IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-60409

SHAWN T. EZELL, 

 Plaintiff - Appellant

v.

KANSAS CITY SOUTHERN RAILWAY COMPANY, 

 Defendant - Appellee

Appeal from the United States District Court

for the Northern District of Mississippi

Before PRADO, HIGGINSON, and COSTA, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

Plaintiff-Appellant Shawn Ezell drove his car into a stationary train that

was blocking a traffic crossing. Ezell sued the train’s operator, DefendantAppellee Kansas City Southern Railway (KCSR), asserting various Mississippi 

common law negligence claims based on his allegations that the train blocked 

the crossing for an impermissible amount of time and the train’s crew failed to 

adequately warn approaching drivers of the obstructed crossing. KCSR filed a 

motion for summary judgment, which the district court granted. We affirm.

I

In the early morning hours of July 12, 2011, a train operated by KCSR

temporarily stopped in West Point, Mississippi, so the crew could perform a 

United States Court of Appeals

Fifth Circuit

FILED

July 31, 2017

Lyle W. Cayce

Clerk

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switching operation.1 The operation required the train to fully occupy and 

block three West Point traffic crossings. Ezell’s expert estimates that the train 

was stopped in West Point for approximately 24 minutes.

While the crew was performing its switching operation, Ezell approached 

one of the blocked crossings in his car. He passed a reflectorized advanced 

warning sign, a reflectorized railroad crossing sign, and a yield sign. Although 

Ezell testified at his deposition that he does not recall seeing the signs on the 

night of the accident, he acknowledged that knew they were there because he 

had passed through the crossing many times and was familiar with it. Ezell

also testified that the night was dark and “kind of . . . foggy.” He described the 

road as having “a little dip” and then an incline leading to the tracks, which 

were elevated in comparison to the approaching road. Because of the incline in 

the road and the position of the black train car on the track, Ezell says his 

headlights shone under the train as he approached and that he could see 

beneath the stationary train car to the road on the other side. 

According to Ezell, he did not see the train blocking his path until it was 

too late to stop. He crashed into its side, his car lodging beneath the train car 

he struck. Ezell was airlifted to a medical center for treatment and 

rehabilitation. He suffered horrific injuries and remained hospitalized for two 

months followed by a long rehabilitation process. As a result of the accident, 

Ezell is an “incomplete quadriplegic,” meaning he suffers from severe paralysis 

throughout his body, but is not completely paralyzed and is able to walk with 

a walker, though not for long periods of time. 

 

1 “Switching” is the process of removing cars from the train to move them from the 

main line to an industry track or side track. “Side tracks are used to park a train going one 

direction on a main line while a train going the opposite direction passes. They can also be 

used as a detour to circumvent places on the main line where the tracks become unusable 

due to washouts, accidents, maintenance, etc.” Friberg v. Ks. City S. Ry. Co., 267 F.3d 439, 

440 n.1 (5th Cir. 2001).

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Ezell filed a lawsuit in Mississippi state court against KCSR, seeking 

damages based on various Mississippi common law negligence theories. Ezell 

alleges that the KCSR train crew “was careless, negligent and partially at 

fault” because the crew: (1) blocked the crossing for longer than permitted by 

Mississippi law; (2) blocked the crossing for longer than permitted by KCSR’s 

internal operating rules; and (3) failed to adequately warn approaching drivers 

of the obstructed crossing. 

KCSR removed the case to federal court based on federal question 

jurisdiction, arguing that Ezell’s two blocking claims were completely 

preempted by the federal ICC Termination Act (ICCTA).2 KCSR then moved 

for summary judgment on all of Ezell’s claims. In addition to urging that Ezell’s

two blocking claims are preempted, KCSR argued that Ezell’s failure to warn 

claim is barred by Mississippi’s Occupied Crossing Rule. The district court 

granted KCSR’s motion, and Ezell timely appealed.

 

2 Ordinarily, “[u]nder the well-pleaded complaint rule, a federal court does not have 

federal question jurisdiction unless a federal question appears on the face of the plaintiff’s 

well-pleaded complaint.” Elam v. Ks. City S. Ry. Co., 635 F.3d 796, 803 (5th Cir. 2011). As a 

result, there is generally “no federal [question] jurisdiction if the plaintiff properly pleads 

only a state law cause of action.” Id. (quoting Gutierrez v. Flores, 543 F.3d 248, 252 (5th Cir. 

2008) (alteration in original)). However, “[a]n exception to the well-pleaded complaint rule,” 

complete preemption doctrine, “arises when Congress ‘so completely preempt[s] a particular 

area that any civil complaint raising this select group of claims is necessarily federal in 

character.’” Id. (quoting Gutierrez, 543 F.3d at 252). Under the complete preemption doctrine, 

“what otherwise appears as merely a state law claim is converted to a claim arising under

federal law for jurisdictional purposes because the federal statute so forcibly and completely 

displaces state law that the plaintiff’s cause of action is either wholly federal or nothing at 

all.” New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 330 (5th Cir. 2008) (internal 

quotation marks and brackets omitted); see also Franks Inv. Co. v. Union Pacific R.R. Co., 

593 F.3d 404, 407–08 (5th Cir. 2010) (en banc) (“[Complete] preemption actually creates 

federal jurisdiction by its domination of the arena.”). As explained in greater depth below, 

we have previously determined that state law tort claims arising out of the Mississippi 

statute relied on by Ezell for his first blocking claim are completely preempted, such that 

those claims give rise to federal question jurisdiction. Elam, 635 F.3d at 802 (“We hold the 

district court had removal jurisdiction over this action because the ICCTA completely 

preempts the [plaintiffs’] negligence per se claim.”).

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II

We review a district court’s grant of summary judgment de novo, 

applying the same legal standards as the district court. Robinson v. Orient 

Marine Co., 505 F.3d 364, 365 (5th Cir. 2007). Summary judgment is only 

appropriate “if the movant shows that there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of law.” Fed. 

R. Civ. P. 56(a). Any reasonable inferences are to be drawn in favor of the nonmoving party. Robinson, 505 F.3d at 366.

“Whether a state statute or common law cause of action is preempted by 

federal law is a question of law we review de novo.” Friberg, 267 F.3d at 442; 

accord Elam, 635 F.3d at 802; Franks, 593 F.3d at 407. “The party asserting 

federal preemption has the burden of persuasion.” Elam, 635 F.3d at 802 

(citing AT&T Corp. v. Pub. Util. Comm’n of Tex., 373 F.3d 641, 645 (5th Cir. 

2004)).

III

Two of Ezell’s negligence claims are based solely on the allegation that 

KCSR’s train blocked the three crossings for an impermissible amount of time. 

The first is a negligence per se claim based on KCSR’s alleged violation of 

Mississippi’s Anti-Blocking Statute, which prohibits trains from blocking 

crossings for longer than five minutes.3 The second is a Mississippi common 

law negligence claim premised on KCSR’s violation of its own internal 

operating rules, specifically General Code of Operating Rules 6.32.4, which 

directs crews to avoid blocking crossings in excess of ten minutes “when 

 

3 The statute provides in relevant part: “Every railroad company, upon stopping any 

train at a place where such railroad shall cross a highway, shall so uncouple its cars as not 

to obstruct travel upon such highway for a longer period than five (5) minutes.” Miss. Code. 

Ann. § 77-9-235.

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practical.” The district court held that both claims are preempted by the 

ICCTA. We agree.

The ICCTA, 49 U.S.C. § 10101, et seq., overhauled federal railroad 

regulatory policy and established the Surface Transportation Board (STB), 

which is tasked with regulating rail transportation throughout the United 

States. PCI Trans., Inc. v. Fort Worth & W. R.R. Co., 418 F.3d 535, 538 (5th 

Cir. 2005). “The purpose of the ICCTA is to ‘build[] on the deregulatory policies 

that have promoted growth and stability in the surface transportation sector,’” 

and, specifically, “to implement a ‘[f]ederal scheme of minimal regulation for 

this intrinsically interstate form of transportation,’ and to retain only 

regulations ‘that are necessary to maintain a safety net or backstop of remedies 

to address problems of rates, access to facilities, and industry restructuring.’” 

Elam, 635 F.3d at 804 (quoting H.R. Rep. No. 104-311, at 93, 96 (1995); 1995 

U.S.C.C.A.N. 793, 805, 808). 

Section 10501(b) of the ICCTA “defin[es] the authority of the STB in 

dealing with the fundamental aspects of railroad regulation, and bar[s] others 

from interfering with those decisions by making the jurisdiction exclusive.” 

Franks, 593 F.3d at 410. Section 10501(b) additionally makes clear that the 

“remedies available at the STB dealing with ‘rates, classification, rules, . . .

practices, routes, services, and facilities of such carriers,’ are exclusive.” Id. at 

409; accord Elam, 635 F.3d at 805. We have observed that “[t]he language of 

the statute could not be more precise, and it is beyond peradventure that 

regulation of . . . train operations, as well as the construction and operation of 

. . . side tracks, is under the exclusive jurisdiction of the STB unless some other 

provision of the ICCTA provides otherwise.” Friberg, 267 F.3d at 443. Thus, we 

have held that § 10501(b) expressly preempts “laws that have the effect of 

managing or governing rail transportation[.]” Franks, 593 F.3d at 410. 

Further, “‘[t]o the extent remedies are provided under laws that have the effect 

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of regulating [i.e., managing or governing] train transportation,’ they too are 

expressly preempted.” Elam, 635 F.3d at 805 (quoting Franks, 593 F.3d at 410) 

(alterations in original). 

We have emphasized that “Congress was particularly concerned about 

state economic regulation of railroads when it enacted the ICCTA.” Id. On the 

other hand, § 10501(b) “does not expressly preempt generally applicable state 

laws that have a mere ‘remote or incidental effect on rail transportation.’” Id.

(quoting Franks, 593 F.3d at 410).4 Nonetheless, a state law claim that is not 

expressly preempted by the ICCTA may be impliedly preempted, such as when, 

as applied in a particular case, the claim has “the effect of unreasonably 

burdening or interfering with rail transportation.” Franks, 593 F.3d at 414.

Based on the scope, purpose, and jurisdictional statement of the ICCTA, 

we have previously invalidated state laws and claims that regulate the amount 

of time trains block crossings. See, e.g., Friberg, 267 F.3d at 443–44.5 We 

explained that “[r]egulating the time a train can occupy a rail crossing impacts, 

in such areas as train speed, length, and scheduling, the way a railroad 

operates its trains, with concomitant economic ramifications . . . .” Friberg, 267 

 

4 See also Fla. E. Coast Ry. Co. v. City of W. Palm Beach, 266 F.3d 1324, 1331 (11th 

Cir. 2001) (“Congress narrowly tailored the ICCTA pre-emption provision to displace only 

‘regulation,’ i.e., those state laws that may reasonably be said to have the effect of 

‘manag[ing]’ or govern[ing]’ rail transportation, . . . while permitting the continued 

application of laws having more remote or incidental effect on rail transportation.” (internal 

citations omitted)).

5 See also Pace v. CSX Transp., Inc., 613 F.3d 1066, 1070 (11th Cir. 2010) (“[T]o permit 

monetary liability to accrue under a state law nuisance claim where that liability is based on 

decisions the ICCTA purposefully freed from outside regulation would contradict the 

language and purpose of the ICCTA. The ICCTA expressly preempts state remedies involving 

the operation of the side track. Therefore, we will not permit landowners to circumvent that 

Congressional decision through state law nuisance claims.”); Rushing v. Ks. City S. Ry. Co., 

194 F. Supp. 2d 493, 499 (S.D. Miss. 2001) (“[A]lthough the relevant Mississippi laws of 

negligence and nuisance may be construed as a exercise of the police power of the state to 

safeguard the health and safety of its citizens, the Plaintiffs are attempting to use these laws 

to impose regulations on the Defendant regarding the manner in which it operates its switch 

yard thereby potentially interfering with interstate rail operations.”).

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F.3d at 443. Indeed, in Elam v. Kansas City Southern Railway, we held that a 

negligence per se claim based on the precise Mississippi Anti-Blocking Statute 

at issue here was completely preempted by the ICCTA. 635 F.3d at 807–08. We 

agree with the district court that Elam squarely forecloses Ezell’s negligence 

per se claim based on the Mississippi Anti-Blocking Statute.

Our analysis in Elam makes clear that Ezell’s blocking claim based on 

KCSR’s internal operating rules is preempted by the ICCTA as well. Like his

negligence per se claim, Ezell’s second blocking claim is based solely on the 

amount of time that KCSR’s train blocked a crossing, and “the effect of [such 

a] claim is to economically regulate KCSR’s switching operations.” Id. at 807; 

see also id. (“[A] state law tort remedy that would directly regulate a railroad’s 

switching rates and services falls squarely under § 10501(b) . . . . [because] a 

rail operator’s decisions about switching rates and services are economic 

decisions.” (citing Friberg, 267 F.3d at 444)); Franks, 593 F.3d at 411 (“It is

clear that a tort suit that attempts to mandate when trains can use tracks and 

stop on them is attempting to manage or govern rail transportation in a direct 

way[.]”); Friberg, 267 F.3d at 443 (“[N]or does the all-encompassing language 

of the ICCTA’s preemption clause permit the federal statute to be 

circumvented by allowing liability to accrue under state common law, where 

that liability arises from a railroad’s economic decisions such as those 

pertaining to train length, speed or scheduling.”).

Ezell has not attempted to distinguish Elam or this court’s other ICCTA 

preemption caselaw. Instead, he cites the preemption clause of a different 

federal railroad regulatory statute, the Federal Railroad Safety Act (FRSA), 49 

U.S.C. § 20101, et seq., as his sole argument for why his blocking claim based 

on KCSR’s operating rules is not preempted by the ICCTA. The FRSA’s 

preemption clause clarifies that a state law claim is not preempted by that 

statute if the claim is based on operating rules adopted pursuant to an order 

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or regulation issued by either the Secretary of Transportation or the Secretary 

of Homeland Security. 49 U.S.C. § 20106(b)(1)(B). Ezell does not explain how 

or why the FRSA’s preemption clause would bear on our ICCTA preemption

analysis, nor does he acknowledge that the preemption exception he relies on 

to rebut KCSR’s ICCTA argument is from a different statute. Notably, even if 

Ezell were to convince us that the FRSA’s preemption exception could save his 

blocking claim from ICCTA preemption, he has failed to show that the KCSR 

operating rule he cites qualifies as a “plan, rule, or standard that is created 

pursuant to a regulation or order of the Secretaries.” 49 U.S.C. 

§ 20106(b)(1)(B). Ezell’s FRSA argument is unavailing, and we conclude that 

both blocking claims are preempted by the ICCTA.6

IV

Ezell also alleges that KCSR “failed to adequately warn motorist[s] on 

North Division Street of the obstructed crossing by a train.” We agree with the 

district court that this claim is barred by Mississippi’s Occupied Crossing Rule. 

“Under Mississippi law, ‘ordinarily a train legitimately stopped or standing 

 

6 We note that the FRSA may inform ICCTA preemption analysis in some 

circumstances. Caselaw from this circuit and others has highlighted the complicated 

relationship between the two statutes and the difficulty that may arise when a state action 

or common law claim falls at the intersection of ICCTA’s realm of economic regulation and 

the FRSA’s realm of safety regulation. See, e.g., Elam, 635 F.3d at 807–08 (“To be sure, not 

every state law targeting rail operations is completely preempted by the ICCTA. Under the 

standards we have discussed, the ICCTA will not completely preempt valid exercises of a 

state’s police powers in most cases. Indeed, the [FRSA] expressly provides that states may 

enact (and citizens may enforce) rail safety laws in certain circumstances.”); Tyrell v. Norfolk 

S. Ry. Co., 248 F.3d 517, 522–23 (6th Cir. 2001) (“[T]he district court’s decision erroneously 

preempts state rail safety law that is saved under FRSA if it tangentially touches upon an 

economic area regulated under the ICCTA. . . . [T]he ICCTA and its legislative history contain 

no evidence that Congress intended for the STB to supplant the FRA’s authority over rail 

safety.”). In some cases, it may be difficult to discern whether a particular state law or claim 

is better characterized as an economic or safety regulation. But, as discussed, we have 

already determined that claims based solely on how long a train blocks a crossing are 

economic regulations preempted by the ICCTA. See Elam, 635 F.3d at 814 n.13 (“To the 

extent the Elams allege KCSR was negligent solely because it blocked the . . . crossing, that 

claim is impliedly preempted.”).

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over a public crossing because of its tremendous size is all the warning the 

traveling public is entitled to.’” King v. Ill. Cent. R.R., 337 F.3d 550, 553 (5th 

Cir. 2003) (quoting Clark v. Columbus & Greenville Ry. Co., 473 So. 2d 947, 

950 (Miss. 1985)). Under this doctrine, the Occupied Crossing Rule,

a railroad company may leave its train, or any part of it, standing 

over a public crossing, night or day, and whether light or dark, 

without any light or warning of any kind to the traveling public; 

that the presence of the car or cars themselves is all the warning 

the traveling public is entitled to unless the conditions were 

unusual.

Miss. Exp. R.R. Co. v. Summers, 11 So. 2d 429, 430 (Miss. 1943). 

However, there is an exception to the rule when “the railroad should 

foresee that a motorist using ordinary care may not see the train because of a 

peculiar environment or hazardous condition.” King, 337 F.3d at 553. Put 

another way:

A railroad has the right to occupy a crossing for its legitimate 

purposes, and, while so occupying it, the carrier is not required to 

maintain lights on its cars or to station a man with a lantern at 

the crossing to give warning that it is obstructed . . . by cars, unless 

the conditions and circumstances are such that the employees of the 

railroad know, or in the exercise of reasonable care and caution 

should have known, that a person driving upon the highway at a 

reasonable rate of speed in an automobile properly equipped with 

lights, and carefully operated, could not see, or might not be able 

to see, the cars in time to avoid a collision with them.

Owens v. Int’l Paper Co., 528 F.2d 606, 609 (5th Cir. 1976) (quoting Ill. Cent. 

R.R. v. Williams, 135 So. 2d 831, 834 (Miss. 1961)) (emphasis added). 

To invoke this exception, the Mississippi Supreme Court has emphasized 

that plaintiffs must show the existence of “unusual hazards” and “peculiar 

conditions,” Boyd v. Ill. Cent. R.R. Co., 52 So. 2d 21, 25 (Miss. 1951), and the 

court has described the factual inquiry as one to determine “whether [the] 

crossing was more than ordinarily hazardous or dangerous,” Williams, 135 So. 

2d at 835. We have interpreted this exception to be narrow, explaining that 

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“there must be some peculiar environment which renders the crossing 

unusually dangerous.” Owens, 528 F.2d at 609 (internal quotation marks 

omitted). Further, we have cautioned that Mississippi courts set the bar high 

and “have only found the exception applicable where extraordinary physical 

environments or landscapes make the crossing difficult to see.” King, 337 F.3d 

at 553.

Ezell argues that the Occupied Crossing Rule should not bar his failure 

to warn claim because of the conditions present on the night of the accident. In 

sum, the conditions described by Ezell are a “kind of” foggy night, darkness 

around the area of the track, a small dip in the road followed by an incline to 

the track, a black train car, and that he could see a traffic light beyond the 

railroad track. Although the conditions described by Ezell do resemble facts 

present in some of the cases in which Mississippi courts applied the exception, 

those cases involved a number of additional hazardous conditions that are not 

present here and which rendered the conditions more clearly “peculiar” and 

“unusually dangerous.” See, e.g., Boyd, 52 So. 2d at 22 (observing that, in 

addition to a “slight dip” in the road, there was also no warning of any kind of 

the approaching crossing (in violation of state law), and the only visible part of 

the train blocking the crossing was the narrow, 15-18 inch bed of an empty 

flatcar with its wheels positioned so that they were not visible to approaching 

drivers and there was no light at all); Williams, 135 So. 2d at 835 (observing 

that the approach to the crossing was an “abruptly steep and varied incline,” 

which, combined with the unusually high grade of the crossing, created a 

particularly hazardous approach).

We agree with the district court that, even taking all of Ezell’s 

allegations to be true, his summary judgment evidence fails to show that the 

conditions on the night of the accident were “peculiar” and “unusually 

dangerous” such that application of this narrow exception is appropriate.

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Owens, 528 F.2d at 609. As explained, the bar for the exception is high, and 

Ezell’s evidence does not show “extraordinary physical environments or 

landscapes.” King, 337 F.3d at 553. The relatively ordinary conditions 

described by Ezell do not meet this threshold. Thus, the Occupied Crossing 

Rule bars his failure to warn negligence claim.7

V

Accordingly, we AFFIRM the district court’s judgment.

 

7 At oral argument, KCSR invoked a recent Mississippi Supreme Court decision to 

argue that our Occupied Crossing Rule analysis cannot consider hazardous factors that the 

railroad cannot control, such as the conditions or characteristics of the road leading the 

crossing. Because we find that the Occupied Crossing Rule bars Ezell’s claim regardless of 

which of the alleged conditions we consider, we need not reach KCSR’s argument. 

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