[Cite as Kill v. CSX Transp., 185 Ohio App.3d 291, 2009-Ohio-6871.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

ALLEN COUNTY 

 

KILL, 

 APPELLANT and 

 CROSS-APPELLEE, CASE NO. 1-09-13 

 v. 

CSX TRANSPORTATION, INC., 

 

 APPELLEE and 

 CROSS-APPELLANT; 

 

 

ALLEN COUNTY BOARD OF O P I N I O N 

COMMISSIONERS ET AL., 

 APPELLEES. 

 

Appeal from Allen County Common Pleas Court 

Trial Court No. CV2007 1001 

Judgment Affirmed in Part, Reversed in Part and Cause Remanded 

Date of Decision: December 28, 2009 

 

APPEARANCES: 

Henry W. Chamberlain and Paul W. Flowers, for appellant and crossappellee. 

 R. Leland Evans, for appellee and cross-appellant. 

 
Case No. 1-09-13 

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ROGERS, Judge.

{¶1} Plaintiff-appellant and cross-appellee, Michael Kill, by and through 

his legal guardians, Theodore and Celeste Kill, appeals the judgment of the Court 

of Common Pleas of Allen County granting summary judgment to defendantappellee and cross-appellant, CSX Transportation, Inc. (“CSX”), and dismissing 

his claim for damages resulting from inadequate signalization at a railroad 

crossing. On appeal, Kill argues that the trial court erred in dismissing his claim 

on summary judgment on the grounds that the Federal Railroad Safety Act 

(“FRSA”), Section 20106, Title 49, U.S.Code, preempts his state-law claim. 

Additionally, CSX cross-appeals the trial court’s refusal to dismiss Kill’s punitivedamages claim. On appeal, CSX argues that the trial court erred in not dismissing 

the punitive-damages claim after its dismissal of the inadequate-signalization 

claim, as a claim for punitive damages cannot exist independently of its 

underlying claim. Based on the following, we affirm in part and reverse in part 

the judgment of the trial court. 

{¶2} In September 2007, Kill filed a complaint against CSX, three 

employees of CSX, the Allen County Board of Commissioners, and ten unnamed 

defendants for economic and noneconomic losses suffered when he collided with a 

CSX train while attempting to cross a railroad track in rural Allen County, Ohio, 

resulting in severe and debilitating brain injuries. The multiple claims in the 
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complaint included a negligence claim against CSX for failing to properly sound 

the horn at the railroad crossing, for speeding, and for failing to remedy a 

hazardous condition and provide adequate warning devices at the railroad 

crossing. Additionally, Kill requested punitive damages as a result of CSX’s 

willful and wanton misconduct. 

{¶3} In August 2008, the trial court entered a stipulation and order, 

pursuant to the agreement of the parties, in which Kill dismissed all defendants 

except CSX and dismissed all claims against CSX, with prejudice, except his 

claim for “inadequate crossing protection devices.” Subsequently, Kill filed an 

amended complaint, stating that CSX “failed to provide adequate warning devices 

at the crossing” and that “CSX failed to take precautionary steps such as: placing 

automatic gates and lights.” 

{¶4} In October 2008, the trial court entered an agreed scheduling order 

granting the parties’ requests to file motions for and against summary judgment on 

the sole issue of whether Kill’s state-law claim for inadequate signalization was 

preempted by federal law. 

{¶5} Subsequently, CSX filed its motion for summary judgment, asserting 

that Kill’s state-law claim for inadequate warning devices at the railroad crossing 

was preempted by federal law pursuant to the FRSA, and that Kill was not entitled 

to punitive damages, because CSX had exercised reasonable care in maintaining 
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adequate signalization at the railroad crossing and did not engage in willful and 

wanton misconduct. 

{¶6} In December 2008, Kill filed his brief in opposition to CSX’s motion 

for summary judgment, asserting that his state-law inadequate-signalization claim 

was not preempted by the FRSA because it met the preemption exceptions 

contained in the statute and because the 2007 amendment to the FRSA clearly 

excluded preemption under the facts of this case. 

{¶7} In February 2009, the trial court granted CSX’s motion for summary 

judgment, dismissing Kill’s state-law inadequate-signalization claim based on a 

finding that the claim was preempted by federal law pursuant to the FRSA. The 

trial court stated: 

Even though it is not relevant to the disposition herein, the facts 

reveal that eyewitnesses by affidavit and deposition verify that the 

CSX train horn was sounding loudly and clearly; that the train could 

be seen approaching the intersection with its lights on; and that 

Michael Kill made no attempt to stop his vehicle, thereby running 

into the side of the lead locomotive as indicated previously. 

The crossing in question contained only passive warning devices, 

namely two standard cross bucks, one facing south and one facing 

north. Further, as part of the discussion herein, the south-facing 

cross buck which was facing the direction of Plaintiff’s approach, 

was missing the reflectorized tape with which it was installed. 

By agreement of the parties, the issue before the court is whether 

CSX failed to provide adequate warning devices at the crossing. 

Said another way, Plaintiff’s claim is based upon whether alleged 

inadequate warning devices at the crossing * * * is [sic] preempted 

by federal law, specifically the Federal Railroad Safety Act of 1970. 
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* * * 

The Court finds after review that the case of Norfolk Southern 

Railroad Company v. Shankland [sic] (2000), 529 U.S. 344 is 

dispositive. Further, the Court finds that in Fifth Third Bank v. CSX 

Corp. (N.D. Ind. 2004) 306 F. Supp.2d 841, the court cited 

Shankland [sic] for the proposition “that changes in conditions at the 

crossing are immaterial to the issue of federal preemption.” * * * 

* * * 

The Court also finds that Plaintiff can not avoid preemption under 

Section 20106(a)(2)(A)-(C) since Plaintiff fails to identify an 

essentially local safety hazard as required by said Section. 

Finally, the Court finds that none of the exceptions in the federal 

preemption statutes or its Clarification Amendment applies [sic] to 

Plaintiff’s State Law Inadequate Signalization Claim. 

Plaintiff’s Punitive Damage Claim 

Even though the Defendant has addressed the punitive damage 

claim, the Court finds that the only issue before the Court, by 

agreement, is the federal preemption claim, which may make all 

other claims moot. Therefore, the Court will not address the same at 

this point. 

{¶8} It is from this judgment that Kill appeals and CSX cross-appeals, 

presenting the following assignment of error and cross-assignment of error for our 

review. 

Kill’s Assignment of Error 

The trial court erred, as a matter of law, in granting summary 

judgment in favor of defendant-appellee on the grounds that all 

available Ohio common law theories of recovery are barred by 

federal preemption. 
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CSX’s Cross-Assignment of Error 

The trial court erred in failing to dismiss cross-appellees’ claim for 

punitive damages as being moot and in failing to dismiss this case in 

its entirety once it granted summary judgment on the sole underlying 

claim upon which the claim for punitive damages was based. 

Kill’s Assignment of Error 

{¶9} In Kill’s assignment of error, he asserts that the trial court erred in 

dismissing his state-law claim for inadequate signalization on the grounds that it 

was preempted by federal law pursuant to the FRSA. Specifically, Kill argues that 

the 2007 amendment to the FRSA under Section 20106(b)(1), Title 49, U.S.Code, 

providing preemption exceptions, substantially eroded prior case law and statutory 

authority for preemption of state-law claims; that CSX was in violation of a state 

law that meets the original preemption savings clause of Section 20106(a)(2); and 

that he meets the exceptions for preemption under Section 20106(b)(1), because 

CSX failed to comply with a federal regulation by neglecting to install automatic 

gates and flashing light signals at the railroad crossing after repeated accidents and 

failed to comply with its own rule by neglecting to repair the missing reflective 

tape on the crossbuck at the railroad crossing. 

{¶10} As a preliminary matter, we note that Kill asserts in his brief that 

subsumed within his inadequate-signalization claim is a claim for failure to 

adequately maintain the crossing, specifically a failure to replace the missing 
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reflectorized tape on the crossbuck. However, the trial court’s August 2008 

stipulation and order, and Kill’s amended complaint, only maintain an inadequatesignalization claim. Kill dismissed all other claims that were contained within his 

first complaint, including his claim for improper maintenance. Accordingly, the 

only claim properly before this court is an inadequate-signalization claim. 

I. Standard of Review 

{¶11} An appellate court reviews a summary judgment order de novo. 

Hillyer v. State Farm Mut. Auto. Ins. Co. (1999), 131 Ohio App.3d 172, 175. 

Accordingly, a reviewing court will not reverse an otherwise correct judgment 

merely because the lower court used different or erroneous reasons as the basis for 

its determination. Diamond Wine & Spirits, Inc. v. Dayton Heidelberg Distrib. 

Co., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶ 25, citing State ex rel. Cassels v. 

Dayton City School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217, 222. Summary 

judgment is appropriate when, looking at the evidence as a whole, (1) there is no 

genuine issue as to any material fact, (2) reasonable minds can come to but one 

conclusion and that conclusion is adverse to the party against whom the motion for 

summary judgment is made; and, therefore, (3) the moving party is entitled to 

judgment as a matter of law. Civ.R. 56(C); Horton v. Harwick Chem. Corp. 

(1995), 73 Ohio St.3d 679, 686-687. If any doubts exist, the issue must be 
Case No. 1-09-13 

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resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 

Ohio St.3d 356, 358-359. 

{¶12} The party moving for summary judgment has the initial burden of 

producing some evidence that demonstrates the lack of a genuine issue of material 

fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. In doing so, the moving 

party is not required to produce any affirmative evidence, but must identify those 

portions of the record that affirmatively support his argument. Id. at 292. The 

nonmoving party must then rebut with specific facts showing the existence of a 

genuine triable issue; he may not rest on the mere allegations or denials of his 

pleadings. Id.; Civ.R. 56(E). 

II. Federal Railroad Safety Act and Preemption of State-Law Claims 

{¶13} The FRSA, Section 20101 et seq., Title 49, U.S.Code, was enacted 

by Congress in 1970 and granted the Secretary of Transportation “the authority to 

‘prescribe regulations and issue orders for every area of railroad safety,’ * * * and 

* * * to ‘maintain a coordinated effort to develop and carry out solutions to the 

railroad grade crossing problem.’” Norfolk S. Ry. Co. v. Shanklin (2000), 529 U.S. 

344, 347, quoting Sections 20103(a) and 20134(a), Title 49, U.S.Code. Contained 

within the FRSA is a preemption provision: 

(a) National uniformity of regulation. 
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(1) Laws, regulations, and orders related to railroad safety and 

laws, regulations, and orders related to railroad security shall be 

nationally uniform to the extent practicable. 

(2) A State may adopt or continue in force a law, regulation, or 

order related to railroad safety or security until the Secretary of 

Transportation (with respect to railroad safety matters), or the 

Secretary of Homeland Security (with respect to railroad security 

matters), prescribes a regulation or issues an order covering the 

subject matter of the State requirement. A State may adopt or 

continue in force an additional or more stringent law, regulation, or 

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

or order-- 

(A) is necessary to eliminate or reduce an essentially local safety or 

security hazard; 

(B) is not incompatible with a law, regulation, or order of the 

United States Government; and 

(C) does not unreasonably burden interstate commerce. 

Section 20106(a), Title 49, U.S.Code. Accordingly, under this provision, all statelaw claims are preempted when either the Secretary of Transportation or the 

Secretary of Homeland Security promulgates a regulation that covers the subject 

matter of the state law, unless the three preemption-avoiding conditions are 

satisfied. See In re Miamisburg Train Derailment Litigation (1994), 68 Ohio 

St.3d 255, 257; Wooten v. CSX RR., 164 Ohio App.3d 428, 2005-Ohio-6252, ¶ 14-

15, citing CSX Transp., Inc., v. Easterwood (1993), 507 U.S. 658. 

{¶14} Subsequent to the passage of the FRSA, Congress created the 

Federal Railway-Highway Crossings Program (“crossings program”) through the 
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Highway Safety Act of 1973, found in Section 401 et seq., Title 23, U.S.Code. 

The crossings program provided funds to states for the “cost of construction of 

projects for the elimination of hazards of railway-highway crossings.” Section 

130(a), Title 23, U.S.Code. The Secretary of Transportation, through the Federal 

Highway Administration, issued regulations to implement the crossings program. 

Shanklin, 529 U.S. at 348. Of the multiple regulations issued, one addresses the 

warning devices to be installed at railroad crossings. See Section 646.214(b), Title 

23, C.F.R. The regulation provides: 

(2) Pursuant to 23 U.S.C. 109(e), where a railroad-highway grade 

crossing is located within the limits of or near the terminus of a 

Federal-aid highway project for construction of a new highway or 

improvement of the existing roadway, the crossing shall not be 

opened for unrestricted use by traffic or the project accepted by 

FHWA until adequate warning devices for the crossing are installed 

and functioning properly. 

(3)(i) Adequate warning devices, under § 646.214(b)(2) or on any 

project where Federal-aid funds participate in the installation of the 

devices are to include automatic gates with flashing light signals 

when one or more of the following conditions exist: 

(A) Multiple main line railroad tracks. 

(B) Multiple tracks at or in the vicinity of the crossing which may 

be occupied by a train or locomotive so as to obscure the movement 

of another train approaching the crossing. 

(C) High Speed train operation combined with limited sight 

distance at either single or multiple track crossings. 

(D) A combination of high speeds and moderately high volumes of 

highway and railroad traffic. 
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(E) Either a high volume of vehicular traffic, high number of train 

movements, substantial numbers of schoolbuses or trucks carrying 

hazardous materials, unusually restricted sight distance, continuing 

accident occurrences, or any combination of these conditions. 

(F) A diagnostic team recommends them. 

(ii) In individual cases where a diagnostic team justifies that gates 

are not appropriate, FHWA may find that the above requirements are 

not applicable. 

(4) For crossings where the requirements of § 646.214(b)(3) are not 

applicable, the type of warning device to be installed, whether the 

determination is made by a State regulatory agency, State highway 

agency, and/or the railroad, is subject to the approval of FHWA. 

Section 646.214(b), Title 23, C.F.R. Pursuant to this regulation, when federal 

funds have been used to install the warning devices, those devices must include 

automatic gates and flashing light signals if any of the conditions in Sections 

646.214(b)(3)(i)(A) and (F) exist; however, even if no conditions under 

subsections (b)(3)(i)(A) and (F) are present, subsection (b)(4) requires the type of 

device installed to be approved by the Federal Highway Administration. Shanklin, 

529 U.S. at 354, citing Easterwood, 507 U.S. at 670-671. See also Nye v. CSX 

Transp. (C.A.6, 2006), 437 F.3d 556, 561-562; Henning v. Union Pacific RR. Co.

(C.A.10, 2008), 530 F.3d 1206, 1212-1213. 

{¶15} Accordingly, because federal preemption of state law occurs when 

“federal regulations substantially subsume the subject matter of the relevant state 

law,” Easterwood, 507 U.S. at 664, and because the regulations under Section 
Case No. 1-09-13 

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646.214(b)(3) and (4), Title 23, C.F.R. encompass the subject matter of a tort 

claim pertaining to the adequacy of railroad crossing warning signals, the United 

States Supreme Court in Easterwood and Shanklin found that Section 20106(a), 

Title 49, U.S.Code preempts state-law inadequate-signalization claims when 

federal funding was used to install the railroad crossing warning devices, and, 

consequently, the regulations under Section 646.214(b)(3) and (4), Title 23, C.F.R. 

applied: 

Because [Section 646.214(b)(3) and (4), Title 23, C.F.R.] 

“establish requirements as to the installation of particular 

warning devices,” we held that “when they are applicable, state 

tort law is pre-empted.” [Easterwood, 507 U.S. at 670.] Unlike 

the other regulations, “§§ 646.214(b)(3) and (4) displace state 

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

federal approval obtained.” As a result, those regulations 

“effectively set the terms under which railroads are to participate 

in the improvement of crossings.” 

Shanklin, 529 U.S. at 352-353. See also Nye, 437 F.3d at 561-562; Lee v. 

Burlington N. Santa Fe Ry. Co. (C.A.9, 2001), 245 F.3d 1102, 1106; Strozyk v. 

Norfolk S. Corp. (C.A.3, 2004), 358 F.3d 268, 273-274. 

{¶16} Furthermore, this court has previously found, pursuant to 

Easterwood, that federal preemption of a state-law inadequate-signalization claim 

occurs when federal funds were used to purchase the warning device, the warning 

device was actually installed, and the warning device was approved by the Federal 
Case No. 1-09-13 

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Highway Administration. Gollihue v. Consol. Rail Corp. (1997), 120 Ohio 

App.3d 378, 397 

{¶17} Subsequently, in 2007, Congress amended the FRSA pursuant to the 

Implementing Recommendations of the 9/11 Commission Act of 2007. See 

Pub.L. No. 110-53, 121 Stat. 266. Pursuant to this act, the following language was 

added to Section 20106, Title 49, U.S.Code: 

(b) Clarification 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 (with respect to railroad safety matters), or the 

Secretary of Homeland Security (with respect to railroad security 

matters), covering the 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). 

(2) This subsection shall apply to all pending State law causes of 

action arising from events or activities occurring on or after January 

18, 2002. 

Although subsection (b) was added to Section 20106, subsection (a) was left 

unchanged. Furthermore, the amendment was made retroactive to January 18, 
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2002. The impact of the amendment and its purpose were discussed in the House 

conference report as follows: 

Subpart (a) of the Conference substitute * * * contains the exact text 

of 49 U.S.C. §20106 as it existed prior to enactment of this Act. It is 

restructured for clarification purposes; however, the restructuring is 

not intended to indicate any substantive change in the meaning of 

the provision. 

Subpart (b) of the Conference substitute provides further 

clarification of the intention of 49 U.S.C. §20106, as it was enacted 

in the Federal Railroad Safety Act of 1970, to explain what State law 

causes of action for personal injury, death, or property damage are 

not preempted. 

(Emphasis added). H.R. Conf. Rep. No. 110-259, At 351 (2007). Furthermore, 

the history behind the amendment and its reasoning have been discussed in detail 

by several courts: 

Subsection (b) was enacted in response to and to “rectify” the 

Federal court decisions in Mehl v. Canadian Pac. Ry. Ltd., 417 

F.Supp.2d 1104 (D.N.D.2006) and Lundeen v. Canadian Pac. Ry. 

Co., 447 F.3d 606 (8th Cir.2006). In both cases, the courts 

concluded state law negligence claims were preempted by FRSA 

even though defendant railroads failed to comply with the applicable 

federal regulation or rule. See Mehl, 417 F.Supp.2d at 1108; 

Lundeen, 447 F.3d at 611. These decisions raised great concern 

among Congressional members who believed denying accident 

victims legal recourse even when the railroad violated applicable 

federal regulations was inconsistent with FRSA. As a result, 

Congress amended FRSA's preemption clause by allowing state tort 

law claims to proceed if a railroad did not comply with a railroad 

safety federal regulation even if such regulation covered the subject 

matter of the state requirement. 

Murrell v. Union Pacific RR. Co. (D.Ore.2008), 544 F.Supp.2d 1138, 1145. 
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Mehl and Lundeen brought to light an erroneous interpretation of 

FRSA preemption not supported by the text of § 20106, Easterwood,

or Shanklin. Thereafter, Congress amended 49 U.S.C. § 20106 by 

adding the clarification amendment, making clear that when a party 

alleges a railway failed to comply with a federal standard of care 

established by regulation or with its own plan, rule, or standard 

created pursuant to a federal regulation, preemption will not apply. 

49 U.S.C. § 20106(b)(1). 

Henning, 530 F.3d at 1212-1213. See also Bates v. Missouri & N. Arkansas RR. 

Co. (C.A.8, 2008), 548 F.3d 634, 637. 

III. Analysis 

A. Preemption under Easterwood and Shanklin

{¶18} In the case at bar, Kill sets forth multiple arguments in support of his 

assignment of error that the trial court erred in dismissing his inadequatesignalization claim against CSX on the grounds that his claim was preempted by 

the FRSA. First, he contends that the trial court erred in relying upon the 

preemption analysis set forth under Easterwood and Shanklin, as the 2007 

amendment to the FRSA substantially eroded the precedential value of that 

analysis so that it now has little application to the facts of this case. 

{¶19} However, in analyzing the 2007 amendment to the FRSA, we find 

that it does little to alter the preemption analysis set forth under Easterwood and 

Shanklin, other than to provide additional exceptions to preemption. First, the 

amendment did not alter the original language of Section 20106(a), Title 49, 
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U.S.Code. This was the language relied upon by Easterwood and Shanklin, and it 

remains unchanged. 

{¶20} Second, the House Conference Report on the 2007 amendment 

clearly states that the amendment was not intended to effect “any substantive 

change in the meaning of the provision,” but was meant to “provide[] further 

clarification of the intention of 49 U.S.C. §20106.” H.R. Conf. Rep. No. 110-259, 

at 351 (2007). 

{¶21} Third, the language introduced by the 2007 amendment does not 

bear upon the reasons for preemption set forth under Easterwood and Shanklin. 

The Supreme Court stated in Shanklin that the plaintiff’s state-law inadequatesignalization claim was preempted because Section 646.214(b)(3) and (4), Title 

23, C.F.R. either mandated the installation of specific warning devices or required 

the warning devices to be approved by the Federal Highway Administration, 

thereby “ ‘subsum[ing] the subject matter of the relevant state law’ ” and 

preempting the plaintiff’s claim. Shanklin, 529 U.S. at 352, quoting Easterwood, 

507 U.S. at 664. The additional statutory language of Section 20106(b), Title 49, 

U.S.Code does not alter the warning-device requirements of Section 646.214(b)(3) 

and (4), Title 23, C.F.R., but only provides exceptions for preemption, even when 

those warning-device requirements are applicable. Accordingly, even after the 

2007 amendment, the warning-device requirements of Section 646.214(b)(3) and 
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(4) still “subsume the subject matter of the relevant state law.” Easterwood, 507 

U.S. at 664. “[I]f Congress intend[ed] for [this] legislation to change the 

interpretation of a judicially created concept, it [would make] that intent specific,” 

Midlantic Natl. Bank v. New Jersey Dept. of Environmental Protection (1986),

474 U.S. 494, 501, but Section 646.214(b)(3) and (4), Title 23, C.F.R. still

indicates federal preemption. 

{¶22} Finally, other courts that have considered the effect of the 2007 

amendment to Section 20106, Title 49, U.S.Code have also concluded that it has 

no effect on the precedential value of the preemption analysis set forth under 

Easterwood and Shanklin. See Henning, 530 F.3d at 1216 (“Congress did not 

overrule Shanklin, but instead provided clarification for courts interpreting 

Shanklin”); Murrell, 544 F.Supp.2d at 1152-1153 (“Upon finding that Shanklin

was not overruled by Congress’ clarification to section 20106, I now hold 

plaintiff's inadequate warning devices claim is preempted by federal law”); and 

Gauthier v. Union Pacific RR. Co., E.D.Tex. No. 1:07CV12, 2009 WL 812261 

(“After the amendment of Section 20106(b), the familiar preemption analysis of 

[Easterwood and Shanklin] and their progeny is applied to allegations of state law 

negligence, unless [the exceptions of Section 20106(b), Title 49, U.S.Code 

apply]”). 
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{¶23} Accordingly, because we find that the 2007 amendment to the FRSA 

does not alter the preemption analysis set forth under Easterwood and Shanklin, 

we will apply that analysis to the facts of the case before us. 

{¶24} Attached to CSX’s motion for summary judgment was an affidavit 

and exhibits establishing that two standard crossbucks were installed at this 

railroad crossing in 1993 through the Ohio Crossbuck Program, pursuant to the 

approval granted by the United States Department of Transportation, Federal 

Highway Administration. Additionally, the affidavit and exhibits establish that 

these crossbucks were installed using only federal funds. Moreover, Kill 

presented no evidence contradicting these facts in his motion for summary 

judgment. Accordingly, because these warning devices were installed using 

federal funds, the requirements of Section 646.214(b)(3) and (4), Title 23, C.F.R. 

applied. Because it was not alleged that at the time of installation of these warning 

devices, any of the conditions found in Section 646.214(b)(3)(i)(A) through (F) 

were present to necessitate the furnishing of flashing lights and automatic gates, 

only the requirement of Section 646.214(b)(4) applied, and this requirement was 

met when the Federal Highway Administration approved the installation of the 

crossbucks. Consequently, Section 646.214(b)(3) and (4), Title 23, C.F.R.

“effectively set the terms under which [CSX was] to participate in the 

improvement of crossings” and “displace[d] state and private decisionmaking [sic] 
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authority,” Easterwood, 507 U.S. at 670, thereby preempting Kill’s state-law 

inadequate-signalization claim relating to this railroad crossing. 

B. Exceptions to Preemption 

{¶25} Even though we have found Kill’s inadequate-signalization claim to 

be preempted, we must still decide whether the facts support any of the exceptions 

for preemption contained under Section 20106, Title 49, U.S.Code. Specifically, 

Kill argues that his inadequate-signalization claim is not preempted because CSX 

was in violation of a federal standard of care pursuant to Section 20106(b)(1)(A), 

Title 49, U.S.Code; because CSX was in violation of its own rule created pursuant 

to a federal regulation, as stated in Section 20106(b)(1)(B); and because the three 

conditions necessary for an exemption from preemption under Section 20106(a)(2) 

were present. 

1. Failure to Comply with a Federal Standard of Care 

{¶26} Section 20106(b)(1)(A), Title 49, U.S.Code provides an exception to 

preemption where the railroad company “has failed to comply with the Federal 

standard of care established by a regulation or order issued by the Secretary of 

Transportation.” Here, Kill asserts that because this railroad crossing has 

experienced multiple car and train collisions over the last several years, it meets 
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the requirements for the installation of flashing lights and automatic gates pursuant 

to Section 646.214(b)(3)(i)(e), Title 23, C.F.R., and because CSX failed to install 

these warning signals, it failed to comply with a federal standard of care and 

preemption does not apply. 

{¶27} However, Section 646.214(b)(3), Title 23, C.F.R. does not establish 

a standard of care, but, instead, sets forth affirmative requirements that must be 

met when certain conditions exist, thereby eliminating the railroad’s discretion in 

its decision to install an adequate warning system. See Henning, 530 F.3d at 1215 

(“It is apparent that § 646.214(b)(3) and (4) [Title 23, C.F.R.] do not establish a 

federal standard of care under which a railroad must act”); Shanklin, 529 U.S. at 

353-354, quoting Easterwood, 507 U.S. at 670 (“Unlike the other regulations, ‘§§ 

646.214(b)(3) and (4) [Title 23, C.F.R.] displace state and private decisionmaking 

authority by establishing a federal-law requirement that certain protective devices 

be installed or federal approval obtained’”). 

{¶28} Accordingly, because Section 646.214(b)(3), Title 23, C.F.R. does 

not establish a standard of care under which CSX was required to operate, Section 

20106(b)(1)(A), Title 49, U.S.Code does not operate to permit Kill’s state-law 

inadequate-signalization claim. 

2. Failure to Comply with its Own Rule 
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{¶29} Section 20106(b)(1)(B), Title 49, U.S.Code provides a second 

exception to federal preemption. The statute provides that a state-law claim will 

survive preemption when the railroad “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.” Here, Kill argues that CSX failed to comply with its own rule to 

keep the crossbuck in repair pursuant to its contractual agreement with the state of 

Ohio when it failed to replace the reflectorized tape that deteriorated off the 

crossbuck. In support of his argument, Kill cites the agreement between CSX and 

the state of Ohio for installation of the crossbuck. Section eight of that agreement 

states that CSX, “at its cost and expense, shall own said crossbuck signs and 

maintain them in good condition, as required by statute.” 

{¶30} Although CSX contractually agreed to maintain the crossbuck, this 

is not the equivalent of a “plan, rule, or standard * * * created pursuant to a 

regulation.” First, CSX’s obligation to maintain the crossbuck was not created 

pursuant to a regulation but pursuant to the contract. Second, in looking at the 

legislative history of Section 20106(b)(1)(B), Title 49, U.S.Code, it is clear that 

this contractual agreement was not the type of rule or plan contemplated by the 

statute. 

{¶31} The House of Representatives Conference Report on the 2007 

amendment to Section 20106, Title 49, U.S.Code states that the amendment was 
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intended to “clarify the intent and interpretations of the existing preemption statute 

and to rectify the Federal court decisions related to the Minot, North Dakota 

accident that are in conflict with precedent.” H.R. Conf. Rep. No. 110-259, at 

351 (2007). 

{¶32} The federal court decisions to which the conference report refers are 

Mehl v. Canadian Pacific Ry. Ltd. (D.N.D.2006), 417 F.Supp.2d 1104 and 

Lundeen v. Canadian Pacific Ry. Co. (C.A.8, 2006), 447 F.3d 606. See Henning, 

530 F.3d at 1212-1213. In Lundeen, the Eighth Circuit determined that the 

plaintiff’s negligent-inspection claim for damages as a result of a train derailment 

was preempted even though it was alleged that the railroad failed to comply with 

the federal regulations related to inspection. In Mehl, the federal district court also 

found that plaintiff’s negligent-inspection claims were preempted despite the 

plaintiff’s argument that the railroad failed to comply with the inspection 

regulations under federal law. 

{¶33} In looking at these two cases with which Congress was concerned 

when drafting the 2007 amendment to Section 20106, Title 49, U.S.Code, it is 

clear that the exception contained in Section 20106(b)(1)(B) directly concerns 

plans or rules that specifically relate to federal requirements. Here, any plan or 

rule that CSX was required to follow in replacing the reflectorized tape arose from 

its contractual agreement with the state of Ohio, not a federal regulation. Kill cites 
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to no other federal regulation or requirement that CSX was required to follow in 

replacing the reflectorized tape. 

{¶34} However, even if Kill was able to cite a federal regulation requiring 

CSX to maintain the crossbucks by repairing any reflectorized tape, we would still 

find his claim to be barred, as that claim would be a failure to adequately maintain 

the railroad crossing, and Kill dismissed this and all other claims in his amended 

complaint, except for the inadequate-signalization claim. 

{¶35} Accordingly, we find that Kill is unable to show the applicability of 

the preemption exception contained in Section 20106(b)(1)(B), Title 49, 

U.S.Code. 

3. Preemption Savings Clause of Section 20106(a)(2), Title 49, U.S.Code 

{¶36} Section 20106(a)(2) was unaltered by the 2007 amendment to the 

FRSA and provides that a state law will be excluded from preemption when the 

law “is necessary to eliminate or reduce an essentially local safety or security 

hazard; is not incompatible with a law, regulation, or order of the United States 

Government; and does not unreasonably burden interstate commerce.” Section 

20106(a)(2)(A) through (C), Title 49, U.S.Code. Here, Kill argues that he meets 

all three prongs of this preemption savings clause. He asserts that, under Ohio 

common law, railroads have a duty to exercise reasonable care to protect the safety 

of motorists at railroad crossings, which, under the conditions existing at this 
Case No. 1-09-13 

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crossing, required the installation of automatic gates and flashing lights. Kill 

claims that this duty to exercise reasonable care is necessary to reduce a local 

safety hazard, as there has been a high number of accidents at this railroad 

crossing; that this duty is not incompatible with a federal law or regulation, as this 

common-law standard for the placement of automatic gates and flashing lights 

closely mirrors the federal standard contained in Section 646.214(b)(3), Title 23, 

C.F.R.; and that this common-law standard would not unduly burden interstate 

commerce, as evidenced by the fact that this railroad crossing has been recently 

upgraded with gates and flashing lights. 

{¶37} Ohio common law requires that a railroad exercise reasonable care 

in protecting motorists from and warning them of trains approaching a highway 

crossing. Carpenter v. Consol. Rail Corp. (1994), 69 Ohio St.3d 259, 263, citing 

Matkovich v. Penn Cent. Transp. Co. (1982), 69 Ohio St.2d 210. Under some 

conditions, this duty to exercise reasonable care could require the installation of 

flashing lights and automatic gates. See id.; Anderson v. CSX Transp., Inc. (1991), 

74 Ohio App.3d 365, 372. 

{¶38} A local safety hazard is a ‘“local situation[] which [is] not statewide 

in character and not capable of being adequately encompassed within national 

uniform standards.’” Duluth, Winnipeg, & Pacific Ry. Co. v. Orr (C.A.8, 2008), 

529 F.3d 794, 798, quoting Natl. Assn. of Regulatory Util. Commrs. v. Coleman 
Case No. 1-09-13 

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(C.A.3, 1976), 542 F.2d 11, 14-15. To ascertain if a safety hazard is essentially 

local in nature, we must “inquire into the nature of the hazard itself to determine 

whether it is the type of hazard that is properly dealt with on a local level.” Union 

Pacific RR. Co. v. California Pub. Util. Comm. (C.A.9, 2003), 346 F.3d 851, 860, 

citing Burlington N. & Santa Fe Ry. Co. v. Doyle (C.A.7, 1999), 186 F.3d 790, 

795. 

{¶39} In determining what constitutes an essentially local safety hazard, 

courts have found that an abnormally high accident rate alone does not justify such 

a finding. See Murrell, 544 F.Supp.2d at 1156-1157. The frequency of accidents 

only serves as evidence of an existence of a hazard, not “the nature of the hazard 

itself.” Union Pacific RR. Co., 346 F.3d at 861 (finding that a high derailment rate 

alone does not establish an essentially local safety hazard). 

{¶40} Consequently, because Kill contends that an essentially local safety 

hazard exists solely based upon the frequency of accidents, he is unable to 

establish the presence of a local safety hazard at this railroad crossing, and we find 

that he fails to meet the first prong of the preemption savings clause of Section 

20106(a)(2)(A), Title 49, U.S.Code. It is unnecessary to examine the remaining 

two prongs. 

{¶41} Accordingly, because we find that the 2007 amendment to the FRSA 

did not alter the preemption analysis of Easterwood and Shanklin; that Kill’s state-
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law inadequate-signalization claim is preempted by the FRSA; that Kill does not 

meet the preemption exceptions contained in Section 20106(b)(1)(A) through (B), 

Title 49, U.S.Code; and that Kill fails to meet the requirements of the preemption 

savings clause of Section 20106(a)(2)(A) through (C), we find that the trial court 

did not err in granting summary judgment to CSX, thereby dismissing his 

inadequate-signalization claim. 

{¶42} Accordingly, we overrule Kill’s assignment of error. 

CSX’s Cross-Assignment of Error 

{¶43} In its cross-assignment of error, CSX asserts that the trial court erred 

in failing to dismiss Kill’s punitive-damage claim after dismissing his state-law 

claim for inadequate signalization. Specifically, CSX asserts that because a 

punitive-damages claim cannot exist independently of the underlying claim, the 

trial court was required to dismiss Kill’s punitive-damages claim when it 

dismissed his underlying claim for inadequate signalization. We agree. 

{¶44} It is well established that a claim for punitive damages cannot exist 

independently of the underlying cause of action for which it is sought. Moskovitz 

v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, 649, citing Seasons Coal Co. v. 

Cleveland (1984), 10 Ohio St.3d 77. “[A] civil action may not be maintained 

simply for punitive damages, but, rather punitive damages are awarded as mere 
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incident to the cause of action in which they are sought.” Miller v. Xenia (Mar. 

22, 2002), 2d Dist. No. 2001 CA 82. 

{¶45} In the case sub judice, Kill filed an amended complaint setting forth 

only a claim for inadequate signalization and a claim for punitive damages. The 

trial court subsequently dismissed the inadequate-signalization claim on summary 

judgment, but left the punitive-damages claim undecided. 

Even though the Defendant has addressed the punitive damage 

claim, the Court finds that the only issue before the Court, by 

agreement, is the federal preemption claim, which may make all 

other claims moot. Therefore, the Court will not address the same at 

this point. 

CONCLUSION 

The Court finds that Defendant’s Motion for Summary Judgment is 

well taken in that there are no genuine issues as to any material facts 

and as a matter of law Plaintiff’s claims are barred by federal 

preemption. 

This is a final judgment as to one but fewer than all of the claims1

and the Court makes an expressed determination pursuant to Civ.R. 

54(B) that there is no just reason for delay. 

{¶46} Consequently, because a punitive-damages claim cannot exist 

independently of the underlying claim for which it was brought, we find that Kill’s 

claim for punitive damages cannot survive the dismissal of his underlying 

inadequate signalization claim and that the trial court erred in failing to dismiss the 

punitive-damages claim. 
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{¶47} Accordingly, we sustain CSX’s cross-assignment of error. 

{¶48} Having found no error prejudicial to the appellant and cross-appellee 

in the particulars assigned and argued in his assignment of error, but having found 

error prejudicial to the appellee and cross-appellant in the particulars assigned and 

argued in its cross-assignment of error, we affirm in part and reverse in part, and 

we remand the cause to the trial court for further proceedings consistent with this 

opinion. 

Judgment affirmed in part 

and reversed in part, 

and cause remanded. 

 PRESTON, P.J., and WILLAMOWSKI, J., concur. 

 1

 We note that the trial court was referring only to the punitive-damages claim, as no other claims remained.