2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-23-2013

Robert Zimmerman v. Norfolk Southern

Corporation

Precedential or Non-Precedential: Precedential

Docket No. 11-3369

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-3369

_____________

ROBERT ZIMMERMAN,

Appellant

v.

NORFOLK SOUTHERN CORPORATION

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Court No. 05-10-cv-02267

District Judge: The Honorable James Knoll Gardner

Argued September 10, 2012

Before: SMITH, CHAGARES, and ALDISERT, Circuit 

Judges

(Filed: January 23, 2013 )

Joshua M. Autry

Dennis E. Boyle [ARGUED]

Boyle, Autry & Murphy
2

4660 Trindle Road

Suite 200

Camp Hill, PA 17001

Emily M. Bell

Jeffrey A. Conrad 

Clymer, Musser, Brown & Conrad

408 West Chestnut Street

Lancaster, PA 17603

Counsel for Appellant

Richard K. Hohn [ARGUED]

Robert M. Stroh

Hohn & Scheuerle

1700 Market Street

Suite 3242

Philadelphia, PA 19103

Counsel for Appellee

________________

OPINION

________________

SMITH, Circuit Judge.

Robert Zimmerman was riding his motorcycle on a 

summer evening in 2008. He approached a railroad crossing, 

but it was dark and a building obscured the tracks. When he 
3

was less than seventy-six feet away, he noticed that a train 

was approaching. He tried to stop, but his front brake locked 

and he flew over the handlebars, colliding headfirst with a 

locomotive. The collision left him partially paralyzed. He 

sued Norfolk Southern Corporation in federal court, asserting 

three state tort claims.

1

Railroads are among the most heavily regulated

American industries. Unfortunately for Zimmerman, many of 

these regulations preempt state tort claims. The Federal 

Railroad Safety Act (―FRSA‖) contains a provision that

outlines the scope of preemption. 49 U.S.C. § 20106. The 

District Court for the Eastern District of Pennsylvania relied 

on this provision in granting summary judgment for Norfolk 

Southern, concluding that most of Zimmerman’s claims were 

preempted. We will reverse in part and affirm in part. 

I

Diller Avenue is a two-lane road that runs diagonally 

through New Holland, Pennsylvania. In the southern part of 

town, Diller Avenue intersects a railroad track owned and 

 

1

The proper party to this action appears to be Norfolk 

Southern Railway Company, a subsidiary of Norfolk 

Southern Corporation, but neither party has moved to amend 

the caption. See Zimmerman v. Norfolk S. Corp., No. 10-cv02267, 2011 WL 3625039, at *1 n.1 (E.D. Pa. Aug. 17, 

2011). We refer throughout to the appellee as Norfolk 

Southern.
4

operated by Norfolk Southern. Because of the location of a 

tavern northwest of the crossing, southbound motorists have a 

difficult time seeing eastbound trains. For example, a motorist 

who is seventy-six feet away can see only sixty-five feet 

down the tracks. The speed limit on Diller Avenue is thirtyfive miles per hour, while the speed limit on the tracks is 

subject to some disagreement. Norfolk Southern argues that 

the limit is at least twenty-five and maybe forty miles per 

hour, but Zimmerman argues that it is ten miles per hour. 

The Diller Avenue crossing has been the scene of a 

number of accidents over the years. Five accidents were 

reported at the crossing in the 1970s. A decade later, the 

Commonwealth of Pennsylvania and the crossing’s former 

owner installed two white railroad-crossing signs, called

crossbucks, with the use of federal funds. Since the 

installation of these signs, five more accidents have been 

reported. At the time of Zimmerman’s accident, there was a 

crossbuck fixed on each side of the track; there was also a 

yellow warning sign on Diller Avenue, 150 feet north of the 

crossing, together with painted warnings on the street.

Zimmerman contends that these warnings had fallen into 

disrepair—tree branches covered the signs on the north side 

and the street markings had faded. 

On June 12, 2008, Zimmerman celebrated his thirtyeighth birthday. After a game of church softball and a trip to 

his mother’s house, he headed for home on his motorcycle. It 

was dark, and Zimmerman was wearing a helmet and riding 

within the speed limit. He turned south onto Diller Avenue 
5

and approached the crossing—a crossing he did not believe 

was still active. Meanwhile, an eastbound Norfolk Southern 

train consisting of only two engines approached the crossing

travelling twenty-four miles per hour. It sounded its horn. 

Zimmerman apparently failed to notice that the train 

was about to enter the crossing until he was less than seventysix feet away.2 At that point, he was too close to the track to 

stop.

3 One of the train operators noticed Zimmerman around 

this time but could not stop the train soon enough to avoid the 

collision. Zimmerman aggressively applied the brake of his 

motorcycle, causing the front wheel to lock. He flipped over 

the handlebar and flew headfirst into the gas tank of the lead 

engine. The collision left him partially paralyzed. 

Zimmerman sued Norfolk Southern in the Eastern 

District of Pennsylvania under Pennsylvania tort law. His 

complaint listed four counts: failure to warn; failure to 

maintain a safe crossing; failure to ensure that the crossing 

devices complied with federal regulations; and punitive 

damages. On August 17, 2011, the District Court granted 

 

2

Zimmerman has only a vague recollection of the 

events, so the experts have attempted to recreate the crash. 

One of Zimmerman’s experts concluded that ―[w]hen 

Zimmerman was 76 to 97 feet away from the point of 

collision, the train was not visible.‖ J.A. 687.

3 According to Zimmerman’s expert, a vehicle 

travelling thirty-five miles per hour needs at least seventy-six 

feet to stop.
6

Norfolk Southern’s motion for summary judgment, 

concluding that some of Zimmerman’s claims were 

preempted and that others did not create a genuine issue of 

material fact.

Zimmerman filed a timely notice of appeal.

4 We 

exercise plenary review over the District Court’s decision to 

grant a motion for summary judgment. Orvosh v. Program of 

Grp. Ins. for Salaried Emps. of Volkswagen of Am., 222 F.3d 

123, 129 (3d Cir. 2000). We construe the evidence in the light 

most favorable to Zimmerman, Matsushita Elec. Indus. v. 

Zenith Radio Corp., 475 U.S. 574, 587–88 (1986), and we

affirm ―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). A ―genuine 

dispute‖ exists if a reasonable jury could find for the 

nonmoving party. Fakete v. Aetna, Inc., 308 F.3d 335, 337 

(3d Cir. 2002).

II

The doctrine of preemption permeates Zimmerman’s 

appeal. Norfolk Southern argues that various federal 

regulations preempt Zimmerman’s claims under the FRSA 

preemption provision. 49 U.S.C. § 20106. We have 

interpreted the provision a few times over the years, but 

Congress changed it in 2007. We begin our discussion by 

 

4

The District Court had jurisdiction under 28 U.S.C. 

§ 1332, and we have jurisdiction under 28 U.S.C. § 1291.
7

providing a framework for analyzing preemption under the 

amended FRSA. We do so because we have yet to interpret

the amendment and because this analysis is relevant to each 

of Zimmerman’s claims. We then turn to those claims.

The Supremacy Clause of the United States 

Constitution is the source of preemption. U.S. Const. art. VI, 

cl. 2. Under the Supremacy Clause, federal law trumps or 

preempts state law whenever the two are in conflict. 

Preemption can be express or implied—either way, the effect 

is the same: preemption renders the relevant state law invalid. 

See Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 

(1992); Holk v. Snapple Beverage Corp., 575 F.3d 329, 334 

(3d Cir. 2009) (recognizing that implied preemption comes in 

two varieties: field preemption and conflict preemption). We 

tend to interpret federal statutes in a way that avoids implied 

preemption. Holk, 575 F.3d at 334 (citing Bates v. Dow 

Agrosciences LLC, 544 U.S. 431, 449 (2005)). The same is 

not true of express preemption.

Here, the FRSA expressly preempts state railroad law. 

Subsection (a) outlines the scope of FRSA preemption: 

―Laws, regulations, and orders related to railroad safety . . . 

shall be nationally uniform to the extent practicable.‖ 49 

U.S.C. § 20106(a)(1). Yet the FRSA does not preempt all 

state railroad law: ―A State may adopt or continue in force a 

law, regulation, or order related to railroad safety or security 

until the Secretary of Transportation . . . prescribes a 

regulation or issues an order covering the subject matter of 

the State requirement.‖ Id. § 20106(a)(2). Moreover, states 
8

may adopt a ―more stringent law‖ if it is necessary to 

eliminate a ―local safety or security hazard.‖ Id.

§ 20106(a)(2)(A). As the Supreme Court has noted, the FRSA

―displays considerable solicitude for state law.‖ CSX Transp., 

Inc. v. Easterwood, 507 U.S. 658, 665 (1993); see also 

Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344, 352–54 (2000).

Before the 2007 amendment, we held that a federal 

regulation preempts state law under subsection (a) if the 

regulation ―substantially subsume[s] the subject matter of the 

relevant state law.‖ Strozyk v. Norfolk S. Corp., 358 F.3d 268, 

271 (3d Cir. 2004) (quoting Easterwood, 507 U.S. at 664)

(quotation marks omitted). The regulation must do more than 

simply ―touch upon or relate to [the] subject matter‖ of the 

state law. Id. at 273 (quoting Easterwood, 507 U.S. at 664) 

(internal quotation marks omitted).

Congress amended the FRSA preemption provision in 

2007 by adding subsection (b), which is a ―[c]larification 

regarding State law causes of action‖:

(1) Nothing in this section shall be construed to 

preempt an action under State law seeking 

damages for personal injury, death, or property 

damage alleging that a party—

(A) has failed to comply with the Federal 

standard of care established by a regulation 

or order issued by the Secretary of 

Transportation . . . or the Secretary of 

Homeland Security . . . , covering the 
9

subject matter as provided in subsection (a) 

of this section;

(B) has failed to comply with its own plan, 

rule, or standard that it created pursuant to a 

regulation or order issued by either of the 

Secretaries; or

(C) has failed to comply with a State law, 

regulation, or order that is not incompatible 

with subsection (a)(2).

49 U.S.C. § 20106(b)(1). 

The question before us is how to interpret the FRSA

preemption provision in light of the 2007 amendment. 

Zimmerman argues that the amendment restricts the scope of 

preemption and thus supersedes all prior cases interpreting 

subsection (a), including our decision in Strozyk and the 

Supreme Court’s decisions in Shanklin and Easterwood. 

Norfolk Southern agrees that the amendment restricts 

preemption in some respects but argues that it preserves cases

interpreting the phrase ―covering the subject matter of the 

State requirement.‖ Id. § 20106(a)(2). We agree with Norfolk 

Southern’s interpretation.

Statutory interpretation requires that we begin with a 

careful reading of the text. See Bruesewitz v. Wyeth Inc., 561 

F.3d 233, 244 (3d Cir. 2009) (noting that this Court 

―decline[s] to employ legislative history if a statute is clear on 

its face‖); Hay Grp., Inc. v. E.B.S. Acquisition Corp., 360 
10

F.3d 404, 406 (3d Cir. 2004). The scope of the amendment is 

clear from the text: it clarifies that claimants can avoid 

preemption by alleging a violation of either a ―Federal 

standard of care‖ or the railroad’s ―own plan, rule, or standard 

that it created pursuant to a regulation or order.‖ 49 U.S.C. 

§ 20106(b)(1)(A)–(B). The amendment otherwise preserves 

the analysis for deciding whether a regulation preempts state 

law.

For starters, the amendment did not change the 

language of subsection (a). Federal regulations still preempt 

state law if they ―cover[] the subject matter.‖ Id.

§ 20106(a)(2). The continued use of this language indicates 

that the analysis remains the same. In fact, the amendment 

explicitly preserves the right to seek damages for violating 

state law, as long as the law is compatible with subsection 

(a)(2). See id. § 20106(b)(1)(C). Moreover, the title of the 

new subsection (b) is ―Clarification regarding State law 

causes of action.‖ The word ―clarification‖ suggests that the 

amendment attempted to resolve an ambiguity rather than 

change substantive law. See Henning v. Union Pac. R.R. Co., 

530 F.3d 1206, 1216 (10th Cir. 2008) (―[T]he [title] . . .

indicates Congress sought to resolve an ambiguity rather than 

effect a substantive change.‖). The amendment thus preserves 

cases such as Strozyk and Shanklin that analyzed whether a 

regulation covers state law. The amendment is significant for 

a different reason: it clarifies that even when a regulation 

covers the subject matter of a claim, the claim can avoid 

preemption if the railroad violated a federal standard of care 
11

or its internal rule. See 49 U.S.C. § 20106(b)(1)(A)–(B).5

 

5 Although the amendment’s plain text resolves the 

question before us, its history is entirely consistent with our 

analysis. In 2002, a train carrying anhydrous ammonia 

derailed in Minot, North Dakota. Toxins filled the air, forcing 

many local residents to evacuate. The toxins killed one person 

and injured at least a hundred others. Two federal district 

courts considered tort claims arising from the derailment. 

Lundeen v. Canadian Pac. Ry. Co., 507 F. Supp. 2d 1006, 

1009 (D. Minn. 2007); Mehl v. Canadian Pac. Ry., Ltd., 417 

F. Supp. 2d 1104, 1106 (D.N.D. 2006). In both cases, the 

courts interpreted the FRSA and concluded that the plaintiffs’ 

tort claims were preempted, even though the plaintiffs alleged 

that the railroad violated federal regulations and its own 

internal rules. See Mehl, 417 F. Supp. 2d at 1116–17 (holding 

that the plaintiffs’ claims were preempted despite allegations 

that the railroad violated federal regulations); Lundeen, 507 F. 

Supp. 2d at 1011–12 (holding that the plaintiffs’ claims were 

preempted despite allegations that the railroad violated its 

internal rules). 

Congress renounced these interpretations by passing 

the 2007 amendment. A conference report stated that the goal 

was ―to rectify the Federal court decisions related to the 

Minot, North Dakota accident that are in conflict with 

precedent.‖ H.R. Rep. No. 110-259, at 351 (2007), reprinted 

in 2007 U.S.C.C.A.N. 119, 119. The report also states that the 

―restructuring is not intended to indicate any substantive 

change in the meaning of the provision.‖ Id.
12

We therefore conclude that the preemption analysis 

under the amended FRSA requires a two-step process. We 

first ask whether the defendant allegedly violated either a 

federal standard of care or an internal rule that was created

pursuant to a federal regulation. If so, the plaintiff’s claim 

avoids preemption. See 49 U.S.C. § 20106(b)(1)(A)–(B). 

Otherwise, we move to the second step and ask whether any 

federal regulation covers the plaintiff’s claim. See id. 

§ 20106(a)(2). A regulation covers—and thus preempts—the 

plaintiff’s claim if it ―substantially subsume[s] the subject 

matter‖ of that claim. Easterwood, 507 U.S. at 664 (noting 

that the regulation must do more than ―touch upon or relate to 

[the] subject matter‖). In this step, we rely on precedent—

including cases that predate the 2007 amendment. This twostep approach is consistent with the text of the amended

FRSA and its history, and is similar to approaches in the 

Eighth and Tenth Circuits. Grade v. BNSF Ry. Co., 676 F.3d 

680, 686 (8th Cir. 2012); Henning, 530 F.3d at 1216.

III

We address each of Zimmerman’s claims in turn.

A

Zimmerman’s first claim is that Norfolk Southern 

negligently failed to warn him of the approaching train. In 

Zimmerman’s complaint, this claim has at least three parts:

(1) the train failed to obey the speed limit; (2) the train failed 

to use its light and horn; and (3) Norfolk Southern failed to 

provide motorists with an adequate view of the track. But 
13

Zimmerman conceded during oral argument that he lacks

evidence that the train failed to use its light and horn, and the 

duty to provide adequate sight distance is a separate duty, as 

discussed in Part III.B. Zimmerman’s first claim thus boils 

down to a single claim: excessive speed. 

1. Zimmerman’s excessive-speed claim is not 

preempted because 49 C.F.R. § 213.9 creates 

a federal standard of care.

Railroads have a duty under Pennsylvania law to warn 

motorists of approaching trains. Wilson v. Pa. R.R. Co., 219 

A.2d 666, 668–69 (Pa. 1966). This duty requires railroads to 

avoid excessive speeds, since motorists are less likely to see

speeding trains, and sight is an important warning method. 

See id. (explaining the relationship between a train’s speed 

and its warning and noting that speeding trains have less time 

to stop); see also Conner v. Pa. R.R. Co., 263 F.2d 944, 945–

46 (3d Cir. 1959).

Norfolk Southern allegedly violated this duty by 

operating its train at more than double the speed limit. A 

federal regulation establishes the speed limit for each class of 

tracks: ten miles per hour for freight trains on Class 1 tracks, 

twenty-five miles per hour on Class 2 tracks, forty miles per 

hour on Class 3 tracks, and so on. 49 C.F.R. § 213.9. Both 

sides agree that the train was travelling no more than twentyfive miles per hour when it entered the crossing. Zimmerman 

alleges that the track at the crossing was Class 1, which

would mean the train was travelling in excess of the speed 

limit. Norfolk Southern responds that the track was Class 2 or 
14

3, which would mean the train was travelling within the limit. 

The initial question is whether 49 C.F.R. § 213.9 

preempts Zimmerman’s excessive-speed claim. We note at 

the outset that no other federal court of appeals has 

considered whether such claims are preempted under the 

amended FRSA provision. Before the 2007 amendment, the 

Supreme Court held that speeding claims are preempted when

a train is travelling below the federally mandated speed limit. 

Easterwood, 507 U.S. at 673–75 (concluding that the 

plaintiff’s claim was preempted when the train was travelling,

at most, fifty miles per hour on tracks with a limit of sixty

miles per hour); see also Waymire v. Norfolk & W. Ry. Co., 

218 F.3d 773, 776 (7th Cir. 2000) (relying on Easterwood to 

conclude that an excessive-speed claim was preempted under 

the FRSA when the train was travelling below the speed 

limit). But Easterwood is inapposite here because 

Zimmerman alleges that the train he collided with was 

travelling above the speed limit. 

Zimmerman’s excessive-speed claim avoids 

preemption if § 213.9 creates a federal standard of care. A 

regulation creates a standard of care for FRSA preemption 

purposes if it establishes the degree of care that the 

defendant—in most cases, the railroad—must exercise. See

Black’s Law Dictionary 1441 (8th ed. 2004) (defining 

―standard of care‖ as ―the degree of care that a reasonable 

person should exercise‖); see also Henning, 530 F.3d at 1216 

(concluding there is no federal standard of care if the 

regulation takes the ―final authority to decide‖ what action is 
15

needed ―out of the railroad’s [hands]‖ (internal quotations 

marks and citations omitted)); Grade, 676 F.3d at 686 (same). 

The Minot derailment cases provide a good example of 

regulations that create a federal standard of care. Indeed, at 

least some members of Congress had these cases in mind 

when amending the FRSA. See H.R. Rep. No. 110-259, at 

351 (2007), reprinted in 2007 U.S.C.C.A.N. 119, 119 (noting 

that the goal of the FRSA amendment was ―to rectify the 

Federal court decisions related to the Minot, North Dakota 

accident that are in conflict with precedent‖). The plaintiffs in

Mehl v. Canadian Pacific Railway alleged that the railroad 

had violated a number of regulations, including 49 C.F.R. 

§§ 215.11 and 215.13, which require railroads to inspect 

tracks and freight cars. See 417 F. Supp. 2d 1104, 1115 & n.5 

(D.N.D. 2006). In prescribing how these inspections should 

be carried out, the regulations create a federal standard of care 

because they establish the degree of care that railroads must 

exercise. By contrast, a regulation does not establish a federal 

standard of care if the state is responsible for compliance. See

Grade, 676 F.3d at 686 (concluding that various regulations 

did not create a federal standard of care because they ―place 

the responsibility for implementing adequate warning devices 

on the State, thereby preempting any cause of action alleging 

a railroad failed to properly install an adequate warning 

device‖). After all, if the state is responsible, railroads cannot, 

―as a matter of law, fail to comply‖ with the regulation. Id.

(citation and internal quotation marks omitted).

We conclude that the speed limits in § 213.9 create a 
16

federal standard of care. Section 213.9 establishes the degree 

of care that railroads must exercise on each class of tracks: 

trains should not exceed ten miles per hour on Class 1 tracks, 

twenty-five miles per hour on Class 2 tracks, and so on. Like 

the regulations in Mehl and unlike the regulations in Grade, 

railroads are ultimately responsible for compliance—they

must ensure that their trains are travelling within the limit. As 

a result, Zimmerman’s speeding claim is not preempted. 

Because his claim avoids preemption in the first step of the 

FRSA preemption analysis, we need not consider the second 

step.

2. The District Court improperly excluded eight 

crossing reports.

Zimmerman’s excessive-speed claim has cleared the 

preemption hurdle, but it must also clear an evidentiary 

hurdle. Zimmerman acknowledges that the train was 

travelling within the speed limit for Class 2 and Class 3 

tracks. He alleges, however, that the track was Class 1. There 

is some evidence to support this allegation.

The record contains two types of documents that help

Zimmerman: crossing reports from the Department of 

Transportation’s National Crossing Inventory and accident 

reports from a similar database. The crossing reports state that 

the speed limit is ten or fifteen miles per hour, and at least 

some of the accident reports suggest that the track is Class 1. 

The District Court nevertheless excluded these documents 

based on two evidentiary privileges: 23 U.S.C. § 409 and 49 

U.S.C. § 20903. Zimmerman argues that the District Court 
17

misconstrued these privileges. We consider the crossing 

reports here and the accident reports in the next section.

The National Crossing Inventory is a database of 

highway-railroad crossings in the United States. The 

inventory contains reports on each crossing, which include 

information such as the number of trains that pass through 

daily, the typical train speed, and the maximum speed. 

Zimmerman accessed the database and obtained nine reports 

on the Diller Avenue crossing—the oldest from 1970 and the 

most recent from 2010. The nine reports were submitted to 

the national inventory by different entities: four by the

Commonwealth of Pennsylvania, two by Norfolk Southern, 

and two by Conrail, the prior owner of the crossing. It is 

unclear who submitted the initial report. The reports state that 

the typical train speed over the crossing is five to ten miles 

per hour and that the ―Maximum Time Table Speed‖ is ten or 

fifteen miles per hour.6

According to these crossing reports, Norfolk 

Southern’s train was travelling too fast at the time of the 

collision. Nevertheless, the District Court excluded them

based on the privilege created by 23 U.S.C. § 409:

Notwithstanding any other provision of law, 

 

6

Eight crossing reports state that the ―Maximum Time 

Table Speed‖ is ―10‖—presumably meaning miles per hour. 

J.A. 995–1012. The ninth report states that the maximum 

speed is ―15.‖ Id. at 1008–09. 
18

reports, surveys, schedules, lists, or data 

compiled or collected for the purpose of 

identifying, evaluating, or planning the safety 

enhancement of potential accident sites, 

hazardous roadway conditions, or railwayhighway crossings, pursuant to sections 130, 

144, and 148 of this title or for the purpose of 

developing any highway safety construction 

improvement project which may be 

implemented utilizing Federal-aid highway 

funds shall not be subject to discovery or 

admitted into evidence in a Federal or State 

court proceeding or considered for other 

purposes in any action for damages arising from 

any occurrence at a location mentioned or 

addressed in such reports, surveys, schedules, 

lists, or data.

Though pleonastically expressed, this statutory 

privilege clearly has two parts. The first part excludes reports, 

data, and the like if they were compiled or collected to 

identify, evaluate, or plan ―the safety enhancement of 

potential accident sites, hazardous roadway conditions, or 

railway-highway crossings, pursuant to sections 130, 144, and 

148 of [Title 23].‖ The second part excludes such documents 

if they were compiled or collected to develop ―any highway 

safety construction improvement project which may be 

implemented utilizing Federal-aid highway funds.‖ The 

District Court concluded that the crossing reports were 

privileged under the first part of § 409.
19

Like all evidentiary privileges, we interpret this

privilege narrowly. Pierce Cnty. v. Guillen, 537 U.S. 129, 144 

(2003) (concluding that courts should interpret § 409 

narrowly because it ―impede[s] the search for the truth‖).

Moreover, the party invoking an evidentiary privilege has the 

burden of proof. See In re Grand Jury Investigation, 918 F.2d 

374, 385 n.15 (3d Cir. 1990) (―[A] party who asserts a 

privilege has the burden of proving its existence and 

applicability.‖).

We begin with the first part of the § 409 privilege.

Both sides agree that the reports from the National Crossing 

Inventory were collected to evaluate railway-highway 

crossings. They disagree, however, that the reports were 

collected ―pursuant to sections 130, 144, and 148 of [Title 

23].‖ Zimmerman asserts that collection of the reports was 

not pursuant to any section, while Norfolk Southern asserts 

that they were collected pursuant to § 130.

Congress passed the Federal-Aid Highway Act in 

1973. Pub. L. No. 93-87, 87 Stat. 250 (1973). The Act created 

the Federal Railroad Administration and imposed various 

safety-related obligations on states that accept federal funds. 

Some of these obligations are now codified in 23 U.S.C. 

§ 130. In particular, subsection (d) requires states to maintain 

an inventory of railroad crossings within their borders:

Each State shall conduct and systematically 

maintain a survey of all highways to identify 

those railroad crossings which may require 

separation, relocation, or protective devices, and 
20

establish and implement a schedule of projects 

for this purpose. At a minimum, such a 

schedule shall provide signs for all railwayhighway crossings.

23 U.S.C. § 130(d). When it was first passed, the Act did not 

require any federal agency to maintain a national crossing

inventory.

Despite the absence of a statutory requirement, various 

federal agencies, state highway departments, and private 

railroad associations ―formed a voluntary cooperative effort‖

to create the National Crossing Inventory. Federal Railroad 

Administration, U.S. DOT National Highway-Rail Crossing 

Inventory: Policy, Procedures and Instructions for States and 

Railroads 3 (2007), 

http://www.fra.dot.gov/downloads/safety/RXIPolicyInstructio

ns0807.pdf [―2007 Manual‖]. Railroads and the Department 

of Transportation agreed to share the costs, and the Federal 

Railroad Administration became responsible for maintaining 

the national inventory. See Federal Railroad Administration, 

Highway-Rail Crossing Inventory Instructions and 

Procedures Manual 1-3 to 1-4 (1996), 

http://www.fra.dot.gov/rrs/pages/fp_1499.shtml [―1996 

Manual‖].

Over the next few decades, states and railroads 

voluntarily submitted information to the inventory. The 

submission process changed over time—states and railroads 

sometimes submitted information independently, and 

railroads sometimes submitted information to states, which
21

then passed it along to the national inventory. Compare id. at 

4-1 (―[T]he State transportation agency should be the party 

who forwards all data item changes for any and all crossings 

to the [Federal Railroad Administration].‖ (emphasis 

omitted)), with 2007 Manual at 44–45 (indicating that 

railroads should send some information directly to the Federal 

Railroad Administration). Many states willingly submitted 

information to the national inventory because they were able 

to meet their duty to create a statewide inventory under 

§ 130(d) by participating in the national inventory. See 1996 

Manual at 1-1.

The cooperative effort notwithstanding, gaps remained 

in the National Crossing Inventory thirty years later. See

Letter from Norman Y. Mineta, U.S. Sec’y of Transp., to J. 

Dennis Hastert, Speaker of the U.S. House of Representatives 

(July 11, 2003), http://testimony.ost.dot.gov/final/rail04.pdf. 

The Department of Transportation urged Congress to pass 

legislation that would force states and railroads to fill the 

gaps. Id. Congress eventually responded by passing the Rail

Safety Improvement Act of 2008, Pub. L. No. 110-432, 122 

Stat. 4848. This Act requires states and railroads to 

independently submit information to the Secretary of 

Transportation on a regular basis. Significantly, the Act 

codified the submission requirements in separate places: the 

state-reporting requirement in 23 U.S.C. § 130(l) and the 

railroad-reporting requirement in 49 U.S.C. § 20160.

As noted above, the record in this case contains two 

reports submitted to the National Crossing Inventory after the 
22

passage of the Rail Safety Improvement Act in 2008. Both 

were submitted in 2010, one by the Commonwealth of 

Pennsylvania, the other by Norfolk Southern. J.A. 995–98.

The question, again, is whether they were collected or 

compiled pursuant to § 130.

We conclude that after the 2008 Act, state-submitted

reports are collected pursuant to § 130, but railroad-submitted

reports are not. As a result, only state reports are privileged 

under the first part of § 409. Our conclusion is textually 

based: states must submit crossing reports to the national 

inventory under 23 U.S.C. § 130(l) (which § 409 references), 

while railroads must submit under 49 U.S.C. § 20160 (which 

§ 409 does not reference). State reports are thus collected 

―pursuant to section[] 130,‖ and railroad reports are not.

Congress could have placed the railroad-reporting

requirement in § 130 alongside the state requirement—in that

case, railroad reports would be similarly privileged. But 

Congress instead chose to place the requirement in a different 

title of the United States Code. We regard that drafting choice

as meaningful. Congress may well have had a stronger 

interest in protecting states, rather than railroads, from 

litigation. See Guillen, 537 U.S. at 147 (indicating that the 

primary goal of § 409 is to protect ―state and local 

governments‖). Whatever the reason, the text is plain.

Accordingly, the 2010 Pennsylvania report is privileged 

under the first part of § 409 and the 2010 Norfolk Southern 

report is not.

The record also contains seven reports submitted prior 
23

to the passage of the Rail Safety Improvement Act of 2008—

some submitted by the Commonwealth of Pennsylvania, 

others by various railroads including Norfolk Southern. At 

first blush, the analysis is straightforward. Neither 23 U.S.C. 

§ 130(l) nor 49 U.S.C. § 20160 existed before 2008. States 

and railroads voluntarily participated in the National Crossing 

Inventory, so they did not submit reports pursuant to § 130 or 

any other statute. Even so, a few factors complicate the

analysis. 

The first complication is that § 130(d) has long 

required states to maintain statewide inventories of railroad

crossings. State inventories are thus ―compiled . . . pursuant 

to section[] 130‖ and so are privileged under § 409. To be 

sure, the pre-2008 reports in this case are from the national 

inventory. But states presumably rely on their own 

inventories when submitting reports to the national inventory.

It is therefore possible that the pre-2008 Pennsylvania reports 

from the national inventory either were originally collected 

pursuant to § 130 or rely on data originally collected pursuant 

to § 130.7

 

7 Another complication is that some states meet their 

duty to create a state inventory by participating in the national 

inventory. See 1996 Manual at 1-1. This means that for some 

states, the privileged state inventories are their submissions to 

the national inventory. In that case, the reports from the 

national inventory might be privileged. We need not take on 

this issue because Pennsylvania has its own crossing 
24

The second complication is that before the 2008 Act, 

railroads often submitted crossing reports directly to the 

states. The states used the railroad reports to create their 

inventories and then passed them along to the national

inventory. See 1996 Manual at 4-1. Such railroad reports 

were thus ―collected‖ by the states ―pursuant to section[] 

130.‖ Again, the pre-2008 railroad reports in this case are 

from the national inventory, but it is possible that the 

Commonwealth originally collected these reports to create its 

own inventory pursuant to § 130(d).

These complications raise the following question: Do 

reports originally collected pursuant to § 130(d)—and 

therefore privileged under § 409—lose the privilege when 

voluntarily submitted by a state to the federal government?

Zimmerman contends that the answer is found in Guillen. 

There, the county sheriff prepared an accident report after a 

deadly car crash. 537 U.S. at 136–40. The county public 

works department later acquired the report and used it to 

apply for funding under 23 U.S.C. § 152, which was one of 

the statutes listed in § 409 at the time. The Court concluded 

that the report was privileged in the hands of the public works 

department because the department collected it pursuant to 

§ 152. Id. at 144–46. The Court nevertheless concluded that 

the same report was not privileged in the hands of the sheriff 

because he did not collect it pursuant to any statute listed in 

 

inventory. See Pennsylvania Department of Transportation, 

Grade Crossing Electronic Document Management System

(2012), https://www.dot14.state.pa.us/gcedmsweb/home.jsp. 
25

§ 409. Id.

Guillen indicates that the question is whether the

immediate source of the documents—here, the Federal 

Railroad Administration—―collected‖ them ―pursuant to 

sections 130, 144, and 148 of [Title 23].‖ 23 U.S.C. § 409. 

But there is one important difference between the case before 

us and Guillen. The pre-2008 reports in our case might have 

been originally collected pursuant to § 130(d), whereas the 

report in Guillen was not originally collected pursuant to any 

statute listed in § 409. See 537 U.S. at 144–46. The Eighth 

Circuit has suggested that this difference is meaningful. See 

Robertson v. Union Pac. R.R. Co., 954 F.2d 1433, 1435 (8th 

Cir. 1992) (excluding a newspaper article that relied on 

privileged data to prevent ―circumvent[ing] the purpose of the 

statute‖).

We need not decide this difficult question. Norfolk 

Southern bears the burden of proving that the privilege 

applies. See In re Grand Jury Investigation, 918 F.2d at 385

n.15. And it has failed to show that the seven national reports 

from before 2008 were ever ―collected . . . pursuant to 

section[] 130.‖ As we have pointed out, it is certainly possible 

that the reports either were originally collected pursuant to 

§ 130(d) or relied on data collected pursuant to § 130(d). But 

Norfolk Southern has offered no evidence that they were, and 

we construe the available evidence in the light most favorable 

to Zimmerman. As a result, we conclude that the District 

Court improperly excluded the seven pre-2008 crossing 

reports at the summary-judgment stage.
26

Although eight crossing reports are not covered by the 

first part of the privilege, they will still be inadmissible if they 

fall within the second part—that is, if they were ―compiled or 

collected . . . for the purpose of developing any highway 

safety construction improvement project which may be 

implemented utilizing Federal-aid highway funds.‖ 23 U.S.C. 

§ 409. We turn to this second part.

There are two plausible interpretations of the relevant 

language in § 409. The broad interpretation is that a report 

was ―collected . . . for the purpose of developing any highway 

safety construction improvement project‖ if the agency 

collected the report with the understanding that someone 

might use it to improve highway safety in a later construction 

project.8The narrow interpretation is that a report was 

collected for the statutory purpose if the agency collected it

with the intent to use it for a particular construction project. 

In short, the broad interpretation would privilege any 

document that was collected to improve highway safety—

such as reports in a database—while the narrow interpretation 

would privilege only those documents that were collected for 

a particular project. 

We follow the Supreme Court’s example and adopt the 

narrow interpretation. See Guillen, 537 U.S. at 144–45

 

8 Despite the surfeit of modifiers, we interpret the 

phrase ―highway safety construction improvement project‖ to 

mean simply a construction project that improves highway 

safety.
27

(noting two plausible interpretations of a separate clause in 

§ 409 and adopting the ―narrower view‖). First, ―statutes 

establishing evidentiary privileges must be construed 

narrowly because privileges impede the search for the truth.‖ 

Id.; see also In re Grand Jury Investigation, 918 F.2d at 386 

(recognizing ―the general constructional rule that evidentiary 

privileges should be narrowly construed‖).

Furthermore, the narrow interpretation is more faithful 

to the text. The broad interpretation renders much of § 409 

redundant: if the second part privileges any document that 

might be used to improve highway safety in a later 

construction project, there would be no need for the first part 

to privilege documents ―compiled or collected for the purpose 

of identifying, evaluating, or planning the safety enhancement 

of potential accident sites, hazardous roadway conditions, or 

railway-highway crossings.‖ After all, these specific purposes 

all deal with information that might be used to improve safety

in a later project. So every document that is privileged under 

the first part would also be privileged under the second part. 

We eschew the broad interpretation to avoid redundancy. See 

Gustafson v. Alloyd Co., 513 U.S. 561, 574 (1995) (―[T]he 

Court will avoid a reading which renders some words 

altogether redundant.‖); Ki Se Lee v. Ashcroft, 368 F.3d 218, 

223 (3d Cir. 2004) (recognizing ―the goal of avoiding 

surplusage in construing a statute‖).

And the privilege uses different verbs in the first and 

second parts—―identifying, evaluating, or planning‖ in the 

first and ―developing‖ in the second. The first part seems to 
28

privilege documents that deal with both potential and actual 

projects, while the second part appears to privilege only those 

documents that deal with actual projects. Or to put it another 

way, the second part privileges documents prepared when the 

agency already has a construction project in mind—and not 

simply documents that might be used to plan later projects. 

We conclude that the second part of § 409 excludes 

only those documents that were collected for a particular 

highway-safety construction project. Here, there is no 

indication that the Diller Avenue reports were collected for a 

particular project—instead, they were collected to establish a 

national database that might be used in future projects. The 

second part of § 409 does not apply.

In sum, Zimmerman has nine crossing reports that 

suggest the Norfolk Southern train was going too fast when it 

entered the Diller Avenue crossing. The District Court 

excluded all nine reports under § 409. It should, however,

have excluded only the 2010 Pennsylvania report. We now 

consider Zimmerman’s other evidence of excessive speed.

3. The District Court improperly excluded nine 

accident reports.

Zimmerman obtained ten Department of 

Transportation accident reports. The reports cover accidents

that occurred at the Diller Avenue crossing over the past few 

decades, from a minor collision in 1975 to Zimmerman’s 

crash in 2008. The reports describe the conditions of the 

accident—weather, number of injuries, time of day, and so 
29

on. And they list the classification of the track at the crossing: 

four reports state that the track was Class 2, one that it was

Class 3, and five—all from the 1970s—that it was Class 1. 

The ten reports provide at least mixed evidence that the 

crossing was Class 1 and thus that the Norfolk Southern train

was speeding. Even so, the District Court excluded the reports 

based on another evidentiary privilege: that contained in 49 

U.S.C. § 20903.9This statute states in part:

No part of an accident or incident report filed 

by a railroad carrier under section 20901 of 

[Title 49] . . . may be used in a civil action for 

damages resulting from a matter mentioned in 

the report.

The parties agree that the accident reports were ―filed 

by a railroad carrier‖ under 49 U.S.C. § 20901. But 

Zimmerman argues that the privilege excludes only the report 

of his accident, not the nine other reports. His argument is 

textual: the privilege does not exclude accident reports from 

all civil cases. It merely excludes reports from civil cases that 

result ―from a matter mentioned in the report.‖ In

Zimmerman’s view, his ―civil action for damages‖ arose from 

the accident mentioned in his report, but it did not arise from 

the accidents mentioned in the remaining nine reports. We 

agree that these reports fall outside the privilege.

 

9

The District Court also relied on 49 C.F.R. 

§ 225.7(b), but this regulation merely repeats the § 20903 

statutory privilege.
30

Norfolk Southern urges us to broadly interpret the term 

―matter.‖ In Norfolk Southern’s view, ―matter mentioned in 

the report‖ does not simply mean ―the accident mentioned in 

the report,‖ as Zimmerman implicitly argues. It also means

―the location mentioned in the report.‖ The privilege 

therefore excludes all ten reports, since Zimmerman’s lawsuit 

is ―a civil action for damages resulting from a matter‖—or 

location, the Diller Avenue crossing—―mentioned in the

report[s].‖ This argument is unpersuasive because Norfolk 

Southern takes the word ―matter‖ completely out of context. 

The phrase ―damages resulting from‖ appears directly before

the word ―matter,‖ indicating that a ―matter‖ is the event that 

caused the harm discussed in the report. See Lee v. Nat’l R.R. 

Passenger Corp. (Amtrak), No. 3:10-cv-00392, 2012 WL 

130267, at *2 (S.D. Miss. Jan. 17, 2012) (holding that 

§ 20903 does not apply to prior accident reports at the same

crossing). We conclude that § 20903 excludes the report of 

Zimmerman’s accident but not the nine other reports.

Norfolk Southern also argues that the § 409 privilege 

excludes the accident reports. Again, the privilege has two 

parts. The first part excludes reports collected to identify, 

evaluate, or plan ―the safety enhancement of potential 

accident sites, hazardous roadway conditions, or railwayhighway crossings, pursuant to sections 130, 144, and 148 of 

[Title 23].‖ This part plainly does not apply because the 

accident reports were collected pursuant to 49 U.S.C. 

§ 20901—not pursuant to any section of Title 23.

The second part of § 409 excludes reports if they were 
31

collected to develop ―any highway safety construction 

improvement project which may be implemented utilizing 

Federal-aid highway funds.‖ As we concluded above, the

language excludes only those documents that were collected 

for a particular highway-safety construction project. Like the 

reports in the National Crossing Inventory, accident reports 

are collected for a variety of reasons. One reason is to provide 

data for future safety projects. In most cases, however, 

accident reports are not collected for a particular highwaysafety construction project. Nor does Norfolk Southern point 

to any evidence that the Diller Avenue accident reports were 

collected for a particular project. Therefore, nine of the ten 

accident reports are admissible.

Based on the foregoing, we conclude that most of the 

crossing reports and accident reports are admissible. These 

reports suggest that the speed limit at the crossing was ten

miles per hour or, equivalently, that the track was Class 1. 

That said, Zimmerman’s claim is far from a slam-dunk. Other

evidence suggests that the track was Class 2 or Class 3. 

Norfolk Southern claims that it reclassified the track but 

failed to update the crossing reports. This claim is consistent 

with the accident reports—the most recent reports list the 

track as Class 2 or Class 3. But acceptance or rejection of

Norfolk Southern’s explanation is the province of a jury. For 

now, the conflicting evidence results in Zimmerman’s 

excessive-speed claim surviving summary judgment.
32

4. Zimmerman’s alternative claim of track 

misclassification is preempted.

Zimmerman advances an alternative argument. If the

track was in fact classified as Class 2 or Class 3, Zimmerman 

claims that Norfolk Southern should be liable for 

misclassification. According to Zimmerman, the limited sight 

distance imposed a duty on Norfolk Southern to classify the 

track as Class 2 or higher.

The first question—and, as it turns out, the only

question—is whether Zimmerman’s alternative claim avoids

preemption. Zimmerman argues that Norfolk Southern 

violated a federal standard of care. See 49 U.S.C. 

§ 20106(b)(1)(A). He points to 49 C.F.R. pt. 213, which 

contains regulations for each class of tracks. But none of the 

regulations discuss track visibility. Zimmerman curiously 

cites two regulations that have nothing to do with visibility. 

See 49 C.F.R. §§ 234.203 (setting standards for control 

circuits), 234.225 (regulating the activation of warning 

systems). He also points to a regulation in Title 23 that

mentions the term ―sight distance.‖ 23 C.F.R. § 646.214(E). 

But this regulation merely states that a flashing signal might 

be necessary if the sight distance is ―unusually restricted.‖ It 

does not require railroads to select a track class based on sight 

distance—nor does any regulation establish the sight distance 

necessary for each track class. Quite simply, no relevant

federal standard of care exists.

Despite the absence of a federal standard of care, 

Zimmerman may still avoid preemption if his claim falls 
33

outside the scope of the original FRSA preemption provision.

See 49 U.S.C. § 20106(a)(2). As we have previously made 

clear, state claims are within the scope of this provision if 

federal regulations ―cover‖ or ―substantially subsume‖ the 

subject matter of the claims. Strozyk, 358 F.3d at 273 (citing 

49 U.S.C. § 20106(a)(2); Easterwood, 507 U.S. at 664). The

regulations must do more than ―touch upon or relate to that 

subject matter.‖ Easterwood, 507 U.S. at 664 (internal 

quotation marks omitted). 

The regulations in 49 C.F.R. pt. 213 subsume 

Zimmerman’s misclassification claim. These regulations 

establish varying requirements for each class of tracks—

governing everything from gage, alinement, and elevation, to 

crossties, curve speed, and rail joints. See 49 C.F.R. 

§§ 213.53 (explaining the proper method for measuring

gage), 213.55 (creating alinement standards), 213.57

(establishing the maximum speed based on track elevation 

and curvature), 213.109 (requiring more crossties for higher 

track classes), 213.121 (noting that rail joints must ―be of a 

structurally sound design‖).

The regulations are part of a broad scheme to 

standardize railroad tracks. Admittedly, there is no regulation 

that classifies tracks based on sight distance. But the breadth 

of the scheme implies a decision not to classify on that basis. 

At the very least, it implies that the federal government did 

not want states to decide how tracks would be classified. We 

doubt that the federal government would create a detailed 

system with the expectation that states would impose extra
34

classification requirements—especially given the risk that the 

requirements would vary from state to state. This regulatory 

scheme preempts Zimmerman’s misclassification claim.

B

Zimmerman’s second claim is that Norfolk Southern 

failed to maintain a safe crossing area. As before, we must 

address the threshold question of preemption. We then 

consider whether Zimmerman produced sufficient evidence to 

avoid summary judgment.

1. Zimmerman’s claim of failure to maintain a 

safe crossing area is not preempted.

Zimmerman makes two allegations in support of his 

unsafe-crossing claim. The first is that Norfolk Southern 

negligently maintained the crossing devices at Diller 

Avenue—in particular, ―the sign that warned of the 

approaching crossing was covered by tree branches, the 

pavement markings no longer existed, and the crossbucks had 

been allowed to fall into disrepair.‖ Appellant’s Br. at 43. 

Zimmerman’s second allegation is that Norfolk Southern 

failed to provide adequate sight distance.10

 

10 Zimmerman also alleges that Norfolk Southern 

violated this duty by failing to provide flashing lights at the 

crossing. As we conclude in Part III.C below, the FRSA 

preemption provision bars claims of inadequate crossing 

devices.
35

Strozyk is directly on point. There, we considered a 

claim for wrongful death resulting from a crash at a railroad 

crossing. 358 F.3d at 270. The decedent’s estate alleged that 

the railroad had failed to keep the crossing safe. We 

interpreted what is now subsection (a) of the FRSA 

preemption provision and explained that ―[a] railroad may 

still be liable for other negligent conduct, such as the failure 

to maintain a working crossing arm . . . .‖ Id. at 276 (quoting 

Evans Timber Co. v. Cent. of Ga. R.R. Co., 519 S.E.2d 706, 

709–10 (Ga. Ct. App. 1999)); see also Terrell v. Soo Line 

R.R. Co., No. 2:04-cv-095, 2005 WL 4882750, at *7 (S.D. 

Ind. Sept. 1, 2005) (noting that preemption would improperly

insulate railroads ―even if the crossbucks had fallen to the 

ground and were unobservable by a passing motorist‖). We 

also concluded that 23 C.F.R. § 646.214(b)(3) does not

preempt sight-distance claims, even though the regulation 

mentions ―unusually restricted sight distance‖ as a factor that 

might require states to install flashing lights. We reasoned

that ―the plain language‖ of the regulation ―indicates that the 

subject matter is the adequacy of warning devices, not the 

considerations involved in choosing them or state negligence 

law more broadly. . . . The bare mention of [conditions such 

as sight distance] does not indicate an intent to regulate those 

conditions.‖ Strozyk, 358 F.3d at 273.

The 2007 FRSA amendment did not supersede

Strozyk,

11 and thus both parts of Zimmerman’s unsafecrossing claim avoid preemption. See id. at 277 (―[The 

 

11 See supra Part II.
36

plantiffs’] claims that [the defendant] failed to maintain a safe 

grade crossing . . . and relatedly failed to ensure clear sight 

lines of oncoming trains are not preempted.‖). Even if Strozyk

were not binding, Zimmerman’s negligent-maintenance 

allegation would avoid preemption because 49 C.F.R. 

§ 234.245 creates a federal standard of care governing the 

maintenance of crossbucks. 49 U.S.C. § 20106(b)(1)(A); see 

49 C.F.R. §§ 234.245 (―Each sign mounted on a highway-rail 

grade crossing signal post shall be maintained in good 

condition and be visible to the highway user.‖), 234.3 

(indicating that railroads are responsible for maintaining signs

under § 234.245).12

2. Zimmerman produced sufficient evidence that 

Norfolk Southern failed to maintain the 

crossing devices and that the sight distance 

was inadequate.

The District Court agreed that at least part of 

Zimmerman’s second claim avoided preemption. The Court 

nevertheless granted summary judgment on his entire claim, 

concluding that he had failed to satisfy the elements of 

 

12 Zimmerman also produced a document from the 

Federal Railroad Administration that suggested the necessary 

sight distance was 376 feet. See J.A. 697. This document, 

however, does not create a standard of care for preemption 

purposes because the document is not ―a regulation or order 

issued by the Secretary of Transportation.‖ 49 U.S.C. 

§ 20106.
37

negligence. In particular, the Court concluded that Norfolk 

Southern did not have ―a duty to remove a privately owned 

building that potentially obscure[s] sight lines.‖ Zimmerman 

v. Norfolk S. Corp., No. 10-cv-02267, 2011 WL 3625039, at 

*12 n.9 (E.D. Pa. Aug. 17, 2011). Zimmerman argues that the 

District Court ignored his inadequate-maintenance allegation 

and misconstrued Pennsylvania law on the question of sight 

distance. We agree with Zimmerman—both parts of his 

second claim survive summary judgment.

We first consider Zimmerman’s allegation that the 

warnings had fallen into disrepair. The well-worn elements of 

common-law negligence are, of course, duty, breach, 

causation, and damages. Under Pennsylvania law, railroads 

have a duty to maintain railroad warning devices. Geelen v. 

Pa. R.R. Co., 161 A.2d 595, 598 (Pa. 1960) (―A railroad 

company is under a duty to maintain a public crossing in a 

state of good repair.‖); see also Conner, 263 F.2d at 946 

(stating that under Pennsylvania law, a railroad might be 

liable for failing to maintain crossing devices); Buchecker v. 

Reading Co., 412 A.2d 147, 153 (Pa. Super. Ct. 1979) 

(considering ―evidence that the signal was not operating at the 

time‖ of the accident).13

 

13 Judge Aldisert invokes the occupied-crossing rule to 

argue that Norfolk Southern did not have a duty to maintain 

the crossing devices. Neither party has mentioned this rule, 

and for good reason: it does not apply here. As the 

Pennsylvania Supreme Court has explained, the rule applies 
38

According to Zimmerman, Norfolk Southern breached

this duty because ―the sign that warned of the approaching 

crossing was covered by tree branches, the pavement 

markings no longer existed, and the crossbucks had been 

allowed to fall into disrepair.‖ Appellant’s Br. at 43. Viewed 

in the light most favorable to Zimmerman, the record 

supports these allegations.

Photographs suggest that there once was a white line

north of the crossing, but that the line had faded by the time 

 

only when ―an engine or a draft of cars is on the crossing or 

street or highway and is visible to such highway users.‖ Cella 

v. Pa. R. Co., 70 A.2d 638, 640 (Pa. 1950) (emphasis added). 

When both elements are met, ―the presence of the engine or 

draft on the crossing or street [is] sufficient warning to 

[motorists] of the dangers incident thereto.‖Id. But a train’s 

presence does not provide ―sufficient warning‖ when it enters 

the crossing only after motorists have reached the point of no 

return. See Krentz v. Consol. Rail Corp., 910 A.2d 20, 28 n.10 

(Pa. 2006) (noting that, despite the occupied-crossing rule, 

―the law does impose a duty on railroads to warn of 

approaching trains‖). 

Here, the train rushed into view at the last second. 

Because the train was not visible in time for Zimmerman to 

avoid the accident, see J.A. 687, the rule does not apply. A 

contrary holding would imply that a train racing down the 

tracks at double the speed limit would avoid liability 

whenever a motorist ran into it—even when the train’s speed 

effectively prevented motorists from avoiding the collision.
39

of Zimmerman’s collision. See J.A. 508, 716, 983.14 Other 

photographs indicate that tree branches covered both the 

crossbuck and the yellow advanced warning sign. For 

example, a 2008 photograph shows that tree branches covered 

the yellow warning sign—although the picture is too dark and 

grainy to be conclusive. See id. 516. And a series of 

photographs from 2011 show that a tree standing next to the 

warning sign partially obscures the crossbuck—at least from 

the perspective of someone who is more than 250 feet away.

See id. at 719–20.15 Both parties cite an expert’s statement

that tree branches covered the crossbuck, see Appellant’s Br. 

at 43 (citing J.A. 690); Appellee’s Br. at 31 n.11 (same), but 

 

14 There is no painted line in a 2008 photograph, but 

there is a line in a 2011 photograph. See J.A. 508, 716, 983. 

Of course, subsequent remedial measures are inadmissible to 

prove negligence. See Fed. R. Evid. 407. Yet the paint in the 

2011 photograph suggests that the pavement was painted 

before the 2008 accident, but that the marking faded and 

required a fresh coat of paint. This is not the only possible 

inference from the facts, but it is a ―reasonable inference,‖ 

which is all that is necessary at this stage. InterVest, Inc. v. 

Bloomberg, L.P., 340 F.3d 144, 159–60 (3d Cir. 2003)

(explaining the standard for summary judgment).

15 According to Judge Aldisert, Zimmerman did not 

argue that tree branches covered the crossbuck—only that the 

crossbuck had fallen into disrepair. But if Norfolk Southern in 

fact allowed tree branches to cover the crossbuck, it seems 

accurate to say that it ―allowed‖ the crossbuck ―to fall into 

disrepair.‖ Appellant’s Br. at 43.
40

the expert’s report mysteriously contains no such statement.

Either way, a reasonable jury could accept Zimmerman’s 

narrative based on the photographs.

Norfolk Southern also argues that there is insufficient 

evidence of causation. Darkness had fallen by the time 

Zimmerman began riding home. He may well have hit the 

train even if the obscuring branches had been pruned and the 

white line had been repainted. Yet in his deposition, 

Zimmerman said that he had crossed the track many times 

before the accident and that he believed the crossing was 

inactive. J.A. 235 (―[I] did not know that that track had a 

regular train on it. I have never seen a train on that track . . . . 

I certainly wasn’t expecting—to my knowledge, it was an 

unused track.‖). From this testimony—and from the other 

evidence that the crossing was poorly maintained—it is 

reasonable to infer that state of disrepair at least contributed 

to his belief that the crossing was inactive. See InterVest, Inc. 

v. Bloomberg, L.P., 340 F.3d 144, 159–60 (3d Cir. 2003) 

(―When analyzing the sufficiency of the evidence, the court 

must view the facts and any reasonable inferences drawn 

therefrom in the light most favorable to the party opposing 

summary judgment.‖). As a result, it is also reasonable to 

infer that on the night of the accident, he approached the 

crossing with less caution than he otherwise would have.

We now turn to the allegation that Norfolk Southern 

failed to provide adequate sight distance. This allegation also

survives summary judgment. Under Pennsylvania law, 

railroads have a duty to ensure that motorists are able to see 
41

approaching trains. See Fallon v. Penn Cent. Transp. Co., 279 

A.2d 164, 167 (Pa. 1971). The District Court cited our 

opinion in Strozyk and concluded that the duty merely

requires railroads to remove excess vegetation, as there is no 

―duty to modify or remove a privately owned building which 

is located off the railroad’s right of way.‖ Zimmerman, No. 

10-cv-02267, 2011 WL 3625039, at *12 n.9 (citing Strozyk, 

358 F.3d at 276–77).

But Pennsylvania courts have held that the duty 

extends well beyond the removal of vegetation. In Johnson v. 

Pa. R.R. Co., 160 A.2d 694 (Pa. 1960), a motorist’s view was 

obstructed by buildings, utility poles, and a hedge. The 

Pennsylvania Supreme Court concluded:

A railroad company may, in some instances 

have no choice as to location of crossings, . . . 

but where, as here, physical conditions visually 

blanket the speeding train until several short 

seconds before it sweeps, like a steel and iron 

tornado, into a crossing, a due responsibility for 

the safety of mankind dictates that something be 

done to alert the public of the omnipresent 

danger . . . .

Id. at 697. In Fallon, the Pennsylvania Supreme Court found 

sufficient evidence of negligence where the plaintiffs’ view 

was obstructed by a building. 279 A.2d at 167. According to 

the court, ―it was difficult if not impossible to gain an 

adequate view of the west-bound track without putting one’s 

car in or dangerously close to the swath of an oncoming 
42

train.‖ Id; see also Buchecker, 412 A.2d at 156–57 (―[I]t is 

proper for the jury to take into consideration the physical 

conditions at the crossing . . . [and] the nature of the 

surroundings.‖) (citing Cummings v. Pa. R.R., 151 A. 590, 

591 (Pa. 1930)). To be sure, no Pennsylvania court has 

expressly held that railroads have a clear duty to modify 

private buildings. But cases such as Johnson and Fallon have 

indicated that the jury should consider privately owned 

buildings when deciding whether the railroad breached its 

duty to provide adequate sight distance.

We conclude that the building in this case is relevant 

in deciding whether Norfolk Southern provided adequate 

sight distance. The jury can decide whether Norfolk Southern 

should have asked the building’s owner to remove a sign that 

was along Diller Avenue. Norfolk Southern even had a policy 

for doing so: ―If an obstruction is located off the right-of-way, 

the owners of the land containing the obstruction should be 

contacted personally and an appeal made to the landowner to 

remove the obstruction. The personal contact should be 

followed up with a letter, with a copy to the appropriate state 

agency.‖ J.A. 1051. If the appeal fails, ―the matter should be 

referred to the Law Department for guidance,‖ id., 

presumably to decide whether to use eminent domain under 

15 Pa. Cons. Stat. § 1511 (allowing public utility corporations 

such as railroads to use eminent domain). 

The jury can also decide whether Norfolk Southern 

should have enlisted the help of the Commonwealth or used 

eminent domain. And if the jury decides that Norfolk 
43

Southern breached its duty, Norfolk Southern’s policy and 15 

Pa. Cons. Stat. § 1511 might be evidence of causation. They 

suggest that Norfolk Southern could have improved 

conditions at the crossing in a way that would have prevented 

the accident.16

Zimmerman’s second claim is far from 

overwhelming—the evidence of disrepair is conflicting, and it

is unclear whether Norfolk Southern’s inaction caused the 

 

16 Judge Aldisert invokes the longstanding duty to 

―stop, look, and listen‖ and argues that Norfolk Southern did 

not have an obligation in this case to provide adequate sight 

distance. See Briach v. Pa. R.R. Co., 462 F.2d 266, 268 (3d 

Cir. 1972); 75 Pa. C.S. § 3341(a). Zimmerman supposedly 

violated this duty because he did not stop before crossing the 

tracks. This might be true, but Zimmerman’s negligence is a 

separate question. As the Pennsylvania Superior Court has 

explained, ―one who fails to stop, look, and listen will not be 

precluded from recovery where the failure is not negligent.‖ 

Buchecker v. Reading Co., 412 A.2d 147, 154 (Pa. Super. 

1979) (emphasis added). 

The District Court explicitly refrained from deciding 

whether Zimmerman was negligent. Zimmerman, 2011 WL 

3625039, at *21 n.34 (―I do not need to consider defendant’s

additional arguments that plaintiff was comparatively 

negligent by failing to comply with Pennsylvania law.‖). And 

neither side has addressed the question of Zimmerman’s 

negligence on appeal. We therefore refuse to affirm on these 

grounds.
44

sight distance to remain inadequate. All the same, we must 

construe the evidence in the light most favorable to 

Zimmerman. There is sufficient evidence of each element to

allow the claim to go forward.

C

Zimmerman’s third and final claim is that Norfolk 

Southern was negligent per se for violating various

requirements in 23 C.F.R. § 646.214(b).

17 In particular, 

subsection (b)(3)(i) states that crossings with limited sight 

distance and high train speeds must have ―adequate warning 

devices,‖ defined in the statute as automatic gates and 

flashing lights. And subsection (b)(1) states that all ―traffic 

control devices‖ must comply with the Manual on Uniform 

Traffic Control Devices. Zimmerman asserts that Norfolk 

Southern violated both provisions. The District Court decided

that the claim was preempted.

We agree that Zimmerman’s third claim is preempted. 

For starters, neither regulation creates a federal standard of 

care. See 49 U.S.C. § 20106(b)(1)(A). We analyze the

regulations separately. Subsection (b)(3)(i)(C) states:

 

17 Zimmerman also identifies a number of internal 

rules that Norfolk Southern supposedly violated. These 

supposed violations do not help Zimmerman avoid 

preemption because he fails to show the internal rules were 

―created pursuant to a regulation or order.‖ 49 U.S.C. 

§ 20106(b)(1)(B).
45

Adequate warning devices . . . on any project 

where Federal-aid funds participate in the 

installation of the devices are to include 

automatic gates with flashing light signals when 

. . . the following conditions exist: . . . High 

Speed train operation combined with limited 

sight distance at either single or multiple track 

crossings.

Zimmerman argues that subsection (b)(3) creates a federal

standard of care—one that requires Norfolk Southern to 

install automatic gates and flashing lights—because the sight 

distance at the Diller Avenue crossing is limited.

The Eighth and Tenth Circuits have rejected similar 

arguments. See Grade, 676 F.3d at 686–87 (concluding that 

23 C.F.R. § 646.214(b)(3) and (4) preempt claims against 

railroads for installing inadequate warning devices at railroad 

crossings); Henning, 530 F.3d at 1215 (same). Subsection 

(b)(3) does not impose on railroads an ongoing duty—instead, 

it ―displace[s] state and private decisionmaking authority.‖

Henning, 530 F.3d at 1212 (quoting Easterwood, 607 U.S. at 

670) (internal quotation marks omitted). More importantly,

subsection (b)(3) ―place[s] the responsibility for 

implementing adequate warning devices on the State, thereby 

preempting any cause of action alleging a railroad failed to 

properly install an adequate warning device.‖ Grade 676 F.3d 

at 686. Railroads cannot, ―as a matter of law, fail to comply‖

with subsection (b)(3). Id. (quoting Henning, 530 F.3d at 

1215).
46

We find this reasoning persuasive. The 

Commonwealth of Pennsylvania installed crossbucks at the 

Diller Avenue crossing with the use of federal funds and the 

help of the crossing’s previous owner. Norfolk Southern, as 

the current owner, has a duty to maintain the crossing 

devices. See Strozyk, 358 F.3d at 276. But the Commonwealth 

is ultimately responsible for ensuring that the devices comply 

with subsection (b)(3). As a result, subsection (b)(3) does not

impose on Norfolk Southern a federal standard of care.

The same is true of subsection (b)(1). Zimmerman tries 

to avoid Grade and Henning by asserting that Norfolk 

Southern also violated subsection (b)(1):

All traffic control devices proposed shall 

comply with the latest edition of the Manual on 

Uniform Traffic Control Devices for Streets and 

Highways supplemented to the extent 

applicable by State standards.

Zimmerman argues that subsection (b)(1) imposes on 

railroads an ongoing duty to update their crossing devices. 

Norfolk Southern violated this supposed duty by failing to 

update the crossbucks to comply with the latest Manual on 

Uniform Traffic Control Devices. This argument is 

inconsistent with the text, which requires that ―proposed‖

devices—not already existing devices—comply with the 

manual. Moreover, subsection (b)(1) is part of the same 

scheme as subsection (b)(3). Both subsections create rules

that states must obey to receive federal funds. Neither 

imposes on railroads a standard of care.
47

Absent a federal standard, Zimmerman can avoid

preemption only if there are no federal regulations that cover 

the subject matter of his inadequate-device claim. 49 U.S.C. 

§ 20106(a)(2). Unfortunately for Zimmerman, the Supreme 

Court has already concluded that subsections (b)(3) and (b)(4) 

cover the subject matter of such claims. See Shanklin, 529 

U.S. at 352–53 (citing Easterwood, 507 U.S. at 670). These 

regulations are preemptive because they ―displace state and 

private decisionmaking authority by establishing a federallaw requirement that certain protective devices be installed or 

federal approval obtained.‖ Easterwood, 507 U.S. at 670. 

Zimmerman tries to escape preemption by citing the Supreme 

Court’s statement that subsection (b)(1) ―does not pre-empt 

state tort actions.‖ Shanklin, 529 U.S. at 352. But this 

language does not save Zimmerman’s claim—subsections 

(b)(3) and (b)(4) clearly preempt his inadequate-device claim. 

It is of no consequence whether subsection (b)(1) does the 

same.

Zimmerman is unable to avoid preemption by asserting

that Norfolk Southern installed the wrong warning devices—

even though he was able to avoid preemption by asserting 

that Norfolk Southern failed to maintain them. See supra Part 

III.B.1. While it may seem that this scheme is internally 

inconsistent, it is nonetheless the scheme Congress has

established.

IV

Accordingly, we will reverse the District Court’s grant 

of summary judgment on Zimmerman’s first and second 
48

claims but affirm its grant of summary judgment on 

Zimmerman’s third claim.
1

ALDISERT, Circuit Judge, Dissenting, and Concurring in 

Part

Robert Zimmerman appeals from an order of the 

District Court, which granted Norfolk Southern Corporation‟s 

motion for summary judgment. He had filed a civil complaint 

against Norfolk Southern Corporation (“Norfolk Southern”) 

in the District Court seeking damages for injuries sustained 

when he abruptly applied his motorcycle brakes at a railroad 

crossing and flew over the motorcycle‟s handlebars, colliding 

with the side of a lead train engine proceeding over the

crossing. He bottomed his personal injury claim against the 

railroad on (1) negligent failure to warn of an approaching 

train; (2) negligent failure to maintain a safe grade crossing

area; and (3) negligence per se for violating various portions 

of 23 C.F.R. § 646.214(b) (adequate warning devices). I 

would affirm the judgment of the United States District Court 

for the Eastern District of Pennsylvania in its entirety.

Accordingly, I join that portion of the majority 

opinion that affirms the District Court‟s determination that 

Zimmerman‟s negligence per se claim, set forth above as the 

third issue, is preempted. I concur also in the majority‟s 

approach to analyzing the Federal Railroad Safety Act 

(“FRSA”) preemption provision, codified at 49 U.S.C. 

§ 20106. I am unable to agree with the majority‟s reversal of 

the judgment on the two other issues presented to us. I

therefore join Parts II and III C of the majority opinion and 

dissent as to Parts III A and B.

I.
2

On the evening of June 12, 2008, Robert Zimmerman 

was operating his motorcycle southward on Diller Avenue in

New Holland, Pennsylvania. He was wearing a full-face 

helmet with a visor and was familiar with the Diller Avenue 

railroad crossing because he had traveled down Diller Avenue

and through the crossing “hundreds” of times before this 

incident. App. 00230. At approximately 10 p.m. that evening,

two locomotives owned by Norfolk Southern—Engine 5657 

and Engine 5656—approached Diller Avenue. The engineer, 

Douglas Eppley, and the conductor, Stephen Romberger, 

were stationed in the head of the lead locomotive, Engine 

5657. As the train entered the Diller Avenue crossing, 

Zimmerman, who had been traveling on his motorcycle 

approximately 30 to 35 miles per hour, abruptly applied his 

brakes and flew over the handlebars of his motorcycle. His 

body struck the side of the fuel tank portion of the lead 

engine. As a result of the collision, Zimmerman sustained 

extensive injuries and was airlifted to Lancaster General 

Hospital. He was subsequently transferred to a rehabilitation 

center, where he remained until his discharge in October 

2008. He was left partially paralyzed.

Norfolk Southern operates the railroad crossing at 

Diller Avenue. The crossing protects southbound motorists 

with a crossbuck1on the side of the road in accordance with 

the Manual on Uniform Traffic Control Devices 

(“MUTCD”). This was a reflectorized crossbuck installed in 

 

1 A crossbuck is an X-shaped sign that reads: “Railroad 

Crossing,” and “requires road users to yield the right-of-way 

to rail traffic at a highway-rail grade crossing.” U.S. Dept. of 

Transp. Fed. Highway Admin., Manual on Uniform Traffic 

Control Devices, 542 (2009). 
3

1987. Norfolk Southern also placed a black-and-yellow 

railroad-grade crossing sign approximately 150 feet north of 

the crossing. The company neither possesses nor controls any 

land or property in the vicinity of the Diller Avenue crossing 

other than its right-of-way.

Train conductor Romberger was positioned in the lead 

locomotive of a two-engine train. Positioned on the left side,

he saw the motorcycle approaching when Zimmerman was 

approximately 50 feet from the crossing, and he realized that, 

“given Mr. Zimmerman‟s speed[,] . . . he was going to collide 

with us.” App. 00113. Zimmerman‟s body collided with the 

fuel tank of the lead engine of the train approximately 30 feet 

from its front leading edge. The crossing is only 29 feet wide. 

The lead engine, therefore, was already through the crossing 

at the time Zimmerman collided with the train. 

Zimmerman has no present recollection of the 

incident.2Two independent witnesses, Seth Huyard and Chad 

Kaufman, who were traveling in a truck approximately 60 

feet behind Zimmerman on Diller Avenue, both “heard the 

train blowing its horn” as they approached the railroad 

 

2 Because Zimmerman was unable to testify about the 

relevant aspects of the event, I reject the majority opinion‟s 

reference to his alleged observations before his collision with 

the side of the train. The majority opinion states that “[w]hen 

he was less than seventy-six feet away, he noticed that a train 

was approaching. He tried to stop, but his front brake locked 

and he flew over the handlebars, colliding headfirst with a 

locomotive.” Majority Opinion 2-3. In Zimmerman‟s 

deposition, he stated that he did not recall seeing the train on 

the night of the accident. App. 00236-00237.
4

crossing. App. 00520-00521. Huyard, the truck‟s driver, 

stated that “as the train entered the intersection the 

motorcycle rider appeared to apply his front brake causing 

him to go over the handlebars.” App. 00520. Kaufman, who 

was riding in the truck, saw “the train cross Diller Avenue. 

[He] then saw the motorcycle go into the side of the train.” 

App. 00521. 

At the time of the collision, each locomotive was 

equipped with a digital recording device, known as an Event 

Data Recorder (“EDR”), which recorded information such as 

speed and horn activation. According to the EDR, the train 

was traveling at approximately 24 miles per hour at the time 

of the collision. The EDR also recorded that the train horn 

was activated beginning at a point of approximately onequarter mile prior to the crossing and continued through the 

crossing, sounding for a total of 45 seconds.

On May 14, 2010, Zimmerman filed a four-count civil 

complaint against Norfolk Southern. On March 31, 2011, 

Norfolk Southern filed a motion for summary judgment, 

which the Court granted on August 17, 2011. Zimmerman 

timely appealed.

II.

In reviewing a district court‟s grant of summary 

judgment, we exercise plenary review. See Gallo v. City of 

Phila., 161 F.3d 217, 221 (3d Cir. 1998). We apply the same 

test as a district court applies, see Waldorf v. Shuta, 896 F.2d 

723, 728 (3d Cir. 1990), and will affirm if “there is no 

genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law,” Rule 56(a), Federal 
5

Rules of Civil Procedure. Facts must be viewed in the light 

most favorable to the non-moving party. See Monroe v. 

Beard, 536 F.3d 198, 206 (3d Cir. 2008) (citation omitted).

III.

Zimmerman offers a number of reasons in support of 

his contention that the District Court erred in granting the 

motion for summary judgment. He asserts that his claims of 

negligence based on (1) inadequate signals and (2) excessive 

speed are not preempted. He contends also that the District 

Court erred in finding that no genuine issue of material fact 

exists as to his claims of negligence based on a common-law 

duty the railroad owed to (3) maintain a reasonably safe 

crossing and (4) provide adequate sight distance. Finally, he 

argues that the District Court erred in holding that certain 

documents, relevant to his excessive speed allegation, were 

privileged. For the reasons that follow, I would affirm the 

District Court‟s judgment.

I would conclude that the District Court properly held 

that Zimmerman‟s claims of negligence based on inadequate 

signals and excessive speed are preempted. With regard to 

Zimmerman‟s common-law claims that Norfolk Southern 

failed to maintain a reasonably safe crossing and provide 

adequate sight distance, I would furthermore conclude that 

the District Court did not err in granting summary judgment 

in favor of Norfolk Southern, because Zimmerman failed to 

establish a prima facie claim of negligence and therefore no 

genuine issue of material fact exists. Finally, I would 

conclude that the Court correctly held that the documents 

related to his excessive speed allegation were privileged. 
6

Summary judgment was therefore appropriate and, as stated 

heretofore, I would affirm the entire District Court judgment.

IV.

For part of his negligence claims, Zimmerman alleges 

that Norfolk Southern failed to maintain a safe crossing at 

Diller Avenue. He alleges that the railroad negligently 

maintained the crossing devices, and that the railroad failed to 

provide adequate sight distance, thereby preventing him from 

seeing the train that he struck until it was too late for him to 

avoid the collision. We have long recognized that railroads 

have a duty to provide a safe crossing, including adequate 

sight distances. See Strozyk v. Norfolk S. Corp, 358 F.3d

268, 277 (3d Cir. 2004) (“A railroad must „exercise ordinary 

care at a crossing by adopting a reasonably safe and effective 

method, commensurate with the dangers of a particular 

crossing, of warning travelers of the approach of the train.‟”) 

(quoting Nat‟l Freight v. Se. Pa. Transp. Auth., 698 F. Supp. 

74, 78 (E.D. Pa. 1988), aff‟d, 872 F.2d 413 (3d Cir. 1989)). 

Indeed, where “physical conditions visually blanket the 

speeding train until several short seconds before it sweeps . . . 

into a crossing, a due responsibility for the safety of mankind 

dictates that something be done to alert the public . . . above 

that of asking it to stop, look, and listen.” Johnson v. Penn. 

R.R. Co., 160 A.2d 694, 697 (Pa. 1960). 

At the same time, a motorist planning to drive through 

a crossing is required to respect the common law of

Pennsylvania and the relevant statutes of that state. Thus,

upon the sounding of the train‟s horn, Zimmerman had to 

obey the following provisions of 75 Pa. C.S.A. § 3341(a):
7

Whenever any person driving a vehicle 

approaches a railroad grade crossing . . . the 

driver of the vehicle shall stop within 50 feet 

but not less than 15 feet from the nearest rail of 

the railroad and shall not proceed until it can be 

done safely. The foregoing requirement shall 

apply upon the occurrence of . . . the following

circumstance[]:

. . . 

(3) A railroad train approaching within

approximately 1,500 feet of the highway 

crossing emits a signal audible from that 

distance and the railroad train, by reason of its 

speed or nearness to the crossing, is a hazard.

Moreover, ruling case law of Pennsylvania teaches:

When a motorist approaches a railroad crossing 

that is occupied by a train, whether the train is 

traveling or stationary, the only duties involved 

are those of the motorist, namely:

. . .

(2) “to stop, look and listen before entering 

upon the crossing.” 

Krentz v. Consol. Rail Corp., 910 A.2d 20, 28 (Pa. 

2006) (emphasis added) (citing Hogg v. Bessemer & 

Lake Erie R.R. Co., 96 A.2d 879, 884 (Pa. 1953)).

Krentz was the Pennsylvania Supreme Court‟s latest 

application of the venerable Occupied Crossing Rule, which 
8

“is as securely affixed to [Pennsylvania] jurisprudence as 

train tracks are to the land that they traverse.” Krentz, 910 

A.2d at 27. Under that rule, “„a railroad company cannot 

ordinarily be found negligent because it failed to station 

guards or light the car, or otherwise give warning of its 

presence in the highway,‟” id. (quoting Cella v. Pa. R.R. Co., 

70 A.2d 638, 640 (Pa. 1950), and this rule applies regardless 

of whether the train is moving or stationary, id. at 27 n.9 

(citing Cella, 70 A.2d at 639). The train‟s presence in the 

crossing is “sufficient notice of its presence to warn any 

person using the highway with ordinary care.” Id. at 27.

The duty to stop, look and listen before entering a 

crossing, particularly a crossing that is occupied, is best 

expressed by the Pennsylvania Supreme Court‟s statement in 

Serfas v. Lehigh and N.E. R. Co., 113 A. 370, 370-371 (Pa. 

1921): “The [plaintiff] openly violated the inflexible rule 

requiring the traveler to stop, look, and listen before entering 

upon a railroad track . . . . „It is not a rule of evidence, but a 

rule of law, peremptory, absolute and unbending and the jury 

can never be permitted to ignore it, to evade it, or to pare it 

away by distinctions and exceptions.‟” (quoting Pa. R.R. Co. 

v. Aiken, 18 A. 619, 620 (Pa. 1889)).

The Occupied Crossing Rule has a long history in the 

Commonwealth of Pennsylvania, dating back to the Court‟s 

1938 opinion in Everetts v. Pa. R.R. Co., 198 A. 796 (Pa. 

1938) (per curiam). Although the rule arose during the era of 

contributory negligence, it has survived the 1978 adoption of 

the comparative negligence doctrine in Pennsylvania. See

Krentz, 910 A.2d at 28 (stating that “„the enactment of the 

Comparative Negligence Act does not change the well 

established rule that negligence cannot be found where the 
9

law does not impose a duty‟”) (quoting Sprenkel v. Consol. 

Rail Corp., 666 A.2d 1099, 1102 (Pa. Super. 1995)).

Zimmerman‟s allegation that the crossing devices were 

negligently maintained is a failure to warn claim. He argues 

that Norfolk Southern breached a duty to maintain railroad 

warning devices because “the sign that warned of the 

approaching crossing was covered by tree branches, the 

pavement markings no longer existed, and the crossbucks had 

been allowed to fall into disrepair.” Brief of Appellant 43. 

Because he contends that the railroad failed to warn him of 

the danger at the crossing, we must determine whether any 

duty to warn was in fact owed to him by the railroad given the 

circumstances of the accident. See Krentz, 910 A.2d at 28. 

Zimmerman, upon reaching the grade crossing, 

abruptly applied his brakes and flew over the handlebars of 

his motorcycle, striking a moving train. That moving train 

occupied the crossing at the time he struck it, triggering 

application of the Occupied Crossing Rule. As stated 

previously, a motorist approaching an occupied crossing has 

the duty to stop, look, and listen before entering the crossing; 

the railroad has no duty to warn of an occupied crossing. Id.

As the Krentz Court notes in a footnote, railroads do in fact 

have a duty to warn of approaching trains. Id. at n.10. Here, 

however, the lead engine already occupied the crossing at the 

time Zimmerman struck it. He struck the train at a point 

approximately 30 feet from the front of its lead engine, at a 

crossing that is only 29 feet wide. This is neither a matter of 

contributory nor comparative negligence; rather, Zimmerman 

cannot maintain his negligent maintenance of crossing 
10

devices claim because Norfolk Southern had no duty to warn 

of an occupied crossing.3

Zimmerman‟s inadequate sight distance claim is also, 

at its core, a failure to warn claim. An adequate sight distance 

is one means of providing motorists with warning that a train 

is approaching. Here, as with the negligent maintenance of 

crossing devices allegation, Zimmerman cannot maintain his 

inadequate sight distance claim because the train that

Zimmerman struck occupied the crossing, triggering

application of the Occupied Crossing Rule.

This issue is not controlled by controverted facts but 

by fundamental precepts of negligence, under which a 

plaintiff must first establish that a defendant does in fact have 

a duty. Here, application of the Occupied Crossing Rule 

would compel us to hold that summary judgment was 

appropriate because the railroad had no duty to warn of the 

presence of the train that occupied the crossing at Diller 

Avenue. Nevertheless, to address the specific points made by 

 

3

The majority‟s footnote 13 states that the Occupied Crossing 

Rule does not apply because “[h]ere, the train rushed into 

view at the last second,” and “the train was not visible in time 

for Zimmerman to avoid the accident[.]” The train did indeed 

arrive at the crossing shortly before Zimmerman struck it, but 

it fully occupied the crossing at the moment of impact. As the 

majority states, railroads still have a duty to warn of 

approaching trains; here, the record before us shows that the 

lead engine‟s headlight was on “full” and the horn had been 

blowing for one-quarter mile, or 45 seconds, such that two 

people traveling 60 feet behind Zimmerman could hear the 

horn as the train approached the Diller Avenue crossing. 
11

the majority, I now turn to the common-law duties to 

maintain a safe crossing and provide adequate sight distances.

V.

I would hold that the District Court properly granted 

summary judgment in favor of Norfolk Southern because, 

even assuming that the railroad owed duties to Zimmerman 

under the circumstances of the accident, no genuine issue of 

material fact exists as to those duties.

The District Court noted “that the Third Circuit in 

Strozyk held that § 646.214(b) only preempts claims 

regarding the adequacy of warning devices, and does not 

preempt the common-law duty to maintain a safe grade 

crossing.” App. 00032. The Court explained that “railroads 

continue to have the common-law duty „to provide a 

reasonably safe grade crossing,‟ „such as the duty to keep 

visibility at grade crossings free from obstructions.” Id.

(quoting Strozyk, 358 F.3d at 276-277). I, along with the 

majority, agree with the District Court‟s conclusion that this 

claim was not preempted. Although the claim was not 

preempted, the District Court nevertheless granted Norfolk 

Southern‟s motion for summary judgment because 

Zimmerman had not made a prima facie claim for negligence. 

The Court determined that Zimmerman failed to establish that 

Norfolk Southern: (1) had a duty to remove a privately owned 

building, located off of the railroad‟s right-of-way, that 

potentially obscured sight lines; and (2) negligently failed to 

maintain a reasonably safe crossing. Accordingly, the District 

Court held that there was no genuine issue of material fact 

and that summary judgment was appropriate. Whereas the 

majority states that “[t]here is sufficient evidence of each 
12

element to allow the claim to go forward,” Majority Opinion 

44, I disagree and would hold that the District Court correctly 

granted summary judgment.

VI.

In determining whether summary judgment was 

appropriate here, I must therefore determine whether any 

genuine issue of material fact exists as to Norfolk Southern‟s 

common-law duties of care.

To establish a prima facie case for negligence under 

the common-law theory that Norfolk Southern failed to 

maintain a reasonably safe crossing by negligently 

maintaining the crossing devices and failing to provide 

adequate sight distance, Zimmerman had to adduce facts that 

demonstrate: (1) a duty or obligation recognized by law; (2) a 

breach of that duty; (3) a causal connection between the 

breach and the resulting injury; and (4) actual loss suffered by 

him. See Rooney v. City of Phila., 623 F. Supp. 2d 644, 660 

(E.D. Pa. 2009). 

A.

Zimmerman asserts that Norfolk Southern allowed the 

warnings at the Diller Avenue crossing to fall into disrepair, 

breaching its duty to maintain warning devices at the 

crossing. According to the majority, the record supports his 

allegations that the warning sign was covered by tree 

branches, that pavement markings no longer existed, and that 

the crossbucks had been permitted to fall into disrepair. 

Majority Opinion 38. With regard to the tree branches, 

Zimmerman has failed to put forth competent evidence 
13

demonstrating that the foliage blocked his view of the

advance warning sign on the day of the accident. Curiously, 

the majority points to photographs taken in 2011 to support 

the proposition that tree branches blocked the view of the 

warning sign in 2008 at the time of the accident. The only 

competent evidence of the condition of the foliage near the 

time of the accident is set forth at pages 00503-00519 of the 

Appendix. From these photographs, taken the day after the 

accident, it appears that the foliage did not block the 

advanced warning sign. See App. 00515 (picture taken 191 

feet north of the crossing). Even if we were to use the 

photographs taken in 2011, the advanced warning sign does 

not appear to be obscured by foliage from at least as far as 

300 feet north of the crossing. 

The majority refers to tree branches covering the 

crossbucks, but Zimmerman‟s assertion regarding the 

crossbucks is that they were in “disrepair,” not that they too 

were covered by foliage. As to this assertion, he likewise has 

offered no competent evidence that the crossbucks were in 

disrepair at the time of the accident. Finally, although the 

majority has determined that “[p]hotographs suggest there 

once was a white line north of the crossing, but that the line 

had faded” by the time of the accident, Majority Opinion 38-

39, I conclude that there is no competent evidence to support 

this proposition. I agree that there does not appear to have 

been a painted line north of the crossing in 2008, judging 

from the photographs taken one day after the accident.

Interpreting facts in the light most favorable to Zimmerman, 

however, does not require us to decide that evidence of fresh 

paint in 2011 means that the lines existed at some point prior 

to the accident, but later faded such that they needed 

repainting.
14

The majority rejects Norfolk Southern‟s causation 

argument, but here it has misconstrued Zimmerman‟s own 

testimony regarding the impact of his many crossings at the 

Diller Avenue crossing. According to the majority, “in his 

deposition, Zimmerman said that he had crossed the track 

many times before the accident and that he believed the 

crossing was inactive.” Majority Opinion 40 (citing App. 

00235). The majority states also that from Zimmerman‟s 

testimony, combined with evidence of poor maintenance of 

the crossing, “it is reasonable to infer that state of disrepair at 

least contributed to his belief that the crossing was inactive.” 

Id. at 40. However, a closer reading of the cited portions of 

Zimmerman‟s deposition testimony is instructive. 

Zimmerman stated, “[I] did not know that that track had a 

regular train on it. I have never seen a train on that track, and 

so I don‟t know what—when I would have actually looked to 

see if a train was coming. I certainly wasn‟t expecting—to my 

knowledge, it was an unused track.” App. 00235. Later, he 

stated “I mean, like I said, I never expected to see a train 

there.” App. 00236. Zimmerman now wishes to 

recharacterize his reason for believing that the crossing was 

inactive to be the result of Norfolk Southern‟s failure to 

maintain warning devices. His deposition testimony makes it 

clear, however, that he believed the crossing was inactive 

because he had never seen a train on that track, over his years 

in the area and hundreds of trips down Diller Avenue.

Accordingly, I would hold that the District Court 

correctly granted summary judgment on the negligent failure 

to maintain crossing devices portion of Zimmerman‟s failure 

to maintain a safe crossing claim.
15

B.

Next, Zimmerman contends that Norfolk Southern 

negligently failed to maintain a safe crossing when it failed to 

remove an obstruction, even though the obstruction was not 

located on the railroad‟s right-of-way. Indeed, Norfolk 

Southern neither possessed nor controlled any land beyond its 

narrow right-of-way in the area of the Diller Avenue crossing. 

Although he relies on Fallon v. Penn Cent. Transp. Co., 279 

A.2d 164 (Pa. 1971), to support his contention that Norfolk 

Southern had a duty to remove the building, the teachings of

Fallon do not support this position. That case states that 

railroads have a special duty of care towards those who use a 

crossing with a “dangerously limited view,” and that duty is 

to “regulate the running of its trains as to make it possible for 

a driver to cross the tracks in safety if, when just before 

entering upon them, he stopped, looked and listened, and no 

train was within sight or sound.” Id. at 167 (emphasis added) 

(internal quotation marks and citations omitted). The 

majority, paraphrasing Fallon, states broadly that under 

Pennsylvania law, “railroads have a duty to ensure that 

motorists are able to see approaching trains.” Majority 

Opinion 40-41. As is clear from the emphasized language 

above, this is an incomplete statement of the law.

The stop, look and listen rule, like the Occupied 

Crossing Rule, has a long history in Pennsylvania. In Briach 

v. Pa. R.R. Co., 462 F.2d 266 (3d Cir. 1972), this Court traced 

the origins of the stop, look and listen rule, noting that 

“[d]evelopment of the so-called „stop, look and listen‟ 

doctrine originated over a century ago,” in the case of Reeves 

v. Del., Lackawanna & W. R.R. Co., 30 Pa. 454 (Pa. 1858), 

where “the court determined that a traveler on a public 
16

highway „is bound to stop and look out for trains.‟” Briach, 

462 F.2d at 268. Later cases held that failure to stop and look 

constituted negligence per se, and the requirement to listen 

was added to the rule in 1867. Id. at 268-269. By 1873, the 

Pennsylvania Supreme Court “stated that the duty to „stop, 

look and listen‟ was an „unbending‟ rule of law and failure to 

comply with any one of the three absolutes constituted 

negligence as a matter of law.” Id. at 269 (quoting Pa. R.R. 

Co. v. Beale, 73 Pa. 504 (1873)). By 1972, this Court noted 

that recent case law from the Pennsylvania Supreme Court 

affirmed and utilized the stop, look and listen rule. Id.

All of these cases, as well as Briach, pre-dated the 

Legislature‟s adoption of the Comparative Negligence Act. 

However, like the Occupied Crossing Rule, “the common law 

„stop, look, and listen‟ rule has survived the Legislature‟s 

abolishment of contributory negligence.” Krentz, 910 A.2d at 

29. Although under the Comparative Negligence Act a 

plaintiff‟s failure to stop, look and listen no longer constitutes 

an absolute bar to recovery in all railroad-crossing cases, here 

the long-standing obligation is embedded within the 

railroad’s duty to provide an adequate sight distance. The 

special duty under Fallon, which is triggered when a 

dangerously limited view exists, requires a railroad to make it 

possible for a driver to safely cross the tracks if that driver 

stops, looks and listens, and no train is within sight or sound.

At a crossing with a dangerously limited view, a

railroad is only required to regulate the running of its trains to 

make safe crossing possible for drivers who stop, look and 

listen. This is not to say that Zimmerman cannot recover 

because he did not stop, look and listen; I would hold that 

where a plaintiff cannot show that a railroad violated its duty 
17

under Fallon—that is, the duty to run its trains in a manner 

that makes it safe for a driver to cross tracks after stopping, 

looking and listening for trains—summary judgment is 

appropriate. Based on the record, Zimmerman presented no 

evidence to establish that Norfolk Southern violated its 

special duty under Fallon.

The record before us shows that the lead engine‟s 

headlight was on “full” and the horn had been blowing for 

one-quarter of a mile, or 45 seconds, such that two people 

traveling 60 feet behind Zimmerman could hear the horn as 

the train approached the Diller Avenue crossing. Zimmerman 

does not, and cannot, maintain that he stopped, looked and 

listened prior to crossing the tracks or that, even if he had, he 

would have nonetheless been harmed. He has represented that 

he has no present recollection of the events concerning his 

approach to the crossing and the collision. Not a whit of 

evidence was provided that he complied with the venerable 

stop, look and listen precepts of Pennsylvania law. Moreover, 

no contention is presented by brief or oral argument that he 

did so. 

It must be noted that the requirement to stop, look and 

listen is not abrogated merely because the motorist‟s view is 

obstructed at one point but not another. See Benner v. Phila. 

& R. Ry. Co., 105 A. 283, 285 (Pa. 1918) (“It is further 

argued that [plaintiff] was relieved from the obligation to stop 

because of the obstructions which prevented his view before 

crossing . . . but, if this be true, another duty was imposed

upon him. It was his duty to alight and go to a point where he 

could make a proper observation.”). Zimmerman admitted 

that he could have seen the approaching train when he was 

“within less than forty feet of the crossing.” App. 00073. But, 
18

when he came to that point where he could have seen the 

train, he did not “stop, look and listen,” as required by 

Pennsylvania law. He now asks us to hold the railroad at fault 

for his own failure to follow the law. I would not do so. 

Zimmerman offered no evidence that he had obeyed a 

fundamental maxim of the law formidably designed to 

prevent him from crashing into the side of a passing train. 

Accordingly, no genuine issue of material fact exists as to 

whether Norfolk Southern met its duty of care.

C.

I conclude therefore that no genuine issue of material 

fact exists regarding Norfolk Southern‟s maintenance of the 

Diller Avenue crossing.

Notwithstanding my conclusion that Zimmerman 

failed to establish a prima facie claim of negligence under 

state law, he asserts that a claim was nevertheless made, and 

thus a genuine issue of material fact exists, based on the 

railroad‟s violation of its internal policy to contact 

landowners with obstructions located off of the railroad‟s 

right-of-way, which was “created pursuant to [federal] 

regulation.” See 49 U.S.C. § 20106(b)(1)(B). This argument 

is unpersuasive. He contends that the railroad‟s policy 

regarding sight obstructions was issued pursuant to 49 C.F.R. 

§§ 217.7, 217.11, and 218.1. These regulations, however, do 

not require railroads to create specific policies but merely 

require a railroad to keep copies of its operating rules and 

timetables, see § 217.7, and to keep records of its program of 

instruction to help employees learn the railroad‟s operating 

rules, see § 217.11. Section 218.1 merely states that the 

regulations provide minimum requirements and that railroads 
19

are free to prescribe more stringent rules. He has failed to 

identify any regulation requiring Norfolk Southern to adopt 

the alleged policy at issue.

Furthermore, nothing in 49 U.S.C. § 20106 creates a 

private right of action for a railroad‟s failure to comply with 

any internal policy which it created and which was not 

otherwise created pursuant to a federal regulation. 

Zimmerman‟s broad interpretation of § 20106, such that 

Norfolk Southern‟s internal policy was “created pursuant to a 

regulation,” is not supported by the statute‟s text. As the 

District Court properly noted, “[s]uch an interpretation would 

discourage railroads from otherwise implementing internal 

policies in order to avoid additional self-imposed duties of 

care.” App. 00033.

I conclude, therefore, that although the common-law 

duty to maintain a safe crossing area—including the duties to 

maintain crossing devices and to provide adequate sight 

distance—is not preempted by federal law, the District Court 

nevertheless properly granted summary judgment as to this 

claim because Zimmerman failed to establish a prima facie 

claim that the railroad breached its duty.

VII.

The majority elects not to confront the critical 

Pennsylvania stop, look and listen rule, stating: 

The District Court explicitly refrained from 

deciding whether Zimmerman was negligent. 

Zimmerman, 2011 WL 3625039 at *21 n. 34 (“I 

do not need to consider defendant‟s additional 
20

arguments that plaintiff was comparatively 

negligent by failing to comply with 

Pennsylvania law.”). And neither side has 

addressed the question of Zimmerman‟s 

negligence on appeal. We therefore refuse to 

affirm on these grounds. 

Majority Opinion 43 n.16.

The majority‟s position requires special attention. 

First, “stop, look and listen” is language that appears in more 

than one place and for more than one reason: it is used not 

only to impose a duty on motorists, see 75 Pa. C.S.A. § 

3341(a), but also to limit the duty owed by railroads, see

Fallon v. Penn Cent. Transp. Co., 279 A.2d 164 (Pa. 1971). I 

do not affirm the District Court‟s judgment on the ground that 

Zimmerman was negligent, but on the ground that even if we 

accept as true all Zimmerman has alleged in connection to his 

inadequate-sight-distance claim, he cannot establish that the 

railroad breached its limited common law duty to “regulate 

the running of its trains as to make it possible for a driver to 

cross the tracks in safety if, when just before entering upon 

them, he stopped, looked and listened, and no train was 

within sight or sound.” Id. at 167 (emphasis added) (internal 

quotation marks and citations omitted). 

Second, I wish to make clear that my colleagues did 

not suggest that I lacked jurisdiction to discuss the 

implications of the stop, look and listen rule. Instead, they 

choose to “refuse to affirm on these grounds.” Had the 

majority challenged this Court‟s jurisdiction to consider this, 

they would have gotten nowhere, for an appellate court is 

authorized to affirm a district court‟s judgment for reasons 
21

other than those stated by the trial court, as long as the record 

supports the judgment. See Guthrie v. Lady Jane Collieries, 

Inc., 722 F.2d 1141, 1145 n.1 (3d Cir. 1983) (citing Helvering 

v. Gowran, 302 U.S. 238, 245 (1937). Similarly, an appellate 

court is not shackled to the briefs or oral argument of counsel. 

An appellate court is not stripped of jurisdiction to discuss an 

important—if not the most important—relevant precept of 

law where, as here, a motorist operates his vehicle into the 

side of a railroad train proceeding though a street crossing 

merely because (1) a district court refuses to discuss it even 

though raised by the defendant, and (2) the appellate lawyers 

decide not to discuss it by brief or oral argument. The issue 

was raised in the District Court. That vests in me the authority 

to consider it on appeal. 

In electing to refuse to consider the impact of 

Zimmerman‟s failure to “stop, look and listen” as a grounds 

that may warrant affirming the District Court, the majority 

reflects a theory of jurisprudence that has been rejected in 

America for almost 100 years. This jurisprudence of concepts 

was known by the Germans as Begriffsjurisprudenz, and was 

the theory behind the 17th Century movement to codify the 

law in much of Europe. Later, the prominent German 

jurisprudent Rudolf von Ihering insisted that the first question 

should be how will a rule or a decision operate in practice and 

advocated a jurisprudence of results. For example, if a rule of 

commercial law were in question, the search should be for the 

rule that best accords with and gives effect to sound business 

practice. Rudolf von Ihering titled this jurisprudence 

Wirklichkeitsjurisprudenz. Roscoe Pound, Mechanical 

Jurisprudence, 8 Colum. L. Rev. 605, 608, 610 (1908). See

also Rudolf von Ihering, Der Geist des ro mischen Rechts

(1907). Whatever had been possible procedural restrictions on 
22

appeal at one time in the Civil Law countries of European 

Nations utilizing the jurisprudence of concepts, at least until 

the end of the 19th century, as I will demonstrate below, we 

should not adhere to this now disfavored approach.

In the beginning of the 20th century the great masters 

of American Jurisprudence—Oliver W. Holmes, Jr., 

Benjamin N. Cardozo and Professor Roscoe Pound—rejected 

the jurisprudence of concepts for what they called a 

jurisprudence of results. Because this discussion has not often 

appeared in many judicial opinions, if any at all, I will 

summarize how the great change came about, a change in the 

nature of jurisprudence doctrine that our courts have now 

followed for almost 100 years, a change that was advocated 

by these great American masters. 

In his classic The Nature of the Judicial Process, 

Cardozo explained hornbook doctrine that sometimes the 

source of the law to be embodied in a judgment is obvious, as 

when the Constitution or a statute applies. Benjamin N. 

Cardozo, The Nature of the Judicial Process 14 (1921). In 

these situations, the judge simply obeys the constitutional or 

statutory rule. But when no constitutional or statutory 

mandate controls, the judge must compare that case with the 

precedents, “whether stored in his mind or hidden in the 

books.” Id. at 19. If the comparison yields a perfect fit, if both 

the law and its application are clear, the task is simple. If the 

law is unclear, it is necessary to “extract from the precedents 

the underlying principle” and then “determine the path or 

direction along which the principle is to move and develop, if 

it is not to wither and die.” Id. at 28. Cardozo cautioned that 

decisions “do not unfold their principles for the asking. They 

yield up their kernel slowly and painfully.” Id. at 29. He 
23

discussed what he called the “organons” of the judicial 

process—the instruments by which we fix the bounds and 

tendencies of that principle's development and growth. He 

also discussed the use of history and customs, and then 

promulgated what in 1921 was considered a revolutionary 

technique of decision-making—the method of sociology, a 

jurisprudence that concentrated on results.

By describing the elements at work in the caldron, 

Cardozo was performing the valued task of a traditional 

common law judicial analyst. That he ranks with Oliver 

Wendell Holmes, Jr. as one of our greatest common law 

judges is scarcely now debatable. But to the extent that he 

developed, persuasively and gracefully, a legitimation for 

result-oriented jurisprudence, he became more a legal 

philosopher than a common law judge. He sought what ought

to be the law, in contrast with what is.

Although Cardozo is not generally listed as a member 

of the enthusiastic corps of American Realists, he must be 

ranked with Holmes, as an elder statesman of that exciting 

cadre of reformers. In the last quarter of the 20th century 

critics were quick to recognize the legitimacy of decisions 

based on social welfare, but in 1921 Cardozo's arguments 

brought respectability to what theretofore had been 

condemned as blatant result-oriented jurisprudence. He was 

neither timid nor uncertain in espousing his self-styled 

method of sociology. To him it was “the power of social 

justice,” and among all principles of the decision-making 

process, it was “the force which in our day and generation is 

becoming the greatest.” Id. at 65-66. To him the preferred 

gap-filler in addressing novel questions of law was the social 

welfare, defined “as public policy, the good of the collective 
24

body,” or “the social gain that is wrought by adherence to the 

standards of right conduct, which find expression in the 

mores of the community.” Id. at 71-72.

Accustomed as we are today to lavish reliance by 

prestigious courts on judicial concepts of public policy, 

Cardozo's statements in the early 1920s must be placed in the 

context of judicial process of that era. Judges then were 

disciples of what Rudolph von Ihering styled as a 

jurisprudence of concepts, and as early as 1897 American 

courts were being chided for undue reliance on concepts.

In The Path of the Law, Oliver Wendell Holmes gently 

admonished:

I think that the judges themselves have failed 

adequately to recognize their duty of weighing 

considerations of social advantage. The duty is 

inevitable, and the result of the often 

proclaimed judicial aversion to deal with such 

considerations is simply to leave the very 

ground and foundation of judgments 

inarticulate, and often unconscious . . . .

O.W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 

467 (1897).

Within a decade Roscoe Pound was trumpeting the 

same theme: “The most important and most constant cause of 

dissatisfaction with all law at all times is to be found in the 

necessarily mechanical operation of legal rules.” Roscoe 

Pound, The Causes of Popular Dissatisfaction with the 
25

Administration of Justice, 40 Am. L. Rev. 729 (1906), 

reprinted in 8 Baylor L. Rev. 1 (1956).

Critics labeled this blind adherence to precedents, or to 

the rules and principles derived from them, “mechanical 

jurisprudence” and “slot machine justice.” Pound called for a 

new look at what he described as “pragmatism as a 

philosophy of law,” and stated vigorously: “The nadir of 

mechanical jurisprudence is reached when conceptions are 

used, not as premises from which to reason, but as ultimate 

solutions. So used, they cease to be conceptions and become 

empty words.” Roscoe Pound, Mechanical Jurisprudence, 8 

Colum. L. Rev. 605, 608, 610 (1908).

Yet founders of the Results Jurisprudence—Holmes, 

Pound and Cardozo—had early historical support for their 

advocacy. Professor Calvin Woodard of the University of 

Virginia suggests that their theory draws on Jeremy 

Bentham's utilitarian thesis:

[T]he advocates of Sociological Jurisprudence 

seized upon this aspect of Bentham‟s message. 

Like him, they insisted that law has a practical, 

real world moral purpose, though they defined 

that purpose more in terms of social justice, and 

the balancing of social interests, than 

[Bentham's] “the greatest happiness of the 

greatest number.”

Calvin Woodard, Thoughts on the Interplay Between 

Morality and Law in Modern Legal Thought, 64 Notre Dame 

L. Rev. 784, 795 (1989).
26

Typical of judicial utterances that had disturbed 

Holmes, Pound, and Cardozo was one by the Maryland Court 

of Appeals in 1895: “Obviously a principle, if sound, ought to 

be applied wherever it logically leads, without reference to 

ulterior results.” Gluck v. Baltimore, 32 A. 515, 517 (Md. 

1895). In contrast, the same year that Cardozo delivered the 

Storrs Lecture at Yale, he seized the opportunity to put his 

new theory into practice by publicly rejecting blind 

conceptual jurisprudence in Hynes v. New York Central 

Railroad Co., 131 N.E. 898 (1921). A sixteen-year-old boy 

had been injured while using a crude springboard to dive into 

the Harlem River. The trial court had ruled that if the youth 

had climbed on the springboard from the river before 

beginning his dive, the defendant landowner would have been 

held to the test of ordinary care, but because the boy had 

mounted from land owned by the defendant railroad 

company, the court held the defendant to the lower standard 

of care owed to a trespasser. Cardozo rejected this analysis, 

describing it as an “extension of a maxim or a definition with

relentless disregard of consequences to „a dryly logical 

extreme.‟ The approximate and relative became the definite 

and absolute.” Id. at 900.

Cardozo's opinion in Hynes is a prototype, and his The 

Nature of the Judicial Process an apologia, for decisionmaking based on result-oriented judicial concepts of public 

policy. The philosophical underpinnings of what Cardozo 

described as the sociological or results method run counter to 

the widely held notion that the public policy should be 

formulated and promulgated only by the legislative branch of 

government. When judges rather than the legislators declare 

public policy, their declarations produce local and national 

tensions. When judges utilize this method, laymen and some 
27

lawyers label them as “activists,” “liberals,” “loose 

constructionists,” and a host of other epithets, gentle and 

otherwise.

But modern American jurisprudence is more than the 

results method, although its influence is strongly felt. The 

legal realists of the 1930s and 40s worried about what they 

called “the social performance of law.” Those same concerns 

are said to lie close to the heart of the Critical Studies 

Movement as well. To be sure, the Law and Economics 

school can be said to be result-oriented, but it stresses 

“economic efficiency” rather than social justice.

Modern American jurisprudence constantly seeks the 

answers to the serious questions presented by the theories of 

adjudication, theories both old and new. We must keep in 

mind the central question put to us by the thoughtful 

Professor Woodard:

What better measure is there of the value of a 

legal system, or indeed of the rule of law itself, 

than the quality of life of those subject to it? 

And if this approach stresses the morality of 

results, it also puts a huge moral burden on the 

hand that wields the tool of law.

Woodard, supra, at 796.

From the foregoing, in this railroad crossing case, stop, 

look and listen may not be cast aside as in the former era of a 

jurisprudence of concepts (we won‟t meet it on appeal 

because the trial judge did not meet it). In modern concepts of 

jurisprudence to ignore this is to run in the face of Holmes‟s
28

words, “I think that the judges themselves have failed 

adequately to recognize their duty of weighing considerations 

of social advantage. The duty is inevitable, . . . ” And also the 

words of Pound: “The most important and most constant 

cause of dissatisfaction with all law at all times is to be found 

in the necessarily mechanical operation of legal rules.” And 

finally the words of Cardozo in New York Central Railroad: 

you should not extend “a maxim or a definition with 

relentless disregard of consequences to „a dryly logical 

extreme.‟”

By 1974 Harry W. Jones, Cardozo Professor of Law at 

Columbia Law School, would teach us:

Law is not a form of art for art‟s sake; its endsin-view are social, nothing more and nothing 

less than the establishment and maintenance of 

a social environment in which the quality of 

human life can be spirited, improving and 

unimpaired.

Harry W. Jones, An Invitation to Jurisprudence, 74 Colum. L. 

Rev. 1023, 1025 (1974)

The Pennsylvania stop, look and listen rule was an 

omnipresent brooding presence in this case. I will not put my 

head in the sand and ignore it.

VIII.

The next issue is whether the District Court properly 

granted Norfolk Southern‟s motion for summary judgment on 

Zimmerman‟s excessive-speed claim. I agree with the 
29

majority opinion insofar as it holds that excessive-speed 

claims are preempted when a train is traveling below a 

federally mandated speed limit. Majority Opinion 14. I also 

agree with the majority that 49 C.F.R. § 213.9 creates 

federally mandated speed limits by establishing “the degree 

of care that railroads must exercise on each class of tracks: 

trains should not exceed ten miles per hour on Class 1 tracks, 

twenty-five miles per hour on Class 2 tracks, and so on.” 

Majority Opinion 16. 

I disagree, however, with the majority‟s holding that 

Zimmerman‟s excessive-speed claim is not preempted by 

§ 213.9 because he has raised a triable issue of fact as to 

whether the track at the Diller Avenue crossing was a Class 1 

track—the only class of track for which the train‟s speed 

would have exceeded the federally mandated limit under 

§ 213.9, and the only class of track for which Zimmerman‟s

claim would therefore not be preempted by § 213.9. I would 

hold that Zimmerman failed to provide any competent 

evidence that the tracks were classified as Class 1 because, as 

the District Court held, the limited evidence Zimmerman 

sought to introduce for this purpose was privileged under 

either 23 U.S.C. § 409 or 49 U.S.C. § 20903. Zimmerman is 

left without any competent evidence to rebut Norfolk 

Southern‟s testimony that the track was either Class 2 or 

Class 3, which both have maximum speed limits greater than

the speed the train was traveling, and therefore Zimmerman‟s 

excessive-speed claim is preempted by § 213.9 and summary 

judgment was proper. 

A.
30

Zimmerman sought to introduce two groups of 

documents to challenge Norfolk Southern‟s testimony that the

track at issue was a Class 2 or Class 3 track: inventory 

documents from the Department of Transportation‟s National 

Crossing Inventory and accident reports dating back to 1975. 

I would hold that the inventory documents were privileged 

under 23 U.S.C. § 409 and that the accident reports were 

privileged under 49 U.S.C. § 20903. 

B.

The first group of documents Zimmerman sought to 

introduce were nine documents titled “U.S. DOT-Crossing 

Inventory Information.” Eight of these documents state a 

maximum permissible speed of 10 miles per hour for trains 

crossing Diller Avenue, and one states a maximum 

permissible speed of 15 miles per hour. If admitted into 

evidence, these documents would create a genuine issue of 

material fact as to whether the operation of the train was 

negligent per se, given that it was traveling at a speed of 24 

miles per hour at the time of the collision. Furthermore, they 

would establish the possibility that Zimmerman‟s excessivespeed claim is not preempted by § 213.9 because they would 

demonstrate that Norfolk Southern may have exceeded the 

federally mandated speed limit set for the Diller Avenue 

crossing. 

To determine whether the Inventory documents are 

admissible, both the majority and I must analyze carefully 23 

U.S.C. § 409, which states:

[R]eports, surveys, schedules, lists, or data 

compiled or collected for the purpose of 
31

identifying, evaluating, or planning the safety 

enhancement of . . . railway-highway crossings, 

pursuant to sections 130, 144, and 148 of this 

title or for the purpose of developing any 

highway safety construction improvement 

project which may be implemented utilizing 

Federal-aid highway funds shall not be subject 

to discovery or admitted into evidence in a 

Federal or State court proceeding or considered 

for other purposes in any action for damages 

arising from any occurrence at a location 

mentioned or addressed in such reports, 

surveys, schedules, lists, or data.

(emphasis added). 

The Supreme Court teaches that § 409 was enacted to 

facilitate programs including the Crossings Program 

promulgated by 23 U.S.C. § 130. See Pierce Cnty. v. Guillen, 

537 U.S. 129, 133-134 (2003). The Crossings Program was 

enacted to assist states in identifying highways and railways 

in need of improvements. It makes funds available to states 

for the “cost of construction of projects for the elimination of 

hazards of railway-highway crossings.” § 130(a). To 

participate, states must “conduct and systematically maintain 

a survey of all highways to identify those railroad crossings 

which may require separation, relocation, or protective 

devices, and establish and implement a schedule of projects 

for this purpose.” § 130(d). Because participation in these 

programs required states to disclose safety-related 

information that could expose them to civil liability, such as 

information related to accident sites, Congress adopted § 409 

to encourage disclosure. See Guillen, 537 U.S. at 133-134.
32

Additionally, in Guillen, the Supreme Court concluded 

that § 409 protected all data collected by an agency in support 

of the Federal Hazard Elimination Program (“§ 152”),

regardless of the source of the information. See id. at 145-

146. At the time, § 152 appeared within the text of § 409 as a 

program falling within the statute‟s coverage, just as § 130 

appeared and still appears to this day within the text of § 409. 

For this reason, I would hold that the teachings of Guillen

apply equally to § 130 programs and would hold that § 409

protects all data collected by an agency in support of § 130, 

regardless of the source of information. Because I conclude 

that the inventory documents sought to be introduced here fall 

within § 409, they are inadmissible and I would affirm the 

District Court‟s holding.

C.

Because § 409 does not protect information that was 

compiled, collected, obtained and utilized for purposes 

unrelated to one of the three programs identified in the 

statute, see Guillen, 537 U.S. at 146, the relevant inquiry 

here, in determining whether § 409 applies, is whether the 

information in the inventory documents was collected, 

generated or compiled for the purpose of pursuing the 

objectives of the federal program promulgated by § 130. 

I agree with the District Court that the inventory 

documents were “surveys,” which were “compiled and 

collected” “for the purposes of . . . planning the safety 

enhancement of railway-highway crossings,” and done 

pursuant to § 130, which requires states to “conduct and 

systematically maintain a survey of all highways to identify 
33

those railroad crossings which may require 

[improvements] . . . .” See App. 00047.

The inventory documents at issue were compiled and 

collected for the U.S. DOT National Highway-Rail Crossing 

Inventory Program, which began in the 1970s after the 

passage of The Federal-Aid Highway Act. “The purpose of 

the U.S. DOT National Highway-Rail Crossing Inventory 

Program is to provide for the existence of a national inventory 

database that can be . . . used . . . for planning and 

implementation of crossing improvement programs . . . .” 

Federal Railroad Administration, U.S. DOT National 

Highway-Rail Crossing Inventory: Policy, Procedures and 

Instructions for States and Railroads 3 (2007), 

http://www.fra.dot.gov/downloads/safety/RXIPolicyInstructio

ns0807.pdf [hereinafter “2007 Manual”]. Moreover, the 

current Program Manual instructs railroads to send their 

completed inventory documents to the appropriate “State 

Inventory Contact” so that the last portion of the form may be 

completed by the state. 2007 Manual 6. The state‟s 

participation in the Inventory Program, and its use of the 

same forms used by the railroads, provides further support 

that the inventory documents are privileged under § 409. 

Congress clearly and emphatically intended by

enacting § 409 to prohibit this type of federally required 

record keeping from being used as a “tool in litigation.” See

Guillen, 537 U.S. at 146 (explaining that Congress amended 

§ 409 to include “or collected” in order “to make clear that § 

152 [a section formerly included in the text of § 409 as § 130 

is now included] was not intended to be an effort-free tool in 

litigation against state and local governments.”). Additionally, 

because the inventory documents at issue were “compiled and 
34

collected” for the U.S. DOT National Highway-Rail Crossing 

Inventory Program, the purpose of which is “to provide for 

the existence of a national inventory database that can be . . . 

used . . . for planning and implement[ing] . . . crossing 

improvement programs,” I would hold the documents were 

collected, generated or compiled for the purposes of § 130 

and would affirm. 

D.

In addition to the inventory documents, Zimmerman 

attempted to introduce ten accident reports involving the 

Diller Avenue crossing, five of which involve accidents from 

the 1970s and state the track is a Class 1 track. I would hold 

that The District Court correctly determined that these 

accident reports were privileged pursuant to 49 U.S.C. 

§ 20903, which states in part:

No part of an accident or incident report filed 

by a railroad carrier under section 20901 of 

[Title 49] . . . may be used in a civil action for 

damages resulting from a matter mentioned in 

the report.

A railroad, pursuant to 49 U.S.C. § 20901(a), is 

required to file a monthly report with the Secretary of

Transportation “on all accidents and incidents resulting in 

injury or death to an individual,” and the parties do not 

dispute that the reports at issue here were filed pursuant to §

20901. 

The majority opinion limits this privilege to 

encompass only the report filed in direct response to 
35

Zimmerman‟s accident while leaving open the possibility that 

all other reports—whether filed before or after Zimmerman‟s 

accident—may be used in his lawsuit against Norfolk

Southern. Such a holding defeats the general purpose of 

privileges such as § 20903, which promote public safety by 

encouraging candor. I would hold, therefore, that all the 

accident reports Zimmerman seeks to introduce fall within the 

§ 20903 privilege.

E.

Without the inventory documents and accident reports, 

there is no evidence that the tracks at Diller Avenue were 

classified as Class 1, with a maximum permissible speed of 

10 miles per hour. And, because it is undisputed that the train 

was traveling at 24 miles per hour—which is permissible on 

both Class 2 and Class 3 tracks—no genuine issue of material 

fact exists as to whether the train exceeded the speed 

permissible under § 213.9. Therefore, Zimmerman‟s claim of 

excessive speed is preempted and summary judgment was 

proper.

* * * * *

I would conclude that the District Court properly held 

that Zimmerman‟s claims of negligence based on (1) 

inadequate signals and (2) excessive speed are preempted. I 

would conclude also that the District Court did not err in 

granting summary judgment in favor of Norfolk Southern for 

Zimmerman‟s claims that the railroad failed to (3) maintain a

reasonably safe crossing and (4) provide adequate sight 

distance, because Zimmerman failed to establish a prima facie 

negligence claim, and therefore no genuine issue of material
36

fact exists.

Finally, I would hold that the District Court properly 

concluded that Zimmerman‟s excessive-speed claim is 

preempted by § 213.9 because Zimmerman cannot establish 

that there is a material issue of fact as to whether the train‟s 

speed exceeded the federal limit permitted at the Diller 

Avenue crossing without the inventory documents and 

accident reports, which I would hold are privileged. Summary 

judgment was therefore appropriate and I would affirm the 

District Court‟s judgment in all respects.