This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Gordon R. Ellingson,
as next of kin and
trustee of the heirs of Adrienne H. Ellingson,
Burlington Northern and Santa Fe Railway Company,
Merit Chevrolet Company,
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.
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.
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
(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.
(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 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) (
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,
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.
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.
 A crossbuck is a sign with an “X” and the words “railroad crossing.”
 Pub. L. No. 91-458, 84 Stat. 971 (codified as amended 49 U.S.C. §§ 20101-21304 (2000)).
 Pub L. No. 93-87, 87 Stat. 250 (codified as amended in scattered section of 23 U.S.C. (2000)).
 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.