2014 WI 80

                  SUPREME COURT         OF    WISCONSIN
CASE NO.:              2012AP597
COMPLETE TITLE:        Monica Ensley Partenfelder,
                                 Plaintiff,
                       Managed Health Services Insurance
                       Corp./Healthcare
                       Recoveries, Inc.,
                                 Involuntary-Plaintiff,
                       Scott Partenfelder,
                                 Plaintiff-Appellant-Cross-Respondent,
                            v.
                       Steve Rohde,
                                 Defendant-Respondent-Petitioner,
                       Soo Line Railroad Company,
                                 Defendant-Respondent-Cross-Appellant-
                       Petitioner.

                       ------------------------------------------------
                       League of Wisconsin Municipalities Mutual
                       Insurance,
                                  Involuntary-Plaintiff,
                       Cyndi Krahn and John Krahn,
                                  Plaintiffs-Appellants-Cross-
                       Respondents,
                            v.
                       Steve Rohde,
                                  Defendant-Respondent-Petitioner,
                       Soo Line Railroad Company,
                                  Defendant-Respondent-Cross-Appellant-
                       Petitioner.


                         REVIEW OF A DECISION OF THE COURT OF APPEALS
                               
347 Wis. 2d 385
, 
830 N.W.2d 115
                                 (Ct. App. 2013 – Published)
                                    PDC No: 
2013 WI App 48


OPINION FILED:         July 22, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         March 14, 2014

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Milwaukee
   JUDGE:              Timothy M. Witkowiak

JUSTICES:
    CONCURRED:
    DISSENTED:              ABRAHAMSON, C.J., BRADLEY, J., dissent. (Opinion
                            filed.)
    NOT PARTICIPATING:

ATTORNEYS:
        For       the       defendant-respondent-cross-appellant-petitioner,
there were briefs by Timothy R. Thornton, Jonathan P. Schmidt,
and     Briggs        and     Morgan,    P.A.,      Minneapolis,      and   William   H.
Frazier, Melinda A. Bialzik and Godfrey, Braun & Frazier, LLP,
Milwaukee, and oral argument by Timothy R. Thornton.




        For the plaintiffs-appellants-cross-respondents, there was
a    brief       by   Robert     D.     Crivello    and   Cannon      &   Dunphy,   S.C.,
Brookfield,           and     Victor     C.    Harding    and    Warhafsky,      Rotter,
Tarnoff, Bloch, S.C., Milwaukee, with oral argument by Robert D.
Crivello.


        An amicus curiae brief was filed by Beth Ermatinger Hanan
and     Gass     Weber       Mullins    LLC,    Milwaukee,      and   Daniel     Saphire,
Washington,           D.C.,    on     behalf   of   the   Association       of   American
Railroads.




                                               2
                                                                       
2014 WI 80
                                                               NOTICE
                                                 This opinion is subject to further
                                                 editing and modification.   The final
                                                 version will appear in the bound
                                                 volume of the official reports.
No.   2012AP597
(L.C. No.         2010CV4313 & 2011CV1010)

                                                                     IN SUPREME
STATE OF WISCONSIN                           :
                                                                        COURT

Monica Ensley Partenfelder,

            Plaintiff,

Managed Health Services Insurance
Corp./Healthcare Recoveries, Inc.,

            Involuntary-Plaintiff,

Scott Partenfelder,

            Plaintiff-Appellant-Cross-Respondent,

      v.

Steve Rohde,                                                         FILED
            Defendant-Respondent-Petitioner,                    JUL 22, 2014
Soo Line Railroad Company,                                         Diane M. Fremgen
                                                                Clerk of Supreme Court
          Defendant-Respondent-Cross-Appellant-
Petitioner.



------------------------------------------------

League of Wisconsin Municipalities Mutual
Insurance,

            Involuntary-Plaintiff,

Cyndi Krahn and John Krahn,

            Plaintiffs-Appellants-Cross-
                                                                        No. 2012AP597

Respondents,

    v.

Steve Rohde,

            Defendant-Respondent-Petitioner,

Soo Line Railroad Company,

          Defendant-Respondent-Cross-Appellant-
Petitioner.




    REVIEW of a decision of the Court of Appeals.                        Reversed in

part, affirmed in part, and cause remanded.



    ¶1      DAVID   T.   PROSSER,       J.        This    is     a     review    of     a

published   decision     of    the   court   of    appeals1     relating        to    the

applicability of federal preemption under the Federal Railroad

Safety Act (FRSA).

    ¶2      The   FRSA   and     its    accompanying         federal     regulations
normally preempt state law claims relating to train speed.                            49 U.S.C. § 20106      (2006).       However, there are exceptions.                      One

exception   provides     that    regardless       of   the     speed    set     by    the

federal   regulations,        federal   preemption       does   not     foreclose       a

lawsuit against a railroad for breaching the duty to slow or

stop when confronted with a "specific, individual hazard."                            See

    1
       Partenfelder v. Rohde, 
2013 WI App 48
, 
347 Wis. 2d 385
,
830 N.W.2d 115
, reviewing a decision of the Milwaukee County
Circuit Court, Timothy M. Witkowiak, Judge.



                                         2
                                                                           No.    2012AP597



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

The question in this case is whether a parade and the resultant

parade     traffic   qualify   for   the       "specific,         individual      hazard"

exception to preemption.

      ¶3     The case stems from a tragic collision between a train

and a minivan during a Memorial Day parade in the Village of Elm

Grove.     Before the parade, the Elm Grove Police Department sent

a letter to rail police officer Steve Rohde (Rohde) asking him

to notify train conductors of potential hazards on the tracks

near the parade.        Rohde passed along the information, and Soo

Line Railroad Company (Soo Line) issued an order for train crews

to sound the engine bell and look out for potential hazards at

the Elm Grove crossings.         Unfortunately, a vehicle became stuck

on the tracks, and while Elm Grove Police Officer John Krahn

(Officer Krahn) and Scott Partenfelder (Scott) were trying to

remove     Scott's   child    from   the       car    seat   in    the     back   of   the

vehicle, there was a collision in which the men were injured.

      ¶4     In   two   separate       lawsuits          that       were     eventually
consolidated, Scott, Officer Krahn, and Officer Krahn's wife,

along with their insurance companies, sued Soo Line, Rohde, and

unknown     insurance   companies     for       negligence.          The     plaintiffs

contended that Soo Line should have issued an order for trains

to go more slowly through the Elm Grove crossings because the

potential increase in traffic was a specific, individual hazard.

The defendants disagreed and asserted that the FRSA preempted

the plaintiffs' claims.         Thus, the question for Wisconsin courts
has   been    whether   the    Memorial         Day    parade      falls     under     the
                                           3
                                                                           No.    2012AP597



"specific,     individual         hazard"    exception       to   preemption.            See

Easterwood, 507 U.S. at 675 n.15.

    ¶5        We conclude the following.

    ¶6        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.

    ¶7        Second,   as    Soo    Line        concedes,    the    vehicle       on    the
tracks   in    front    of    the     approaching         train     was    a     specific,
                                             4
                                                                          No.     2012AP597



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.

             I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

      ¶8     In 2009 the Village of Elm Grove's annual Memorial Day

Parade took place on May 25.                   In anticipation of the parade,

Sergeant Ryan A. Unger (Sergeant Unger) of the Elm Grove Police

Department sent a letter dated May 6 to Steve Rohde, a member of

the   Canadian    Pacific2       Rail    Police.         The    letter     was      titled

"SPECIAL     EVENTS   NOTIFICATION"        and    said       that   Elm   Grove     would

celebrate Memorial Day with a parade that would begin at 10:30

a.m. and end around noon on Monday, May 25, 2009.                                  In the

letter,    Sergeant    Unger      stated       that    parade-related           activities

might     increase    pedestrian        traffic       into   the    afternoon.          The
letter asked Rohde to notify the conductors "of the potential

for   pedestrian      and   vehicle       hazards       on    the   tracks"        at   the

Watertown Plank Road and Legion Drive crossing and at the Juneau

Boulevard crossing.             The letter did not ask for trains to be

operated at reduced speeds.




      2
       Soo    Line    is    a    subsidiary      of    Canadian     Pacific       Railway
Company.

                                           5
                                                                        No.    2012AP597



     ¶9       When Sergeant Unger did not hear back from Rohde, he

sent an identical letter dated May 15 and followed up by calling

Rohde    on    May    22.     Sergeant     Unger       claims    that    during       the

conversation,        Rohde   said   that       he   placed   a   lookout      order    to

conductors for train crossings in Elm Grove.3

     ¶10      Rohde sent an email memo to inform dispatch4 that Elm

Grove was having a Memorial Day parade and that the Elm Grove

Police Department asked that train crews be notified about the

parade.       One of dispatch's functions is to create a document

called a Tabular General Bulletin Order (TGBO), which contains

specific      instructions    for   train       operators    and   supersedes         the

     3
       Rohde disputes Sergeant Unger's version of events and
claims that he has no authority to place a lookout order; only
the dispatch center in Minneapolis could place that order.
There is also dispute as to whether Rohde said he would ask for
the trains to slow down.     According to Sergeant Unger, Rohde
said that he put out a lookout order advising conductors to
decrease speeds and watch out for pedestrians. Rohde maintains
that he never told Sergeant Unger that he would ask conductors
to decrease their speed.   In his email to dispatch, Rohde said
only that the trains should sound their engine bells and be on
the lookout for pedestrians.

     Mark Fiereck (Fiereck), a superintendent of transportation
who oversees dispatch, testified at his deposition that after he
received Rohde's email, he called Rohde and asked for contact
information for someone involved with the Memorial Day parade.
According to Fiereck, he eventually spoke with a woman who was
involved with planning the parade, and when he asked her if she
wanted the trains to reduce their speed, she responded that she
wanted only that they look out for pedestrians and ring the bell
continuously.
     4
       A "train dispatcher" is "a railroad employee who directs
the movement of trains within a division and coordinates their
movement from one division to another with other dispatchers."
Webster's Third New International Dictionary 2424 (3d ed. 1986).

                                           6
                                                                            No.       2012AP597



general       requirements          based        on        unanticipated        events        or

conditions.         The TGBO for the trains going through Elm Grove on

the day of the parade said, "SOUND ENG BELL CONTINUOUSLY AND

LOOKOUT FOR CROWDS OF PEOPLE WITHIN THESE LIMITS."                                 The TGBO

listed    the    limits   as        milepost        94.5     and   96.0,   an     area    that

included      the    Juneau     Boulevard            crossing      where    the       accident

occurred.

       ¶11    On May 25, 2009, Scott and Monica Ensley-Partenfelder

(Monica)      took    their    children         to    the    Elm   Grove    Memorial         Day

parade.       Scott and Monica took separate vehicles because their

three children and the children's bicycles did not all fit into

one.     Scott was in front with the two older children; Monica was

directly behind Scott in a 2000 Dodge Grand Caravan and had

their    23-month-old         son    in    her      vehicle.       Travelling         west    on

Juneau       Boulevard,       Scott       and       Monica    approached        the    Juneau

Boulevard railroad crossing.                    There are two sets of tracks at

the Juneau Boulevard crossing with 28 feet between them; trains

going eastward travel on the westernmost tracks.                           When Scott and
Monica came to the crossing, traffic stopped abruptly.

       ¶12    There are some inconsistencies in the accounts of what

happened next.         Monica said that she and Scott had been stopped

at the tracks for a minute to a minute and a half when the

crossing gate began to lower and the bells began to sound.                                   She

remembered that Scott was completely on the tracks and she was

only partially on the easternmost tracks when the gate lowered

onto the back of her van.                 An eyewitness said that the crossing
gate came down on the roof of Monica's van but that the van was
                                                7
                                                       No.    2012AP597



still clear of the tracks.5     Monica could not back up because

there was a car close behind her.        Monica said that traffic

started moving again, and she followed Scott, who was able to

drive clear of both sets of tracks.

    ¶13    Officer Krahn was at his assigned post roughly 150

feet west of the Juneau Boulevard crossing.      When Officer Krahn

heard the railroad crossing bell, he went to check the crossing

and saw that there was a minivan straddling the tracks.       Officer

Krahn told the driver to move to an open gravel area to the

right, but the right tire became stuck on the tracks.         Officer

Krahn told the driver to accelerate, which caused the vehicle to

spin so that it was parallel to the tracks.         The train crew

applied the emergency brakes, but there was not enough track

between the train and the vehicle for the train to stop before

reaching   the   crossing.   Officer   Krahn   physically    extracted

Monica from the vehicle and pushed her away from the tracks.

Monica informed Officer Krahn that her son was in the back of

the car, but Officer Krahn was unable to unlock the van's door.
At that point, Scott arrived and unlocked the door; he then

leaned in to unbuckle his son from the car seat.       That is when

the train struck the van.     Monica went to the van after the

collision and found that miraculously, her son was unharmed.

However, Officer Krahn and Scott were injured in the collision.

    5
       A claims representative for Canadian Pacific Railway
Limited took measurements of the crossing and determined that
the gate that came down on Monica's van was 22.5 feet to the
east of the easternmost rail and 58.4 feet from the eastern rail
of the tracks that the train was on.

                                 8
                                                                                          No.    2012AP597



       ¶14       Following the accident, Trooper Ryan J. Zukowski of

the    Wisconsin            State     Patrol——Technical                      Reconstruction            Unit

prepared          a    Reconstruction                Report           &      Collision          Analysis

(Reconstruction             Report)       of    the      accident.            The     Reconstruction

Report discusses details related to Soo Line and the train that

collided with Monica's van.                          The Juneau Boulevard crossing is

located at milepost 95.36, where the speed limit for a non-

expedited freight train is 50 miles per hour.                                      Between mileposts

93.7 and 96.6 there is a "continuous quiet zone" where trains

may not use engine horns or bells unless there is an emergency.

However,         on   May    25,    2009,       the       TGBO        for    the    train       that    hit

Monica's vehicle at the Juneau Boulevard crossing required the

crew to sound the bell continuously and look out for people

between mileposts 96.0 and 94.5 between 9 a.m. and 3 p.m.                                                As

the train entered the bell requirement area, it was travelling

at a speed of 42.5 miles per hour, less than the speed limit of

50 miles per hour.

       ¶15       The train's Event Data Recorder (Recorder) "records
information surrounding the train's operator inputs as well as

speed-related          and    location          data."           The        Recorder       demonstrated

that       the    train      sounded       the       bell        as    required           beginning     at

milepost         95.965.            The        train       collided           with        the    van    at

approximately          44.8     miles          per       hour6    around           9:36    a.m.         The


       6
       The speed increase from 42.5 miles per hour to 44.8 miles
per hour is a normal effect of emergency activation.           An
engineer on the train stated that he applied the train's
emergency brakes when he saw Monica's van move onto the tracks.

                                                     9
                                                                 No.    2012AP597



Reconstruction Report concluded that both Juneau Boulevard and

the railroad grade crossing were maintained satisfactorily, and

the surrounding roads had the proper signage.                 The Elm Grove

Police Department conducted an investigation of the crash and

determined that the Soo Line train "was operating within Federal

Railway Administration guidelines at the time of the event."7

     ¶16       On March 24, 2010, Scott and Monica filed a complaint

in Milwaukee County Circuit Court.            On July 27, 2010, Scott and

Managed Health Services Insurance Corp./Healthcare Recoveries,

Inc. as an involuntary plaintiff (collectively, "Partenfelder

plaintiffs"),      filed    an     amended   complaint   against       Soo   Line

Railroad Company, AA Insurance Company (a fictitious name for an

unknown insurance company), and Rohde.8               The amended complaint

alleged    that     Sergeant       Unger's   letter   informed    Rohde      that

increased parade traffic "would pose a unique local hazard" and

asked    Soo    Line   to   take    safety   precautions.     The      complaint

alleged that the defendants' negligence caused the collision of

the train with         Monica's van and that Scott          suffered various
injuries and expenses.           In addition to the common law negligence

     7
       After reviewing materials from its investigation, the Elm
Grove Police Department issued a press release that stated that
Monica would receive a citation for violating Wis. Stat.
§ 346.52(1)(i) (2009-10), which prohibits stopping "[w]ithin 25
feet of the nearest rail at a railroad crossing." In addition,
the press release stated that Scott would be cited for operating
a motor vehicle without a license contrary to Wis. Stat.
§ 343.44(1) (2009-10).
     8
       Although Monica was originally a plaintiff, she was not a
party to the amended complaint, and the court allowed her to be
voluntarily dismissed on November 18, 2010.

                                        10
                                                                No.    2012AP597



claim against all defendants, the complaint brought a safe place

claim9 against Soo Line.

     ¶17    On November 29, 2010, Soo Line and Rohde filed a joint

answer to the amended complaint and asserted various affirmative

defenses, one of which was that federal law preempted the claims

in the complaint.

     ¶18    On January 19, 2011, Officer Krahn and his wife, Cyndi

Krahn    (collectively,    "Krahns"),        and     League    of     Wisconsin

Municipalities    Mutual   Insurance    as    an     involuntary      plaintiff

(collectively,    "Krahn    plaintiffs")           filed   a   complaint     in

Milwaukee County Circuit Court against Soo Line, ABC Insurance

Company (a fictitious name for an unknown insurance company),

and Rohde.    The complaint alleged that the collision between the

Soo Line train and Monica's vehicle was caused by Soo Line's

negligence in failing to reduce the train's speed in response to

the alleged specific, individual hazard of increased traffic.

     9
         Wisconsin Stat. § 101.11(1) (2009-10) provides:

          Every employer shall furnish employment which
     shall be safe for the employees therein and shall
     furnish a place of employment which shall be safe for
     employees therein and for frequenters thereof and
     shall furnish and use safety devices and safeguards,
     and shall adopt and use methods and processes
     reasonably adequate to render such employment and
     places of employment safe, and shall do every other
     thing reasonably necessary to protect the life,
     health, safety, and welfare of such employees and
     frequenters.    Every employer and every owner of a
     place of employment or a public building now or
     hereafter constructed shall so construct, repair or
     maintain such place of employment or public building
     as to render the same safe.

                                  11
                                                                             No.    2012AP597



The complaint also alleged that the Soo Line crew was negligent

for failing to look out and stop for the specific, individual

hazard of Monica's vehicle on the tracks and for failing to

apply the brakes as soon as the crew saw the vehicle.

       ¶19    Both   cases     were     consolidated       by    a   stipulation            and

order signed by all parties and filed on August 15, 2011.                                   The

consolidated      cases     proceeded     in   the   Milwaukee          County       Circuit

Court before Timothy M. Witkowiak, Judge.

       ¶20    In filings dated October 3, 2011, Soo Line and Rohde

moved   for    summary      judgment     against     the    Krahn       plaintiffs          and

filed a supplemental brief in support of a summary judgment

motion that Soo Line and Rohde had filed on February 11, 2011,

against the Partenfelder plaintiffs.                  In the briefs supporting

the summary judgment motions, Soo Line and Rohde argued that the

FRSA    preempted     all     plaintiffs'      claims.          After    a     hearing       on

November 8, 2011, Judge Witkowiak denied the summary judgment

motions against all plaintiffs in a written order filed January

19, 2012.      On February 15, 2012, in a decision on a motion for
clarification,        the     circuit    court     dismissed         Rohde         from     the

lawsuit and prohibited evidence of Soo Line's notice of the

parade, the failure to issue a slow order, and any failure to

brake    before      seeing    the    Partenfelder         vehicles.           The        court

reasoned:

       To hold [Rohde] liable for the injury that resulted
       from the "specific, individual hazard" identified by
       the Court is to impose a duty before the collision
       becomes imminent.   Permitting this case to proceed
       against Steve Rohde allows Plaintiffs to back-door a


                                          12
                                                                            No.    2012AP597


      claim that is preempted by the Federal Railroad Safety
      Act.
      ¶21    In a subsequent written order on March 7, 2012, the

court granted the motion for summary judgment as it related to

Rohde and granted in part Soo Line's motion for summary judgment

so that all claims relating to acts or omissions before the

Juneau     Boulevard     crossing       became     visible       to    the     crew      were

dismissed.

      ¶22    Scott and the Krahns filed a joint notice of appeal on

March 21, 2012.          On April, 4, 2012, Soo Line cross appealed

those portions of the circuit court's order that were against

Soo   Line    and     that     denied    Soo      Line's    motions         for    summary

judgment.

      ¶23    In a published decision, a divided court of appeals

affirmed in part, reversed in part, and remanded the case to the

circuit     court.      Partenfelder       v.    Rohde,     2013      WI    App    48,    
347 Wis. 2d 385
, 
830 N.W.2d 115
.               The court of appeals determined

that the parade was a specific, individual hazard because it was

a unique event that happened only once a year and "could cause
an accident to be imminent."               Id., ¶¶37-38 (quoting Anderson v.

Wis. Cent. Transp. Co., 
327 F. Supp. 2d 969
, 978 (E.D. Wis.

2004)).       Therefore,       the   court      reversed     the      circuit      court's

decision regarding preemption.10                Id., ¶38.       The court of appeals

affirmed     the     portion    of   the     circuit       court's         decision      that

determined     that     the    plaintiffs        stated     a    claim       for    relief

      10
       The court of appeals did not specifically address the
claims against Rohde, but it appears as though the decision
would allow those claims to be reinstated.

                                           13
                                                                       No.   2012AP597



regarding the train crew's allegedly negligent response after

seeing    Monica's    van    on    the     tracks.      Id.,    ¶¶1,   39-40.      The

dissent     disagreed       with     the     majority's        conclusion    on    the

preemption issue, reasoning that the parade presented only a

"potential    for     danger"      and     was   not    a   specific,    individual

hazard.     Id., ¶41 (Curley, P.J., dissenting in part, concurring

in part).

    ¶24     Soo Line petitioned this court for review, which we

granted on September 17, 2013.

                            II. STANDARD OF REVIEW

    ¶25     This court reviews summary judgment decisions de novo

but benefits from the analyses of the circuit court and court of

appeals.     Yahnke v. Carson, 
2000 WI 74
, ¶10, 
236 Wis. 2d 257
,

613 N.W.2d 102.         A court shall grant summary judgment if the

record demonstrates that "there is no genuine issue as to any

material    fact     and    that    the    moving      party    is   entitled     to   a

judgment as a matter of law."               Wis. Stat. § 802.08(2) (2011-12).

"[W]hether federal preemption applies is a question of federal
law that we review independently."                   Blunt v. Medtronic, Inc.,

2009 WI 16
, ¶13, 
315 Wis. 2d 612
, 
760 N.W.2d 396
 (citing Int'l

Ass'n of Machinists & Aerospace Workers v. U.S. Can Co., 
150 Wis. 2d 479
, 487, 
441 N.W.2d 710
 (1989)); see Miller Brewing Co.

v. DILHR, 
210 Wis. 2d 26
, 33, 
563 N.W.2d 460
 (1997).

                                   III. DISCUSSION

    ¶26     The essential question in this case is whether the

FRSA preempts claims that Soo Line should have slowed its trains
because of the Memorial Day parade traffic.                      The Supreme Court
                                           14
                                                                    No.    2012AP597



has outlined three instances in which preemption occurs: (1)

when Congress expressly sets forth a law's preemptive effect;

(2) when there is a reasonable inference that the subject matter

of the law in question is in a field in which Congress intended

federal law to have exclusive application; and (3) when state

law conflicts with federal law.            English v. Gen. Elec. Co., 
496 U.S. 72
, 78-79 (1990).         This case involves the FRSA's express

preemption.

       ¶27   The FRSA was created "to promote safety in every area

of railroad operations and reduce railroad-related accidents and

incidents."          49 U.S.C.  § 20101    (2006).         To     facilitate

uniformity,    the    FRSA   expressly     preempts   state    law        in   areas

covered by the FRSA:

            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. 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.
49 U.S.C. § 20106 (2006).

       ¶28   FRSA preemption applies to state common law claims as

well    as   statutory    claims.      Easterwood,       507   U.S.       at    664.

Although the FRSA expressly preempts state law in covered areas,

it does provide an exception to preemption for "an essentially

local safety or security hazard":



                                      15
                                                          No.   2012AP597


     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——

               (1) is necessary to eliminate or reduce an
          essentially local safety or security hazard;

               (2) is    not incompatible        with  a  law,
          regulation, or order of the            United States
          Government; and

               (3) does not unreasonably burden interstate
          commerce.
49 U.S.C. § 20106 (2006) (emphasis added).       In addition to this

exception in the text of the FRSA, there is an exception to

preemption   for   state   claims   alleging   that   a   railroad   was

negligent for failing to slow or stop a train in response to a

"specific, individual hazard."11         Easterwood, 507 U.S. at 675

n.15.


     11
       Courts have come to different conclusions as to whether a
"specific, individual hazard" is part of the "essentially local
safety or security hazard" exception to preemption listed in 49 U.S.C. § 20106 or whether it falls outside the scope of the
FRSA. See Myers v. Mo. Pac. R.R. Co., 
52 P.3d 1014
, 1026 n.43
(Okla. 2002) (citing cases that disagree as to whether the
essentially local safety or security hazard exception in 49 U.S.C. § 20106 is distinct from specific, individual hazards).
We conclude that a specific, individual hazard is separate from
the statutory local safety or security exception to preemption.
This view is supported by CSX Transp., Inc. v. Easterwood, 
507 U.S. 658
, 675 & n.15 (1993), where the Supreme Court determined
that an excessive speed claim did not fall under the statutory
"essentially local safety hazard" exception but suggested that a
"specific, individual hazard" might place an excessive speed
claim outside of FRSA preemption.     The parties in this case
frame their arguments in terms of a "specific, individual
hazard" exception; therefore, we will not address the elements
of the "essentially local safety or security hazard" exception
in 49 U.S.C. § 20106 (2006).

                                    16
                                                                            No.     2012AP597



       ¶29    The    FRSA    requires       the        Secretary     of    Transportation

(Secretary) to "prescribe regulations and issue orders for every

area of railroad safety supplementing laws and regulations."                               49 U.S.C. § 20103(a) (2006).                 Acting through the Federal Railroad

Administration, the Secretary promulgates regulations that set

forth maximum train speeds depending on the track class.                                  See

Easterwood, 507 U.S. at 673; 49 C.F.R. §§ 1.49(m), 213.9 (2008).

       ¶30    Federal regulations under the FRSA preempt state law

only if they cover the same subject matter as the state law;

that is, state law is preempted "only if the federal regulations

substantially subsume the subject matter of the relevant state

law."        Easterwood, 507 U.S. at 664 (citation omitted).                              The

Supreme Court has determined that 49 C.F.R. § 213.9(a) "cover[s]

the     subject     matter        of    train        speed   with    respect      to   track

conditions . . . ."           Easterwood, 507 U.S. at 675.                   "Thus, if a

train    is    involved      in    an    accident        while    traveling       under   the

maximum speed prescribed by § 213.9(a), a state law claim based

on excessive speed is preempted."                      Anderson, 327 F. Supp. 2d at
975.

       ¶31    However, as mentioned above, negligence claims based

on a train's failure to slow or stop in the face of a "specific,

individual hazard" fall outside preemption.                          E.g., Easterwood,

507 U.S. at 675 n.15; Anderson, 327 F. Supp. 2d at 975.                                It is

undisputed that the Soo Line train involved in the collision was

travelling under the prescribed speed limit, and there is no

allegation          of    any          violation        of       federal     regulations.
Accordingly, Scott and the Krahns (collectively, "respondents")
                                                17
                                                                      No.     2012AP597



may pursue their claims that Soo Line should have slowed its

trains in response to the parade traffic only if this court

concludes that the Elm Grove Memorial Day parade was a specific,

individual hazard that removed the claims from the ambit of

preemption.

                 A. Defining "Specific, Individual Hazard"

    ¶32     The "specific, individual hazard" language originated

in Easterwood where the Supreme Court considered whether the

FRSA preempted a negligence claim based on a train's allegedly

excessive speed.            Easterwood, 507 U.S. at 665, 675 n.15.                   In

Easterwood, a train struck and killed Thomas Easterwood as he

was driving across a set of railroad tracks in Cartersville,

Georgia.         Id.   at   661.     His    widow,       the   respondent,    brought

several    claims      against     the   railroad,       including    a     claim   for

breaching the common law duty to operate the train at a safe

speed.     Id.    The Court determined that "the speed limits must be

read as not only establishing a ceiling, but also precluding

additional state regulation of the sort that respondent seeks to
impose on petitioner."             Id. at 674.           The Court rejected the

respondent's argument that a common law speed restriction falls

under     the    "essentially      local        safety    hazard"    exception      but

suggested that the FRSA might not preempt speed claims based on

specific, individual hazards:

    Petitioner is prepared to concede that the pre-emption
    of respondent's excessive speed claim does not bar
    suit for breach of related tort law duties, such as
    the duty to slow or stop a train to avoid a specific,
    individual hazard.   As respondent's complaint alleges
    only that petitioner's train was traveling too quickly

                                           18
                                                            No.    2012AP597


    given the "time and place," this case does not
    present, and we do not address, the question of FRSA's
    pre-emptive effect on such related claims.
Id. at 675 & n.15 (internal citations omitted).

    ¶33     Since Easterwood, courts have endeavored to define the

parameters   of   the   "specific,   individual   hazard"   exception    to

preemption    and   generally    have     interpreted   the       exception

narrowly.    Veit, ex rel. Nelson v. Burlington N. Santa Fe Corp.,

249 P.3d 607
, 618 (Wash. 2011) (en banc).          A Wisconsin federal

district court offered the following definition:

    Generally    speaking, . . . a    specific,   individual
    hazard is a person, vehicle, obstruction, object or
    event which is not a fixed condition or feature of a
    crossing and cannot be addressed by a uniform,
    national standard.    See, e.g., Hightower, 70 P.3d at
    847.     A specific individual hazard is a unique
    occurrence which could cause an accident to be
    imminent rather than a generally dangerous condition.
    A commonly cited example is a child standing on a
    track.    "Factors such as general knowledge that a
    crossing    is   dangerous,    traffic   conditions,   a
    crossing's accident history, sight distances, multiple
    crossings in close proximity, sun glare, a railroad's
    internal policies regarding speed, and inadequate
    signal   maintenance   are  not    specific,  individual
    hazards."   Myers v. Mo. Pac. R.R. Co., 
52 P.3d 1014
,
    1028 (Okla. 2002).
Anderson, 327 F. Supp. 2d at 978 (footnotes omitted) (internal

citations omitted).       The definition suggests that a specific,

individual hazard: (1) is a unique,12 particular danger rather

than a "generally dangerous condition"; (2) poses a danger of an

imminent collision; and (3) "cannot be addressed by a uniform,


    12
       In this context, "unique" refers to occurrences that are
unusual rather than one-of-a-kind.

                                     19
                                                                                         No.      2012AP597



national standard."                     Id. (citation omitted).                    These components

of   a    specific,              individual          hazard      are       interrelated,          and    we

discuss them in more detail below.

         ¶34    To         fall        under        the       specific,          individual         hazard

exception,          the      hazard        must,         as    the    name       of    the     exception

indicates,            be     a     specific          rather       than       a     general        danger.

Armstrong,          844     F.     Supp.       at    1153      ("The       'specific,          individual

hazard' identified by the Easterwood court logically relates to

the avoidance of a specific collision.").                                         In addition, the

specific danger must pose the risk of an imminent collision.

Hightower, 70 P.3d at 847 n.21 (citation omitted) (agreeing with

courts         that    "have           narrowly          construed         'specific,        individual

hazard'        as     an     'avoidance             of    an    imminent         collision        with    a

specific person or object'").                             In keeping with the specificity

requirement, a specific, individual hazard is something that is

unique     and        could       not     have       been      taken       into       account     by    the

Secretary when promulgating uniform, national standards.                                                 See

Myers,     52       P.3d     at        1027;   Armstrong,            844    F.    Supp.      at   1152-53
(determining that a grade crossing without                                  an automatic gate or

flashing lights in an area of heavy traffic was not a specific,

individual          hazard         in    part       because      the       Secretary         took   those

conditions into consideration).

         ¶35    Relying           on    the    Anderson         definition         quoted       above     in

paragraph 33, the respondents attempt to characterize the parade

as a unique "event" that "could cause an accident" with a parade

attendee "to be imminent."                           The respondents fail to consider
Anderson's definition in its entirety.                                     The alleged hazard in
                                                         20
                                                                            No.       2012AP597



this    case     is     more    appropriately        characterized      as        a   traffic

condition rather than an event.13                     The Memorial Day parade may

have        increased     the     danger       of     a     collision   generally           by

contributing to traffic congestion, but Anderson is clear that

"generally dangerous condition[s]" and "traffic conditions" are

not specific, individual hazards.                    Anderson, 327 F. Supp. 2d at

978.

       ¶36     Moreover, the idea that a specific, individual hazard

is something that "could cause an accident to be imminent," id.

(emphasis       added),    does        not   mean    that    a   specific,        individual

hazard is any hazard that could, in a cosmic sense, lead to an

imminent danger of an accident.                      Instead, that phrase must be

considered in context: "A specific individual hazard is a unique

occurrence which could cause an accident to be imminent rather

than a generally dangerous condition."                           Id. (emphasis added)

(citation omitted).             Thus, imminence is related to a particular

danger.         Cf.    Myers,     52    P.3d    at    1027    n.45   (emphasis         added)

(agreeing       with     courts    that      "have    concluded      that    the       phrase
specific, individual hazard was used in Easterwood to describe




       13
        In fact, both complaints allege that the traffic is the
specific, individual hazard.      The Partenfelder plaintiffs'
amended complaint alleges "that the pedestrian and vehicular
traffic would pose a unique local hazard."            The Krahn
plaintiffs' complaint alleges "that the increased pedestrian and
vehicular traffic would pose a specific, individual hazard."
Although the complaints allege that the parade attracted the
traffic, they refer to the traffic as the hazard, not the
parade.

                                               21
                                                                              No.   2012AP597



the avoidance of an imminent collision with a specific person or

object").

       ¶37    For example, if the Elm Grove Police Department had

called Soo Line and said that there was a van stuck on the

tracks several miles ahead of the train, the van would have been

a specific, individual hazard that could have caused an accident

to be imminent as the train approached.                           The same is not true

for traffic congestion.                   Even as a train approaches a crowded

crossing,      there     is     no    imminent        danger      of     a    collision     if

motorists and pedestrians are following the law.                             Thus, even if

an "event" can constitute a specific, individual hazard in some

circumstances, neither the parade in this case nor its resultant

traffic was such an event.

       ¶38    Perhaps because no case has determined that an event

like a parade is a specific, individual hazard, the respondents

analogize     to   a     case    in       which    the    court    determined       that    an

obstructed view was a specific, individual hazard.                                  Mo. Pac.

R.R. Co. v. Lemon, 
861 S.W.2d 501
 (Tex. App. 1993).                             The analogy
is strained, and it is worth noting that at least one case that

used    the    "event"        language        has        specifically        rejected      the

reasoning in Lemon.             Myers, 52 P.3d at 1027 n.45 (stating that

although      Lemon      "may        be     justified       in     light      of    specific

peculiarities       in    [its]       fact        pattern[],"      the       case   did    not

"provide[] a sound rule of general applicability").

       ¶39    In   Lemon, a train struck a vehicle and killed the

driver at a railroad crossing where railroad cars were illegally
parked to obstruct the view of both drivers and train operators.
                                              22
                                                                                No.    2012AP597



Lemon, 861 S.W.2d at 508-09.                      In addition to the fact that

illegally-parked train cars made the crossing less safe, the

crossing also was unlit, had no warning device for drivers to

alert them to a coming train, consisted of multiple tracks, was

above the level of the road, and had a curved road leading to

the tracks.         Id. at 510.          The train's engineer testified that he

would have seen the driver's car sooner if the illegally-parked

train cars had not been there.                     Id. at 509-10.               The driver's

estate,      among      others,      brought        several       claims        against      the

railroad including one for operating at an excessive speed.                                    Id.

at 508.      The railroad appellants argued that the FRSA preempted

the excessive speed claim.                Id. at 509.

       ¶40     The court in Lemon determined that train cars that

obstructed the train operator's view were parked in violation of

an     administrative         code       provision        and    that     the       engineer's

"realization        that    his    view     of    one     side   of     the   crossing       was

obstructed,         coupled       with     his     knowledge       of     this        crossing,

triggered a duty for [the engineer] to slow his train . . . ."
Id. at 509-10.          The court noted that the illegally-parked train

cars were not something that the Secretary of Transportation

took    into    consideration        when        setting    train       speed     limits     and

constituted         a   specific,         individual       hazard.            Id.     at     510.

Therefore, the excessive speed claim was not preempted.                                Id.

       ¶41     We   agree     with       Myers     that    Lemon      does      not     give    a

generally applicable rule.                Lemon's reasoning is suspect because

it relies in part on the engineer's knowledge that a crossing
had dangerous features.              See id.         But see Easterwood, 
507 U.S. 23
                                                                         No.     2012AP597



at    675   (stating     that       "§ 213.9(a)      should    be     understood       as

covering the subject matter of train speed with respect to track

conditions, including the conditions posed by grade crossings");

Anderson, 327 F. Supp. 2d at 978 (noting that general knowledge

of a crossing's danger and the fixed features of crossings do

not constitute a specific, individual hazard).                       Moreover, Lemon

came closer to falling within the specific, individual hazard

exception than the present case because the hazard in Lemon was

a specific obstruction that the Secretary could not have taken

into account.         The railroad knew that the illegally-parked train

cars would obstruct the view of approaching trains and vehicles,

creating    an    imminent      danger      of   a   crash     any    time      a    train

traversed      the    crossing      while    a    car    was   approaching.             In

contrast, the parade traffic is more aptly categorized as a

generally      dangerous     condition       because      unlike     the   illegally-

parked train cars, the parade does not necessarily make the

crossing less safe.

      ¶42   In addition to citing cases that attempt to define
Easterwood's         "specific,      individual         hazard"      exception,       the

respondents cite a pre-Easterwood case to argue that railroads

have a duty to slow their trains when they know of a temporary

and specific hazard.          See Fla. E. Coast Ry. Co. v. Griffin, 
566 So. 2d 1321
 (Fla. Dist. Ct. App. 1990).                  In Griffin, a train hit

a child who tripped while trying to cross the railroad tracks.

Id. at 1322.           There was evidence that the railroad and the

engineer operating the train knew that children commonly crossed
the   tracks     at    the   spot    of   the    accident.         Id.         The   court
                                            24
                                                                             No.    2012AP597



determined that the FRSA did not preempt claims relating to

"specific tortious acts in the face of hazardous conditions."

Id. at 1324.         Thus, on retrial, the jury was allowed to consider

the fact that the railroad did not issue a slow order and that

the engineer did not slow down or stop when he saw the children.

Id.

      ¶43     Based on Griffin, the respondents in this case suggest

that the jury should be able to consider Soo Line's knowledge of

the increased traffic due to the Memorial Day parade and its

failure to issue a slow order.                   However, the persuasive value of

the opinion from a Florida court of appeals is minimal given the

fact that the Supreme Court subsequently addressed the issue.

Griffin     is    an    outlier      because      it   does    not     require          that    a

collision between a train and a specific hazard be imminent

before the specific, individual hazard exception applies.                                      We

decline     to   follow      the     analysis     in   Griffin    because          it    is    no

longer the applicable law.

      ¶44     In a decision more analogous to the present case, a
U.S. District Court in Mississippi determined that a railroad

did   not     need     to    slow     its   trains     based     on    knowledge           that

construction         workers    would       be    working     near     the    tracks          and

frequently crossing the tracks.                     Baker v. Canadian Nat'l/Ill.

Cent. Ry. Co., 
397 F. Supp. 2d 803
, 814 (S.D. Miss. 2005).                                    The

plaintiff argued that the railroad should have issued a slow

order in response to the workers' activities.                          Id. at 814 n.9.

The   court      rejected      the    plaintiff's      claim     and    concluded          that
"[i]t     has    been       consistently         emphasized    that     the        kinds       of
                                             25
                                                                     No.       2012AP597



conditions that could constitute a 'specific individual hazard'

are   limited    to    transient      conditions      that   could      lead    to    an

imminent      collision,       such    as     a    child     standing          on    the

railway . . . ."        Id. at 813.           Therefore, the fact that the

workers had to cross the tracks frequently was not a specific,

individual     hazard       because   such    activity     took   place    at       many

sites.14     Id. at 814.

      ¶45    Similarly, events might cause increased traffic around

railroad crossings all over the country, and trains have no duty

to    slow   down     for    potential      hazards    unless     the    danger       is

imminent.       See Bashir v. Nat'l R.R. Passenger Corp. (Amtrak),

929 F. Supp. 404
, 412 n.5 (S.D. Fla. 1996), aff'd sub nom.

Bashir v. Amtrak, 
119 F.3d 929
 (11th Cir. 1997) (declaring that

"a claim of failure to maintain a slow speed to avoid potential

hazards is simply another way of claiming that the train was

traveling at an excessive speed given the track type, location,

and conditions, which Easterwood precludes as preempted.").


      14
       Respondents argue that Soo Line slows its trains when it
knows that employees are working on the tracks and that it
should do the same when it knows the public will be near the
tracks. The fact that Soo Line slows its trains when it knows
that workers will actually be on the tracks does not give rise
to a duty for Soo Line to slow its trains when there is traffic
that might cause vehicles to become stuck on the tracks.
Respondents also argue that because in years past, Soo Line had
slowed down its trains, it knew that the parade was a specific,
individual hazard.    However, because the specific, individual
hazard exception asks whether a collision is imminent, Soo
Line's past conduct is irrelevant.     A plaintiff cannot use a
railroad's  past   voluntary   act  of   caution  to  circumvent
preemption.

                                         26
                                                                         No.    2012AP597



                             B. Practical Concerns

      ¶46     The court of appeals supported its determination that

the parade was a specific, individual hazard by emphasizing that

the   parade      occurred    only    once      a   year.         Partenfelder,      
347 Wis. 2d 385
, ¶37.       Because the parade happens only once a year,

the   court    reasoned      that    it   was   unique      and    not   a     generally

dangerous condition like traffic related to frequent sporting

events.     Id.    Nonetheless, the fact that the parade is an event

that happens only once a year and "could cause an accident to be

imminent" in a broad sense is not sufficient to place it under

the specific, individual hazard exception.

      ¶47     Under the analysis espoused by the court of appeals

and the respondents, railroads would be captive to speculative

letters alleging that yearly "events" could cause an imminent

accident.15       It is not clear what standards railroads would have

to use to make the determination when an event rises to the

level of a specific, individual hazard.                     Letters could come to

the railroad asking for slow orders for events from birthday and
graduation parties to family reunions, to races and marathons,

all of which might happen only once a year.                        However, traffic

created by once-a-year events might not be appreciably different

      15
       Although it might seem clear, the concept of a unique
event is far too manipulable to provide a workable standard.
For example, if Elm Grove put on an Independence Day parade in
addition to the Memorial Day parade, would each parade be a
unique event? It is unclear whether we would look at the broad
categorization——parades——or at the underlying holiday or cause
for celebration to determine uniqueness. The same problem could
arise with other themed events or concerts.

                                          27
                                                                         No.    2012AP597



from traffic due to regularly held events like concerts, plays,

farmers'    markets,        or    sporting        events.      As    Amicus         Curiae

Association     of   American          Railroads    points    out,   regular        events

might even attract more traffic than unique events.                            Thus, to

carve out an exception for parade traffic would be to poke an

arbitrary hole in preemption.                It may be a small hole at first,

but   arbitrary      holes       are    subject     to   expansion    as       litigants

attempt to wedge their claims into the exception.

      ¶48   If we were to accept the respondents' test, railroads

would face the constant dilemma of either slowing their trains

or    risking     prolonged        litigation        and     potential      liability.

Furthermore, encouraging trains to fluctuate their speeds might

be dangerous.

      The safest train maintains a steady speed. Every time
      a train must slow down and then speed up, safety
      hazards,   such   as  buff  and   draft   forces,  are
      introduced.    These kinds of forces can enhance the
      chance of derailment with its attendant risk of injury
      to employees, the traveling public, and surrounding
      communities.
Track Safety Standards, 63 Fed. Reg. 33992, 33999 (June 22,

1998).      In fact, slowing a train down might not prevent an

accident because "[t]he physical properties of a moving train

virtually    always    prevent          it   from   stopping    in   time      to    avoid

hitting an object on the tracks regardless of the speed at which

the train is traveling."               Id.

      ¶49   The      idea    that        increased       traffic     constitutes         a

specific, individual hazard is suspect in part because train
crews may assume that drivers will stop safely rather than cross


                                             28
                                                                  No.    2012AP597



a track when a train is approaching.              See Van Gheem v. Chicago &

N.W.    R.R.    Co.,   
33 Wis. 2d 231
,     243,   
147 N.W.2d 237
   (1967).

Wisconsin Stat. § 346.52(1)(i) (2009-10) prohibits drivers from

stopping "[w]ithin 25 feet of the nearest rail at a railroad

crossing."       Drivers must stop at the signal of a warning device

at a railroad crossing and shall not cross the tracks when a

train is approaching.            Wis. Stat. § 346.44 (2009-10).             Thus,

even    times     of   high    traffic    do    not   normally   constitute     a

specific,       individual      hazard   because      traffic    laws    provide

protection for motorists and facilitate the safe operation of

trains.16       Unfortunately, occasional accidents occur.               Although

our compassion extends to all involved in the collision in this

case, we cannot allow our sympathies to alter our analysis.                   The

FRSA preempts state claims, and the parade in this case does not

fit within the exception for specific, individual hazards.                     To

hold otherwise would disregard the FRSA's express preemption and

create uncertainty and inefficiency for railroads.

       ¶50     In sum, the parade and its attendant traffic do not
constitute       a     specific,     individual       hazard;    instead,     the

circumstances of this case presented only a general danger of

traffic congestion.           A specific, individual hazard exists when

there is a particular hazard that poses the risk of an imminent


       16
       Although slowing trains might prevent some accidents,
"Prevention of grade crossing accidents is more effectively
achieved through the use of adequate crossing warning systems
and through observance by the traveling public of crossing
restrictions and precautions."   Track Safety Standards, 63 Fed.
Reg. 33992, 33999 (June 22, 1998).

                                         29
                                                                No.   2012AP597



danger of a collision under circumstances that the Secretary

could   not   have   taken    into     consideration     when   promulgating

uniform, national regulations.              Here, those circumstances did

not arise until Monica's van was visible to the train crew.

Therefore, the inquiry on remand must focus on the train crew's

response once it saw Monica's van.              See Hightower, 70 P.3d at

853-54 (footnote omitted) (citations omitted) (stating that when

the FRSA preempts negligence claims, "evidence pertinent to such

claims is likewise inadmissible when offered for purposes of

proof of culpability").

                              IV. CONCLUSION

    ¶51     We conclude the following.

    ¶52     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, 844 F. Supp. at

1153; Hightower, 70 P.3d at 847 n.21.             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
                                       30
                                                                      No.    2012AP597



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.

    ¶53        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.

    By     the    Court.—The     decision    of   the   court    of       appeals    is

affirmed in part, reversed in part, and the cause is remanded to

the circuit court for further proceedings consistent with this

opinion.




                                        31
                                                                 No.    2012AP597.ssa




     ¶54    SHIRLEY      S.    ABRAHAMSON,      C.J.    (dissenting).         It    is

important that trains run on time, but it is more important that

the people and property of the state be kept safe.

     ¶55    The public safety of the residents of Wisconsin and

our established tort law designed to promote public safety in

Wisconsin    do    not    necessarily       conflict    with   federal    standards

under the Federal Railroad Safety Act (FRSA), which "promote[s]

safety in every area of railroad operations . . . ."1

     ¶56    Like    the       court    of   appeals,    I   recognize     that     the

Federal Railroad Safety Act does not fully replace or supersede

Wisconsin's tort law, which protects the residents of the state

from injury.2

     ¶57    By its very terms, the Federal Railroad Safety Act

does not completely preempt all claims arising from a motorist's

collision with a train.               The text of the Act is evidence that

Congress did not intend to preempt all claims based in part on

the Federal Railroad Safety Act.                   In areas long occupied by
state law, there is a presumption against preemption "unless

[preemption] was the clear and manifest purpose of Congress."3




     1
         49 U.S.C. § 20101.
     2
       Partenfelder v. Rohde,               2013   WI   App    48,   ¶¶29-33,      
347 Wis. 2d 385
, 
830 N.W.2d 115
.
     3
       Rice v. Santa Fe Elevator Corp., 
331 U.S. 218
, 230 (1947).
See also Medtronic, Inc. v. Lohr, 
518 U.S. 470
, 485 (1996).

                                            1
                                                                 No.   2012AP597.ssa


     ¶58    Although     the   Federal       Railroad   Safety    Act    does   not

preempt all state claims related to railroad safety, it clearly

preempts some.

     ¶59    Section 20106 of the Federal Railroad Safety Act is

entitled "Preemption."         A state's authority to regulate railroad

safety     is   displaced      when   the     Secretary     of    Transportation

"prescribes a regulation or issues an order covering the subject

matter of the State requirement."4              The Federal Railroad Safety

Act grants the Secretary of Transportation broad authority to

prescribe regulations and issue orders for railroad safety.

     ¶60    A state may adopt or continue in force an additional

or more stringent law          than provided in the Federal Railroad

Safety Act as long as it "(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."5

     ¶61    The Federal Railroad Safety Act, 49 U.S.C. § 20106,
authorizes States to adopt or continue in force more stringent

requirements related to railroad safety as follows:

     (a) National uniformity of regulation.——(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

     4
         49 U.S.C. § 20106(a)(2).
     5
         49 U.S.C. § 20106(a)(2).

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                                             No.   2012AP597.ssa

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.

(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.

(c) Jurisdiction.——Nothing in this section creates a
Federal cause of action on behalf of an injured party
or confers Federal question jurisdiction for such
State law causes of action.


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                                                                      No.    2012AP597.ssa


     ¶62       The     majority      opinion       recognizes     that      the    Federal

Railroad Safety Act does not preempt all tort claims against

railroads,6 yet treats the "specific, individual hazard" as the

only tort claim that survives preemption and addresses only the

issue of whether a "specific, individual hazard" existed in the

instant case, despite the plaintiffs' assertion that other tort

duties apply.7

     ¶63       On    the     contrary,       in    CSX   Transportation,          Inc.    v.

Easterwood, 
507 U.S. 658
 (1993), the case the majority opinion

cites    for     the       "specific,    individual        hazard"    exception,         the

United States Supreme Court acknowledged that preemption of an

excessive      speed       claim    under    the    Federal     Railroad     Safety      Act

"does     not        bar     suit     for     breach       of   related       tort       law

duties . . . . "8            A "specific, individual hazard" is not to be

confused with the preemption exception in § 20106(a)(2)(A) for

an "essentially local safety or security hazard."9

     ¶64       Easterwood      addressed       whether a state wrongful              death

claim based on excessive train speed was preempted by federal
regulations that set maximum allowable operating speeds for all

freight    and       passenger      trains    for   each    class    of     track.       The

     6
         Majority op., ¶2.
     7
       See Response Brief of the Plaintiffs-Appellants-Cross-
Respondents at 3-4, 23-24 (stating there are multiple tort law
duties that will defeat federal preemption including, but not
limited to, slowing for a "specific, individual hazard.").
     8
       CSX Transp., Inc. v. Easterwood, 
507 U.S. 658
, 675 n.15
(1993).
     9
       Dresser v. Union Pacific R.R. Co., 
809 N.W.2d 713
, 722
(Neb. 2011).

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                                                                    No.   2012AP597.ssa


United States Supreme Court reasoned that these speed limits

were adopted only after the hazards posed by track conditions

were taken into account and that thus, all state law claims for

excessive speed were subsumed by the regulations.10

      ¶65    A     footnote   in    Easterwood      noted    that     although     the

railroad     was    "prepared      to   concede"    that    the   "pre-emption      of

[the] excessive speed claim [did] not bar suit for [its] breach

of related tort law duties, such as the duty to slow or stop a

train to avoid a specific, individual hazard," that issue was

not   presented      and   thus    would    not    be   decided     by    the   Court.

Easterwood, 507 U.S. at 675-76.

      ¶66    Wisconsin tort law's duty to exercise reasonable care

can be violated even if the train speed limits set under federal

law are being followed.             The claim in the instant case relates

to a circumstance that is not a fixed condition or feature of

the railroad crossing.             The local parade event could not have

been taken into account by the Secretary of Transportation in

the promulgation of uniform, national speed regulations under
the Federal Railroad Safety Act.                  The plaintiffs' claim in the

instant case is based on a unique occurrence that was likely to

result in a collision, namely large numbers of cars and people

would be on the tracks at a particular annual local event of

which the railroad had been given notice.

      ¶67    I disagree with the majority opinion's implicit broad

holding that the only state tort law claims that survive the

Federal Railroad Safety Act are those that allege a "specific,

      10
           Easterwood, 507 U.S. at 675.

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                                                        No.   2012AP597.ssa


individual hazard."    Such an interpretation is contrary both to

the federal statute and to our state's interest in protecting

tort victims.

    ¶68   For the foregoing reasons, I dissent.

    ¶69   I   am   authorized   to   state   that   Justice   ANN   WALSH

BRADLEY joins this dissent.




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1


Case Information

Case Name: Scott Partenfelder v. Steve Rohde

Court: wis

Year: 2014-07-22

This case can be cited as precedent.