[Cite as Kill v. CSX Transp., 185 Ohio App.3d 291, 2009-Ohio-6871.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY


KILL,

        APPELLANT and
        CROSS-APPELLEE,                                           CASE NO. 1-09-13

        v.

CSX TRANSPORTATION, INC.,

        APPELLEE and
        CROSS-APPELLANT;



ALLEN COUNTY BOARD OF                                             OPINION
COMMISSIONERS ET AL.,

        APPELLEES.



                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CV2007 1001

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                         Date of Decision:        December 28, 2009



APPEARANCES:

       Henry W. Chamberlain and Paul W. Flowers, for appellant and cross-
appellee.

        R. Leland Evans, for appellee and cross-appellant.
Case No. 1-09-13


ROGERS, Judge.

       {¶1} Plaintiff-appellant and cross-appellee, Michael Kill, by and through

his legal guardians, Theodore and Celeste Kill, appeals the judgment of the Court

of Common Pleas of Allen County granting summary judgment to defendant-

appellee and cross-appellant, CSX Transportation, Inc. (“CSX”), and dismissing

his claim for damages resulting from inadequate signalization at a railroad

crossing. On appeal, Kill argues that the trial court erred in dismissing his claim

on summary judgment on the grounds that the Federal Railroad Safety Act

(“FRSA”), Section 20106, Title 49, U.S.Code, preempts his state-law claim.

Additionally, CSX cross-appeals the trial court’s refusal to dismiss Kill’s punitive-

damages claim. On appeal, CSX argues that the trial court erred in not dismissing

the punitive-damages claim after its dismissal of the inadequate-signalization

claim, as a claim for punitive damages cannot exist independently of its

underlying claim. Based on the following, we affirm in part and reverse in part

the judgment of the trial court.

       {¶2} In September 2007, Kill filed a complaint against CSX, three

employees of CSX, the Allen County Board of Commissioners, and ten unnamed

defendants for economic and noneconomic losses suffered when he collided with a

CSX train while attempting to cross a railroad track in rural Allen County, Ohio,

resulting in severe and debilitating brain injuries. The multiple claims in the



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Case No. 1-09-13


complaint included a negligence claim against CSX for failing to properly sound

the horn at the railroad crossing, for speeding, and for failing to remedy a

hazardous condition and provide adequate warning devices at the railroad

crossing. Additionally, Kill requested punitive damages as a result of CSX’s

willful and wanton misconduct.

      {¶3} In August 2008, the trial court entered a stipulation and order,

pursuant to the agreement of the parties, in which Kill dismissed all defendants

except CSX and dismissed all claims against CSX, with prejudice, except his

claim for “inadequate crossing protection devices.”    Subsequently, Kill filed an

amended complaint, stating that CSX “failed to provide adequate warning devices

at the crossing” and that “CSX failed to take precautionary steps such as: placing

automatic gates and lights.”

      {¶4} In October 2008, the trial court entered an agreed scheduling order

granting the parties’ requests to file motions for and against summary judgment on

the sole issue of whether Kill’s state-law claim for inadequate signalization was

preempted by federal law.

      {¶5} Subsequently, CSX filed its motion for summary judgment, asserting

that Kill’s state-law claim for inadequate warning devices at the railroad crossing

was preempted by federal law pursuant to the FRSA, and that Kill was not entitled

to punitive damages, because CSX had exercised reasonable care in maintaining



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Case No. 1-09-13


adequate signalization at the railroad crossing and did not engage in willful and

wanton misconduct.

       {¶6} In December 2008, Kill filed his brief in opposition to CSX’s motion

for summary judgment, asserting that his state-law inadequate-signalization claim

was not preempted by the FRSA because it met the preemption exceptions

contained in the statute and because the 2007 amendment to the FRSA clearly

excluded preemption under the facts of this case.

       {¶7} In February 2009, the trial court granted CSX’s motion for summary

judgment, dismissing Kill’s state-law inadequate-signalization claim based on a

finding that the claim was preempted by federal law pursuant to the FRSA. The

trial court stated:

       Even though it is not relevant to the disposition herein, the facts
       reveal that eyewitnesses by affidavit and deposition verify that the
       CSX train horn was sounding loudly and clearly; that the train could
       be seen approaching the intersection with its lights on; and that
       Michael Kill made no attempt to stop his vehicle, thereby running
       into the side of the lead locomotive as indicated previously.

       The crossing in question contained only passive warning devices,
       namely two standard cross bucks, one facing south and one facing
       north. Further, as part of the discussion herein, the south-facing
       cross buck which was facing the direction of Plaintiff’s approach,
       was missing the reflectorized tape with which it was installed.

       By agreement of the parties, the issue before the court is whether
       CSX failed to provide adequate warning devices at the crossing.
       Said another way, Plaintiff’s claim is based upon whether alleged
       inadequate warning devices at the crossing * * * is [sic] preempted
       by federal law, specifically the Federal Railroad Safety Act of 1970.


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Case No. 1-09-13



      ***

      The Court finds after review that the case of Norfolk Southern
      Railroad Company v. Shankland [sic] (2000), 529 U.S. 344 is
      dispositive. Further, the Court finds that in Fifth Third Bank v. CSX
      Corp. (N.D. Ind. 2004) 306 F. Supp.2d 841, the court cited
      Shankland [sic] for the proposition “that changes in conditions at the
      crossing are immaterial to the issue of federal preemption.” * * *

      ***

      The Court also finds that Plaintiff can not avoid preemption under
      Section 20106(a)(2)(A)-(C) since Plaintiff fails to identify an
      essentially local safety hazard as required by said Section.

      Finally, the Court finds that none of the exceptions in the federal
      preemption statutes or its Clarification Amendment applies [sic] to
      Plaintiff’s State Law Inadequate Signalization Claim.

                       Plaintiff’s Punitive Damage Claim

      Even though the Defendant has addressed the punitive damage
      claim, the Court finds that the only issue before the Court, by
      agreement, is the federal preemption claim, which may make all
      other claims moot. Therefore, the Court will not address the same at
      this point.

      {¶8} It is from this judgment that Kill appeals and CSX cross-appeals,

presenting the following assignment of error and cross-assignment of error for our

review.

                           Kill’s Assignment of Error

      The trial court erred, as a matter of law, in granting summary
      judgment in favor of defendant-appellee on the grounds that all
      available Ohio common law theories of recovery are barred by
      federal preemption.


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Case No. 1-09-13



                         CSX’s Cross-Assignment of Error

       The trial court erred in failing to dismiss cross-appellees’ claim for
       punitive damages as being moot and in failing to dismiss this case in
       its entirety once it granted summary judgment on the sole underlying
       claim upon which the claim for punitive damages was based.

                         Kill’s Assignment of Error

       {¶9} In Kill’s assignment of error, he asserts that the trial court erred in

dismissing his state-law claim for inadequate signalization on the grounds that it

was preempted by federal law pursuant to the FRSA. Specifically, Kill argues that

the 2007 amendment to the FRSA under Section 20106(b)(1), Title 49, U.S.Code,

providing preemption exceptions, substantially eroded prior case law and statutory

authority for preemption of state-law claims; that CSX was in violation of a state

law that meets the original preemption savings clause of Section 20106(a)(2); and

that he meets the exceptions for preemption under Section 20106(b)(1), because

CSX failed to comply with a federal regulation by neglecting to install automatic

gates and flashing light signals at the railroad crossing after repeated accidents and

failed to comply with its own rule by neglecting to repair the missing reflective

tape on the crossbuck at the railroad crossing.

       {¶10} As a preliminary matter, we note that Kill asserts in his brief that

subsumed within his inadequate-signalization claim is a claim for failure to

adequately maintain the crossing, specifically a failure to replace the missing



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Case No. 1-09-13


reflectorized tape on the crossbuck.     However, the trial court’s August 2008

stipulation and order, and Kill’s amended complaint, only maintain an inadequate-

signalization claim. Kill dismissed all other claims that were contained within his

first complaint, including his claim for improper maintenance. Accordingly, the

only claim properly before this court is an inadequate-signalization claim.

                            I.     Standard of Review

       {¶11} An appellate court reviews a summary judgment order de novo.

Hillyer v. State Farm Mut. Auto. Ins. Co. (1999), 131 Ohio App.3d 172, 175.

Accordingly, a reviewing court will not reverse an otherwise correct judgment

merely because the lower court used different or erroneous reasons as the basis for

its determination. Diamond Wine & Spirits, Inc. v. Dayton Heidelberg Distrib.

Co., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶ 25, citing State ex rel. Cassels v.

Dayton City School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217, 222. Summary

judgment is appropriate when, looking at the evidence as a whole, (1) there is no

genuine issue as to any material fact, (2) reasonable minds can come to but one

conclusion and that conclusion is adverse to the party against whom the motion for

summary judgment is made; and, therefore, (3) the moving party is entitled to

judgment as a matter of law. Civ.R. 56(C); Horton v. Harwick Chem. Corp.

(1995), 73 Ohio St.3d 679, 686-687. If any doubts exist, the issue must be




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Case No. 1-09-13


resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65

Ohio St.3d 356, 358-359.

       {¶12} The party moving for summary judgment has the initial burden of

producing some evidence that demonstrates the lack of a genuine issue of material

fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. In doing so, the moving

party is not required to produce any affirmative evidence, but must identify those

portions of the record that affirmatively support his argument. Id. at 292. The

nonmoving party must then rebut with specific facts showing the existence of a

genuine triable issue; he may not rest on the mere allegations or denials of his

pleadings. Id.; Civ.R. 56(E).

       II. Federal Railroad Safety Act and Preemption of State-Law Claims

       {¶13} The FRSA, Section 20101 et seq., Title 49, U.S.Code, was enacted

by Congress in 1970 and granted the Secretary of Transportation “the authority to

‘prescribe regulations and issue orders for every area of railroad safety,’ * * * and

* * * to ‘maintain a coordinated effort to develop and carry out solutions to the

railroad grade crossing problem.’” Norfolk S. Ry. Co. v. Shanklin (2000), 529 U.S.

344, 347, quoting Sections 20103(a) and 20134(a), Title 49, U.S.Code. Contained

within the FRSA is a preemption provision:

       (a) National uniformity of regulation.




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Case No. 1-09-13


      (1) Laws, regulations, and orders related to railroad safety and
      laws, regulations, and orders related to railroad security shall be
      nationally uniform to the extent practicable.

      (2) A State may adopt or continue in force a law, regulation, or
      order related to railroad safety or security until the Secretary of
      Transportation (with respect to railroad 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. A State may adopt or
      continue in force an additional or more stringent law, regulation, or
      order related to railroad safety or security when the law, regulation,
      or order--

      (A) is necessary to eliminate or reduce an essentially local safety or
      security hazard;

      (B) is not incompatible with a law, regulation, or order of the
      United States Government; and

      (C) does not unreasonably burden interstate commerce.

Section 20106(a), Title 49, U.S.Code. Accordingly, under this provision, all state-

law claims are preempted when either the Secretary of Transportation or the

Secretary of Homeland Security promulgates a regulation that covers the subject

matter of the state law, unless the three preemption-avoiding conditions are

satisfied. See In re Miamisburg Train Derailment Litigation (1994), 68 Ohio

St.3d 255, 257; Wooten v. CSX RR., 164 Ohio App.3d 428, 2005-Ohio-6252, ¶ 14-

15, citing CSX Transp., Inc., v. Easterwood (1993), 507 U.S. 658.

      {¶14} Subsequent to the passage of the FRSA, Congress created the

Federal Railway-Highway Crossings Program (“crossings program”) through the



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Case No. 1-09-13


Highway Safety Act of 1973, found in Section 401 et seq., Title 23, U.S.Code.

The crossings program provided funds to states for the “cost of construction of

projects for the elimination of hazards of railway-highway crossings.” Section

130(a), Title 23, U.S.Code. The Secretary of Transportation, through the Federal

Highway Administration, issued regulations to implement the crossings program.

Shanklin, 529 U.S. at 348. Of the multiple regulations issued, one addresses the

warning devices to be installed at railroad crossings. See Section 646.214(b), Title

23, C.F.R. The regulation provides:

       (2) Pursuant to 23 U.S.C. 109(e), where a railroad-highway grade
       crossing is located within the limits of or near the terminus of a
       Federal-aid highway project for construction of a new highway or
       improvement of the existing roadway, the crossing shall not be
       opened for unrestricted use by traffic or the project accepted by
       FHWA until adequate warning devices for the crossing are installed
       and functioning properly.

       (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.


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Case No. 1-09-13



       (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.

       (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.

Section 646.214(b), Title 23, C.F.R. Pursuant to this regulation, when federal

funds have been used to install the warning devices, those devices must include

automatic gates and flashing light signals if any of the conditions in Sections

646.214(b)(3)(i)(A) and (F) exist; however, even if no conditions under

subsections (b)(3)(i)(A) and (F) are present, subsection (b)(4) requires the type of

device installed to be approved by the Federal Highway Administration. Shanklin,

529 U.S. at 354, citing Easterwood, 507 U.S. at 670-671. See also Nye v. CSX

Transp. (C.A.6, 2006), 437 F.3d 556, 561-562; Henning v. Union Pacific RR. Co.

(C.A.10, 2008), 530 F.3d 1206, 1212-1213.

       {¶15} Accordingly, because federal preemption of state law occurs when

“federal regulations substantially subsume the subject matter of the relevant state

law,” Easterwood, 507 U.S. at 664, and because the regulations under Section


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646.214(b)(3) and (4), Title 23, C.F.R. encompass the subject matter of a tort

claim pertaining to the adequacy of railroad crossing warning signals, the United

States Supreme Court in Easterwood and Shanklin found that Section 20106(a),

Title 49, U.S.Code preempts state-law inadequate-signalization claims when

federal funding was used to install the railroad crossing warning devices, and,

consequently, the regulations under Section 646.214(b)(3) and (4), Title 23, C.F.R.

applied:

           Because [Section 646.214(b)(3) and (4), Title 23, C.F.R.]
           “establish requirements as to the installation of particular
           warning devices,” we held that “when they are applicable, state
           tort law is pre-empted.” [Easterwood, 507 U.S. at 670.] Unlike
           the other regulations, “§§ 646.214(b)(3) and (4) displace state
           and private decisionmaking authority by establishing a federal-
           law requirement that certain protective devices be installed or
           federal approval obtained.” As a result, those regulations
           “effectively set the terms under which railroads are to participate
           in the improvement of crossings.”

Shanklin, 529 U.S. at 352-353.      See also Nye, 437 F.3d at 561-562; Lee v.

Burlington N. Santa Fe Ry. Co. (C.A.9, 2001), 245 F.3d 1102, 1106; Strozyk v.

Norfolk S. Corp. (C.A.3, 2004), 358 F.3d 268, 273-274.

      {¶16} Furthermore, this court has previously found, pursuant to

Easterwood, that federal preemption of a state-law inadequate-signalization claim

occurs when federal funds were used to purchase the warning device, the warning

device was actually installed, and the warning device was approved by the Federal




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Highway Administration.     Gollihue v. Consol. Rail Corp. (1997), 120 Ohio

App.3d 378, 397

      {¶17} Subsequently, in 2007, Congress amended the FRSA pursuant to the

Implementing Recommendations of the 9/11 Commission Act of 2007.               See

Pub.L. No. 110-53, 121 Stat. 266. Pursuant to this act, the following language was

added to Section 20106, Title 49, U.S.Code:

      (b) Clarification regarding State law causes of action.--(1) Nothing
      in this section shall be construed to preempt an action under State
      law seeking damages for personal injury, death, or property damage
      alleging that a party--

      (A) has failed to comply with the Federal standard of care
      established by a regulation or order issued by the Secretary of
      Transportation (with respect to railroad safety matters), or the
      Secretary of Homeland Security (with respect to railroad security
      matters), covering the subject matter as provided in subsection (a) of
      this section;

      (B) has failed to comply with its own plan, rule, or standard that it
      created pursuant to a regulation or order issued by either of the
      Secretaries; or

      (C) has failed to comply with a State law, regulation, or order that
      is not incompatible with subsection (a)(2).

      (2) This subsection shall apply to all pending State law causes of
      action arising from events or activities occurring on or after January
      18, 2002.

Although subsection (b) was added to Section 20106, subsection (a) was left

unchanged. Furthermore, the amendment was made retroactive to January 18,




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2002. The impact of the amendment and its purpose were discussed in the House

conference report as follows:

       Subpart (a) of the Conference substitute * * * contains the exact text
       of 49 U.S.C. §20106 as it existed prior to enactment of this Act. It is
       restructured for clarification purposes; however, the restructuring is
       not intended to indicate any substantive change in the meaning of
       the provision.

       Subpart (b) of the Conference substitute provides further
       clarification of the intention of 49 U.S.C. §20106, as it was enacted
       in the Federal Railroad Safety Act of 1970, to explain what State law
       causes of action for personal injury, death, or property damage are
       not preempted.

(Emphasis added). H.R. Conf. Rep. No. 110-259, At 351 (2007). Furthermore,

the history behind the amendment and its reasoning have been discussed in detail

by several courts:

       Subsection (b) was enacted in response to and to “rectify” the
       Federal court decisions in Mehl v. Canadian Pac. Ry. Ltd., 417
       F.Supp.2d 1104 (D.N.D.2006) and Lundeen v. Canadian Pac. Ry.
       Co., 447 F.3d 606 (8th Cir.2006). In both cases, the courts
       concluded state law negligence claims were preempted by FRSA
       even though defendant railroads failed to comply with the applicable
       federal regulation or rule. See Mehl, 417 F.Supp.2d at 1108;
       Lundeen, 447 F.3d at 611. These decisions raised great concern
       among Congressional members who believed denying accident
       victims legal recourse even when the railroad violated applicable
       federal regulations was inconsistent with FRSA. As a result,
       Congress amended FRSA's preemption clause by allowing state tort
       law claims to proceed if a railroad did not comply with a railroad
       safety federal regulation even if such regulation covered the subject
       matter of the state requirement.

Murrell v. Union Pacific RR. Co. (D.Ore.2008), 544 F.Supp.2d 1138, 1145.



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Case No. 1-09-13


       Mehl and Lundeen brought to light an erroneous interpretation of
       FRSA preemption not supported by the text of § 20106, Easterwood,
       or Shanklin. Thereafter, Congress amended 49 U.S.C. § 20106 by
       adding the clarification amendment, making clear that when a party
       alleges a railway failed to comply with a federal standard of care
       established by regulation or with its own plan, rule, or standard
       created pursuant to a federal regulation, preemption will not apply.
       49 U.S.C. § 20106(b)(1).

Henning, 530 F.3d at 1212-1213. See also Bates v. Missouri & N. Arkansas RR.

Co. (C.A.8, 2008), 548 F.3d 634, 637.

                                      III. Analysis

                 A.     Preemption under Easterwood and Shanklin

       {¶18} In the case at bar, Kill sets forth multiple arguments in support of his

assignment of error that the trial court erred in dismissing his inadequate-

signalization claim against CSX on the grounds that his claim was preempted by

the FRSA.      First, he contends that the trial court erred in relying upon the

preemption analysis set forth under Easterwood and Shanklin, as the 2007

amendment to the FRSA substantially eroded the precedential value of that

analysis so that it now has little application to the facts of this case.

       {¶19} However, in analyzing the 2007 amendment to the FRSA, we find

that it does little to alter the preemption analysis set forth under Easterwood and

Shanklin, other than to provide additional exceptions to preemption. First, the

amendment did not alter the original language of Section 20106(a), Title 49,




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U.S.Code. This was the language relied upon by Easterwood and Shanklin, and it

remains unchanged.

      {¶20} Second, the House Conference Report on the 2007 amendment

clearly states that the amendment was not intended to effect “any substantive

change in the meaning of the provision,” but was meant to “provide[] further

clarification of the intention of 49 U.S.C. §20106.” H.R. Conf. Rep. No. 110-259,

at 351 (2007).

      {¶21} Third, the language introduced by the 2007 amendment does not

bear upon the reasons for preemption set forth under Easterwood and Shanklin.

The Supreme Court stated in Shanklin that the plaintiff’s state-law inadequate-

signalization claim was preempted because Section 646.214(b)(3) and (4), Title

23, C.F.R. either mandated the installation of specific warning devices or required

the warning devices to be approved by the Federal Highway Administration,

thereby “ ‘subsum[ing] the subject matter of the relevant state law’ ” and

preempting the plaintiff’s claim. Shanklin, 529 U.S. at 352, quoting Easterwood,

507 U.S. at 664. The additional statutory language of Section 20106(b), Title 49,

U.S.Code does not alter the warning-device requirements of Section 646.214(b)(3)

and (4), Title 23, C.F.R., but only provides exceptions for preemption, even when

those warning-device requirements are applicable. Accordingly, even after the

2007 amendment, the warning-device requirements of Section 646.214(b)(3) and



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(4) still “subsume the subject matter of the relevant state law.” Easterwood, 507

U.S. at 664.     “[I]f Congress intend[ed] for [this] legislation to change the

interpretation of a judicially created concept, it [would make] that intent specific,”

Midlantic Natl. Bank v. New Jersey Dept. of Environmental Protection (1986),

474 U.S. 494, 501, but Section 646.214(b)(3) and (4), Title 23, C.F.R. still

indicates federal preemption.

       {¶22} Finally, other courts that have considered the effect of the 2007

amendment to Section 20106, Title 49, U.S.Code have also concluded that it has

no effect on the precedential value of the preemption analysis set forth under

Easterwood and Shanklin. See Henning, 530 F.3d at 1216 (“Congress did not

overrule Shanklin, but instead provided clarification for courts interpreting

Shanklin”); Murrell, 544 F.Supp.2d at 1152-1153 (“Upon finding that Shanklin

was not overruled by Congress’ clarification to section 20106, I now hold

plaintiff's inadequate warning devices claim is preempted by federal law”); and

Gauthier v. Union Pacific RR. Co., E.D.Tex. No. 1:07CV12, 2009 WL 812261

(“After the amendment of Section 20106(b), the familiar preemption analysis of

[Easterwood and Shanklin] and their progeny is applied to allegations of state law

negligence, unless [the exceptions of Section 20106(b), Title 49, U.S.Code

apply]”).




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       {¶23} Accordingly, because we find that the 2007 amendment to the FRSA

does not alter the preemption analysis set forth under Easterwood and Shanklin,

we will apply that analysis to the facts of the case before us.

       {¶24} Attached to CSX’s motion for summary judgment was an affidavit

and exhibits establishing that two standard crossbucks were installed at this

railroad crossing in 1993 through the Ohio Crossbuck Program, pursuant to the

approval granted by the United States Department of Transportation, Federal

Highway Administration. Additionally, the affidavit and exhibits establish that

these crossbucks were installed using only federal funds.              Moreover, Kill

presented no evidence contradicting these facts in his motion for summary

judgment.     Accordingly, because these warning devices were installed using

federal funds, the requirements of Section 646.214(b)(3) and (4), Title 23, C.F.R.

applied. Because it was not alleged that at the time of installation of these warning

devices, any of the conditions found in Section 646.214(b)(3)(i)(A) through (F)

were present to necessitate the furnishing of flashing lights and automatic gates,

only the requirement of Section 646.214(b)(4) applied, and this requirement was

met when the Federal Highway Administration approved the installation of the

crossbucks.    Consequently, Section 646.214(b)(3) and            (4), Title 23, C.F.R.

“effectively set the terms under which [CSX was] to participate in the

improvement of crossings” and “displace[d] state and private decisionmaking [sic]



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Case No. 1-09-13


authority,” Easterwood, 507 U.S. at 670, thereby preempting Kill’s state-law

inadequate-signalization claim relating to this railroad crossing.

                            B. Exceptions to Preemption

       {¶25} Even though we have found Kill’s inadequate-signalization claim to

be preempted, we must still decide whether the facts support any of the exceptions

for preemption contained under Section 20106, Title 49, U.S.Code. Specifically,

Kill argues that his inadequate-signalization claim is not preempted because CSX

was in violation of a federal standard of care pursuant to Section 20106(b)(1)(A),

Title 49, U.S.Code; because CSX was in violation of its own rule created pursuant

to a federal regulation, as stated in Section 20106(b)(1)(B); and because the three

conditions necessary for an exemption from preemption under Section 20106(a)(2)

were present.




            1.     Failure to Comply with a Federal Standard of Care

       {¶26} Section 20106(b)(1)(A), Title 49, U.S.Code provides an exception to

preemption where the railroad company “has failed to comply with the Federal

standard of care established by a regulation or order issued by the Secretary of

Transportation.”    Here, Kill asserts that because this railroad crossing has

experienced multiple car and train collisions over the last several years, it meets



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the requirements for the installation of flashing lights and automatic gates pursuant

to Section 646.214(b)(3)(i)(e), Title 23, C.F.R., and because CSX failed to install

these warning signals, it failed to comply with a federal standard of care and

preemption does not apply.

       {¶27} However, Section 646.214(b)(3), Title 23, C.F.R. does not establish

a standard of care, but, instead, sets forth affirmative requirements that must be

met when certain conditions exist, thereby eliminating the railroad’s discretion in

its decision to install an adequate warning system. See Henning, 530 F.3d at 1215

(“It is apparent that § 646.214(b)(3) and (4) [Title 23, C.F.R.] do not establish a

federal standard of care under which a railroad must act”); Shanklin, 529 U.S. at

353-354, quoting Easterwood, 507 U.S. at 670 (“Unlike the other regulations, ‘§§

646.214(b)(3) and (4) [Title 23, C.F.R.] displace state and private decisionmaking

authority by establishing a federal-law requirement that certain protective devices

be installed or federal approval obtained’”).

       {¶28} Accordingly, because Section 646.214(b)(3), Title 23, C.F.R. does

not establish a standard of care under which CSX was required to operate, Section

20106(b)(1)(A), Title 49, U.S.Code does not operate to permit Kill’s state-law

inadequate-signalization claim.

                      2. Failure to Comply with its Own Rule




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       {¶29} Section 20106(b)(1)(B), Title 49, U.S.Code provides a second

exception to federal preemption. The statute provides that a state-law claim will

survive preemption when the railroad “has failed to comply with its own plan,

rule, or standard that it created pursuant to a regulation or order issued by either of

the Secretaries.” Here, Kill argues that CSX failed to comply with its own rule to

keep the crossbuck in repair pursuant to its contractual agreement with the state of

Ohio when it failed to replace the reflectorized tape that deteriorated off the

crossbuck. In support of his argument, Kill cites the agreement between CSX and

the state of Ohio for installation of the crossbuck. Section eight of that agreement

states that CSX, “at its cost and expense, shall own said crossbuck signs and

maintain them in good condition, as required by statute.”

       {¶30} Although CSX contractually agreed to maintain the crossbuck, this

is not the equivalent of a “plan, rule, or standard * * * created pursuant to a

regulation.” First, CSX’s obligation to maintain the crossbuck was not created

pursuant to a regulation but pursuant to the contract. Second, in looking at the

legislative history of Section 20106(b)(1)(B), Title 49, U.S.Code, it is clear that

this contractual agreement was not the type of rule or plan contemplated by the

statute.

       {¶31} The House of Representatives Conference Report on the 2007

amendment to Section 20106, Title 49, U.S.Code states that the amendment was



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intended to “clarify the intent and interpretations of the existing preemption statute

and to rectify the Federal court decisions related to the Minot, North Dakota

accident that are in conflict with precedent.” H.R. Conf. Rep. No. 110-259, at

351 (2007).

       {¶32} The federal court decisions to which the conference report refers are

Mehl v. Canadian Pacific Ry. Ltd. (D.N.D.2006), 417 F.Supp.2d 1104                 and

Lundeen v. Canadian Pacific Ry. Co. (C.A.8, 2006), 447 F.3d 606. See Henning,

530 F.3d at 1212-1213.       In Lundeen, the Eighth Circuit determined that the

plaintiff’s negligent-inspection claim for damages as a result of a train derailment

was preempted even though it was alleged that the railroad failed to comply with

the federal regulations related to inspection. In Mehl, the federal district court also

found that plaintiff’s negligent-inspection claims were preempted despite the

plaintiff’s argument that the railroad failed to comply with the inspection

regulations under federal law.

       {¶33} In looking at these two cases with which Congress was concerned

when drafting the 2007 amendment to Section 20106, Title 49, U.S.Code, it is

clear that the exception contained in Section 20106(b)(1)(B) directly concerns

plans or rules that specifically relate to federal requirements. Here, any plan or

rule that CSX was required to follow in replacing the reflectorized tape arose from

its contractual agreement with the state of Ohio, not a federal regulation. Kill cites



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to no other federal regulation or requirement that CSX was required to follow in

replacing the reflectorized tape.

       {¶34} However, even if Kill was able to cite a federal regulation requiring

CSX to maintain the crossbucks by repairing any reflectorized tape, we would still

find his claim to be barred, as that claim would be a failure to adequately maintain

the railroad crossing, and Kill dismissed this and all other claims in his amended

complaint, except for the inadequate-signalization claim.

       {¶35} Accordingly, we find that Kill is unable to show the applicability of

the preemption exception contained in Section 20106(b)(1)(B), Title 49,

U.S.Code.

    3. Preemption Savings Clause of Section 20106(a)(2), Title 49, U.S.Code

       {¶36} Section 20106(a)(2) was unaltered by the 2007 amendment to the

FRSA and provides that a state law will be excluded from preemption when the

law “is necessary to eliminate or reduce an essentially local safety or security

hazard; is not incompatible with a law, regulation, or order of the United States

Government; and does not unreasonably burden interstate commerce.” Section

20106(a)(2)(A) through (C), Title 49, U.S.Code. Here, Kill argues that he meets

all three prongs of this preemption savings clause. He asserts that, under Ohio

common law, railroads have a duty to exercise reasonable care to protect the safety

of motorists at railroad crossings, which, under the conditions existing at this



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crossing, required the installation of automatic gates and flashing lights. Kill

claims that this duty to exercise reasonable care is necessary to reduce a local

safety hazard, as there has been a high number of accidents at this railroad

crossing; that this duty is not incompatible with a federal law or regulation, as this

common-law standard for the placement of automatic gates and flashing lights

closely mirrors the federal standard contained in Section 646.214(b)(3), Title 23,

C.F.R.; and that this common-law standard would not unduly burden interstate

commerce, as evidenced by the fact that this railroad crossing has been recently

upgraded with gates and flashing lights.

       {¶37} Ohio common law requires that a railroad exercise reasonable care

in protecting motorists from and warning them of trains approaching a highway

crossing. Carpenter v. Consol. Rail Corp. (1994), 69 Ohio St.3d 259, 263, citing

Matkovich v. Penn Cent. Transp. Co. (1982), 69 Ohio St.2d 210. Under some

conditions, this duty to exercise reasonable care could require the installation of

flashing lights and automatic gates. See id.; Anderson v. CSX Transp., Inc. (1991),

74 Ohio App.3d 365, 372.

       {¶38} A local safety hazard is a ‘“local situation[] which [is] not statewide

in character and not capable of being adequately encompassed within national

uniform standards.’” Duluth, Winnipeg, & Pacific Ry. Co. v. Orr (C.A.8, 2008),

529 F.3d 794, 798, quoting Natl. Assn. of Regulatory Util. Commrs. v. Coleman



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(C.A.3, 1976), 542 F.2d 11, 14-15. To ascertain if a safety hazard is essentially

local in nature, we must “inquire into the nature of the hazard itself to determine

whether it is the type of hazard that is properly dealt with on a local level.” Union

Pacific RR. Co. v. California Pub. Util. Comm. (C.A.9, 2003), 346 F.3d 851, 860,

citing Burlington N. & Santa Fe Ry. Co. v. Doyle (C.A.7, 1999), 186 F.3d 790,

795.

       {¶39} In determining what constitutes an essentially local safety hazard,

courts have found that an abnormally high accident rate alone does not justify such

a finding. See Murrell, 544 F.Supp.2d at 1156-1157. The frequency of accidents

only serves as evidence of an existence of a hazard, not “the nature of the hazard

itself.” Union Pacific RR. Co., 346 F.3d at 861 (finding that a high derailment rate

alone does not establish an essentially local safety hazard).

       {¶40} Consequently, because Kill contends that an essentially local safety

hazard exists solely based upon the frequency of accidents, he is unable to

establish the presence of a local safety hazard at this railroad crossing, and we find

that he fails to meet the first prong of the preemption savings clause of Section

20106(a)(2)(A), Title 49, U.S.Code. It is unnecessary to examine the remaining

two prongs.

       {¶41} Accordingly, because we find that the 2007 amendment to the FRSA

did not alter the preemption analysis of Easterwood and Shanklin; that Kill’s state-



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law inadequate-signalization claim is preempted by the FRSA; that Kill does not

meet the preemption exceptions contained in Section 20106(b)(1)(A) through (B),

Title 49, U.S.Code; and that Kill fails to meet the requirements of the preemption

savings clause of Section 20106(a)(2)(A) through (C), we find that the trial court

did not err in granting summary judgment to CSX, thereby dismissing his

inadequate-signalization claim.

      {¶42} Accordingly, we overrule Kill’s assignment of error.

                        CSX’s Cross-Assignment of Error

      {¶43} In its cross-assignment of error, CSX asserts that the trial court erred

in failing to dismiss Kill’s punitive-damage claim after dismissing his state-law

claim for inadequate signalization.    Specifically, CSX asserts that because a

punitive-damages claim cannot exist independently of the underlying claim, the

trial court was required to dismiss Kill’s punitive-damages claim when it

dismissed his underlying claim for inadequate signalization. We agree.

      {¶44} It is well established that a claim for punitive damages cannot exist

independently of the underlying cause of action for which it is sought. Moskovitz

v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, 649, citing Seasons Coal Co. v.

Cleveland (1984), 10 Ohio St.3d 77. “[A] civil action may not be maintained

simply for punitive damages, but, rather punitive damages are awarded as mere




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incident to the cause of action in which they are sought.” Miller v. Xenia (Mar.

22, 2002), 2d Dist. No. 2001 CA 82.

       {¶45} In the case sub judice, Kill filed an amended complaint setting forth

only a claim for inadequate signalization and a claim for punitive damages. The

trial court subsequently dismissed the inadequate-signalization claim on summary

judgment, but left the punitive-damages claim undecided.

       Even though the Defendant has addressed the punitive damage
       claim, the Court finds that the only issue before the Court, by
       agreement, is the federal preemption claim, which may make all
       other claims moot. Therefore, the Court will not address the same at
       this point.

                               CONCLUSION

       The Court finds that Defendant’s Motion for Summary Judgment is
       well taken in that there are no genuine issues as to any material facts
       and as a matter of law Plaintiff’s claims are barred by federal
       preemption.

       This is a final judgment as to one but fewer than all of the claims1
       and the Court makes an expressed determination pursuant to Civ.R.
       54(B) that there is no just reason for delay.

       {¶46} Consequently, because a punitive-damages claim cannot exist

independently of the underlying claim for which it was brought, we find that Kill’s

claim for punitive damages cannot survive the dismissal of his underlying

inadequate signalization claim and that the trial court erred in failing to dismiss the

punitive-damages claim.




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           {¶47} Accordingly, we sustain CSX’s cross-assignment of error.

           {¶48} Having found no error prejudicial to the appellant and cross-appellee

in the particulars assigned and argued in his assignment of error, but having found

error prejudicial to the appellee and cross-appellant in the particulars assigned and

argued in its cross-assignment of error, we affirm in part and reverse in part, and

we remand the cause to the trial court for further proceedings consistent with this

opinion.

                                                                             Judgment affirmed in part
                                                                                 and reversed in part,
                                                                                 and cause remanded.

           PRESTON, P.J., and WILLAMOWSKI, J., concur.




1
    We note that the trial court was referring only to the punitive-damages claim, as no other claims remained.


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