Torts – Railroads – preemption

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Wisconsin Supreme Court

Civil

Torts – Railroads – preemption

A parade is not a specific hazard such that federal regulation preempts a negligence claim for excessive speed, but a vehicle stopped on the tracks is.

“First, the Elm Grove Memorial Day parade was not a ‘specific, individual hazard’ because the parade created only a generally dangerous traffic condition.
Imminence and specificity are crucial components of the specific, individual hazard exception to preemption. See Armstrong v. Atchison, Topeka & Santa Fe Ry. Co., 844 F. Supp. 1152, 1153 (W.D. Tex. 1994); Hightower v. Kansas City S. Ry. Co., 70 P.3d 835, 847 n.21 (Okla. 2003). While the parade traffic in general may have increased the likelihood of an accident, it did not create a specific hazard, nor did the mere increase in traffic present an imminent danger of a collision. The parade traffic in this case is far afield of the paradigmatic specific, individual hazard of a child or vehicle stuck on the tracks in front of an oncoming train. Therefore, we reverse that portion of the court of appeals decision that concluded that the Elm Grove parade was a specific, individual hazard. In addition, we reverse the court of appeals decision to the extent that it alters the circuit court’s dismissal of Rohde and to the extent that it alters the circuit court’s decision to exclude evidence of Soo Line’s prior notice of the parade, failure to issue a slow order, and failure to hit the brakes prior to seeing the vehicle on the tracks. See Hightower, 70 P.3d at 853-54.”

“Second, as Soo Line concedes, the vehicle on the tracks in front of the approaching train was a specific, individual hazard. Thus, the question whether the train crew was negligent in responding to the vehicle stuck on the tracks remains, and we affirm that portion of the court of appeals decision that determined that the circuit court properly denied the defendants’ summary judgment motion as it related to the claims regarding the train’s reaction to the vehicle on the tracks.”

Affirmed in part, and Reversed in part.

2012AP597 Partenfelder v. Rohde

Prosser, J.

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