Toolkit · Transportation

The Grade Crossing, FELA Claim, and Rail Preemption Toolkit

49 U.S.C. § 20701

Type
Toolkit
Jurisdiction
National
Date
2026-04-11
Topic
Transportation

This toolkit supplies the working documents for rail litigation. Tool 1 is a specific preservation letter and Tool 2 is a day-one document request. Tool 3 is a preemption analysis worksheet, and Tool 4 is a crossing funding and inventory request. Tool 5 is a scene documentation protocol, and Tool 6 is an employee injury intake form with the retaliation screen. Tool 7 is a roadway worker protection checklist, and Tool 8 is a derailment response outline. Tool 9 is a discovery request set, Tool 10 is a consolidated authority table, and Tool 11 is a client assessment letter.

The Grade Crossing, FELA Claim, and Rail Preemption Toolkit

Transportation > Railroads, Crossings, and Rail Safety | Published 11 April 2026 - Updated 17 June 2026 | UpLaw - uplaw.us

How to use this toolkit. Tools 1 and 2 go out on day one; Tool 3 tells you whether the case exists. Bracketed text is for completion. The guide supplies the doctrine and the checklist supplies the sequence.

TOOL 1 — PRESERVATION LETTER

To: [Railroad], Law Department · Re: [Incident] at [location], [date and time] · Date: [ ]

This firm represents [client] concerning the incident described above. We request that you immediately preserve, and suspend any routine deletion, overwriting, or recycling of, the following, and confirm in writing that you have done so:

Train and equipment. Locomotive [number], train symbol [ ], operating [direction] on [subdivision] at approximately milepost [ ]: ☐ Event recorder data in native format, with interpretation documentation ☐ Forward-facing camera video for the period beginning [30] minutes before the incident ☐ Inward-facing camera video for the same period ☐ Locomotive and car inspection records for the consist ☐ Air brake test records

Signals and crossing. Crossing identification number [ ]: ☐ Signal data recorder output for the [24] hours before and after ☐ Signal inspection, testing, and maintenance records for [24] months ☐ All activation failure reports and the response to each ☐ Signal design and circuit plans for the crossing

Track and right of way. ☐ Track inspection records for milepost [ ] to [ ] for [24] months, with defect reports and remediation ☐ Track geometry car data for the segment ☐ Vegetation control records for the right of way at the crossing

Operations and crew. ☐ Dispatch records, train sheets, and voice recordings for the territory and shift ☐ Crew identity, certification records, and hours of service records for the [7] days preceding ☐ Post-incident drug and alcohol testing results ☐ Operating rules, timetable special instructions, general orders, and bulletins in effect ☐ Efficiency test records for the crew and territory

Reports and history. ☐ All incident and injury reports concerning this event ☐ All prior incident reports at this crossing for [10] years ☐ Crossing inventory record, diagnostic studies, and improvement correspondence ☐ Federal funding documentation for the installation of the warning devices

We further request a joint download of the event recorder under a mutually agreed protocol, and ask that you contact the undersigned within five business days to arrange it. This letter is notice for spoliation purposes.

TOOL 2 — DAY-ONE DOCUMENT REQUEST

☐ Everything listed in Tool 1, requested for production rather than merely preservation ☐ The railroad's on-track safety rules and job briefing records, for an employee case ☐ The maintenance history for the specific equipment, tool, or location involved ☐ Prior employee reports concerning the same condition ☐ The railroad's own maintenance and operating standards for the task ☐ Photographs and measurements taken by railroad personnel after the incident ☐ Identity of every railroad employee who attended the scene, with statements ☐ Any communication with the state or municipality about the crossing ☐ Any communication with the federal agency about the crossing or the incident ☐ Routing analyses and wayside detector data, for a derailment

⚠️ Specificity produces production. A general request produces objections and a general assurance.

TOOL 3 — PREEMPTION ANALYSIS WORKSHEET

Matter: [ ] · Prepared: [ ] · Updated: [ ]

1. State the claim as a standard of conduct. [Not "negligence" — what conduct is being required? e.g., "install gates," "sound the horn at the whistle post," "maintain the signal circuit," "clear vegetation."]

2. Is a federal regulation directed at that subject?

Subject Regulation Covered?
Track condition and speed 49 C.F.R. Part 213 [ ]
Crossing warning devices crossing program; federal funding [ ]
Signal maintenance and failures 49 C.F.R. Part 234 [ ]
Signal and train control systems 49 C.F.R. Part 236 [ ]
Audible warnings and quiet zones 49 C.F.R. Part 222 [ ]
Operating practices 49 C.F.R. Part 218 [ ]
Rules compliance programs 49 C.F.R. Part 217 [ ]
Communications 49 C.F.R. Part 220 [ ]
Testing 49 C.F.R. Part 219 [ ]
Engineer certification 49 C.F.R. Part 240 [ ]
On-track safety 49 C.F.R. Part 214 [ ]
Reporting 49 C.F.R. Part 225 [ ]
Locomotive equipment 49 U.S.C. § 20701 [ ]
Safety appliances 49 U.S.C. § 20301 [ ]

3. Federal funding participation in the warning devices? [Yes / No / Unknown] — if yes, the inadequate-warning claim is preempted under Norfolk Southern Railway Co. v. Shanklin and CSX Transportation, Inc. v. Easterwood.

4. Clarification provision analysis under 49 U.S.C. § 20106: ☐ Failure to comply with a federal standard — [which one, and the evidence] ☐ Failure to comply with the railroad's own plan, rule, or standard created under a federal regulation — [which rule, and the evidence] ☐ Failure to comply with a compatible state law or order — [which one]

5. Economic preemption under 49 U.S.C. § 10501: does the claim regulate rail transportation? [ ]

6. Exceptions. Essentially local hazard? Specific individual hazard for speed? [Analyze under 49 U.S.C. § 20107 and case law.]

7. Conclusion. [Theories that survive, ranked, with the document that proves each. Theories that do not, and why.]

TOOL 4 — CROSSING FUNDING AND INVENTORY REQUEST

To: [State department of transportation / rail division] · Re: Crossing [identification number], [location]

Please provide the following public records for the above crossing:

☐ The crossing inventory record, current and historical ☐ All records of federal funding participation in the installation, upgrade, or maintenance of warning devices, including project agreements and reimbursement documentation ☐ Any diagnostic study, field review, or engineering evaluation ☐ All requests for improvement from any source, and the responses ☐ Traffic counts and train counts used in any prioritization ☐ Correspondence with the railroad concerning the crossing ☐ Any quiet zone application, approval, or documentation under 49 C.F.R. Part 222 ☐ Grade separation or improvement project records under 23 U.S.C. § 138 and 23 C.F.R. Part 646 ☐ Accident history for the crossing

📌 This is the first substantive request in any crossing case, because federal funding participation determines whether the theory most families expect is available at all.

TOOL 5 — SCENE DOCUMENTATION PROTOCOL

☐ Photograph the approach from the driver's eye height at [50]-foot intervals from [500] feet out ☐ Photograph the sight triangle in both directions from each approach ☐ Measure the distance at which the track first becomes visible from each approach ☐ Photograph vegetation on the right of way with a scale reference ☐ Photograph the crossing surface, noting depressions, humps, and gaps ☐ Photograph all signage, pavement markings, advance warning signs, and stop lines ☐ Photograph signal equipment, bungalow, gates, lights, and bells ☐ Record the crossing identification number from the signal case ☐ Photograph and measure skid marks, gouges, and debris with reference to the track ☐ Note time, weather, and sun position relative to the approach ☐ Video the approach at posted speed in the direction of travel, twice ☐ Return at the same time of day if lighting or sun angle may have contributed ☐ Document any post-incident change — vegetation trimmed, signals repaired, crossing upgraded — which is itself a fact

TOOL 6 — EMPLOYEE INJURY INTAKE AND RETALIATION SCREEN

Employee: [ ] · Craft: [ ] · Years of service: [ ] · Date of injury: [ ]

The injury. [Task performed; equipment or location; mechanism; immediate symptoms; treatment sought and when.]

The condition. [What was defective, missing, or unsafe. Prior reports about it. Whether it violated a railroad rule or a federal standard.]

Safety statute screen. ☐ Safety appliance defect under 49 U.S.C. § 20301? ☐ Locomotive standard violation under 49 U.S.C. § 20701? ☐ On-track safety failure under 49 C.F.R. Part 214? A violation eliminates comparative fault under 45 U.S.C. § 53.

Causation. [Under Rogers v. Missouri Pacific Railroad and CSX Transportation, Inc. v. McBride, did railroad negligence play any part, even the slightest?]

Retaliation screen — complete at intake. ☐ Was the injury reported? When, to whom, and how? ☐ Was the employee discouraged from reporting, or from seeking treatment? ☐ Was the employee disciplined, investigated, or charged after the report? ☐ Was the employee directed to work contrary to a treating physician's orders? ☐ Had the employee reported any hazardous safety condition before the injury? ☐ If any answer is yes, the deadline under 49 U.S.C. § 20109 is short and separate from the three-year injury limitations period under 45 U.S.C. § 56. Diary it today.

Instructions given to the employee. ☐ Report the injury. ☐ Seek and follow treatment. ☐ Give no recorded statement without counsel — note 45 U.S.C. § 60. ☐ Sign nothing. ☐ Forward all correspondence.

TOOL 7 — ROADWAY WORKER PROTECTION CHECKLIST

☐ Who was the employee in charge, and what authority did they hold? ☐ What on-track safety method was used — exclusive track occupancy, foul time, train coordination, watchman, or individual train detection? ☐ Was the method appropriate for the work and the territory? ☐ Was a job briefing held, by whom, covering what, and is it documented? ☐ Were watchmen or lookouts posted, and were they qualified? ☐ Was the protection in place before the work began and maintained throughout? ☐ Were adjacent controlled tracks addressed? ☐ What did the dispatch records show about authorities issued? ☐ What did the train movement data show about the movement involved? ☐ Was there any prior report of inadequate protection on this territory? ☐ Compare all of it to 49 C.F.R. Part 214 and to the railroad's own on-track safety rules.

TOOL 8 — DERAILMENT RESPONSE OUTLINE

☐ Preserve the maintenance and inspection history for the segment, wayside detector data, equipment inspection records, train makeup and weight distribution, and the routing analysis. ☐ Identify defendants: railroad, shipper, car owner and lessor, car manufacturer, and component suppliers. ☐ Map preemption separately for each theory, noting authority at 49 U.S.C. § 5103 and preemption at 49 U.S.C. § 5125, and remembering Kurns v. Railroad Friction Products Corp. for equipment claims. ☐ Coordinate with environmental response, preserve sampling data, and track cost allocation. ☐ Assess mass claim structure: evacuation, medical monitoring, property damage, and business interruption. ☐ Address the federal investigation and the limits on using its analyses. ☐ Expect four parallel tracks and staff accordingly. ☐ Community notification obligations interact with emergency planning requirements — see the community right-to-know guide.

TOOL 9 — DISCOVERY REQUEST SET

☐ All documents identified in Tools 1 and 2 ☐ The railroad's operating rules, special instructions, general orders, and bulletins in effect, with all revisions during the [3] preceding years ☐ Rules compliance program documents and efficiency test records under 49 C.F.R. Part 217 ☐ All prior incidents at the location or involving the same failure mode for [10] years ☐ All internal analyses of the failure mode, whether or not prepared for litigation ☐ Signal circuit plans and design documentation for the crossing ☐ Track charts, geometry data, and defect remediation records ☐ Communications with the federal agency and with state and local authorities about the location ☐ Training materials for the craft and task involved ☐ Organizational documents identifying who was responsible for the relevant inspection or maintenance ☐ Protective order terms: attorneys-eyes-only tier for system architecture and circuit design; native-format production with interpretation documentation; and a procedure for challenging designations

TOOL 10 — AUTHORITY TABLE

Provision Subject
49 U.S.C. § 20101 Rail safety purpose
49 U.S.C. § 20102 Definitions
49 U.S.C. § 20103 Regulatory authority
49 U.S.C. § 20106 Preemption and the clarification provision
49 U.S.C. § 20107 Investigative authority and related provisions
49 U.S.C. § 20109 Employee protections
49 U.S.C. § 20301 Safety appliance requirements
49 U.S.C. § 20701 Locomotive safety standards
49 U.S.C. § 20901 Accident reports
49 U.S.C. § 21301 Civil penalties
49 U.S.C. § 21302 Civil penalty procedures
49 U.S.C. § 21311 Hours of service enforcement
49 U.S.C. § 10101 Rail transportation policy
49 U.S.C. § 10501 Exclusive jurisdiction
49 U.S.C. § 10901 Construction authority
49 U.S.C. § 10903 Abandonment
49 U.S.C. § 11321 Consolidation immunity
49 U.S.C. § 11704 Damages for violations
49 U.S.C. § 5103 Hazardous materials authority
49 U.S.C. § 5125 Hazardous materials preemption
49 U.S.C. § 303 Protected lands review
45 U.S.C. § 51 Carrier liability for employee injury
45 U.S.C. § 53 Contributory negligence
45 U.S.C. § 54 Assumption of risk abolished
45 U.S.C. § 55 Exculpatory contracts void
45 U.S.C. § 56 Limitations and jurisdiction
45 U.S.C. § 57 Definitions
45 U.S.C. § 60 Interference with information unlawful
45 U.S.C. § 151 Railway labor definitions
45 U.S.C. § 152 General duties
45 U.S.C. § 153 Adjustment board
16 U.S.C. § 1246 Trails system administration
16 U.S.C. § 1247 Railbanking
23 U.S.C. § 138 Preservation of parklands
49 C.F.R. Part 213 Track safety standards
49 C.F.R. Part 214 Railroad workplace safety
49 C.F.R. Part 217 Operating rules compliance
49 C.F.R. Part 218 Railroad operating practices
49 C.F.R. Part 219 Alcohol and drug testing
49 C.F.R. Part 220 Radio and communications
49 C.F.R. Part 222 Audible warnings and quiet zones
49 C.F.R. Part 225 Accident reporting
49 C.F.R. Part 234 Grade crossing signal safety
49 C.F.R. Part 236 Signal and train control
49 C.F.R. Part 240 Engineer certification
23 C.F.R. Part 646 Railroad-highway projects
CSX Transportation v. Easterwood Crossing and speed preemption
Norfolk Southern v. Shanklin Federal funding and warning device claims
Kurns v. Railroad Friction Products Locomotive equipment field preemption
Rogers v. Missouri Pacific Relaxed causation standard
CSX Transportation v. McBride No common-law proximate cause
Norfolk Southern v. Sorrell Same standard for both parties
Consolidated Rail v. Gottshall Zone of danger
Norfolk & Western v. Ayers Fear of cancer and apportionment
Union Pacific v. Locomotive Engineers Labor dispute channeling
BNSF Railway v. Tyrrell Personal jurisdiction
Wisconsin Central v. United States Rail-specific tax treatment
Marvin M. Brandt Revocable Trust v. United States Rail rights of way as easements
Preseault v. ICC Railbanking and takings

Closing note

Tool 1 on day one, Tool 4 in week one, Tool 3 before the case is accepted. Those three steps determine whether a rail matter is viable and what it is worth.

TOOL 11 — CLIENT ASSESSMENT LETTER

Re: [Matter] — our assessment as of [date]

What happened. [Brief factual summary.]

What we have done. [Preservation letter sent on ___; document requests served on ___; funding history requested on ___; scene documented on ___.]

The legal framework, plainly. Railroads operate under a federal regulatory scheme that displaces much of state law. That means some theories a family would expect to bring — most commonly that the crossing should have had gates — may not be available, depending on whether federal funds paid for the existing warning devices. This is not a comment on whether the crossing was safe; it is a limit the law places on the claim.

What we have learned so far. [Funding participation: yes/no/unknown. Signal activation: yes/no/unknown. Speed and track class. Horn compliance. Vegetation. Rule compliance.]

The theories that appear available. [List, with the document that would prove each and whether we have it.]

The theories that appear unavailable, and why. [State plainly.]

What happens next, and when. [Steps, with dates.]

Our honest assessment of the range. [Including, if applicable, that no viable theory may exist.]

📌 Send this in month two, not year two. In a field where a substantial share of matters have no viable theory, the early written assessment is both the most professional service available and the best protection for the practice.

Related Documents