This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







Gordon R. Ellingson,

as next of kin and trustee of the heirs of Adrienne H. Ellingson,


Burlington Northern and Santa Fe Railway Company,

a Delaware corporation,

Merit Chevrolet Company,


Filed March 21, 2006


Wright, Judge


Isanti County District Court

File No. C7-02-712



William F. Mohrman, Erick G. Kaardal, Charles R. Shreffler; Mohrman & Kaardal, P.A., 33 South Sixth Street, Suite 4100, Minneapolis, MN  55402 (for appellant)


Julius W. Gernes, JoAnn C. Toth; Spence, Ricke, Sweeney & Gernes, P.A., 600 Degree of Honor Building, 325 Cedar Street, St. Paul, MN  55101 (for respondent)



            Considered and decided by Wright, Presiding Judge; Minge, Judge; and Worke, Judge.


U N P U B L I S H E D  O P I N I O N



            In this negligence action arising from the death of appellant’s wife, who was involved in a collision with a train, both parties seek review of the district court’s decision granting summary judgment to respondent railroad.  Appellant argues that the district court erred when it found that there were no genuine issues of material fact as to the railroad’s negligence, and respondent argues that the district court erred when it declined to grant summary judgment on federal preemption grounds.  We affirm.


On July 30, 2001, Adrienne Ellingson was driving home from work when a train operated by respondent Burlington Northern and Santa Fe Railroad (BNSF) collided with her truck.  Adrienne Ellingson was ejected from the truck and later died from her injuries.

 The collision occurred at the 273rd Avenue railroad crossing in Athens Township.    At the time of the collision, the 273rd Avenue crossing was marked by retroreflective advance-warning signs, stop-ahead signs, crossbucks,[1] and stop signs.  The warning signs at the 273rd Avenue crossing were installed in the early 1990s as part of a grade-crossing improvement project for the line of railroad track running between Minneapolis/St. Paul and Duluth.  The Federal Highway Administration (FHWA) approved funding for the grade-crossing improvement project and reimbursed the state for 90 percent of the installation expenditures.  The installation of the warning signs at the 273rd Avenue crossing was inspected and approved by both the state and federal highway departments prior to the collision that resulted in Adrienne Ellingson’s death.

Appellant Gordon Ellingson (Ellingson), husband of the deceased, sued BNSF for negligence.  Ellingson alleged that BNSF installed the stop signs too far away from the crossing to provide motorists a sufficient, unobstructed view up the railroad tracks.  BNSF moved for summary judgment, arguing that Ellingson’s claim was preempted by federal regulation in the field of railroad-crossing improvements and that there was no evidence establishing negligence on the part of BNSF.  The district court found that Ellingson’s claims were not preempted.  But the district court granted BNSF’s motion for summary judgment, concluding that BNSF had not been negligent as a matter of law and that Adrienne Ellingson had been contributorily negligent.  Ellingson timely appealed, and BNSF filed a notice of review as to the federal-preemption issue.  Ellingson also sued Merit Chevrolet, the seller of the truck, but all claims against Merit Chevrolet were resolved prior to this appeal.

Ellingson argues on appeal that the district court (1) impermissibly relied on the overruled extra-hazardous doctrine, (2) erroneously considered affidavits from a BNSF expert, and (3) improperly resolved disputed material facts when it found that BNSF was not negligent and that Adrienne Ellingson was contributorily negligent. 


On appeal from summary judgment, we consider whether genuine issues of material fact exist and whether the district court erred in its application of the law.  Prior Lake Am. v. Mader, 642 N.W.2d 729, 735 (Minn. 2002); State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  This consideration views the evidence in the light most favorable to the nonmoving party and resolves any doubts on the existence of material-fact issues against the moving party.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

            Because it is dispositive of the negligence claim at issue here, we first address whether this claim is preempted by federal law.  In the context of warning devices at railroad crossings, it is well established that certain tort claims are preempted through a combination of federal statutes and accompanying regulations.  Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344, 120 S. Ct. 1467 (2000); CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 113 S. Ct. 1732 (1993).  Specifically, under the Federal Railroad Safety Act of 1970,[2] the Highway Safety Act of 1973,[3] and 23 C.F.R. § 646.214 (2005), “state tort claims concerning the adequacy of all warning devices installed with federal funds” are preempted.  Shanklin, 529 U.S. at 357, 120 S. Ct. at 1476.    

Section 646.214 addresses the types of warning devices to be installed when federal funds are used as part of a comprehensive state program to improve safety at grade crossings.  23 C.F.R. § 646.214(b).  Warning devices include both active devices, such as automatic gates or lights, and passive devices, such as the crossbucks and stop signs installed at the 273rd Avenue crossing.  Hernandez v. State, 680 N.W.2d 108, 113 (Minn. App. 2004), review denied (Minn. Aug. 17, 2004).  Section 646.214(b) states in relevant part:

(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.

(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)(3), (4).


In Shanklin, the United States Supreme Court held that tort claims falling under subsections (b)(3) and (b)(4) are preempted.  529 U.S. at 358-59, 120 S. Ct. at 1477.  Our task then is to determine whether subsection (b)(3) or subsection (b)(4) applies to Ellingson’s negligence claim, specifically whether the “FHWA approved the project and the signs were installed using federal funds . . . .”  Id. at 359, 120 S. Ct. at 1477.   

Our review of the record establishes that there is no genuine issue of material fact as to whether the installation of signage at the 273rd Avenue crossing was approved by federal authorities and was installed using federal funds.  BNSF submitted affidavits from two Minnesota Department of Transportation employees that describe the federal approval and funding of the signs installed at the 273rd Avenue crossing.  Although Ellingson argues that the evidence presented by BNSF is insufficient to establish federal funding, he submitted no contrary evidence.  A party resisting summary judgment must do more than rest on mere averments.  DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).  A genuine issue for trial must be established by substantial evidence. 69-70.  Without evidentiary support, Ellingson’s argument does not establish a genuine issue of material fact for trial.

The affidavits of the department of transportation employees establish that 23 C.F.R. § 646.214(b) applies to the 273rd Avenue crossing.  Although the 273rd Avenue crossing is one at which the requirements of 23 C.F.R. § 646.214(b)(3) do not apply, preemption is invoked by the application of 23 C.F.R. § 646.214(b)(4). 

But that determination does not end our analysis.  We also must examine whether preemption applies to Ellingson’s specific tort claim.  Ellingson’s negligence claim arises from the location of the stop sign in relation to the railroad tracks.  Ellingson argues that the stop sign should have been located 15 feet from the crossing, as opposed to 48 feet from the crossing, so as to resolve visibility problems caused by vegetation and a hill near the crossing. [4]

In its order granting BNSF’s motion for summary judgment, the district court concluded that the regulatory scheme in 23 C.F.R. § 646.214(b) did not preempt Ellingson’s negligence claim because the claim was based on the location of the warning device, not on the type of warning device used.  The district court wrote that Ellingson’s claim did not fall “within the purview of any federal regulations concerning grade crossings.” 

At the time of its opinion, however, the district court did not have the benefit of our decision in Hernandez.  The plaintiffs in Hernandez claimed that the passive warning devices in that case were inadequate and that the location of the stop sign made conditions hazardous for motorists approaching the crossing because of sight obstructions.  Second Amended Compl. ¶¶ 68-73, Hernandez v. State (No. 42-C1-01-51) (Lyon County Dist. Ct., Aug. 16, 2001).  We held that federal preemption extends not only to claims that a different type of warning device should have been installed at a particular crossing, but also to claims based on the negligent location of a stop sign at a crossing.  Hernandez, 680 N.W.2d at 113-14 (stating that “for the same reasons that we concluded that federal law preempted a state-law negligence action for inadequate warning devices, we conclude that federal law preempts Hernandez’s state-law claim alleging negligent placement of the stop sign”).     

Ellingson attempts to distinguish his stop-sign-location claim from that in Hernandez.  Ellingson presented an expert affidavit to the district court in an effort to establish that BNSF had a duty to locate the stop sign in conformity with standards in the Manual on Uniform Traffic Control Devices (MUTCD).  Subsection (b)(1) of 23 C.F.R. § 646.214 states: “All traffic control devices proposed shall comply with the latest edition of the Manual on Uniform Traffic Control Devices for Streets and Highways supplemented to the extent applicable by State standards.”  Ellingson reasons that, because his claim is based on BNSF’s failure to locate the stop sign in compliance with the MUTCD, which is mentioned in subsection (b)(1) but not in subsection (b)(3) or subsection (b)(4), his claim is not preempted.  Indeed, Easterwood and Shanklin make clear that, in contrast to subsections (b)(3) and (b)(4), subsection (b)(1) does not preempt state law.  “The MUTCD ‘provides a description of, rather than a prescription for, the allocation of responsibility for grade crossing safety between Federal and State Governments and between States and railroads,’ and hence ‘disavows any claim to cover the subject matter of that body of law.’”  Shanklin, 529 U.S. at 352, 120 S. Ct. at 1473 (quoting Easterwood, 507 U.S. at 669-70, 113 S. Ct. at 1740).

            Ellingson’s argument based on subsection (b)(1), however, is unavailing for two reasons.  First, Shanklin establishes that the relevant analysis for preemption is not an examination of whether states or railroads in fact meet the exact standards in subsections (b)(3) or (b)(4) or in the MUTCD, but rather whether the warning devices were approved and funded by the FHWA.  Id. at 357-58, 120 S. Ct. at 1476 (“It is [the] displacement of state law concerning the devices’ adequacy, and not the State’s or the FHWA’s adherence to the standard set out in §§ 646.214(b)(3) and (4) or to the requirements of the MUTCD, that pre-empts state tort actions.”).  Second, Hernandez held that negligence claims based on the location of warning devices fall within the ambit of federal-preemption principles articulated in Easterwood and Shanklin.  680 N.W.2d at 113-14.

            The record demonstrates that the stop sign at the 273rd Avenue crossing was approved by the FHWA and was paid for with federal funds.  Accordingly, Ellingson’s negligence suit is preempted.  The decision to grant BNSF’s motion for summary judgment was correct, although for reasons other than those stated by the district court.  Because we affirm on preemption grounds, we need not address Ellingson’s other claims of error.


[1] A crossbuck is a sign with an “X” and the words “railroad crossing.”

[2] Pub. L. No. 91-458, 84 Stat. 971 (codified as amended 49 U.S.C. §§ 20101-21304 (2000)).

[3] Pub L. No. 93-87, 87 Stat. 250 (codified as amended in scattered section of 23 U.S.C. (2000)).

[4] Ellingson also argues that BNSF was negligent when it failed to clear vegetation from its right of way.  But the vegetation claim and the stop-sign claim cannot logically be separated.  Not only did Ellingson claim that vegetation obstructed visibility up the tracks, but he also claimed that there was a hill obstructing motorists’ visibility.  Ellingson admits that the railroad had no duty to raze the hill, and his own expert stated in an affidavit that recent relocation of the stop sign to within 15 feet of the crossing provided a virtually unlimited sight distance for motorists, regardless of the hill and vegetation.