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One of the obstacles we have historically faced when trying to recover compensation for our clients involved in railroad crossing accidents is a legal doctrine called “federal preemption.” Both state and federal courts had restricted the rights of those injured and killed at dangerous railroad crossings to recover for their losses. Federal preemption, at least in theory, was intended to create a uniform system of minimum safety standards throughout the country. Sadly, the doctrine of federal preemption was corrupted to the point of giving railroads immunity from responsibility for their negligence.

A typical example of federal preemption at work in Texas involved a passive crossing, that is a crossing with only the white “X” shaped sign that says “railroad crossing”. Active crossings have flashing light signals and gates that come down when a train approaches. According to a body of case law developed by courts over a number of years, if federal funds contributed to the installation of the railroad crossing sign, also known as a crossbuck, then anyone hit by a train at that crossing could not claim that the railroad was negligent for failing to install lights and gates at the crossing. The so-called “inadequate signalization” claim was said to be federally preempted.

Now is a good time to bring up a dirty little secret regarding the railroads. You might be wondering why federal funds would be used to put up a sign at a railroad crossing. The truth is that the railroads spend little or nothing to install warnings, including lights and gates, at most crossings. Your tax dollars, state and federal, typically pay 90% to100% of the cost to install warning devices at railroad crossings. Incidentally, the CEO of BNSF was paid $12.6 million last year, and the CEO of Union Pacific was paid $9.8 million.

Although we have had no indication that railroads will start spending their own money to make railroad crossings safer, Congress passed an amendment last year to the Federal Railroad Safety Act that should once again permit those injured and killed at hazardous railroad crossings to sue the railroads for negligence. The amendment was included in the implementing recommendations of the 9/11 Commission Act, which the President signed into law last August. The amendment clarifies that preemption under the FRSA is limited and that state injury law claims may be pursued if the railroad violates federal safety standards, including Federal Railroad Administration regulations.

The FRA requires a crossing to be equipped with flashing lights and gates if one or more of the following hazardous conditions exists: (1) multiple mainline railroad tracks; (2) multiple tracks at or in the vicinity of the crossing which may be occupied by a train or locomotive so as to obscure movement of another train approaching a crossing; (3) high speed train operation combined with limited sight distance at either single or multiple track crossings; (4) a combination of high speeds and moderately high volumes of highway and railroad traffic; (5) either a high volume of vehicular traffic, high number of train movements, substantial numbers of school buses or trucks carrying hazardous materials, unusually restricted sight distance, continuing accident occurrences, or any combination of these conditions; and (6) a diagnostic team recommends them.

Why did Congress pass this amendment? On January 18, 2002, a train derailed in Minot, North Dakota and released extremely toxic ammonia gas from damaged tanker cars. Under the doctrine of federal preemption, those injured by inhaling the toxic gas had no cause of action against the railroad. There was no way for them to recover for their injuries. The 2007 amendment to the FRSA was inspired by the Minot disaster and the recognition that federal preemption had been perverted to immunize railroads from all responsibility for harm caused by their own negligence. The 2007 amendment to the FRSA has reopened the courthouse door to victims of hazardous railroad crossings and others injured when railroads are not reasonably careful in operating their business.