                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-20-2004

Strozyk v. Norfolk S Corp
Precedential or Non-Precedential: Precedential

Docket No. 02-3957




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                           PRECEDENTIAL

                                 Filed January 20, 2004

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                     No. 02-3957


  CLAIR STROZYK, Individually, as Parent of, and as
Co-Administrator of the Estate of Christopher Strozyk;
 DENISE STROZYK, Individually, as Parent of, and as
Co-Administratrix of the Estate of Christopher Strozyk,
                                         Appellants
                          v.
            NORFOLK SOUTHERN CORP.;
                JOSEPH SULLIVAN

     Appeal from the United States District Court
        for the Eastern District of Pennsylvania
              (D.C. Civil No. 01-cv-02478)
District Court Judge: Honorable Ronald L. Buckwalter

               Argued October 2, 2003
Before: RENDELL, WEIS and GARTH, Circuit Judges.

              (Filed: January 20, 2004)

                   Frederick E. Charles [ARGUED]
                   441 Linden Street
                   Allentown, PA 18101
                   Stephen L. Shields
                   104 West Fourth Street
                   P.O. Box 5456
                   Bethlehem, PA 18015
                     Counsel for Appellants
                             2


                      Paul F.X. Gallagher [ARGUED]
                      Gallagher, Rowan & Egbert
                      1500 Walnut Street
                      Suite 1600
                      Philadelphia, PA 19102
                        Counsel for Appellees


                OPINION OF THE COURT

RENDELL, Circuit Judge.
   Christopher Strozyk was killed at a railroad crossing
when a train owned and operated by Norfolk Southern
collided with the truck he was driving. Subsequently,
Strozyk’s parents filed suit against Norfolk, alleging, inter
alia, the railroad’s negligence for inadequate warning
devices at the grade crossing, excessive speed of the train,
and failure to provide proper sight lines for motorists
crossing the track. Norfolk moved the District Court for
summary judgment, arguing that much of the Strozyks’
complaint was preempted by virtue of the Federal Railroad
Safety Act of 1970 (“FRSA”), 84 Stat. 971, as amended, 49
U.S.C. § 20101 et seq. The District Court held that federal
regulations setting forth guidelines for the installation of
adequate warning devices, 23 C.F.R. §§ 646.214(b)(3) and
(b)(4), compelled the dismissal of most of the Strozyks’
claims. On appeal, the Strozyks contend that while several
allegations such as the inadequacy of warning devices may
have been properly dismissed, the District Court improperly
struck other claims arguably unrelated to the scope of
§ 646.214, namely, claims concerning limited sight lines
and failure to maintain a safe grade crossing. Because we
agree with the Strozyks that § 646.214 does not cover
claims of limited visibility and negligent maintenance of a
grade crossing, we will reverse.

                             I.
  The fatal collision took place on May 8, 2000 at a railroad
crossing that intersects Smith Lane in Alburtis,
Pennsylvania. The District Court found that warning
                                     3


devices, specifically crossbucks—the X-shaped signs placed
on posts that read “RAILROAD CROSSING”—were installed
at the Smith Lane crossing around June of 1987. These
warning signs were installed under the auspices of a
federal-state crossbuck replacement program and paid for
in part with federal funds, and were in place at the time of
Strozyk’s accident, thirteen years later. These facts are
unchallenged on this appeal.
   Following the accident, in March of 2001, the Strozyks
filed a wrongful death and survival action in Pennsylvania
state court, asserting various claims of negligence against
Norfolk.1 After removing the case to the District Court
based on diversity jurisdiction, Norfolk then moved for
summary judgment. It argued that the FRSA preempted
state tort claims where federal funding was involved in the
improvement of the grade crossing. Norfolk contended that
the crossbucks at the Smith Lane crossing were installed in
part with federal money and that, consequently, the
Strozyks’ claims were preempted. In an order issued on
June 5, 2002, the District Court agreed, and granted
Norfolk’s motion for partial summary judgment, eliminating
all but two of the Strozyks’ claims as preempted. The
Strozyks do not appeal the District Court’s finding that the
warning devices at the Smith Lane crossing were installed
with federal funds nor do they appeal what follows from
that finding, i.e., that they may not challenge the warning
devices’ adequacy.
  However, going beyond the claims relating to warning
devices, the District Court reasoned that § 646.214(b)
compelled the dismissal of several other claims unrelated to
warning devices, only two of which are the subject of this

1. The Strozyks’ complaint included numerous allegations including that
Norfolk: 1) failed to provide proper warning devices at the railroad
crossing; 2) failed to give proper sound, signal or warning of the presence
of its train; 3) failed to yield to the decedent’s right of way; 4) violated
local and federal laws concerning safety at railroad crossings; 5) operated
its train at excessive speed; 6) failed to provide proper sight lines for
vehicles crossing the tracks; 7) failed to adopt and install necessary
protective measures to safeguard against fatal accidents; 8) created a
foreseeable risk of injury to individuals crossing the tracks; and, 9) failed
to hire, employ, or retain personnel qualified to operate its trains.
                                      4


appeal. First, the Strozyks claim that Norfolk violated its
duty of care under Pennsylvania law to maintain a safe
grade crossing. Second, and relatedly, the Strozyks claim
that obstructed sight lines at the grade crossing restricted
the ability to see oncoming trains. Indeed, the Strozyks’
principal allegation appears to be that excess vegetation,
which Norfolk had a duty to control, obscured decedent’s
view of the oncoming train.
   After the District Court’s June 5 order, only two claims
remained: a) failing to give proper sound, signal, or warning
of the presence of the train prior to collision and b) violating
the decedent’s right of way. Norfolk then filed a motion for
summary judgment with respect to these claims, arguing
that its engineer had sounded a horn on its approach to the
Smith Lane Crossing. In responding to this motion, the
Strozyks conceded that a horn was blown and stated that
Norfolk’s motion was “unopposed.” Consequently, the
District Court, in an order issued on September 27, 2001,
granted Norfolk’s second motion for summary judgment
and dismissed the case.2 “Because the grant of summary
judgment and the dismissal of the complaint are
inconsistent,” we will disregard the District Court’s
reference to dismissal of the Strozyks’ complaint and treat
the record instead as a summary judgment record.
Cheminor Drugs, Ltd. v. Ethyl Corp., 168 F.3d 119, 121 n.2
(3d Cir. 1999).

2. In their reply brief, the Strozyks contend for the first time that the
District Court also erred with respect to the dismissal of the two
remaining claims, i.e., “failing to give proper sound, signal or warning of
the presence of [the] train prior to its collision with Plaintiffs’ decedent’s
vehicle under the circumstances” and “violating the Plaintiffs’ decedent,
Christopher Strozyk’s right of way under the circumstances.” But, as we
have repeatedly instructed, this Court requires appellants to set forth
issues and arguments raised on appeal in their opening brief. Thus, the
Strozyks’ challenge of the second summary judgment order was “one
brief too late.” Republic of Phil. v. Westinghouse Elec. Corp., 43 F.3d 65,
71 n.5 (3d Cir. 1994). Not only did the Strozyks fail to properly challenge
the second summary judgment on appeal, they did not, as already noted,
oppose the motion at the District Court level. We therefore decline to
disturb the District Court’s order in this regard.
                                    5


                                   II.
   The District Court had subject matter jurisdiction
pursuant to 28 U.S.C. § 1332. Our jurisdiction for review of
the District Court’s final order is based on 28 U.S.C.
§ 1291. We review summary judgment motions de novo,
using the same test applicable to a district court. Mass.
Sch. of Law v. ABA, 107 F.3d 1026, 1032 (3d Cir. 1997).

                                   A.
   We are asked to determine whether 23 C.F.R.
§ 646.214(b) preempts the subject matter of state
negligence law regarding the maintenance of a safe grade
crossing, including duties with respect to restricted sight
lines. Subsections §§ 646.214(b)(3) and (4) set forth
guidelines for selecting the appropriate warning devices for
installation at grade crossings improved with federal
funding.3 These guidelines preempt state law by virtue of

3. Sections 646.214(b)(3) and (4) provide:
    (3)(I) Adequate warning devices, under § 646.214(b)(2) or on any
    project where Federal-aid funds participate in the installation of the
    devices are to include automatic gates with flashing light signals
    when one or more of the following conditions exist:
    (A) Multiple main line railroad tracks.
    (B) Multiple tracks at or in the vicinity of the crossing which may be
    occupied by a train or locomotive so as to obscure the movement of
    another train approaching the crossing.
    (C) High Speed train operation combined with limited sight distance
    at either single or multiple track crossings.
    (D) A combination of high speeds and moderately high volumes of
    highway and railroad traffic.
    (E) Either a high volume of vehicular traffic, high number of train
    movements, substantial numbers of schoolbuses or trucks carrying
    hazardous materials, unusually restricted sight distance, continuing
    accident occurrences, or any combination of these conditions.
    (F) A diagnostic team recommends them.
    (ii) In individual cases where a diagnostic team justifies that gates
    are not appropriate, FHWA may find that the above requirements
    are not applicable.
                                  6


the FRSA’s express preemption provision. Pursuant to this
provision, state laws, regulations, and common law duties
concerning railroad safety remain in force until the
Secretary of Transportation promulgates regulations or
orders that “cover[ ] the subject matter of the State
requirement.” 49 U.S.C. § 20106. The Supreme Court has
observed that the FRSA’s preemption clause “displays
considerable solicitude for state law” and that preemption
will lie only if the federal regulations, in our case,
§§ 646.214(b)(3) and (4), “substantially subsume the subject
matter of the relevant state law.” CSX Transp., Inc. v.
Easterwood, 507 U.S. 658, 664–65 (1993). Particularly, the
Court in Shanklin v. Norfolk S. Ry. Co., 529 U.S. 344
(2000), has held that by virtue of the FRSA, these
regulations preempt state tort claims challenging the
adequacy of warning devices that are installed in part with
federal funds.
   After first concluding that federal funds were expended
for the installation of the crossbucks at the Smith Lane
crossing, the District Court considered which of the
Strozyks’ claims were preempted by the FRSA. The District
Court dismissed the Strozyks’ claims that the crossbucks at
the grade crossings were inadequate—a determination
which the Strozyks do not challenge. But the District Court
went on to dismiss other claims which the Strozyks argue
were not within the subject matter of § 646.214(b). Reading
Shanklin broadly, the District Court held that § 646.214(b)’s
subject matter covered not only warning device claims, but
other negligence claims arising out of a grade crossing
accident. The Court set forth two rationales for its dismissal
of the Strozyks’ claims concerning limited sight lines and
failure to maintain a safe grade crossing. On appeal,
Norfolk posits a third ground for affirmance.

    (4) For crossings where the requirements of § 646.214(b)(3) are not
    applicable, the type of warning device to be installed, whether the
    determination is made by a State regulatory agency, State highway
    agency, and/or the railroad, is subject to the approval of FHWA.

23 C.F.R. § 646.214(b) (2003).
                               7


   First, with respect to the Strozyks’ limited visibility claim,
the District Court observed that § 646.214(b) lists
“unusually restricted sight distance” as a factor mandating
the installation of active warning devices. The District Court
reasoned that the standard set by the regulation
encompasses not just the ultimate selection of a warning
device but “all the considerations set forth in section
646.214(b)(3)(A) through (F), including the appropriate
response to limited sight distance or unusually restricted
sight distance.” The Court concluded that because the
federal regulation’s subject matter includes visibility, the
Strozyks’ limited sight lines claim was preempted.
  Second, with respect to the Strozyks’ claim that Norfolk
did not maintain a safe grade crossing, the District Court
held that it would “defy logic to allow preemption in the
case of a specific allegation that a railroad failed to
maintain adequate warning devices, rendering a grade
crossing unsafe, but not the general allegation that a
railroad failed to maintain a safe grade crossing.” After
concluding that the specific claims concerning warning
devices and the general claims of a safe grade crossing were
“one in the same [sic]”, the District Court dismissed the
Strozyks’ general maintenance claims as preempted. Id.
   Norfolk urges that, in addition to adopting the District
Court’s reasoning regarding the scope of the regulation, we
should affirm on different grounds, namely, that Norfolk
met its duty of care to the decedent. Indeed, on appeal
Norfolk appears to sidestep the substance of the District
Court’s preemption determination, and instead, challenges
the merits of the Strozyks’ claims under Pennsylvania
negligence law. Norfolk contends that Pennsylvania
common law establishes an either/or standard for due care
at a grade crossing: sounding a horn obviates a railroad’s
duty to provide proper sight lines and vice versa. Pointing
to the Strozyks’ concession to the District Court that the
train engineer did sound a horn 1,500 to 1,800 feet from
the crossing, Norfolk argues that even in the absence of
preemption, the fact that it gave the sound warning
necessarily means that it prevails as a matter of law on the
Strozyks’ claims, regardless of any limited sight lines or
failure to maintain a safe grade crossing.
                              8


  We consider each argument in turn.

                              B.
   The District Court’s reading of § 646.214(b) framed the
basis for its dismissal of the Strozyks’ limited sight lines
claim. Thus, we begin with the language and intent of the
regulation. Section 646.214(b), promulgated under the
authority of both the FRSA and the Highway Safety Act of
1973, sets forth the design standards of the Federal
Railway-Highway Crossings Program (“Crossings Program”),
23 U.S.C. § 130, which offers states federal funding to
improve grade crossings. Subsections (b)(3) and (4), in
particular, require the installation of automatic gates with
flashing light signals given certain conditions, such as high
speed train operation, high volume of automobile traffic,
and restricted sight distance.
  We can find nothing in the text of the regulation that
dictates that the Strozyks’ visibility claim was preempted
along with their claims regarding the adequacy of the
warning devices. To the contrary, the plain language of the
regulation indicates that the subject matter is the adequacy
of warning devices, not the considerations involved in
choosing them or state negligence law more broadly. The
regulations provide that “[a]dequate warning devices . . . are
to include automatic gates with flashing light signals when
one or more of the following conditions exist . . . .” The bare
mention of these conditions, including limited visibility,
does not indicate an intent to regulate those conditions. By
this reasoning, each of the listed considerations, e.g.,
schoolbus traffic, high speed trains, or trucks freighted
with hazardous materials, would be the subject matter of
the regulation. The plain meaning of the regulation defies
such an expansive reading.
   To be certain, the regulations before us do involve the
issue of limited sight distance. But the Supreme Court has
cautioned that a showing that certain FRSA regulations
preempt state law requires “more than that they ‘touch
upon’ or ‘relate to’ that subject matter . . . .” Easterwood,
507 U.S. at 664. For preemption to be found, the regulation
must “substantially subsume[ ]” a subject area of state law.
                             9


Id. The mere listing of various conditions that would require
active warning devices as a matter of federal law does not
constitute    substantial    subsumption      requiring   the
displacement of related state law. We therefore find that the
District Court erred in its reading of the regulation and its
dismissal of the Strozyks’ limited sight distance claim.

                             C.
  With respect to the Strozyks’ claim regarding general
maintenance of a safe grade crossing, the District Court
held that it was illogical to preempt claims of inadequate
warning devices while leaving untouched such a general
negligence claim, concluding that the warning devices claim
and the general maintenance claim essentially collapsed
into each other. But, we do not believe that the text of the
regulation, discussed above, or its interpretation by the
Supreme Court, compels this result.
   In the two principal Supreme Court opinions that guide
our analysis in this area, Easterwood and Shanklin, the
plaintiffs sued a railroad for, among other claims,
inadequate warning signals at grade crossings. The
Supreme Court held that once federal funding has been
used to install warning devices, the railroad is relieved of
liability as to those claims. See Shanklin, 529 U.S. at 358;
Easterwood, 507 U.S. at 670. The Court held that with
federally funded grade crossing improvements, a railroad’s
state law obligations with respect to appropriate warning
devices are superseded by federal requirements as set forth
in §§ 646.214(b)(3) and (4).
  In Easterwood, a widow brought a wrongful death action
under Georgia law on behalf of her husband, who died in
a grade crossing collision. She sued the railroad for, among
other things, failing to maintain adequate warning devices
at the grade crossing and operating the train at excessive
speed. 507 U.S. at 661. The Supreme Court considered
whether several regulations promulgated under the FRSA
preempted Easterwood’s claims. First, it considered the
provisions of 23 C.F.R. pt. 924, the regulations that outline
“the general terms of the bargain between the Federal and
State Governments.” Id. at 667. The Court ruled that
                                   10


nothing on the face of these regulations indicated an
intention to alter the states’ traditional role in regulating
railroads. Id. at 667-68. Second, the Court ruled that 23
C.F.R. § 646.214(b)(1)’s requirement that states comply with
the Manual on Uniform Traffic Control Devices for Streets
and Highways (“Manual”) did not preempt the Easterwood’s
claims. “Rather than establishing an alternative scheme of
duties incompatible with existing Georgia negligence law,
the Manual disavows any claim to cover the subject matter
of that body of law.” Id. at 670.
  Lastly, the Court considered the regulations that form the
basis of the appeal before us: §§ 646.214(b)(3) and (4). The
Court held that these regulations “displace state and
private decisionmaking authority by establishing a federal-
law requirement that certain protective devices be installed
or federal approval obtained.” Id. Hence, these regulations
preempt, when applicable, claims challenging the adequacy
of warning devices. Yet, because the federal Crossing
Program warning devices were never actually installed at
the accident site, the Court ultimately found that
Easterwood’s warning device claims were not preempted.4
  The Court in Shanklin followed the path it had forged in
the Easterwood case. Like the decedents in Easterwood and
the case at bar, Eddie Shanklin died when his truck
collided with a train at a grade crossing. Unlike the grade
crossing in Easterwood, there were indeed warning devices
at the grade crossing which were installed with federal
participation. The defendant railroad appealed an adverse
verdict for, inter alia, the inadequacy of those warning
devices. Guided by Easterwood, the Court ruled for the
railroad, holding that existence of warning devices installed
under the auspices of the Crossings Program preempted
claims challenging the adequacy of those warning devices.5

4. The Court ruled, however, that Easterwood’s state law excessive speed
claim was preempted by 49 C.F.R. § 213.9(a), which sets maximum
allowable operating speeds for all freight and passenger trains.
Easterwood, 507 U.S. at 673. Easterwood had conceded that the train
that killed her husband was traveling under the speed limit prescribed
by this federal regulation. Id.
5. Like the Strozyks, the plaintiff in Shanklin also alleged that Norfolk
had been negligent by failing to remove vegetation from the area
                                    11


See Shanklin, 529 U.S. at 358 (holding that “once
[railroads] have installed federally funded devices at a
particular crossing—[states may not] hold the railroad
responsible for the adequacy of those warning devices”).
Moreover, the Court settled a division among the Circuit
Courts of Appeals by clarifying that an individualized
determination ensuring the adequacy of warning devices at
a particular crossing is not a necessary precondition to
preemption. Id. at 356. Rather, the Court held in both
Easterwood and Shanklin that state law challenges to the
adequacy of warning devices installed pursuant to
§ 646.214(b) are preempted.
   Unfortunately,    the   Court    made     a    few   broad
pronouncements in these opinions that seemingly point to
a blanket preemption of state tort law. The Court in
Easterwood stated that § 646.214(b) “therefore cover[s] the
subject matter of state law which, like the tort law on which
respondent relies, seeks to impose an independent duty on
a railroad to identify and/or repair dangerous crossings.”
507 U.S. at 671; see also Shanklin, 529 U.S. at 353
(quoting this language). Even more broadly, the Court
stated    that    “[e]xamination    of    these    regulations
[§ 646.214(b)(3) and (4)] demonstrates that, when they are
applicable, state tort law is pre-empted.” Easterwood, 507
U.S. at 670. Read in isolation, these sentences seem to
support the District Court’s reasoning and the sweeping
proposition that § 646.214(b) relieves railroads of any
common law duty, including duties to maintain a safe
grade crossing that are unrelated to the adequacy of
warning devices.

surrounding the crossing. Norfolk conceded, however, in its Supreme
Court brief that Shanklin’s vegetation claim was not preempted by
federal law. See Brief for Petitioner at 47 n.25, Shanklin v. Norfolk S. Ry.
Co., 529 U.S. 344 (2000) (No. 99-312) (“[T]here is no dispute that Ms.
Shanklin is entitled on remand to a trial on her three remaining theories
of petitioner’s liability under state law: namely, the alleged failure of
petitioner to (1) sound the horn in a timely fashion; (2) apply the brakes
in a timely fashion; and (3) remove vegetation from the crossing.”
(emphasis added)). That is, of course, inconsistent with the position
Norfolk has assumed in the Strozyks’ lawsuit.
                                    12


   But these passages should not be read out of context.
Read in their totality, neither opinion speaks of supplanting
the negligence regime of the fifty states; nor do these cases
intimate that they are relieving railroads of any and all
state duties of care with respect to grade crossing safety in
general. Instead, the Supreme Court recognized that “the
scheme of [state] negligence liability could just as easily
complement” the basic division of state and federal
responsibilities under the Crossings Program regulations.
Easterwood, 507 U.S. at 668 (interpreting regulations
contained in 23 C.F.R. pt. 924). Indeed, the Court noted
that “with respect to grade crossing safety, the
responsibilities of railroads and the State are, and
traditionally have been, quite distinct.”6 Id. After
acknowledging the states’ traditional role in the regulation
of railroad safety, and invoking the presumption against
preemption, id. at 668, it would be odd indeed if the Court
intended its construction of § 646.214 to entirely displace
state law assuring safety at grade crossings, separate and
apart from the adequacy of warning devices. And, in fact,
the last chapter of the Shanklin litigation makes this clear.
After the Supreme Court’s remand order, the plaintiff
proceeded with, and prevailed in, a jury trial with respect to
a limited sight lines/tort vegetation claim, similar to that
alleged by the Strozyks. Shanklin v. Norfolk S. Ry. Co., No.
94-1212, slip op. at 3, (W.D. Tenn. Oct. 24, 2001).

6. By virtue of the FRSA, § 646.214(b) did, of course, modify the
traditional scheme of railroad negligence liability. Prior to the FRSA, the
railroad generally was required to identify hazardous crossings, help
select adequate warning devices, seek state approval for, and when
necessary, finance the installation of, those warning devices. Brief of
Amicus Curiae United States at 17, CSX Transp., Inc. v. Easterwood, 507
U.S. 658 (1993) (Nos. 91-790 and 91-1206). The Supreme Court has
observed that participation in the federal Crossings Program altered this
division of responsibility. The federal government by virtue of
§ 646.214(b) has “effectively set the terms under which railroads are to
participate in the improvement of crossings.” Easterwood, 507 U.S. at
670. And it is this federal involvement that relieves the railroad from
suits challenging the adequacy of warning devices. While § 646.214(b)
effected changes in the improvement of grade crossings, it did not
eliminate other long-standing responsibility imposed on railroads by the
various states.
                             13


   Our reading also comports with the interpretation given
to the regulation by the Federal Highway Administration
(“FHWA”), which the Supreme Court has quoted with
approval. In Shanklin, the Court noted that it had earlier
adopted as authoritative the FHWA’s construction of
§ 646.214(b). Id. at 356 (“Thus, Easterwood adopted the
FHWA’s own understanding of the application of
§§ 646.214(b)(3) and (4), a regulation that the agency had
been administering for 17 years.”) (citing Brief of Amicus
Curiae United States at 24, CSX Transp., Inc. v.
Easterwood, 507 U.S. 658 (1993) (Nos. 91-790 and 91-
1206) (“U.S. Brief ”)). The FHWA’s declaration made clear
the limited scope of § 646.214(b). “[W]e do not believe
federal grade crossing regulations cover the entire subject
matter of a railroad’s duty to provide a reasonably safe
grade crossing.” U.S. Brief at 18. “As a result,
§§ 646.214(b)(3) and (4) ‘cover the subject matter of
adequate safety devices at crossings that have been
improved with the use of federal funds.’ ” Shanklin, 529
U.S. at 354 (quoting U.S. Brief at 23). Thus, the ambit of
§ 646.214(b) is limited to the adequacy of warning devices,
nothing more.
   And, the courts have recognized that state law duties to
maintain a safe grade crossing remain viable. In dicta, the
Supreme Court observed that Georgia law imposes a duty
on railroads to “take all reasonable precautions to maintain
grade crossing safety.” Easterwood, 507 U.S. at 665 n.5
(citing Southern R. Co. v. Georgia Kraft Co., 373 S.E.2d 774,
776 (Ga. Ct. App. 1988), overruled by Evans Timber Co.,
Inc. v. Central of Ga. R.R. Co., 519 S.E.2d 706, 709 (Ga. Ct.
App. 1999)). Georgia’s laws on railroads have changed since
Easterwood, but as noted by the Georgia Court of Appeals
“[w]ithout question, the common-law duty of the railroad,
except with respect to initiating and authorizing the
installation of protective devices at a railroad crossing,
remains in effect . . . . A railroad may still be liable for
other negligent conduct, such as the failure to maintain a
working crossing arm or obstructing vision at a crossing.”
Evans Timber, 519 S.E.2d at 709-10. Similarly, in a case
that involved, as here, allegations of excessive vegetation,
the Supreme Court of Mississippi held that “[t]he language
and discussion [in Shanklin] throughout refer exclusively to
                                   14


the installation and maintenance of warning devices alone
and not the maintenance of the general track conditions.”
Clark v. Ill. Cent. Ry. Co., 794 So.2d 191, 196 (Miss. 2001).
   For these reasons, we decline to adopt an expansive view
of §§ 646.214(b)(3) and (4).7 While, as Easterwood and
Shanklin make clear, §§ 646.214(b)(3) and (4) substantially
altered the landscape of railroad liability, by restricting tort
plaintiffs from interposing state law obligations concerning
appropriate warning devices, the regulations do not eclipse
those duties ensuring safe grade crossings that are
unrelated to warning devices, such as the duty to keep
visibility at grade crossings free from obstructions. As those
regulations cover the subject matter of warning devices, the
Strozyks’ claims that Norfolk failed to maintain a safe grade
crossing, apart from the warning devices, and relatedly
failed to ensure clear sight lines of oncoming trains are not
preempted.

                                   D.
   Norfolk’s principal argument on appeal is that
Pennsylvania common law establishes an either/or
standard of due care at a grade crossing: sounding a horn
obviates a railroad’s duty to provide proper sight lines and
vice versa. Given the Strozyks’ concession that a horn was

7. The Strozyks averred that excessive vegetation existed at the crossing
when the accident occurred, thirteen years after the warning devices
were installed there. The District Court reasoned that because
§ 646.214(b) prescribes automatic gates for limited sight conditions, the
installation of crossbucks at the Smith Lane Crossing indicates that no
limited sight problem existed there. This inference does not necessarily
follow; however accurate the assessment of the grade crossing may have
been in 1987, much may have changed since, including an overgrowth
of vegetation. In any event, such an inference should be read in the light
most favorable to the Strozyks as nonmovants challenging summary
judgment. S.E.C. v. Hughes Capital Corp., 124 F.3d 449, 452 (3d Cir.
1997). We note, however, that despite any change of conditions, claims
regarding the inadequacy of warning devices remain preempted.
Shanklin, 529 U.S. at 357-58 (“Whether the State should have originally
installed different or additional devices, or 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.”).
                                  15


sounded, Norfolk argues that irrespective of our decision on
preemption, it should ultimately prevail as a matter of law.
   This challenge to the Strozyks’ claims is made for the
first time on this appeal. While in its second motion for
summary judgment, Norfolk had made a similar argument
regarding Pennsylvania common law, that motion only dealt
with the two remaining claims of failure to give proper
sound, signal, or warning of the presence of the train prior
to collision and violation of decedent’s right of way; the
remaining     claims   had     been    already   preempted.
Axiomatically, we decline to pass on issues not decided by
the lower court. Peachlum v. City of York, Pa., 333 F.3d
429, 439-40 (3d Cir. 2003) (“It is the general rule, of
course, that a federal appellate court does not consider an
issue not passed upon below.” (quoting Singleton v. Wulff,
428 U.S. 106, 120 (1976))). We leave it for the District
Court to address the merits of Norfolk’s argument with
respect to Pennsylvania common law on this issue.
   We note that, were this a pure matter of law, we might
view the situation differently, and seek supplemental
briefing so as to resolve this issue. However, the case law
cited by Norfolk does not appear to us to draw as clear a
line as Norfolk urges.8 Instead, the caselaw renders the
determination as to the railroad’s duty of care to be heavily
fact-contingent, with all the conditions being relevant. A
railroad must “exercise ordinary care at a crossing by
adopting a reasonably safe and effective method,
commensurate with the dangers of a particular crossing, of
warning travelers of the approach of the train.” Nat’l
Freight, Inc. v. Southeastern Pa. Transp. Auth., 698 F. Supp.
74, 78 (E.D. Pa. 1988), aff ’d, 872 F.2d 413 (3d Cir. 1989)
(discussing Pennsylvania common law); McGlinchey v.
Baker, 356 F.Supp. 1134, 1142 (E.D.Pa. 1973) (Becker, J.).
Pennsylvania cases wrestle with the effect of all types of

8. Indeed, Norfolk conceded in oral argument that the cases it relies
upon for this proposition establish merely that railroads have a duty to
warn. Since warnings can either be visual or auditory, Norfolk
extrapolated its rule that its sounding of a horn discharged in full its
duty of care to the decedent. Pennsylvania case law does not however
appear to clearly state the principle urged by Norfolk.
                                   16


conditions and obstructions, such as vegetation or
embankments, the speed of the oncoming train, and
whether a whistle was sounded; none base a determination,
as a matter of law, on one factor alone such as a horn
warning. See, e.g., Buchecker v. Reading Co., 412 A.2d 147,
153 (Pa. Super. Ct. 1979) (“[T]he sound warnings, by
whistle and bell, if given, were given in a deep ditch or cut
where the sound waves could only be impeded by the sides
of the embankment and so deflected that they could not
adequately warn [motorists].”). Thus, the adequacy of any
warning, visual or auditory, depends on the circumstances
at the crossing such as visibility and terrain, and not a
single factor such as auditory or visual cues. We will leave
the issue of whether or not the railroad met its duty of care,
and the relevant standard, for the District Court and the
fact finder on remand.

                                  III.
  As § 646.214(b) only covers the subject matter of warning
devices, we will reverse the District Court’s order granting
summary judgment to Norfolk.9 In light of the limited scope
of the Strozyks’ appeal, we reinstate only those claims
relating to limited sight conditions, namely excessive
vegetation, and general maintenance of a safe grade
crossing, apart from the adequacy of warning devices. We
will therefore remand for further proceedings in accordance
with this opinion.



9. Our decision today is limited to the regulation considered by the
District Court, namely § 646.214(b). We note another federal regulation
promulgated under the FRSA requires railroads to control vegetation on
railroad property which is on or immediately adjacent to the roadbed. 49
C.F.R. § 213.37. Additionally, the Pennsylvania Public Utility
Commission requires railroads to control vegetation within 200 feet of a
grade crossing to ensure visibility by motorists. 66 Pa. Cons. Stat. Ann.
§ 2702(b). However, the District Court did not consider nor do we
express any opinion as to the applicability of these or any other
regulations to the case at bar.
                            17


A True Copy:
        Teste:

                 Clerk of the United States Court of Appeals
                             for the Third Circuit
