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New Legislation Enacted Preserves State Injury and Death Actions–Congress Clarifies That Federal Rail Safety Act Does Not Preempt State Law Suits

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I ended my 2006 article predicting: “pretty soon, even conservative federal legislators will recognize that the railroad preemption card has eroded, not promoted, railroad safety and the pendulum will swing back.” Little did I know that approximately one year later Congress would act, and President Bush would sign, the new legislation, 49 U.S. Code Sec 20106, which clarifies that the Federal Rail Safety Act is not designed to snuff out all state causes of action for personal injury or death caused by a railroad….

There were headlines recently relating to President Bush signing new legislation on August 3, 2007, which implemented the 9/11 commission’s recommendations relating to many security measures in the United States, however, a little discussed provision enacted by Congress levels the “playing field” in many railroad related injury suits, such as those involving railroad-highway grade crossing cases and many railroad derailments involving toxic chemicals.

The little noticed legislation, which was backed by the American Association for Justice, by railroad injury and death victim lawyers, and many rail safety groups, legislatively reversed many federal court decisions over the last several years which had immunized railroads from liability in railroad crossing accidents and toxic derailments (by convincing the courts to rule that many claims were “preempted” by one or more federal railroad regulations). In various railroad crossing wrecks (including those causing personal injuries and deaths) as well as in railroad train derailments (such as the toxic chemical spill involving a Canadian Pacific train in Minot, North Dakota in 2002) railroads had successfully convinced some state and federal courts that victims suffering personal injuries could not sue the railroads, that the claims were “preempted” entirely. The railroads’ theory was that in 1970 congress had enacted the Federal Rail Safety Act, which governed various aspects of railroad safety, including certain regulations about track safety and maintenance, speeds of trains on various types of tracks, as well as many other areas of regulation. The railroads often argued, in state and federal courts, that the very existence of the Federal Rail Safety Act barred those injured or killed from suing railroads in state or federal courts for railroad negligence or carelessness–in some cases leaving those victims no source of recovery!

As I have written previously, amazingly, several courts, in various legal scenarios, bought the railroad’s argument, lock, stock and barrel. In an article I authored last year: ” How the Federal Rail Safety Act is Weakening Railroad Safety Nationwide,” I noted: “But…one key point was that the FRSA did not wipe out any state or local law that did not directly affect interstate railroad track safety or did not affect essential railroad transport or speed. It also did not wipe out any state law on suing a railroad if it had an unsafe railroad crossing.

But, the FRSA had become the railroads’ super weapon to actually erode railroad safety.” I ended my 2006 article predicting: “pretty soon, even conservative federal legislators will recognize that the railroad preemption card has eroded, not promoted, railroad safety and the pendulum will swing back.” Little did I know that approximately one year later Congress would act, and President Bush would sign, the new legislation, 49 U.S. Code Sec 20106, which clarifies that the Federal Rail Safety Act is not designed to snuff out all state causes of action for personal injury or death caused by a railroad

(or another party’s) negligence or regulatory violation.

First, this “clarifying” legislation makes three important points:

1. There is no federal preemption where a person suffering personal injuries or death alleges that a railroad or other party violated a provision of the Federal Rail Safety Act;
2. There is no federal preemption of an action alleging personal injury or wrongful death that alleges a railroad violated a written procedure, order or requirement that the railroad published in compliance with any provision of the Federal Rail Safety Act;
3. There is no federal preemption of any state law, order or regulation which does not directly conflict with a federal regulation, which essentially preserves state law causes of action that do not directly conflict with a federal railroad regulation.

So, one might ask what is still preempted, if anything? The answer will be divined by the courts in the future but it seems to this author that there is not much-the act virtually wipes out preemption by mere invocation of the existence of the Federal Railroad Safety Act, for example. “Preemption” is really just a way of saying that a party has immunity from liability. This type of provision of law is clearly disfavored in general. After all, if a party or railroad is negligent, is careless, or violates a regulation it should have no protection from being liable under our civil system of law.
In our system it should be for the courts and the juries to decide whether a party is liable and they should not be immune from any lawsuit merely by pointing to the existence of some federal law that purportedly was enacted to promote, not stifle, safety. This is why Congress clarified this law and why it was signed into law by the President.
The following is the actual text of the amended law, followed by the congressional conference committee report language which touched on why this legislation was part of the law: [note: section (a) was essentially unchanged, except for the title, and (b) below is new:

SEC. 1528. RAILROAD PREEMPTION CLARIFICATION.

Section 20106 of title 49, United States Code, is amended to
read as follows:

Sec. 20106. Preemption

(a) National Uniformity of Regulation-
(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.

(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.
(c) Jurisdiction- Nothing in this section creates a Federal
cause of action on behalf of an injured party or confers Federal
question jurisdiction for such State law causes of action.

[The Following is the pertinent language of the conference committee report:]

Section 1528. Railroad preemption clarification

There is no comparable House provision.
There is no comparable Senate provision.
The Conference substitute adopts a provision that would 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. The
modified language restructures 49 U.S.C. § 20106 and changes its
title from ”National Uniformity of Regulation” to ”Preemption” to
indicate that the entire section addresses the preemption of State
laws related to railroad safety and security.
Subpart (a) of the Conference substitute is titled ”National
Uniformity of Regulation” and 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. It clarifies that 49 U.S.C. § 20106 does not preempt
State law causes of action where a party has failed to comply with
the Federal standard of care established by a regulation or order
issued by the Secretary of Transportation or the Secretary of
Homeland Security, its own plan or standard that it created pursuant
to a regulation or order issued by either of the Secretaries, or
a State law, regulation or order that is not incompatible with 49
U.S.C. § 20106(a)(2).
The modified language also contains a retroactivity provision,
which clarifies that 49 U.S.C. § 20106 applies to all pending State
law causes of action arising from activities or events occurring on
or after January 18, 2002, the date of the Minot, North Dakota derailment.
Finally, this provision indicates that nothing in 49 U.S.C.
§ 20106 creates a Federal cause of action on behalf of an injured
party or confers Federal question jurisdiction for such State law
causes of action.