On April 17, the U.S. Supreme Court dealt a serious setback for safety at the nation's railroad crossings. The Court ruled in Norfolk Southern Ry. v. Shanklin that whenever safety improvements are installed at a crossing using federal money, railroads are protected against lawsuits by people who are injured because the safeguards are inadequate.

Ms. Shanklin's husband was killed at a Tennessee crossing when his car was struck by a train. There was a crossbucks sign at the crossing, but evidence indicated that trees and vegetation made it difficult for drivers to see an approaching train.

Ms. Shanklin, represented by AAJ member Pamela O'Dwyer, brought a negligence action against Norfolk Southern, alleging that it should have installed automatic gates and lights at the crossing to warn of approaching trains. A federal court jury awarded her $430,765 in damages, and the 6th Circuit Court of Appeals upheld the verdict, rejecting the railroad's claim that plaintiff's state law action was preempted by the Federal Railroad Safety Act because the crossbucks had been installed using federal funds.

The Supreme Court reversed in a 7-2 decision.

In 1973, concerned by the number of accidents at the nation's 170,000 rail crossings and impatient with the railroads' claims that they could not afford to install sufficient safety devices, Congress enacted the Highway Safety Act to give funds to states for safety improvements. Over the years, the Federal Highway Administration (FHWA) has provided over $3 billion for this purpose.

FHWA regulations require that for crossings like the one in this case, automatic gates and lights must be installed unless the Department of Transportation has inspected the site and determined that such equipment was not necessary for adequate safety. That did not occur in this case, however. In 1989, the state of Tennessee requested funds to place crossbucks at some 200 crossings so that those sites would at least have a minimum level of safety. FHWA provided the funds.

Justice Sandra Day O'Connor, writing for the majority, stated that when federal money was used to erect the crossbucks sign, the question of whether the crossing was adequately safe became solely a matter of federal regulation. From that moment, the state could not require the railroad to make any additional safety improvements, either through state regulation or by allowing a suit for damages under state negligence law. The federal regulations preempt state law regardless of whether the crossing complies with those federal regulations.

Justice Ruth Bader Ginsburg, joined by Justice John Paul Stevens dissented, stating that the result dictated by the majority "defies common sense and sound policy.'' Justice Stephen G. Breyer, concurring, suggested that the FHWA could fix this nonsensical situation by revising its regulations.

There were 431 fatal accidents at railroad grade crossings in 1998.

AAJ filed a brief as amicus curiae in support of the railroad's liability for failure to make the crossing reasonably safe.