OPINION AND ORDER

J. LEON HOLMES, District Court.

Brian Nichols was injured when a BNSF Railway Company train struck his vehicle where the railroad track intersects with North Jefferson Street in Wilson, Arkansas. He and his wife, Wanda Nichols, commenced this action in the Circuit Court of Mississippi County, Arkansas, alleging that BNSF Railway and the train driver were negligent for failing to stop, failing to yield the right of way to the forward vehicle, failing to keep a proper lookout, driving at an excessive speed, failing to sound a bell or whistle, and failing to warn of an abnormally dangerous crossing.1 See Document #2. Subsequently, BNSF Railway removed the action, and now moves for partial summary judgment on the basis that the Nichols' failure to warn claim is preempted by federal law. See 49 U.S.C. § 20106(a) (providing for national uniformity, to the extent practicable, in laws and regulations pertaining to railroad safety).

A court should enter summary judgment if the evidence demonstrates that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). The moving party bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). If the moving party meets this burden, the nonmoving party must respond by coming forward with specific facts establishing a genuine dispute for trial. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). In deciding a motion for summary judgment, a court views the evidence in the light most favorable to the nonmoving party and draws all reasonable inferences in that party's favor. PHL Variable Ins. Co. v. Fulbright McNeill, Inc., 519 F.3d 825, 828 (8th Cir. 2008). A genuine dispute exists only if the evidence is sufficient to allow a jury to return a verdict for the nonmoving party. Anderson, 477 U.S. at 249, 106 S. Ct. at 2511. When a nonmoving party cannot make an adequate showing sufficient to establish a necessary element of the case on which that party bears the burden of proof, the moving party is entitled to judgment as a matter of law. Celotex Corp., 477 U.S. at 322-23, 106 S. Ct. at 2552.

The Federal Railroad Safety Act of 1970 requires the Secretary of Transportation to "prescribe regulations and issue orders for every area of railroad safety[.]" 49 U.S.C. § 20103. The Highway Safety Act of 1973 makes federal funds available for the "construction of projects for the elimination of hazards of railway-highway crossings[.]" 23 U.S.C. § 130. That Act also requires the Secretary to prescribe regulations necessary to implement the Act. Id. Among the regulations promulgated by the Secretary pertaining to railroad/highway crossings are 23 C.F.R. §§ 646.214(b)(3) and (4), which provide that:

In return for federal funds, the states are required to survey all highways to identify railroad crossings that may need protective devices and to implement a schedule of projects for that purpose. CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 663, 113 S.Ct. 1732, 1737, 123 L. Ed. 2d 387 (1993) (quoting 23 U.S.C. § 130(d)).

The Supreme Court has held that these provisions mean that, "for projects in which federal funds participate in the installation of warning devices, the Secretary has determined the devices to be installed and the means by which railroads are to participate in their selection." Easterwood, 507 U.S. at 671, 113 S. Ct. at 1741. Thus, federal grade crossing regulations preempt state-law tort claims "if federal funds were used to install the warning devices at the crossing where the accident occurred." Elrod v. Burlington N. R.R. Co., 68 F.3d 241, 243 (8th Cir. 1995). This preemption takes effect when the warning devices are "installed and operational." Bock v. St. Louis Sw. Ry. Co., 181 F.3d 920 (8th Cir. 1999); see also Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344, 354, 120 S.Ct. 1467, 1474, 146 L. Ed. 2d 374 (2000) (state authority is preempted once federally funded warning devices are "actually installed and operating").3

BNSF Railway has filed certified copies of documents from the Arkansas State Highway and Transportation Commission and the United States Department of Transportation showing that crossbucks, paid for in large part by federal funds, were installed at crossings statewide, including the crossing on North Jefferson Street in Wilson, Arkansas,4 where the collision underlying the instant action occurred. After the crossbucks were installed, they were inspected and approved by the Federal Highway Administration. Thus, the conditions for preemption identified by the Supreme Court and Eighth Circuit are present in this case.

The Nichols argue that preemption is not appropriate in this case because it is unclear whether the particular crossbuck at issue was "operating as a warning device" since it may have lost its reflectivity.5 The Nichols point to no evidence that the crossbuck was not actually operating properly. The Nichols' hypothetical suggestion that the crossbuck may have "lost its reflectivity" does not create a genuine issue of fact. Furthermore, as this Court has previously explained, the requirement that warning devices be "operational" as a prerequisite to the invocation of preemption does not mean that the warning device must be operational at the time of the incident giving rise to a lawsuit, but only that the device be operational at the time it was installed. See Fulks v. Union Pac. R. Co., 3:10CV00310, 2011 WL 5439177, at *3 (E.D. Ark. Nov. 9, 2011); see also Shanklin, 529 U.S. at 358, 120 S. Ct. at 1476; Union Pac. R.R. Co. v. Sharp, 330 Ark. 174, 191, 952 S.W.2d 658, 666 (1997). Here, as noted, public records show that the intersection had crossbucks which were inspected and approved by the Federal Highway Administration.

Finally, the Nichols argue that the conditions and character of the intersection implicated in this lawsuit were such that the applicable regulations "require automatic gates with flashing light signals, rather than a wooden crossbuck." To the extent the Nichols contend that a failure to comply with the safety regulations alters the preemption analysis, their contention has been rejected by the Supreme Court and the Eighth Circuit. See Shanklin, 529 U.S. at 357-58, 120 S. Ct. at 1476; Bryan v. Norfolk & W. Ry. Co., 154 F.3d 899, 903-04 (8th Cir. 1998).

For the reasons stated, BNSF Railway's motion for partial summary judgment is GRANTED. Document #12. The Nichols' failure to warn claim is preempted by federal law and, therefore, is dismissed.

IT IS SO ORDERED.