United States Court of Appeals, Eleventh Circuit.

Nos. 94-9373, 94-9374.

Reba MICHAEL, Individually, and as Parent and Executrix of the

Estate of Keith Lane Michael; Kenneth Michael, Individually and as

Parent of Keith Lane Michael, Plaintiffs-Appellants,

v.

NORFOLK SOUTHERN RAILWAY COMPANY, a Virginia Corporation doing

business in Georgia, Defendant-Appellee.

Linda STEWART, Individually; Terry L. Weaver, Individually, and

as Parent of Angelia L. Weaver, Plaintiffs-Appellants,

v.

NORFOLK SOUTHERN RAILWAY COMPANY, a Virginia Corporation doing

business in Georgia, Defendant-Appellee.

Feb. 6, 1996.

Appeals from the United States District Court for the Northern

District of Georgia. (No. 1:93-00086-CV-ODE), Orinda D. Evans,

Judge.

Before TJOFLAT, Chief Judge, CARNES, Circuit Judge, and FAY, Senior

Circuit Judge.

FAY, Senior Circuit Judge:

This appeal arises from a summary judgment in favor of the

defendant, Norfolk Southern Railway Company. Norfolk was sued by

representatives of an automobile driver and passenger who were

killed in a collision with a Norfolk train. The District Court

ruled that the automobile driver was the sole proximate cause of

the accident, and that the plaintiffs' state law negligence claims

were preempted by federal law. We REVERSE and REMAND for further

proceedings consistent with this opinion.

I. BACKGROUND

On December 23, 1990, a train owned and operated by Norfolk

collided with an automobile driven by Angelia Weaver. Ms. Weaver
 1

There were two lanes for traffic travelling in the

direction of the Weaver automobile. 

and her passenger, Keith Michael, died as a result of injuries

sustained in the accident. The defendant contends that Ms.

Weaver's automobile was travelling at a high rate of speed prior to

the collision, but the plaintiffs presented evidence that the she

was travelling at five to ten miles per hour. The defendant

contends that at the time of the accident visibility was clear, but

there is some evidence that the weather was extremely foggy. An

employee of the defendant testified in his deposition that Ms.

Weaver drove around the lowered warning gate on the wrong side of

the road, but the plaintiffs presented evidence that this gate did

not extend very far into Ms. Weaver's lane and that she entered the

crossing in the proper lane of traffic.1

The defendants contend that Ms. Weaver may have been impaired

at the time of the accident, primarily due to a blood-alcohol level

of .05%. The plaintiffs argue that she was not impaired, that she

drank part of a single cocktail on the night of the accident, and

that a blood-alcohol level of .05% raises no legal presumption of

impairment. It is undisputed that the train crew sounded the

train's horn and bell, that the train's headlight was working prior

to the collision, and that the crossing warning devices were

working immediately after the collision.

The plaintiffs contend that the warning devices at the

Mulberry Street crossing have malfunctioned on a continuous and

chronic basis. The plaintiffs presented witnesses who testified to

the activation of the crossing gate and warning devices for long
periods when there was no train approaching, to instances when the

gate arms did not come down until the train was almost at the

crossing, and to instances when the gate arms went up and down in

a hatchet fashion or came down only half way. Two witnesses saw

the warning devices at the crossing malfunction on separate

occasions several hours prior to the accident, and another saw them

malfunction the morning after. The Mayor of Austell, the City

Council, a State Representative, and numerous private citizens

complained to Norfolk about the warning devices at the crossing for

many years, but the malfunctions continued.

II. STANDARD OF REVIEW

 Summary judgment is proper if the pleadings, depositions, and

affidavits show that there is no genuine issue of material fact and

that the moving party is entitled to judgment as a matter of law.

Celotex Corporation v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548,

2552, 91 L.Ed.2d 265 (1986). The evidence must be viewed in the

light most favorable to the non-moving party. Augusta Iron and

Steel Works, Inc. v. Employers Insurance of Wausau, 835 F.2d 855,

856 (11th Cir.1988).

III. ANALYSIS

A. Federal Preemption

i. Defective Design

 The provisions of 23 C.F.R. §§ 646.214(b)(3) and (4), where

applicable, preempt state tort law. CSX Transportation Company v.

Easterwood, 507 U.S. 658, ---- - ----, 113 S.Ct. 1732, 1740-41, 123

L.Ed.2d 387 (1993). For railroad crossing projects "in which

federal funds participate in the installation of warning devices,
 2

The design called for a gate arm extending 28 feet

completely across the two lanes for southbound traffic. The arm

installed blocked only one lane and some three feet of the

second. 

the Secretary has determined the devices to be installed and the

means by which railroads are to participate in their selection."

Id. at ----, 113 S.Ct. at 1741. Thus there can be no state law

claim against the railroad for defective design. Id. The crossing

devices at issue in this case were federally funded, and so the

state tort claim for defective design is preempted, so long as the

railroad complied with the federal regulations.

 However, the plaintiffs contend that Norfolk violated federal

regulations by installing a gate arm shorter than the one called

for in the design.2

 Norfolk contends that it had Federal Highway

Administration Approval for the shorter arm after it was installed,

but the record only reflects an inspection by the Georgia

Department of Transportation. We leave it to the District Court on

remand to determine whether Norfolk complied with the federal

regulations in this regard. If not, then the plaintiffs do have a

state law tort claim for negligent design or construction, based on

the violation of the federal regulations.

ii. Negligent Maintenance and Failure to Warn

 The District Court ruled that the plaintiffs' claims for

negligent maintenance of the crossing and for failure to warn the

public of the defective nature of the crossing were also preempted

by 23 C.F.R. § 646.214. We disagree. The Supreme Court in

Easterwood held that 23 C.F.R. §§ 646.214(b)(3) and (4), where

applicable, preempt state tort law. However, those regulations
 3

In the Easterwood case, the plaintiff brought suit against

the railroad for "failing to maintain adequate warning devices at

the crossing." Easterwood, 507 U.S. at ----, 113 S.Ct. at 1736. 

That language should not be misinterpreted. It was not a suit

for negligent maintenance of the warning devices installed at the

crossing, but rather for "the absence of proper warning devices." 

Id. 

 4We express no opinion as to whether other provisions of

federal law would serve to preempt such a claim. No other

provisions were raised on appeal or briefed by the parties. 

deal with the design and installation of new warning devices, not

the maintenance of those devices or the failure to warn the public

of defective devices.3

 Thus 23 C.F.R. §§ 646.214(b)(3) and (4) are

not applicable to a claim for negligent maintenance or for failure

to warn, and do not preempt such claims.4

iii. Excessive Speed

 Any state law claim based on the train's alleged excessive

speed is preempted by federal law, specifically the train speed

regulations set out in 49 C.F.R. § 213.9. Easterwood, 507 U.S. at

----, 113 S.Ct. at 1742-43. The track at the Mulberry Street

crossing is classified as class 4, with a national speed limit of

60 miles per hour for freight trains. There is no indication that

the Norfolk train was travelling over 60 miles per hour.

The plaintiffs also argue that the train crew was negligent

for exceeding the railroad's own self-imposed speed limit.

Violation of the railroad's own speed regulations may be evidence

of negligence in a state tort claim for excessive speed; however,

such a state tort claim is preempted by federal law, and the

internal railroad regulations would be irrelevant under federal

law. 49 C.F.R. § 213.9 sets out specific speed limits for

different types of tracks and trains; those limits are not
affected by internal railroad policies.

We note, however, that while state law tort claims for

excessive speed are preempted, the Supreme Court specifically left

open the question of whether federal law bars suit for "breach of

related tort law duties, such as the duty to slow or stop a train

to avoid a specific, individual hazard." Easterwood, 507 U.S. at

----, 113 S.Ct. at 1743. Nor has this Court decided the issue.

The opinion in Mahoney v. CSX Transportation, Inc., 966 F.2d 644

(11th Cir.1992), which was first vacated and then reinstated in its

entirety by the court of appeals en banc at 993 F.2d 211 (1993),

merely holds that pure excessive speed claims are preempted, not

that all related claims are as well. We leave it to the District

Court on remand to decide whether the plaintiffs have established

a violation of such a related tort law duty, and whether they have

presented sufficient evidence to make this a jury issue.

B. Sole Proximate Cause

 The District Court held that Ms. Weaver reasonably should

have been aware of the oncoming train and that she was the sole

proximate cause of the accident. Thus, her representatives could

not recover from the railroad. The District Court went on to deny

recovery to the representatives of Mr. Michael, the passenger.

Under Georgia law, a driver's negligence cannot be imputed to a

passenger; if the Norfolk was only 1% responsible, then Mr.

Michael could recover from the railroad. See Central of Georgia

Railway Company v. Luther, 128 Ga.App. 178, 182, 196 S.E.2d 149,

153 (1973); Isom v. Schettino, 129 Ga.App. 73, 76, 199 S.E.2d 89,

93 (1973). However, if the driver is the sole proximate cause of
the accident because she knew or should have known of the

approaching train, then the railroad cannot be liable (even to the

passenger) for failing to provide adequate warning of the

approaching train. See Southern Ry. Co. v. Blake, 101 Ga. 217, 29

S.E. 288 (1897); Seaboard Coast Line R.R. Co. v. Mitcham, 127

Ga.App. 102, 192 S.E.2d 549 (1972). The District Court ruled as a

matter of law that Ms. Weaver should have known of the approaching

train. Under the circumstances of this accident, we hold that this

is a question for the jury.

 It is true, as the District Court noted, that Norfolk

presented undisputed evidence that the train crew sounded the

train's horn and bell, that the train's headlight was working prior

to the collision, and that the crossing warning devises were

working immediately after the collision. Norfolk also presented an

affidavit from Mr. Aaron Morris, the train's brakeman, stating that

Ms. Weaver was travelling at a high rate of speed, and that she

drove around the gate on the wrong side of the road, in an effort

to beat the train.

However, other evidence contradicted Mr. Morris's affidavit.

First, an expert in accident reconstruction opined that Ms. Weaver

was travelling at only five to ten miles per hour, making it

unlikely that she was trying to beat the train. Second, the gate

arm did not extend more than three feet into Weaver's lane, making

it unnecessary for her to go around the gate onto the wrong side of

the road even if the gate was down. Third, Mr. Morris never

activated the train's brakes; the engineer activated the brakes

after the impact. Last, the train's engineer stated in a
 5

As noted in Easterwood v. CSX Transportation, Inc., 933

F.2d 1548, 1560 (11th Cir.1991), aff'd, 507 U.S. 658, 113 S.Ct.

1732, 123 L.Ed.2d 387 (1993), a driver would be contributorily

negligent as a matter of law if she violated Ga.Code Ann. § 40-6-

140, which requires a motorist to stop at all grade crossings

when a "clearly visible ... signal device gives warning of the

immediate approach of a train." See Atlantic Coast Line R.R. Co.

v. Hall Livestock Co., 116 Ga.App. 227, 156 S.E.2d 396 (1967). 

However, if the driver was actually unaware of the approaching

train, then a common-law reasonableness standard applies, not the

Georgia statute. Id. 156 S.E.2d at 398. 

deposition that he and Mr. Morris discovered that they had hit a

car only after the impact.

The plaintiffs also presented evidence that the weather was

extremely foggy and that visibility was limited, making it more

likely that Weaver would not have seen the train even if she had

been exercising due care. Moreover, the windows were up in

Weaver's car because of the cold, making it more likely that she

might not have heard the train even though exercising due care.5

In addition, the plaintiffs presented evidence that the

warning devices at the Mulberry Street crossing have malfunctioned

on a continuous and chronic basis. The plaintiffs presented

witnesses who testified to the activation of the crossing gates and

warning devices for long periods when there was no train

approaching, to instances when the gate arms did not come down

until the train was almost at the crossing, and to instances when

the gate arms went up and down in a hatchet fashion or came down

only half way. Two witnesses saw the warning devices at the

crossing malfunction on separate occasions several hours prior to

the accident, and another saw them malfunction the morning after.

The Mayor of Austell, the City Council, a State Representative, and

numerous private citizens complained to Norfolk about the warning
 6

Norfolk cites Iler v. Seaboard Air Line R. Co., 214 F.2d

385 (5th Cir.1954) for the proposition that evidence of

unreliable warning equipment is irrelevant because ordinary care

demands that a driver look before crossing, even if the equipment

routinely gives false warnings. While that proposition is true,

the evidence of unreliable equipment becomes relevant where the

jury could conclude that the driver was not aware of the train

even though she exercised ordinary care (for example, because of

the fog), or that the equipment was not working when the driver

approached the crossing (for example, because the warning devices

sometimes began to operate only seconds before the train arrived

and the gates sometimes did not lower all the way). 

devices at the crossing for many years, but the malfunctions

continued.6 Under these circumstances, it seems to us that a jury

could conclude that Norfolk was guilty of negligence that

proximately contributed to this tragic accident.

Viewing this evidence in the light most favorable to the

plaintiffs, as we must, and considering that matters of

contributory negligence are almost invariably a question for the

jury on which the defendant bears the burden of proof at trial, we

hold that summary judgment was not warranted.

IV. CONCLUSION

We REVERSE the District Court's summary judgment and REMAND

for further proceedings consistent with this opinion.