Sixth Circuit gets on track for plaintiff in railroad case.

Relying on an "ancient" state" law, the Sixth Circuit has upheld a jury verdict against a railroad company in a grade-crossing death--despite a U.S. Supreme Court ruling in the same case limiting plaintiff remedies. The court rejected the railroad's argument that it was immune from state liability under federal laws governing railroad-crossing safety.

The ruling was "a great victory for victims" and a "fascinating bit of business," said Pare O'Dwyer of Chattanooga, Tennessee, who represented the plaintiff. (Shanklin v. Norfolk So. Ry., 369 F.3d 978 (6th Cir. 2004).)

"This is such an important issue," O'Dwyer said. "It goes beyond this one case. It's about an entire industry." She said that because state budgets are over-stretched, oversight of railroad safety is dangerously lax.

At the heart of the case is the 1970 Federal Railroad Safety Act, which sets out national, uniform requirements for warnings, lights, and other safety measures at railroad crossings. Under the act, if the federal government then approves and funds the measures, railroads are immune from state liability laws.

This preemption, O'Dwyer said, gives railroads a free pass on safety: "It's an absolute death sentence for drivers."

In 1993, according to court records, Eddie Shanklin left home in Milan, Tennessee, and headed for work in his car. He reached a railroad crossing but did not hear the train whistle, and overgrown trees and shrubs blocked his view of the track. There was no gate at the crossing, and a witness driving behind Shanklin testified that the warning lights did not go on until Shanklin had started to cross the tracks. Expert testimony later showed that Shanklin was driving about 20 miles an hour when a Norfolk Southern train struck his car and killed him.

Shanklin's widow sued the railroad. A jury found in her favor, as did the appeals court, but the U.S. Supreme Court overturned the decision, finding that the Railroad Safety Act preempted her suit. Two dissenters said the ruling defied "common sense and sound policy." The Court addressed only the faulty warning signals and remanded the case for a rehearing on any other claims. (Shanklin v. Norfolk So. Ry., 529 U.S. 344 (2000).)

The case went back to trial, where a jury again found for Shanklin. In the meantime, Tennessee had changed its law to allow damages for loss of consortium, which the jury awarded her in addition to wrongful death damages. The railroad company appealed, again invoking immunity.

This thee, O'Dwyer threw down a trump card: Arguing that the federal act does not mention vegetation--only warning lights and signals--she cited a Tennessee law that "prohibits, on railroads' rights of way, the presence of vegetation six or more inches in diameter and of sufficient height to reach the roadbed if they should fall" at railroad crossings.

She provided evidence that Norfolk had violated the "vegetation law." She brought tree stumps from the crossing where Eddie died into the courtroom to illustrate her point.

Norfolk called the state law "ancient and obsolete" and said other court decisions supported its position, but the Sixth Circuit found that Norfolk Southern "misconstrues these decisions, which are unpersuasive."

It also quoted the "savings clause" of the Railroad Safety Act: "A state may adopt or continue in force a law, regulation, or order related to railroad safety or security until the secretary of transportation prescribes a regulation or issues an order ... covering the subject matter of the state requirement." The court said that because neither the act nor the Supreme Court addressed vegetation, state law must prevail.

"Accordingly," it concluded, "because we find that the Supreme Court has neither explicitly nor implicitly preempted state common-law vegetation claims ... it follows that the district court correctly reasoned that Shanklin's vegetation claim is not preempted."

Norfolk Southern is considering whether to appeal again. O'Dwyer said it's high the e that railroad-industry negligence came to light, and she is glad to help expose it.

"We're .just a little bitty firm," she said, "but every once in awhile we strike a stunning blow."