney General consenting to removal of this
case constitutes a waiver of Indiana’s Eleventh Amendment
immunity; the district court therefore properly declined to
remand this case to state court. In their reply brief the
plaintiffs suggest that Lapides should not apply retroac-
tively; this argument is foreclosed by Harper v. Virginia
Department of Taxation, 509 U.S. 86, 97 (1993) (“When this
Court applies a rule of federal law to the parties before it,
that rule is the controlling interpretation of federal law and
must be given full retroactive effect in all cases still open on
direct review and as to all events, regardless of whether
such events predate or postdate our announcement of the
rule.”).


  B. Federal Preemption
  Article VI of the Constitution provides that the laws of the
United States “shall be the supreme Law of the Land . . .
any Thing in the Constitution or Laws of any State to the
Contrary notwithstanding.” U.S. CONST. art. VI, cl. 2.
Derivative of this constitutional text is the doctrine of
8                                                 No. 04-2780

preemption, which operates to prevent the enforcement of
state laws that conflict with federal laws or regulations. The
Supreme Court typically classifies preemption analysis into
three categories. Preemption can occur when Congress
declares its intention to preempt state regulation through
a direct statement in the text of federal law (so-called “ex-
press preemption”). It can occur by implication in the “struc-
ture and purpose” of federal law showing a Congressional
intent to preempt state law (so-called “implied preemp-
tion”). Finally, preemption can occur by an actual conflict
between state and federal law, such as occurs when it is
impossible for a private party to comply with both federal
and state law requirements. English v. Gen. Elec. Co., 496
U.S. 72, 79 (1990). In all three types of preemption, “the
ultimate touchstone” is congressional purpose. Medtronic,
Inc. v. Lohr, 518 U.S. 470, 485 (1996) (quoting Retail Clerks
v. Schermerhorn, 375 U.S. 96, 103 (1963)); see also English,
496 U.S. at 78-79 (“Pre-emption fundamentally is a question
of congressional intent.”).
    The FRSA contains an express preemption provision:
     A State may adopt or continue in force a law, regula-
     tion, or order related to railroad safety or security until
     the Secretary of Transportation (with respect to rail-
     road 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. The Secretary of Transportation has
promulgated regulations concerning the design of grade
crossing improvements, including adequate warning de-
vices. These regulations call for the installation of auto-
matic gates with flashing light signals when certain enu-
merated conditions exist at a highway/rail crossing. 23
C.F.R. § 646.214(b)(3)(i). Where the specified conditions do
not exist, the regulations provide that the type of warning
No. 04-2780                                                 9

device to be installed is subject to the approval of the
Federal Highway Administration (“FHWA”). 23 C.F.R.
§ 646.214(b)(4).
  In Shanklin, the Supreme Court held that the FHWA’s
regulations addressing the adequacy of warning devices at
rail crossings preempt state tort actions challenging the
adequacy of devices installed using federal funds. Shanklin,
529 U.S. at 347. Relying on its earlier decision in CSX
Transportation, Inc. v. Easterwood, 507 U.S. 658, 670
(1993), the Court held that 23 C.F.R. § 646.214(b)(3) and (4)
preempt state tort law when those regulations are found to
be applicable to a particular crossing. Since the regulations
are mandatory for all warning devices installed with federal
funds, Shanklin, 529 U.S. at 353, the Court held they
establish a standard of adequacy that “ ‘determine[s] the
devices to be installed’ when federal funds participate in the
crossing improvement project.” Id. at 354 (quoting
Easterwood, 507 U.S. at 671). Therefore, the Court held,
“[O]nce the FHWA has funded the crossing improvement
and the warning devices are actually installed and operat-
ing, the regulation ‘displace[s] state and private deci-
sionmaking authority by establishing a federal-law re-
quirement that certain protective devices be installed or
federal approval obtained.’ ” Id. (quoting Easterwood, 507
U.S. at 670).
  The Shanklin court made clear that whether the devices
installed under a federally funded crossing improvement
project actually meet the standards set forth in
§ 646.214(b)(3) and (4) is immaterial to the preemption
analysis:
    It is this displacement of state law concerning the
    devices’ adequacy, and not the State’s or the FHWA’s
    adherence to the standard set out in [the regulations] or
    to the requirements of the MUTCD, that pre-empts
    state tort actions. Whether the State should have or-
    iginally installed different or additional devices, or
10                                             No. 04-2780

     whether conditions at the crossing have since changed
     such that automatic gates and flashing lights would be
     appropriate, is immaterial to the pre-emption question.
Id. at 357-58. Furthermore, the Court held that federal
preemption attaches even if the warning devices were
installed without any prior individualized assessment of the
crossing at issue in a given case. Id. at 357-58 (abrogating
Shots v. CSX Transp., Inc., 38 F.3d 304, 307-08 (7th Cir.
1994)).
  Thus, under Shanklin, preemption in this context oper-
ates to preclude any state law claim premised upon any
alleged inadequacies in railway crossing warning devices,
and the district court properly dismissed the plaintiffs’
claims in this regard. In reaching that conclusion we join
two other circuit courts that have addressed Shanklin’s im-
pact on state-law negligence actions. In Lee v. Burlington
Northern Santa Fe Railway Co., 245 F.3d 1102 (9th Cir.
2001), the plaintiff, injured in a collision with a train,
brought negligence claims under Montana law against the
railroad premised upon failure to install adequate warning
devices. The case reached a federal jury, which found that
the plaintiff was more than 50% negligent, precluding
recovery under Montana law. Following the district court’s
entry of judgment on the verdict, the Supreme Court de-
cided Shanklin. On appeal the railroad cited Shanklin’s
preemption holding as an alternative ground for affirmance.
The Ninth Circuit held that Shanklin unequivocally
preempted the plaintiff’s inadequate warnings claim:
“Shanklin makes clear that once the [FHWA] has funded a
crossing improvement and warning devices are actually
installed and operating, federal regulations displace state
and private decisionmaking authority.” Lee, 245 F.3d at
1106; see also Union Pac. R.R. Co. v. Cal. Pub. Utils.
Comm’n, 346 F.3d 851, 865 (9th Cir. 2003) (Shanklin holds
that installation of warning devices pursuant to 23 C.F.R.
§ 646.214(b)(3) and (4) preempts state law as to the ade-
No. 04-2780                                                 11

quacy of the safety requirements). Similarly, the Third
Circuit has recognized that under Shanklin, “a railroad’s
state law obligations with respect to appropriate warning
requirements are superceded by federal requirements as set
forth in § 646.214(b)(3) and (4).” Strozyk v. Norfolk S. Corp.,
358 F.3d 268, 273-74 (3d Cir. 2004). In neither of these
cases did the circuit court indicate that a claim premised
upon failure to adhere to the federal regulations survived
the preemption analysis.
  The facts of this case bring it squarely within the holding
of Shanklin. The CR 400 crossing, where the collision oc-
curred, was upgraded with federal funds disbursed by the
FHWA pursuant to the FRSA. The warning devices were
installed as mandated by 23 C.F.R. § 646.214(b)(3) and (4).
Almost all the funds needed to complete the project were
provided by the federal government, and in fact the govern-
ment signed off on the installation of the devices once the
statewide upgrade program was complete. Accordingly, to
the extent the plaintiffs’ claims against the defendants are
premised upon the alleged inadequacy of the warning
devices at the CR 400 crossing, they are preempted.


  C. Obstruction of View and Failure to Install/
     Maintain Signs
  The plaintiffs also challenge the dismissal of their negli-
gence claim against the County to the extent that the dis-
trict court found the evidence of obstruction of view and
failure to maintain signage at the crossing insufficient to
survive summary judgment. On the obstruction-of-view
claim, they contend that photographic evidence of the CR
400 crossing does not clarify where the County’s right-of-
way terminates and the railroad’s begins, creating a ques-
tion of fact that precludes summary judgment. They also
argue that the district court improperly premised its ruling
on Sheryl Bechard’s testimony that she had observed the
12                                               No. 04-2780

signs and was familiar with the crossing when the court
had not yet resolved the issue of her competence to testify.
Finally, as to this claim, they assert that the district court
erred in holding that the County was immune under
Indiana’s governmental immunity statute, IND. CODE
§ 34-13-3-3.
  A negligence claim under Indiana law requires: (1) a duty
on the part of the defendant in relation to the plaintiff; (2)
a breach of that duty or, in other words, a failure on the
part of the defendant to conform his conduct to the requisite
standard of care; and (3) an injury to the plaintiff resulting
from that breach. Douglass v. Irvin, 549 N.E.2d 368, 369
(Ind. 1990). The district court concluded that the summary
judgment record was insufficient to create an issue of fact
on the plaintiffs’ claim that the view of the railroad tracks
was obstructed by vegetation or that the County was
negligent with respect to the presence and/or maintenance
of signage at the crossing. The court noted the complete
lack of evidence that vegetation obstruction was a cause of
the accident, that any signs were damaged or missing, or
that any alleged deterioration in the pavement markings
was a cause of the accident.
  Setting aside the dispute about Sheryl Bechard’s com-
petence to testify, the plaintiffs have not cited to record
evidence tending to show vegetation overgrowth at the
crossing or that vegetation-obstructed view was a cause
of the accident. See Justice v. CSX Transp., Inc., 908 F.2d
119 (7th Cir. 1990) (discussing the duty to prevent visual
obstructions at railroad crossings and causation in obstruc-
tion-of-view negligence claim under Indiana law). Nor have
they cited any record evidence to support their claim that
the County failed to install or maintain stop signs and
pavement markings, or that the absence or deterioration of
this signage was a cause of the accident. To the contrary,
photographs of the crossing in the record—albeit undated
photographs—show visible stop signs and no vegetation ob-
No. 04-2780                                                     13

structions to the view of the tracks from the road. Summary
judgment on this aspect of the plaintiffs’ claim against the
County was appropriate.2
  For the foregoing reasons, the judgment of the district
court is AFFIRMED.

A true Copy:
       Teste:

                           ________________________________
                           Clerk of the United States Court of
                             Appeals for the Seventh Circuit




2
  As we have noted, the district court held in the alternative that
the County was immune from suit under Indiana’s governmental
immunity statute, IND. CODE § 34-13-3-3 (2005). Because we agree
with the district court’s conclusion that the plaintiffs’ negligence
claim against the County for obstruction of view and failure to
install/maintain signage is factually insufficient to survive
summary judgment, we do not address the immunity issue.


                     USCA-02-C-0072—7-22-05
