                           This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2012).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A13-2384

                                   Gary William Frieler,
                                        Appellant,

                                            vs.

                              BNSF Railway Company, et al.,
                                     Respondents

                                   Filed August 4, 2014
                                         Affirmed
                                      Worke, Judge

                              Hennepin County District Court
                                File No. 27-CV-12-19931

Sharon L. Van Dyck, Van Dyck Law Firm, PLLC, St. Louis Park, Minnesota (for
appellant)

Timothy R. Thornton, Jonathan P. Schmidt, Briggs and Morgan, P.A., Minneapolis,
Minnesota (for respondents)

         Considered and decided by Stauber, Presiding Judge; Worke, Judge; and Larkin,

Judge.

                          UNPUBLISHED OPINION

WORKE, Judge

         Appellant challenges the district court’s grant of summary judgment, arguing that

the court erred by concluding that his claims were preempted by the Federal Railroad

Safety Act (FRSA), 49 U.S.C. §§ 20101 to 21311 (2006 & Supp. 2011). We affirm.
                                           FACTS

         Appellant Gary William Frieler was injured in 2011 when his pickup truck was

struck by a train owned by respondent BNSF Railway Company and operated by

respondents Kevin Jerome Engeseth and John Doe, employees of BNSF (collectively,

BNSF). Frieler sued BNSF, asserting a number of claims, including an allegation that

BNSF was negligent due to inadequate warning devices at the crossing.

         The intersection where the collision occurred does not have active warning

devices such as lights, bells, or automatic gates; rather, the intersection has stop signs,

cross bucks,1 and signs warning that there are two tracks and to “Look for trains.”       As

Frieler approached the tracks, a westbound train passed in front of him on the nearer set

of tracks. Frieler drove forward, crossing the first set of tracks. As Frieler crossed the

second track, he was struck by an eastbound train, which did not have time to stop.

According to train records, the train was traveling below the speed limit, the headlight

was on, and the crew had signaled with horn and bells before the crossing. Frieler

suffered serious head injuries.

         The stop signs, cross bucks, and sign warning of multiple tracks at the intersection

were installed in the 1990s as part of a federal project to upgrade railway signs with more

effective reflective material. The federal government paid for 90% of the upgrade and

BNSF paid the remaining ten percent. The State of Minnesota installed the stop signs

after Perham Township requested additional signage. The stop signs were approved by



1
    Cross bucks are black-and-white x-shaped signs that state “Railroad Crossing.”

                                              2
the federal government but they were installed separately from the federal sign-upgrade

project.

       Both parties moved for summary judgment. The district court granted BNSF’s

motion, concluding that Frieler’s claim was preempted by federal law. This appeal

followed.

                                      DECISION

       We review a district court’s grant of summary judgment de novo to determine

whether there are any genuine issues of material fact and whether the district court

properly applied the law. Riverview Muir Doran, LLC v. JADT Dev. Group, LLC, 790

N.W.2d 167, 170 (Minn. 2010). We also review the district court’s decision regarding

whether a claim is preempted by federal law de novo.            Engfer v. Gen’l Dynamics

Advanced Info. Sys., Inc., 844 N.W.2d 236, 239 (Minn. App. 2014), review denied (Minn.

May 28, 2014).

       By virtue of the Supremacy Clause, U.S. Const. art. VI, cl. 2, federal law preempts

state law if (1) there is an explicit legislative statement displacing state law; (2) federal

legislation so pervasively occupies a field that it is assumed that it supersedes state law

on the same subject; or (3) federal legislation conflicts with state law to the degree that it

is impossible to comply with both state and federal law, or state law creates an obstacle to

achieving the purpose of the federal legislation. Hernandez v. State, 680 N.W.2d 108,

111 (Minn. App. 2004), review denied (Minn. Aug. 17, 2004).

       Railroad-crossing signage involves an interplay between the FRSA and the

Federal Highway Act (FHWA), 23 U.S.C. §§ 101 to 610 (2012). Under the FRSA,


                                              3
“[l]aws, regulations, and orders related to railroad safety and . . . security shall be

nationally uniform to the extent practicable.” 49 U.S.C. § 20106 (a)(1). “A State may

adopt or continue in force a law, regulation, or order related to railroad safety or security

until [federal authorities] prescribe[ ] a regulation or issue[ ] an order covering the subject

matter of the State requirement.” Id. (a)(2). The FHWA includes a program to promote

safety and provide funding to eliminate hazards at railway-highway crossings. 23 U.S.C.

§ 130. This section provides funding for “elimination of hazards and the installation of

protective devices at railway-highway crossings,” with the federal government providing

90% of the funds necessary to cover these projects. Id. (e), (f). The Federal Highway

Administration promulgated regulations prescribing the type of warning devices that

must be installed when federal funds are used to pay for the devices. 23 C.F.R. § 646.214

(2014).

       Because of this legislation and the regulations enacted in reliance on the laws, “the

Supreme Court determined that when a crossing warning device has been installed using

federal funds, any state claim alleging the inadequacy of that warning device is

preempted irrespective of whether the warning device complied with section 646.214(b)

(3) or (4).” Grade v. BNSF Ry., 676 F. 3d 680, 684 (8th Cir. 2012).       In Norfolk S. Ry. v.

Shanklin, 529 U.S. 344, 358-59, 120 S. Ct. 1467, 1476-77 (2000), the Supreme Court

concluded that in any railway-highway crossing project for which federal funds were

used, federal law preempted state tort-law claims, and, therefore, a railroad could not be

held responsible for the adequacy or inadequacy of those devices. Applying Shanklin,

this court concluded that, even when the devices installed do not meet the specific


                                              4
standards of section 646.214(b)(3), which mandates automatic gates and flashing lights

for crossings similar to the one here, the fact that federal authorities approved and

financed the installation of passive devices at the crossing “conclusively established [the

warning devices] as ‘adequate,’ and state tort claims alleging the inadequacy of these

devices are preempted.” Hernandez, 680 N.W.2d at 113.

       Frieler concedes that the FRSA and the FHWA together act to preempt certain

state-law claims. But Frieler argues that the 2007 amendment to the FRSA “preserves

state law claims alleging the failure to comply with a federal standard of care” as set forth

in 23 C.F.R. § 646.214. Under that section, if a crossing has multiple tracks, trains

operate at high speeds, or there is a high volume of vehicular traffic or reoccurring

accidents, or a diagnostic team recommends it, automatic gates and flashing light signals

must be installed, if the project at least partially uses federal funds to pay for the

installations. 23 C.F.R. § 646.214(b)(3).

       The 2007 amendment arose out of a 2002 train derailment in Minot, North Dakota,

which released clouds of anhydrous ammonia gas into a residential neighborhood,

resulting in one death and 322 injuries, 11 of them serious. Lundeen v. Canadian Pac.

Ry., 507 F. Supp. 2d 1006, 1008-09 (D. Minn. 2007). The cause of the derailment was a

damaged rail that the railway had failed to inspect and repair. Id. at 1009. The many

tort-claim cases filed against the railway were dismissed as preempted by federal railway

regulations. See, e.g., id. at 1012. In response, Congress amended 49 U.S.C. § 20106,

the preemption statute, to clarify that “[n]othing in [this section] shall be construed to

preempt an action under State law seeking [tort] damages . . . alleging that a party” failed


                                             5
to comply with a federal standard of care, its own plan, rule, or standard, or a state law,

regulation, or order that is not incompatible with the preemption standard. See Grade,

676 F.3d at 685.

       Frieler argues, as did the plaintiff in Grade, that this amendment preserves his

inadequacy-of-warning claim from preemption.         Id.   Frieler asserts that 23 C.F.R.

§ 646.214(b)(3) sets forth federal safety standards for multiple-track crossings and BNSF

failed to comply with those standards, which require automatic gates and flashing light

signals. He maintains that, under the plain language of the 2007 amendment, he is

permitted to maintain a state tort claim against BNSF because it failed to comply with a

federal standard of care.

       The Eighth Circuit rejected this argument in Grade, reasoning that the amendment

did not change, but rather clarified, “the preemptive effect of the FRSA.” Id. The Eighth

Circuit concluded that the amendment applied to claims arising out of a railroad’s failure

“to comply with an ongoing, federal standard of care.” Id. For example, in the Minot

cases, federal regulations required a railroad to “designate persons qualified to inspect

railroad freight cars for compliance [with federal regulations]” and to inspect tracks

according to certain federal protocols. Id. Railroads were subject to civil penalties for

violating these regulations. Id. Liability under the 2007 amendment was premised on

railways having an ongoing duty of care and failing to comply with that duty. Id. In

contrast, “the [crossing-warning signal] regulations place no ongoing duty [of care] on

the railroads with which the companies are expected to comply.” Id. at 686.    Rather, the

state must determine the adequacy of the warning devices, subject to federal approval.


                                            6
Id.; see Henning v. Union Pac. R.R., 530 F.3d 1206, 1216 (10th Cir. 2008) (holding that

inadequacy-of-warning claim preempted despite 2007 amendment); see also Zimmerman

v. Norfolk S. Corp., 706 F. 3d 170, 188-93 (3rd Cir. 2013) (holding tort claim that

railroad failed to maintain warning sign not preempted, but inadequacy-of-warning-sign

claim preempted).

       Frieler also argues that the district court failed to address his alternate claim, that

federal law also preempts Minn. Stat. § 219.402 (2012), which provides that “[c]rossing

warning devices or improvements installed or maintained under this chapter as approved

by the commissioner or any predecessor, whether by order or otherwise, are adequate and

appropriate warning for the crossing.” Because federal law preempts Frieler’s state law

claims, we need not address this statute.2

       Affirmed.




2
  Nevertheless, it adds an additional reason why BNSF cannot be held liable for the
inadequacy of warning devices approved by the state. In the only published case
analyzing this statute, the statute was invoked to support a presumption of adequacy and
a finding of discretionary immunity on behalf of the state. McEwen v. Burlington N.
R.R., 494 N.W.2d 313, 316 (Minn. App. 1993), review denied (Minn. Feb. 25, 1993).

                                              7
