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Torts — federal preemption

By: WISCONSIN LAW JOURNAL STAFF//March 19, 2013//

Torts — federal preemption

By: WISCONSIN LAW JOURNAL STAFF//March 19, 2013//

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Wisconsin Court of Appeals

Civil

Torts — federal preemption

The Federal Railroad Safety Act (“FRSA”) does not preempt negligence and safe-place claims to the extent those claims were based on allegations that the railroad had a duty to slow or stop the train because of a parade.

“Relying on the definition of a specific, individual hazard set forth in Anderson, the Plaintiffs argue that the circuit court erred in concluding that the parade itself was not a specific, individual hazard because the parade was a temporary ‘event’ that, at that particular crossing, during the three hours the parade was going on, ‘could cause an accident’ ‘to be imminent’ if the train did not operate at a restricted speed. The Railroad counters that the parade only presented the potential for danger, and that the specific, individual hazard exception does not apply unless there is actual imminent danger of the train colliding with a specific vehicle or object on the tracks. Moreover, the Railroad asserts that specific, individual hazards must be aberrations that cannot be practically addressed by uniform national standards, and a parade resulting in traffic congestion does not qualify as an aberration. As such, the Railroad asserts that the circuit court properly concluded that the parade was not a specific, individual hazard and that claims based on the parade are preempted. We agree with the Plaintiffs that, given the facts of this case, the parade was a specific, individual hazard, and therefore claims based upon the parade are excepted from federal preemption under the FSRA.”

Affirmed in part, and Reversed in part.

Recommended for publication in the official reports.

2012AP597 Parfenfelder v. Rhode

Dist. I, Milwaukee County, Witkowiak, J., Brennan, J.

Attorneys: For Appellant: Harding, Victor C., Milwaukee; For Respondent: Delury, Russ J., Brookfield; Frazier, William H., Milwaukee; Thornton, Timothy R., Minneapolis; Bialzik, Melinda A., Milwaukee; Schmidt, Jonathan P., Minneapolis

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