may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Roger Schmidt, et al.,
Soo Line Railroad Company,
d/b/a CP Rail System,
Filed August 31, 1999
Affirmed; motion granted
Stearns County District Court
File No. C4963373
Michael D. Tewksbury, Mark R. Kerfeld, Tewksbury, Kerfeld, Zimmer, P.A., 219 South Fourth Street, Suite 500, Minneapolis, MN 55401 (for appellants)
Eric J. Magnuson, Jeffrey R. Schmidt, Peter D. Gray, Rider, Bennett, Egan & Arundel, LLP, 2000 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for respondent)
Considered and decided by Willis, Presiding Judge, Harten, Judge, and Thoreen, Judge.[*]
Appellants Roger and Marcella Schmidt challenge adverse summary judgment, arguing that their claim against respondent Soo Line Railroad Company for its alleged failure to control the vegetation along its right-of-way is not preempted by federal law and that there are genuine issues of material fact with respect to their claims against Soo Line for its alleged violation of a federal regulation and negligence in the operation of its train. We affirm.
In September 1996, appellants filed an amended complaint against Soo Line, alleging that the railroad was negligent in an accident involving Roger Schmidt that happened on January 29, 1993. Schmidt suffered injuries when his all-terrain vehicle was struck by a train at the Soo Line's crossing of Spring Creek Road.
On cross-motions for partial summary judgment, the parties submitted to the district court the question of whether Spring Creek Road is a "traveled road" within the meaning of Minn. Stat. § 219.567 (1998) (providing that engineer who fails to ring bell or sound whistle at crossing of traveled road is guilty of misdemeanor). The court found that the road is not a traveled road and granted Soo Line's motion.
The district court later granted Soo Line's motion for summary judgment, concluding that federal law preempted appellants' claims regarding the railroad's failure to control the vegetation along its right-of-way and that the train was moving at an excessive speed. The court also concluded that appellants failed to demonstrate the existence of genuine issues of material fact with respect to their other claims. This appeal followed.
On appeal from summary judgment, this court asks two questions: (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). In addition, we must view the evidence in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). This court will affirm a grant of summary judgment if it can be sustained on any ground. Winkler v. Magnuson, 539 N.W.2d 821, 828 (Minn. App. 1995), review denied (Minn. Feb. 13, 1996).
I. Federal Preemption of Appellants Claim
Appellants do not challenge the district court's conclusion that their claim of excessive speed is preempted by federal law, but they argue that their claim against Soo Line for its alleged failure to control the vegetation along the railroad's right-of-way is not preempted by the Federal Railroad Safety Act (FRSA), 49 U.S.C. § 20106. The act provides:
Laws, regulations, and orders related to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force a law, regulation, or order related to railroad safety until the Secretary of Transportation 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 when the law, regulation, or order--
(1) is necessary to eliminate or reduce an essentially local safety hazard;
(2) is not incompatible with a law, regulation, or order of the United States Government; and
(3) does not unreasonably burden interstate commerce.
49 U.S.C. § 20106 (1994). The Secretary of Transportation has prescribed the following regulation:
Vegetation on railroad property which is on or immediately adjacent to roadbed shall be controlled so that it does not--
(a) Become a fire hazard to track-carrying structures;
(b) Obstruct visibility of railroad signs and signals;
(c) Interfere with railroad employees performing normal trackside duties;
(d) Prevent proper functioning of signal and communication lines; or
(e) Prevent railroad employees from visually inspecting moving equipment from their normal duty stations.
49 C.F.R. § 213.37 (1998).
The United States Supreme Court has stated that "preemption will lie only if the federal regulations substantially subsume the subject matter of the relevant state law." CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S. Ct. 1732, 1738 (1993) (discussing preemption under FRSA) (citation omitted), aff'g 933 F.2d 1548 (11th Cir. 1991). Common-law duties imposed on railroads fall within the scope of the FRSA's preemption clause. Id., 113 S. Ct. at 1737.
Appellants assert that Soo Line negligently failed to control the vegetation along its right-of-way and that the vegetation obstructed Roger Schmidt's view of oncoming trains. But the Secretary of Transportation has addressed this issue. See C.F.R. § 213.37 (regulating control of vegetation that is on or immediately adjacent to roadbed). And courts in other jurisdictions have concluded that claims similar to appellants' are preempted by the FRSA. See, e.g., Easterwood, 933 F.2d at 1554; O'Bannon v. Union Pac. R.R., 960 F. Supp. 1411, 1422-23 (W.D. Mo. 1997), aff'd, 169 F.3d 1088 (8th Cir. 1999); National R.R. Passenger Corp. v. H & P, Inc., 949 F. Supp. 1556, 1564 (M.D. Ala. 1996); Bowman v. Norfolk S. Ry., 832 F. Supp. 1014, 1020-21 (D.S.C. 1993), aff'd, 66 F.3d 315 (4th Cir. 1995); Biggers ex rel. Key v. Southern Ry., 820 F. Supp. 1409, 1421 (N.D. Ga. 1993). But see Missouri Pac. R.R. v. Mackey, 760 S.W.2d 59, 64 (Ark. 1988) (concluding that Arkansas statute was not preempted by FRSA).
Appellants also assert that Soo Line negligently failed to control the vegetation outside of the area on or immediately adjacent to the roadbed. Courts in other jurisdictions have concluded that such claims are not preempted by the FRSA. See, e.g., Easterwood, 933 F.2d at 1554 (noting that claim regarding vegetation near, but not immediately adjacent to, railroad tracks was not preempted). But the district court concluded that appellants' submissions did not support such a claim. And in any event, appellants cite no authority for the proposition that railroads have a duty to control vegetation outside the area subject to federal regulation. See State by Humphrey v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (stating that issue unsupported by argument or authority will not be considered).
Because there are no genuine issues of material fact and because the district court did not err in its application of the law, we affirm summary judgment on appellants' claim that Soo Line failed to control the vegetation along its right-of-way.
II. Violation of Federal Regulation
Appellants also argue that there are genuine issues of material fact regarding their claim that Soo Line violated 49 C.F.R. § 213.37(b) (requiring that vegetation must not obstruct visibility of railroad signs and signals). In O'Bannon, the United States District Court for the Western District of Missouri concluded that, so long as a railroad complies with federal regulations, the FRSA preempts state common-law tort claims based on a railroad's failure to control vegetation along its right-of-way. 960 F. Supp. at 1423. The court specifically declined to reach the issue of whether "a state law claim based on a railroad's failure to comply with a federal regulation would survive preemption." Id. at 1423 n.14. See generally Michael v. Norfolk S. Ry., 74 F.3d 271, 273 (11th Cir. 1996) (permitting "state law tort claim" based on violation of federal regulation).
Appellants contend that there was a whistle post located 802 feet north of the crossing, which was obstructed by vegetation. But this is 518 feet short of the standard quarter-mile distance for whistle posts. See Minn. Stat. § 219.567 (1998) (requiring that train engineer ring bell or sound whistle at least 80 rods, or one-quarter mile, before crossing of traveled road). And the district court had previously found that Spring Creek Road is not a "traveled road" within the meaning of section 219.567.
In any event, the district court concluded appellants failed to establish that the sign, which was discovered approximately four and one-half years after the accident, was obstructed by vegetation, noting that photographs submitted in support of this claim were taken during the summer months. The Minnesota Supreme Court has stated that
there is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party's case to permit reasonable persons to draw different conclusions.
DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997). Appellants' submissions to the district court merely create a metaphysical doubt that the alleged whistle post was obstructed by vegetation, in violation of 49 C.F.R. § 213.37(b).
Because there are no genuine issues of material fact and because the district court did not err in its application of the law, we affirm summary judgment on appellants' claim that Soo Line violated a federal regulation. III. Negligent Operation
Next, appellants argue that there are genuine issues of material fact regarding their claims that Soo Line was negligent in its operation of the train.
A. Failure to Sound Whistle Before Reaching Crossing
First, appellants contend that the train crew was negligent in failing to sound the train's whistle before reaching the crossing, citing Westaway v. Chicago, St. Paul, Minneapolis, & Omaha Ry., 56 Minn. 28, 31, 57 N.W. 222, 222 (1893) (stating that where railroad adopts use of signals at private crossing, it cannot discontinue such use without notice). But Roger Schmidt knew that trains sometimes sounded their whistles at the crossing and sometimes they did not. And appellants cite no other authority establishing a common-law duty to sound a whistle at a private crossing.
As a general rule, a railroad owes no duty to provide a warning at a private crossing. Czech v. Great N. Ry., 68 Minn. 38, 42, 70 N.W. 791, 792 (1897). But if a crossing is "a peculiarly hazardous one," coupled with a train's "high rate of speed," the supreme court has stated that the exercise of reasonable care might require a warning. Id. But appellants have not demonstrated that the crossing is peculiarly hazardous, and the train was traveling within the speed limit established by 49 C.F.R. § 213.9 (1997) (regulating speed of trains).
B. Failure to Sound Whistle When Aware of Schmidt
Second, appellants contend that the train crew was negligent in failing to sound the whistle when they became aware of Roger Schmidt's proximity to the railroad crossing. But appellants did not present this theory to the district court, and we do not address it. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that appellate courts generally review only those issues presented to and considered by district court in deciding matter before it).
C. Failure to Slow Train When Aware of Schmidt
Third, appellants contend that the train crew was negligent in failing to slow the train when the crew became aware of Roger Schmidt's proximity to the railroad crossing, arguing that the brakeman should have engaged the emergency brake himself. Instead, the brakeman yelled to the engineer, who then applied the emergency brake. But the brakeman testified at his deposition that it was "much quicker" to yell to the engineer than to apply the brakes himself. And appellants have submitted no evidence to the contrary. See Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 848 (Minn. 1995) (stating that speculation, general assertions, and promises to produce evidence at trial are not sufficient to create genuine issue of material fact).
Because there are no genuine issues of material fact and because the district court did not err in its application of the law, we affirm summary judgment on appellants' claims that Soo Line was negligent in its operation of the train.
IV. Motion to Strike
Soo Line moved to strike certain pages of appellants' appendix, and the portions of appellants' brief that rely on those pages, as outside the record on appeal. See Minn. R. Civ. P. 110.01 (defining composition of record on appeal); see also State v. Maidi, 520 N.W.2d 414, 419-20 (Minn. App. 1994) (stating that this court may not base its decision on matters outside record on appeal), aff'd, 537 N.W.2d 280 (Minn. 1995). The following pages of appellants' appendix were not before the district court: 36-39, 42-44, 45-54, 162-166, 174, 178, 182, 184-185, and portions of 176 and 180. Those pages, as well as the portions of appellants' brief that rely on those pages, are stricken and have not been considered in reaching our decision on the merits.
Affirmed; motion granted.
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
 Appellants cite Minn. Stat. § 219.384, subd. 1 (1998) (providing that local governments may require removal of vegetation and that commissioner shall adopt rules establishing minimum standards for visibility at public and private crossings). But appellants have not alleged that Soo Line was ordered to remove vegetation from this private crossing, and they concede that the commissioner has yet to adopt such rules.
 Although the district court did not determine whether the sign was a whistle post, appellants' assertion is inconsistent with the court's finding that Spring Creek Road is not a "traveled road," an issue appellants waived on appeal. See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (stating that issues not briefed are waived).
 Much of appellants' argument regarding this claim is subject to Soo Line's motion to strike.