March 19, 2013 – The Federal Railroad Safety Act does not preempt the negligence and safe-place claims brought plaintiffs injured in a train accident that occurred during a Memorial Day parade in Elm Grove, a state appeals court has ruled.

In May 2009, Elm Grove police sent a letter to the railroad authority, noting the upcoming Memorial Day parade and requesting notice to train conductors.

According to Elm Grove police, the railroad’s contact said he issued a “look out order” for conductors to reduce speeds and sound horns when approaching the affected crossings. The railroad’s contact, Steve Rohde, disputes this claim.

The day of the parade, a family was traveling in two cars through Elm Grove to attend the festivities. In heavy traffic, both cars were forced to stop on the railroad tracks. Suddenly, the crossing bells began to sound and the gates came down.

Police told Monica Partenfelder, whose van was straddling the main railroad line, to maneuver the vehicle to the gravel shoulder. But the vehicle’s front tire became wedged in the railroad tracks. The van was now facing the oncoming train.

Officer John Krahn removed Partenfelder from the van, and was attempting to remove Partenfelder’s two-year-old son with father Scott Partenfelder when the train struck the van and seriously injured them both. The young child was not harmed in the collision.

The train was allegedly traveling at 45 miles per hour when it struck the van, and hit the emergency brakes approximately 350 feet before striking the van. Monica Partenfelder admitted that she should have stopped before the tracks, an ordinance violation.

But the Partenfelders filed suit against Soo Line Railroad Company, claiming Rohde and the railroad were negligent and violated Wisconsin’s safe-place statute. Officer Krahn filed a separate lawsuit, also alleging negligence.

Soo Line responded that the claims were preempted by the Federal Railroad Safety Act, and in any event, the company complied with all federal regulations. The Milwaukee County Circuit Court ruled in favor of Soo Line on its exemption defense.

But in Partenfelder v. Soo Line Railroad Co., 2012AP597 (March 19, 2013), a three-judge panel for the District I Wisconsin Court of Appeals reversed in part.

It ruled that the plaintiffs’ state law claims survive because there’s an exception to the Federal Railroad Safety Act’s preemption clause for certain tort duties.

Specifically, the appeals court ruled the train had a duty to slow because it knew about the parade. The railroad had argued that federal law only required it to slow down for specific, individualized hazards, and it slowed down when it saw the van on the tracks.

But the parade itself was a specific hazard, the appeals court ruled, and the railroad company had notice of it. Thus, it ruled that plaintiffs’ claims aren’t 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,” wrote Judge Kitty Brennan.]

Judge Patricia Curley dissented on this point, concluding that the exception does not apply unless there’s imminent danger afoot.

“[T]he parade in this case merely presented the potential for danger, and no specific individual hazard arose until the van stopped on the tracks,” she wrote.