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In August of 2007, Congress passed an amendment to the Federal Railroad Safety Act (FRSA) that will once again permit state tort law claims against negligent railroads that kill or maim citizens and pollute the environment.

Prior to Congress passing the 2007 amendment expressly limiting federal preemption under the FRSA, Federal Courts had systematically curtailed citizens’ rights to sue a negligent railroad for personal injury, wrongful death or other civil remedies. The Courts used the doctrine federal preemption, which had been intended by Congress to create a uniform system of minimum standards to improve safety, and perverted it to create immunity for railroads for their negligence, even where the railroad blatantly ignored federal safety laws and regulations. Because injured citizens were prevented from bringing state tort law claims and the FRSA itself did not provide for a civil remedy, the railroads could kill, maim, and poison people with impunity. With the passage of the 2007 Amendment, Congress has once again opened the door to State tort law remedies for those injured or harmed by a railroad’s negligence.
The FRSA amendment clarifies that preemption under the FRSA is limited and that state law tort claims may be pursued where the railroad violates: 1) Federal Safety Standards; 2) State laws that are different from or more stringent than the pertinent Federal Standards, or; 3) the railroad’s own code of operation that govern its employees. Consequently, a state law claim alleging personal injury or death will not be dismissed if the Plaintiff’s claim is based on the railroad’s failure to adhere to the Federal Railroad Administration regulations promulgated under the FRSA. Similarly, a state tort claim will not be dismissed if the Plaintiff alleges that the injury or death was caused by the Railroad’s failure to follow its own internal operating rules. Most railroads, including all of the major ones, have adopted the General Code of Operating Rules as the standards to which its employees must comply. A railroad’s failure to abide by this code would form the basis for a state law negligence action. This is true even where these adopted rules establish a higher standard of care than that established by the Federal Railroad Administration regulations.
Two other important aspects of the amendment are retroactivity and federal-state jurisdiction. The amendment is retroactive to January 18, 2002. This is the date of the Minot derailment disaster in Minot, North Dakota, in which extremely toxic ammonia gas was released from damaged tanker cars. The injured Plaintiffs had no cause of action against the railroad because of the earlier preemption rulings by the Federal Courts. The 2007 Amendment was inspired by this disaster and the recognition that preemption had been perverted to insulate railroads from all responsibility for the harm caused by their negligence. Also, the Amendment clarifies that FRSA does not automatically confer federal jurisdiction to common law claims. Jurisdiction will depend upon the diversity of the parties in a particular case.
The 2007 Amendment has once again opened the courthouse to victims of negligent railroads that maintain dangerous crossings, expose citizens to dangerous chemicals and that don’t follow minimum standards of care in the operation of their business.

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