The Repository

April 18, 2000

By: Staff and wire reports

Vicky Moore was devastated, shocked and "still shaking" after hearing that the Supreme Court gave railroads greater protection Monday against being sued over allegedly inadequate warning devices at rail crossings.

The justices, voting 7-2 in a Tennessee case, said railroads are not financially liable if the equipment installed at a grade-level crossing was federally funded.

The two dissenting judges, Ruth Bader Ginsburg and John Pual Stevens, said the decision defies common sense and sound policy.

Mrs. Moore and her husband, Dennis, lost their son, Ryan, to a car-train accident March 25, 1995. Ryan and two other teen-agers died when a train struck their car at a railroad crossing on Deerfield Avenue, N.W., near the county line. The Moores won a judgement against the railroad company and are using the money to improve railroad crossings around the state through their Angels On Track Foundation.

"I don't think they used divine judgment on this," Mrs. Moore said. "I don't think they realize the effect this will have on future cases."

Congress has provided states with more than $3 billion since 1975 to increase safety at most of the nation's 170,000 public grade-level crossings. During that time, the number of fatal accidents at crossings has dropped from more than 1,500 per year to 431 in 1998.

"Nothing prevents a state from revisiting the adequacy of devices installed using federal funds," Justice Sandra Day O'Conner wrote for the court. "States are free to install more protective devices at such crossings with their own funds or with additional (federal) funding.

"What states cannot do-once they have installed federally funded devices at a particular crossing-is hold the railroad responsible for the adequacy of those devices," she said.

"O'Connor is putting responsibility back on the states, and that's the problem now," Mrs. Moore said. "The states are paying 90 percent of the improvements, and the railroad companies have a 10 percent voluntary payment. They've given railroads the right to keep killing people."

The decision wiped out a $430,765 legal victory Dedra Shanklin had won against Norfolk Southern Railway Co. after the Oct. 3, 1993, death of her husband, Eddie, whose car was truck by a train at a crossing in Gibson County, Tenn.

The Clinton administration and various rail safety groups had urged the court to rule otherwise.

"Rail safety has taken a serious blow," said Robert Pottroff, a Manhattan, Kan., lawyer who represents such groups as Angels on Track, Railwatch and the Coalition for Safer Crossings.

"Lives are being lost. I can't believe Congress and the Federal Highway Administration will allow this regulatory scheme to stand."

Norfolk Southern Railway spokesman, Frank Brown called the decision "a good one" that "heads off second-guessing about the adequacy of warning devices after they've been installed with federal money."

"Try to find an upgraded railroad crossing that wasn't paid for from federal funds, Mrs. Moore said.

The Tennessee crossing had a reflectorized sign but no gates or flashing lights to signal a train's approach. Shanklin was driving 20 mph, and he apparently did not hear the train whistle because his windows were rolled up and his radio was playing.

Mrs. Shanklin's lawsuit invoked a Tennessee law and accused the railroad of negligently having failed to install adequate warning devices. But the railroad's lawyers argued that the warning sign had been erected under a state project approved and financed by the Federal Highway Administration (FHWA).

A federal trial judge and the 6th U.S. Circuit Court of Appeals rejected the railroad's contention that federal approval and funding immunized it from negligence claims, but Monday's decision reversed those rulings.

"Once the FHWA approved the project and the signs were installed using federal funds, the federal standard for adequacy displaced Tennessee statutory and common law addressing the same subject, thereby pre-empting (Mrs. Shanklin's) claim, O'Connor said.

Mrs. Shanklin still may pursue other claims against Norfolk Southern, such as alleging a failure to sound the train's horn soon enough or failure to remove vegetation from the crossing.


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