United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-4076

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Elmer F. Bock, Administrator of the

Estate of Phyllis Bock, Deceased,

Appellant,

v.

St. Louis Southwestern Railway

Company, Southern Pacific,

Appellee.

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Association of American Railroads,

Amicus on Behalf of

Appellee.

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Appeal from the United States

District Court for the

Eastern District of Arkansas.

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Submitted: January 13, 1999

 Filed: June 30, 1999

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Before LOKEN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges. 

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HANSEN, Circuit Judge.
1

 The Honorable Henry L. Jones, Jr., United States Magistrate Judge for the

Eastern District of Arkansas, hearing the case by consent of the parties pursuant to 28

U.S.C. § 636(c) (1994).

2

Elmer F. Bock, the administrator of the estate of Phyllis Bock, appeals from the

district court's1 grant of summary judgment in favor of the St. Louis Southwestern

Railway in Bock's wrongful death action. We affirm.

I.

The relevant facts, viewed in the light most favorable to Bock, are as follows.

On March 10, 1992, Phyllis Bock was driving her car on Main Street in Roe, Arkansas.

Main Street intersects railroad tracks owned by St. Louis Southwestern Railway

Company (Southwestern). As Phyllis Bock crossed the tracks, a Southwestern train

struck and killed her. At the time of the accident, crossbucks provided the sole

protection at the Main Street crossing. Crossbucks are X-shaped signs that read

"RAILROAD CROSSING" in reflectorized letters. The crossbucks were installed in

1980 as part of a statewide initiative to improve the safety of all railroad grade

crossings. The United States Department of Transportation—Federal Highway

Administration approved the expenditure of federal funds for use in the Main Street

project.

In 1988 a diagnostic team organized by the Arkansas Highway Department

inspected the Main Street crossing and recommended that the crossing be protected by

lights and automatic gates. The federal government provided 90 percent of the cost,

while Southwestern paid the City of Roe's 10 percent share. Southwestern received

final authority to upgrade the crossing in September of 1991, and completed the project

in March 1992, shortly after the accident that killed Phyllis Bock.
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Elmer Bock, Phyllis Bock's father and the administrator of her estate, filed this

wrongful death action in federal court on the basis of diversity of citizenship. Bock's

original complaint included several theories of liability which are no longer relevant for

the purposes of this appeal. Southwestern moved for summary judgment on the basis

of federal preemption, and the district court granted the motion on May 12, 1997. On

November 12, 1997, after Bock amended his complaint, the district court entered a

final judgment dismissing Bock's case. This appeal followed.

II.

We review the district court's grant of summary judgment de novo, viewing the

evidence in the light most favorable to Bock, the nonmoving party. Bryan v. Norfolk

and Western Ry. Co., 154 F.3d 899, 901 (1998), cert. dismissed, 119 S. Ct. 921

(1999). We will affirm the district court's judgment only if there are no genuine issues

of material fact and Southwestern is entitled to summary judgment as a matter of law.

Id.; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56.

A. Abnormally Dangerous Crossing

Bock first argues that his wrongful death action is not preempted because the

Main Street crossing was abnormally dangerous and Southwestern used inadequate

warning devices to protect the crossing. The district court granted Southwestern's

motion for summary judgment, holding that Bock's negligence claim was preempted by

federal law.

The Supreme Court has held that when certain federal regulations issued by the

Secretary of Transportation governing the protection devices to be placed at railroad

grade crossings apply, see 23 C.F.R. § 646.214(b)(3)-(4) (1998), the federal regulations

preempt state law tort claims pertaining to the maintenance of the railroad grade

crossings. See CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 670 (1993). Since
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Easterwood, our court has been quite clear that if federal funds have been expended for

warning devices at a grade crossing, state law tort claims alleging negligence in the

maintenance of the crossing are preempted. Consequently, the pivotal issue in this case

is whether or not the cited regulations are applicable to the Main Street Crossing.

"Federal regulations are applicable if federal funds have been expended for the

installation of the warning devices at the crossing. 'Federal funding is the touchstone

of preemption in this area.'" Bryan, 154 F.3d at 903 (quoting Elrod v. Burlington

Northern R.R. Co., 68 F.3d 241, 244 (8th Cir. 1995)). There is no dispute in this

record that federal funds were used to install the crossbucks at the Main Street

crossing. Accordingly, Bock's claim should be preempted. Nonetheless, Bock argues

that his claim is not preempted because the crossbucks were inadequate in view of 23

C.F.R. § 646.214(b)(3). Under that regulation, according to Bock, the characteristics

of the Main Street crossing mandate the use of automatic gates with flashing light

signals. See § 646.214(b)(3)(i)(B) (indicating that adequate warning devices are to

include flashing lights and automatic gates when the crossing involves multiple tracks

and the movement of an approaching train might be obscured). We recently addressed

and rejected an identical legal argument. In Bryan the widow of a driver killed in a

collision with a train argued that her wrongful death action was not preempted even

though federally funded crossbucks protected the crossing in question. The widow

asserted, as does Bock in this appeal, that under the regulations, the characteristics of

the crossing warranted an automatic gate. Bryan, 154 F.3d at 903. Despite this

argument, we held that "once federal funds have been expended towards grade crossing

safety devices, and those devices are installed and operating, state law negligence

claims are preempted by federal regulations." Id. at 904. Thus, it would appear that

Bock's wrongful death action is preempted.

Factually, however, Bock's case differs from Bryan because prior to Phyllis

Bock's accident, the relevant authorities made a determination to upgrade the Main

Street crossing to a lights and gates configuration. According to Bock, this
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determination proves, as a matter of law, the inadequacy of the Main Street crossing,

and consequently, suspends or terminates the preemption of state tort actions. We

disagree.

Preemption is not a water spigot that is turned on and off simply because a later

decision is made to upgrade a crossing. As we noted above, our cases clearly hold that

once a federally funded warning device is installed and operational—the crossbucks

in this case—preemption occurs. See Bryan, 154 F.3d at 904; Elrod, 68 F.3d at 244;

St. Louis Southwestern Ry. Co. v. Malone Freight Lines, Inc., 39 F.3d 864, 867 (8th

Cir. 1994), cert. denied, 514 U.S. 1110 (1995). The fact that a better warning system

is desirable is simply irrelevant. "[T]he issue is not what warning system the federal

government determines to be necessary, but whether the final authority to decide what

warning system is needed has been taken out of the railroad's and the state's hands

under 23 C.F.R. § 646.214(b)(3) & (4)." Armijo v. Atchison, Topeka and Santa Fe Ry.

Co., 87 F.3d 1188, 1192 (10th Cir. 1996). We hold, therefore, that federal law

preempts Bock's wrongful death claim based on the adequacy of the warning devices

installed at the Main Street crossing.

B. Delayed Installation

Bock next argues that Southwestern negligently delayed the installation of the

improved safety devices at the Main Street crossing. In other words, according to

Bock, Southwestern is liable for failing to promptly install lights and gates after the

determination to install such devices was made. Bock dedicates the majority of his

brief on this topic to the question of whether such a cause of action exists under

Arkansas law. We do not reach that question because we hold that Bock's negligent

delay claim is also preempted by federal law.

Bock's argument is little more than an attempt to make an end run around the

preemption doctrine. As we explained above, once preemption occurs, it is not
2

 The Main Street crossing upgrade was not an "accelerated" project under 23

C.F.R. § 646.218. If it were, that regulation would have allowed up to two years from

and after the project authorization date (September 9, 1991) for completion of the

project. See § 646.218(e). Even though it was not "accelerated," the Main Street

crossing was completed within seven months after authorization by the Arkansas

Highway Department.

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suspended or terminated by a subsequent governmental determination regarding the

adequacy of the crossing. When, as here, a plaintiff brings a state tort cause of action

for harm sustained at a railroad crossing that has federally funded, installed, and

operational warning devices, that state cause of action is preempted. That another,

improved warning system was later planned is simply irrelevant. See Armijo, 87 F.3d

at 1192 ("The mere fact that the federal government has changed its opinion regarding

what warning devices are needed at a particular crossing at some point after making a

prior determination a lesser warning system is sufficient is of no real significance . . .

."). Whether Arkansas's common law recognizes a tort cause of action for negligent

delay is likewise irrelevant because that cause of action would also be preempted. Due

to preemption, the railroad was no longer duty-bound, in the tort sense, for causes of

action based on the adequacy of the crossing safety devices. After the federally funded

crossbucks were installed and operational, preemption absolved Southwestern of any

state law obligation to upgrade the crossing sua sponte. Cf. Malone, 39 F.3d at 867

("Before preemption, the public is protected by a railroad's state common-law duty of

care. After installation of federally mandated warning devices, the public is protected

by those devices."). Because Bock's negligent delay claim is founded on the premise

that the then existing crossbucks inadequately protected the crossing, his claim is

preempted. This case is markedly different from the situation presented in Malone. In

that case, preemption had not occurred because the original federally funded warning

devices were not yet installed at the crossing in question. See id. In this case they

were.2

In sum, we hold that Bock's negligent delay claim is preempted.
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III.

Accordingly, we affirm the district court's judgment.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT