There is a provision in the new homeland security legislation, which was signed into law by President Bush, that the Federal Railroad Safety Act of 1970 does not preclude state lawsuits against railroads by injured persons. 

It specifically covers claims by the residents of a small city in North Dakota. The provision, entitled "Railroad Pre-emption Clarification," is in the new law implementing the recommendations of the 9/11 Commission.

The impetus for the provision being included can be traced to an event involving a Canadian Pacific train that derailed on the western edge of Minot, North Dakota, releasing a cloud of anhydrous ammonia, a toxic farm fertilizer. One person died and hundreds were treated for burns and breathing difficulties in the 2002 accident.

A class action was filed in federal district court in North Dakota, alleging a variety of state law claims.

A federal district judge certified an injury class action, but Canadian Pacific Railway Ltd. moved to dismiss the claims, arguing they were pre-empted by the Federal Railroad Safety Act (FRSA).

The judge agreed and because the act itself creates no cause of action, the plaintiffs were left without a remedy. The federal judge in the Minot case said that while the FRSA has ensured national uniformity of railroad safety regulations, "it has also absolved railroads from any common law liability for failure to comply with the [federal] safety regulations."

The act, he added, is "unfair to innocent bystanders and property owners who may be injured by the negligent actions of railroad companies."

The new law's pre-emption provision makes clear that nothing in the FRSA shall be construed to pre-empt an action under state law seeking damages for personal injury, death or property damage.

It also establishes that states may adopt additional or more stringent laws, regulations or orders relating to railroad safety or security under certain specified circumstances. And, the provision is retroactive, applying to all pending state law causes of action arising from events or activities occurring on or after January 18, 2002.

Congress never intended to wipe out state causes of action unless certain circumstances existed, like a federal provision that explicitly covered this topic. This new law corrects the courts' interpretation of the old law. The final language was the work of Senator Daniel Inouye (D-HI) chairman of the Senate Commerce, Science and Transportation Committee.

I believe that this new law will require railroads to make safety a top priority. It will give states the right to protect people from injury and possible death in crossing accidents and other accidents involving railroads.



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