                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 97-4076
                               ________________

Elmer F. Bock, Administrator of the    *
Estate of Phyllis Bock, Deceased,      *
                                       *
            Appellant,                 *      Appeal from the United States
                                       *      District Court for the
      v.                               *      Eastern District of Arkansas.
                                       *
St. Louis Southwestern Railway         *
Company, Southern Pacific,             *
                                       *
          Appellee.                    *
____________________________           *
                                       *
Association of American Railroads,     *
                                       *
            Amicus on Behalf of        *
            Appellee.                  *
                                       *

                               ________________

                               Submitted: January 13, 1999
                                   Filed: June 30, 1999
                               ________________

Before LOKEN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                         ________________

HANSEN, Circuit Judge.
       Elmer F. Bock, the administrator of the estate of Phyllis Bock, appeals from the
district court's1 grant of summary judgment in favor of the St. Louis Southwestern
Railway in Bock's wrongful death action. We affirm.

                                          I.

       The relevant facts, viewed in the light most favorable to Bock, are as follows.
On March 10, 1992, Phyllis Bock was driving her car on Main Street in Roe, Arkansas.
Main Street intersects railroad tracks owned by St. Louis Southwestern Railway
Company (Southwestern). As Phyllis Bock crossed the tracks, a Southwestern train
struck and killed her. At the time of the accident, crossbucks provided the sole
protection at the Main Street crossing. Crossbucks are X-shaped signs that read
"RAILROAD CROSSING" in reflectorized letters. The crossbucks were installed in
1980 as part of a statewide initiative to improve the safety of all railroad grade
crossings. The United States Department of Transportation—Federal Highway
Administration approved the expenditure of federal funds for use in the Main Street
project.

       In 1988 a diagnostic team organized by the Arkansas Highway Department
inspected the Main Street crossing and recommended that the crossing be protected by
lights and automatic gates. The federal government provided 90 percent of the cost,
while Southwestern paid the City of Roe's 10 percent share. Southwestern received
final authority to upgrade the crossing in September of 1991, and completed the project
in March 1992, shortly after the accident that killed Phyllis Bock.




      1
        The Honorable Henry L. Jones, Jr., United States Magistrate Judge for the
Eastern District of Arkansas, hearing the case by consent of the parties pursuant to 28
U.S.C. § 636(c) (1994).
                                          2
        Elmer Bock, Phyllis Bock's father and the administrator of her estate, filed this
wrongful death action in federal court on the basis of diversity of citizenship. Bock's
original complaint included several theories of liability which are no longer relevant for
the purposes of this appeal. Southwestern moved for summary judgment on the basis
of federal preemption, and the district court granted the motion on May 12, 1997. On
November 12, 1997, after Bock amended his complaint, the district court entered a
final judgment dismissing Bock's case. This appeal followed.

                                           II.

      We review the district court's grant of summary judgment de novo, viewing the
evidence in the light most favorable to Bock, the nonmoving party. Bryan v. Norfolk
and Western Ry. Co., 154 F.3d 899, 901 (1998), cert. dismissed, 119 S. Ct. 921
(1999). We will affirm the district court's judgment only if there are no genuine issues
of material fact and Southwestern is entitled to summary judgment as a matter of law.
Id.; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56.

A.    Abnormally Dangerous Crossing

      Bock first argues that his wrongful death action is not preempted because the
Main Street crossing was abnormally dangerous and Southwestern used inadequate
warning devices to protect the crossing. The district court granted Southwestern's
motion for summary judgment, holding that Bock's negligence claim was preempted by
federal law.

       The Supreme Court has held that when certain federal regulations issued by the
Secretary of Transportation governing the protection devices to be placed at railroad
grade crossings apply, see 23 C.F.R. § 646.214(b)(3)-(4) (1998), the federal regulations
preempt state law tort claims pertaining to the maintenance of the railroad grade
crossings. See CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 670 (1993). Since

                                            3
Easterwood, our court has been quite clear that if federal funds have been expended for
warning devices at a grade crossing, state law tort claims alleging negligence in the
maintenance of the crossing are preempted. Consequently, the pivotal issue in this case
is whether or not the cited regulations are applicable to the Main Street Crossing.

       "Federal regulations are applicable if federal funds have been expended for the
installation of the warning devices at the crossing. 'Federal funding is the touchstone
of preemption in this area.'" Bryan, 154 F.3d at 903 (quoting Elrod v. Burlington
Northern R.R. Co., 68 F.3d 241, 244 (8th Cir. 1995)). There is no dispute in this
record that federal funds were used to install the crossbucks at the Main Street
crossing. Accordingly, Bock's claim should be preempted. Nonetheless, Bock argues
that his claim is not preempted because the crossbucks were inadequate in view of 23
C.F.R. § 646.214(b)(3). Under that regulation, according to Bock, the characteristics
of the Main Street crossing mandate the use of automatic gates with flashing light
signals. See § 646.214(b)(3)(i)(B) (indicating that adequate warning devices are to
include flashing lights and automatic gates when the crossing involves multiple tracks
and the movement of an approaching train might be obscured). We recently addressed
and rejected an identical legal argument. In Bryan the widow of a driver killed in a
collision with a train argued that her wrongful death action was not preempted even
though federally funded crossbucks protected the crossing in question. The widow
asserted, as does Bock in this appeal, that under the regulations, the characteristics of
the crossing warranted an automatic gate. Bryan, 154 F.3d at 903. Despite this
argument, we held that "once federal funds have been expended towards grade crossing
safety devices, and those devices are installed and operating, state law negligence
claims are preempted by federal regulations." Id. at 904. Thus, it would appear that
Bock's wrongful death action is preempted.

      Factually, however, Bock's case differs from Bryan because prior to Phyllis
Bock's accident, the relevant authorities made a determination to upgrade the Main
Street crossing to a lights and gates configuration. According to Bock, this

                                           4
determination proves, as a matter of law, the inadequacy of the Main Street crossing,
and consequently, suspends or terminates the preemption of state tort actions. We
disagree.

        Preemption is not a water spigot that is turned on and off simply because a later
decision is made to upgrade a crossing. As we noted above, our cases clearly hold that
once a federally funded warning device is installed and operational—the crossbucks
in this case—preemption occurs. See Bryan, 154 F.3d at 904; Elrod, 68 F.3d at 244;
St. Louis Southwestern Ry. Co. v. Malone Freight Lines, Inc., 39 F.3d 864, 867 (8th
Cir. 1994), cert. denied, 514 U.S. 1110 (1995). The fact that a better warning system
is desirable is simply irrelevant. "[T]he issue is not what warning system the federal
government determines to be necessary, but whether the final authority to decide what
warning system is needed has been taken out of the railroad's and the state's hands
under 23 C.F.R. § 646.214(b)(3) & (4)." Armijo v. Atchison, Topeka and Santa Fe Ry.
Co., 87 F.3d 1188, 1192 (10th Cir. 1996). We hold, therefore, that federal law
preempts Bock's wrongful death claim based on the adequacy of the warning devices
installed at the Main Street crossing.

B.    Delayed Installation

      Bock next argues that Southwestern negligently delayed the installation of the
improved safety devices at the Main Street crossing. In other words, according to
Bock, Southwestern is liable for failing to promptly install lights and gates after the
determination to install such devices was made. Bock dedicates the majority of his
brief on this topic to the question of whether such a cause of action exists under
Arkansas law. We do not reach that question because we hold that Bock's negligent
delay claim is also preempted by federal law.

     Bock's argument is little more than an attempt to make an end run around the
preemption doctrine. As we explained above, once preemption occurs, it is not

                                           5
suspended or terminated by a subsequent governmental determination regarding the
adequacy of the crossing. When, as here, a plaintiff brings a state tort cause of action
for harm sustained at a railroad crossing that has federally funded, installed, and
operational warning devices, that state cause of action is preempted. That another,
improved warning system was later planned is simply irrelevant. See Armijo, 87 F.3d
at 1192 ("The mere fact that the federal government has changed its opinion regarding
what warning devices are needed at a particular crossing at some point after making a
prior determination a lesser warning system is sufficient is of no real significance . . .
."). Whether Arkansas's common law recognizes a tort cause of action for negligent
delay is likewise irrelevant because that cause of action would also be preempted. Due
to preemption, the railroad was no longer duty-bound, in the tort sense, for causes of
action based on the adequacy of the crossing safety devices. After the federally funded
crossbucks were installed and operational, preemption absolved Southwestern of any
state law obligation to upgrade the crossing sua sponte. Cf. Malone, 39 F.3d at 867
("Before preemption, the public is protected by a railroad's state common-law duty of
care. After installation of federally mandated warning devices, the public is protected
by those devices."). Because Bock's negligent delay claim is founded on the premise
that the then existing crossbucks inadequately protected the crossing, his claim is
preempted. This case is markedly different from the situation presented in Malone. In
that case, preemption had not occurred because the original federally funded warning
devices were not yet installed at the crossing in question. See id. In this case they
were.2

      In sum, we hold that Bock's negligent delay claim is preempted.

      2
        The Main Street crossing upgrade was not an "accelerated" project under 23
C.F.R. § 646.218. If it were, that regulation would have allowed up to two years from
and after the project authorization date (September 9, 1991) for completion of the
project. See § 646.218(e). Even though it was not "accelerated," the Main Street
crossing was completed within seven months after authorization by the Arkansas
Highway Department.
                                            6
                                  III.

Accordingly, we affirm the district court's judgment.

A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT




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