Date: 08-24-2016

Case Style:

Case Number: S-1-SC-35198

Judge: Judith Nakamura

Court: IN THE SUPREME COURT OF THE STATE OF NEW MEXICO, SANTA FE COUNTY

Plaintiff's Attorney:

Mark Komer

Defendant's Attorney:

Clifford K. Atkinson

John R. Cooney

Sarah M. Stevenson For The Association of American Railroads

Description: In January of 2009, Noice was conducting a BNSF train traveling from Clovis
4 to Belen. The train was pulled by four locomotives. At some point around 6:00 p.m.,
5 Noice ceded operation of the train to his assistant, John Royal. Noice exited the lead
6 locomotive and proceeded rearwards. Before leaving the lead locomotive, however,
7 Noice instructed Royal to “start pulling on the train.” Royal understood this as an
8 instruction to accelerate.
9 {3} At the time Noice left the lead locomotive, the train was traveling at
10 approximately 11 mph, or, as Royal put it, “very slowly.” After Noice departed,
11 Royal set the throttle to the maximum position. The train approached 55 mph—the
12 speed limit assigned to the class of track upon which the train was traveling—but
13 never exceeded this speed.
14 {4} How, exactly, Noice fell from the train is unclear. Royal observed Noice
15 proceeding rearwards toward the second locomotive and saw him enter its cabin. The
16 train neared a crossing that required Royal to blow the train’s horn. Royal looked
17 back again to ensure that Noice was not returning to the lead locomotive and, thus,
18 near the horn, but Royal could not see Noice. Royal attempted to signal Noice by use
3
1 of an attendant bell. Noice did not respond and Royal brought the train to a stop.
2 Royal searched the three trailing locomotives, could not locate Noice, and reported
3 to dispatch that Noice was missing. Noice’s body was discovered a short time later
4 near the tracks in the direction from which Noice and Royal had traveled.
5 {5} The Estate’s complaint for wrongful death asserts five counts. We are
6 concerned here only with count one, the Estate’s FELA negligence claim. The
7 district court construed count one as claiming three types of possible negligence: “(1)
8 defective equipment, (2) failure by Noice’s co-employee Royal to engage in a job
9 briefing, and (3) Royal’s increase of speed to 55 [mph] while Noice was walking on
10 the exterior of the locomotive on a catwalk.” The court concluded that there were
11 insufficient facts to support theories one and two. As to the third theory, the court
12 understood the Estate to be claiming that the increase in speed created rough riding
13 conditions on locomotive two and subjected Noice to 55 mph winds while outside the
14 train. A video in evidence, the court noted, shows Noice walking on the second
15 locomotive and experiencing the rough ride.
16 {6} Although the court found no “direct evidence that the speed of the train caused
17 Noice to fall from” it, the court nevertheless determined that, because juries are
18 permitted wider latitude to draw inferences under FELA, the Estate’s excessive-speed
4
1 claim created a triable issue of fact. “[I]t is logical,” the court found, “that a bucking
2 locomotive combined with a heading wind of 55 [mph] caused by an increase in
3 speed could cause a person to fall . . . .”
4 {7} Yet, the court concluded that the Estate’s excessive-speed claim could not
5 proceed. The court determined that an excessive-speed claim under FELA is “pre
6 empted so long as the train is within the regulated speed limit,” and the parties agreed
7 that the train from which Noice fell never exceeded the permissible track speed.
8 Accordingly, the court granted summary judgment to BNSF on the Estate’s FELA
9 claim, and subsequently dismissed the Estate’s complaint in its entirety.
10 {8} The Estate appealed the court’s dismissal of its FELA negligence claim and
11 challenged the court’s “rejection of each theory of negligence.” Noice,
12 2015-NMCA-054, ¶ 8. The Court of Appeals concluded that the district court
13 properly rejected the Estate’s non-speed-based theories. Id. ¶¶ 20-23. As to the
14 excessive-speed claim, however, the Court determined that the district court erred in
15 concluding that FRSA “pre-empted” the claim. Id. ¶¶ 1, 13, 24. The Court
16 determined that the doctrine of pre-emption was inapplicable. Id. ¶ 13. Rather, the
17 issue presented was whether one federal statute, FRSA, precluded an action under
5
1 another federal statute, FELA. Id. ¶ 8. The Court held that FRSA did not preclude
2 the Estate’s FELA excessive-speed claim. Id. ¶ 24.
3 {9} BNSF filed a petition for a writ of certiorari with this Court. We granted the
4 petition, exercising our jurisdiction under Article VI, Section 3 of the New Mexico
5 Constitution and NMSA 1978, Section 34-5-14(B) (1972), to consider whether FRSA
6 precludes the Estate’s FELA excessive-speed claim.
7 II. DISCUSSION
8 A. Standard of Review
9 {10} We review de novo the district court’s decision on a motion for summary
10 judgment. Smith v. Durden, 2012-NMSC-010, ¶ 5, 276 P.3d 943. “Summary
11 judgment is appropriate when ‘there is no genuine issue as to any material fact and
12 . . . the moving party is entitled to a judgment as a matter of law.’” Id. (omission in
13 original) (quoting Rule 1-056 NMRA). Whether FRSA precludes the Estate’s FELA
14 excessive-speed claim is a pure question of law that we review de novo. See POM
15 Wonderful LLC v. Coca-Cola Co., ___ U.S. ____, ____, 134 S. Ct. 2228, 2236 (2014)
16 (observing that preclusion analysis is driven by the established principles of statutory
17 interpretation); Bd. of Comm’rs of Rio Arriba Cnty. v. Greacen, 2000-NMSC-016, ¶
6
1 4, 129 N.M. 177, 3 P.3d 672 (holding that issues of statutory construction are pure
2 questions of law subject to de novo review).
3 B. Preclusion Analysis
4 {11} We begin by noting that this is not a pre-emption case. “In pre-emption cases,
5 the question is whether state law is pre-empted by a federal statute, or in some
6 instances, a federal agency action.” POM Wonderful, ___ U.S. at ____, 134 S. Ct. at
7 2236. The pre-emption doctrine “flows from the Constitution’s Supremacy Clause,
8 U.S. Const., Art. VI, cl. 2, which invalidates state laws that interfere with, or are
9 contrary to, federal law. The doctrine is inapplicable to a potential conflict between
10 two federal statutes.” Tufariello v. Long Island R.R. Co., 458 F.3d 80, 86 (2d Cir.
11 2006) (internal quotation marks and citation omitted). This is because “the state
12 federal balance does not frame the inquiry.” POM Wonderful, ___ U.S. at ____, 134
13 S. Ct. at 2236.
14 {12} Rather, because this case concerns two federal acts, it presents an issue of
15 preclusion, not pre-emption. The principles that govern in the preclusion context are
16 well established. “When there are two acts upon the same subject, the rule is to give
17 effect to both if possible.” United States v. Borden Co., 308 U.S. 188, 198 (1939).
18 “[C]ourts are not at liberty to pick and choose among congressional enactments, and
7
1 when two statutes are capable of co-existence, it is the duty of the courts, absent a
2 clearly expressed congressional intention to the contrary, to regard each as effective.”
3 Morton v. Mancari, 417 U.S. 535, 551 (1974). This is so even where redundancies
4 across statutes manifest, events that are hardly unusual. Conn. Nat. Bank v. Germain,
5 503 U.S. 249, 253 (1992).
6 {13} A later-enacted statute can operate to repeal an earlier statutory provision, but
7 “[i]n the absence of some affirmative showing of an intention to repeal, the only
8 permissible justification for a repeal by implication is when the earlier and later
9 statutes are irreconcilable.” Morton, 417 U.S. at 550. Repeals by implication are
10 rare, J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124, 142 (2001),
11 and should be found only if necessary to make the later-enacted law work, and even
12 then only to the minimum extent necessary. Radzanower v. Touche Ross & Co., 426
13 U.S. 148, 155 (1976).
14 {14} In Pom Wonderful, a recent preclusion case, the United States Supreme Court
15 clarified that these well-established principles necessitate a two-part inquiry. First,
16 a court must look to the express language of the statutory provisions and determine
17 whether Congress expressly intended preclusion. Pom Wonderful, ___ U.S. at ____,
18 134 S. Ct. at 2237. If no express provision is found, courts must then examine the
8
1 structure and purposes of the two statutes to determine whether they are
2 complementary or irreconcilable. Id. at ____, 134 S. Ct. at 2238-39. “When two
3 statutes complement each other, it would show disregard for the congressional design
4 to hold that Congress nonetheless intended one federal statute to preclude the
5 operation of the other.” Id. at ____, 134 S. Ct. at 2238. We begin our analysis by
6 examining the two statutes at issue in this case, FELA and FRSA. See id. at ____,
7 134 S. Ct. at 2233 (instructing that a proper beginning point for preclusion analysis
8 “is a description of the statutes”).
9 C. FELA and FRSA
10 {15} Enacted in 1908, FELA provides the exclusive remedy for railroad employees
11 injured as a result of their employers’ negligence. Wabash R.R. Co. v. Hayes, 234
12 U.S. 86, 89 (1914); Janelle v. Seaboard Coast Line R.R. Co., 524 F.2d 1259, 1261
13 (5th Cir. 1975) (“[D]amages for the death or injury of a railroad employee engaged
14 in interstate commerce, allegedly caused by the negligence of the railroad, are
15 recoverable exclusively from the railroad under FELA, and may not be recovered
16 under state law.”). FELA provides railroad employees with a federal cause of action
17 for injuries “resulting in whole or in part from the negligence” of the railroad. 45
18 U.S.C. § 51. This private right of action created by FELA marked a crucial turning
9
1 point in congressional oversight of the railroad industry. See generally Consol. Rail
2 Corp. v. Gottshall, 512 U.S. 532, 542 (1994) (“[W]hen Congress enacted FELA in
3 1908, its attention was focused primarily upon injuries and death resulting from
4 accidents on interstate railroads.” (internal quotation marks and citation omitted)).
5 {16} “[I]t is clear that the general congressional intent [behind FELA] was to
6 provide liberal recovery for injured workers . . . .” Kernan v. Am. Dredging Co., 355
7 U.S. 426, 432 (1958). “The railroad business was exceptionally hazardous at the
8 dawn of the twentieth century.” CSX Transp., Inc. v. McBride, 564 U.S. 685, 691
9 (2011). “Cognizant of the physical dangers of railroading that resulted in the death
10 or maiming of thousands of workers every year, Congress crafted a federal remedy
11 that shifted part of the human overhead of doing business from employees to their
12 employers.” Gottshall, 512 U.S. at 542 (internal quotation marks and citation
13 omitted).
14 {17} “[I]t is also clear that Congress intended the creation of no static remedy, but
15 one which would be developed and enlarged to meet changing conditions and
16 changing concepts of [the railroad] industry’s duty toward its workers.” Kernan, 355
17 U.S. at 432. As such, courts must liberally construe FELA “to further Congress’
10
1 remedial goal.” Gottshall, 512 U.S. at 543. For example, courts have held that FELA
2 creates a relaxed standard of causation. McBride, 564 U.S. at 692.
3 {18} Congress intended FELA to be applied uniformly throughout the nation. Dice
4 v. Akron, C. & Y. R. Co., 342 U.S. 359, 361 (1952). “What constitutes negligence for
5 the [FELA] statute’s purposes is a federal question, not varying in accordance with
6 the differing conceptions of negligence applicable under state and local laws for other
7 purposes. Federal decisional law formulating and applying the concept governs.”
8 Urie v. Thompson, 337 U.S. 163, 174 (1949). State courts have concurrent
9 jurisdiction over FELA actions, 45 U.S.C. § 56, and railroad defendants may not
10 “defeat a FELA plaintiff’s choice of a state forum by removing the action to federal
11 court. “ LaDuke v. Burlington N. R.R. Co., 879 F.2d 1556, 1561 (7th Cir. 1989).
12 {19} FRSA was enacted in 1970 to “promote safety in every area of railroad
13 operations and reduce railroad-related accidents and incidents.” 49 U.S.C. § 20101.
14 FRSA grants the Secretary of Transportation (the Secretary) authority to “prescribe
15 regulations and issue orders for every area of railroad safety . . . .” 49 U.S.C. §
16 20103(a). The Secretary has delegated to the Federal Railroad Administration (FRA)
17 regulatory authority over railroad safety. Union Pac. R.R. Co. v. Cal. Pub. Utilities
18 Comm’n, 346 F.3d 851, 858 n.8 (9th Cir. 2003); see also Mich. S. R.R. Co. v. City of
11
1 Kendallville, 251 F.3d 1152, 1154 (7th Cir. 2001) (“In the FRSA, the Secretary . . .
2 was given the authority to proscribe regulations and issue orders for every area of
3 railroad safety. Regulations are promulgated and enforced by the [FRA].” (internal
4 quotation marks and citations omitted)). “Federal regulations issued by the Secretary
5 pursuant to FRSA and codified at 49 CFR § 213.9(a) (1992) set maximum allowable
6 operating speeds for all freight and passenger trains for each class of track on which
7 they travel.” CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 673 (1993). “The
8 different classes of track are in turn defined by, inter alia, their gage, alignment,
9 curvature, surface uniformity, and the number of crossties per length of track.” Id.
10 {20} FRSA includes a pre-emption provision which states that the “[l]aws,
11 regulations, and orders related to railroad safety . . . shall be nationally uniform to the
12 extent practicable.” 49 U.S.C. § 20106(a)(1). FRSA further provides that a state
13 “may adopt or continue in force a law, regulation, or order related to railroad
14 safety . . . until the Secretary . . . prescribes a regulation or issues an order covering
15 the subject matter of the State requirement.” 49 U.S.C. § 20106(a)(2). The Supreme
16 Court has construed these provisions as pre-empting state law claims, statutes, and
17 regulations to the extent they intrude into a subject matter covered by federal railroad
12
1 safety regulations. See Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344, 352 (2000)
2 (citing Easterwood, 507 U.S. at 664).
3 {21} FRSA does not create a private right of action. “[E]nforcement powers under
4 the [FRSA] are vested solely with the Secretary . . . and, under certain conditions, the
5 States or the Attorney General.” Henderson v. Nat’l R.R. Passenger Corp., 87 F.
6 Supp. 3d 610, 613 (S.D.N.Y. 2015); see also Abate v. S. Pac. Transp. Co., 928 F.2d
7 167, 169-70 (5th Cir.1991).
8 D. FRSA Does Not Expressly Preclude the Estate’s FELA Excessive-Speed 9 Claim
10 {22} FRSA does not expressly preclude FELA excessive-speed claims. In fact,
11 FRSA does not mention FELA. The absence of any express statement in FRSA
12 barring FELA claims is significant. FELA was enacted almost 60 years before FRSA,
13 and if Congress intended FRSA to preclude FELA claims, Congress presumably
14 would have said so. See Henderson, 87 F. Supp. 3d. at 617 (“If Congress had
15 intended that the FRSA both preclude covered FELA claims and preempt covered
16 state law claims, it would have said so.”); see also POM Wonderful, ___ U.S. at ____,
17 134 S.Ct. at 2237 (concluding that, where one federal statute predated another by
18 many years, the absence of an express statement in the later-enacted statute that
19 claims brought under the earlier-enacted statute are precluded is strong evidence that
13
1 Congress did not intend preclusion); cf. Goodyear Atomic Corp. v. Miller, 486 U.S.
2 174, 184-85 (1988) (“We generally presume that Congress is knowledgeable about
3 existing law pertinent to the legislation it enacts.”). Moreover, because Congress
4 included in FRSA an express provision pre-empting only state law and state-law
5 claims, we infer that Congress did not intend FRSA to preclude FELA claims or other
6 federal causes of action. See POM Wonderful, ___ U.S. at ____, 134 S. Ct. at 2238
7 (concluding that Congress’s decision to include in a federal statute a state law
8 pre-emption provision suggests that Congress did not intend that statute to preclude
9 a cause of action under another federal statute).
10 {23} Because we find no express provision within FRSA precluding a FELA claim
11 for excessive speed, we turn to the structure and purposes of the two statutes to
12 determine whether, as BNSF contends in its Brief in Chief, permitting the Estate’s
13 FELA excessive-speed claim would “upend” FRSA and “eviscerate the uniformity
14 and regulatory certainty that Congress intended in enacting FRSA.”
15 E. Allowing FELA Excessive-Speed Claims Does Not Create an 16 Irreconcilable Conflict with FRSA
17 {24} BNSF contends that, at its core, FRSA is concerned with national uniformity
18 in railroad safety standards. The track-speed regulations promulgated by the FRA
19 under the authority granted to it by FRSA are, BNSF claims, intended to be nationally
14
1 uniform standards. BNSF argues that permitting the Estate’s FELA excessive-speed
2 claim to proceed would undermine the uniformity of these standards and derail
3 FRSA’s core purpose. Accordingly, BNSF insists that the Estate’s FELA claim must
4 be precluded. BNSF relies on several United States Courts of Appeals decisions that
5 have already embraced this reasoning and conclusion and asks us to follow suit.
6 E.g., Lane v. R.A. Sims, Jr., Inc., 241 F.3d 439, 442-44 (5th Cir. 2001); Waymire v.
7 Norfolk & W. Ry. Co., 218 F.3d 773, 775-76 (7th Cir. 2000). For the reasons that
8 follow, we decline to follow Waymire and its progeny. These federal appellate
9 decisions are founded on Easterwood, a seminal United States Supreme Court
10 decision interpreting the pre-emptive (not preclusive) effect of FRSA and the FRA
11 track-speed regulations. And, thus, it is with Easterwood that our analysis must
12 begin.
13 {25} Thomas Easterwood was killed when a CSX train collided with the truck he
14 was driving. Easterwood, 507 U.S. at 661. His widow asserted a negligence claim
15 against CSX under state law alleging, among other things, that the train that struck
16 and killed Mr. Easterwood was traveling at an excessive speed. Id. The Supreme
17 Court observed that, under FRSA’s express pre-emption provision, federal
18 regulations may pre-empt any state “law, rule, regulation, order, or standard relating
15
1 to railroad safety,” including any duty imposed on railroads by state common law, so
2 long as the federal regulations cover the field, i.e., “substantially subsume the subject
3 matter of the relevant state law.” Id. at 664. The Court determined that the FRA
4 regulations setting maximum train speeds for different classes of track codified at 49
5 C.F.R. § 213.9(a) cover the subject matter of train speed with respect to track
6 conditions. Easterwood, 507 U.S. at 675. The Court explained that,
7 [o]n their face, the provisions of § 213.9(a) address only the maximum 8 speeds at which trains are permitted to travel given the nature of the 9 track on which they operate. Nevertheless, related safety regulations 10 adopted by the Secretary reveal that the limits were adopted only after 11 the hazards posed by track conditions were taken into account. 12 Understood in the context of the overall structure of the regulations, the 13 speed limits must be read as not only establishing a ceiling, but also 14 precluding additional state regulation of the sort that [Mr. Easterwood’s 15 widow] seeks to impose on [CSX].
16 Id. at 674. Accordingly, the Supreme Court held that the state-tort excessive-speed
17 claim was pre-empted. Id. at 676. Significantly, we note that the Supreme Court
18 expressly clarified that it did not address the question of FRSA’s pre-emptive effect
19 on suits for breach of other tort duties—such as the duty to slow or stop a train to
20 avoid a “specific, individual hazard.” Id. at 675 n.15.
21 {26} Like Easterwood, Waymire also involved a collision between a train and motor
22 vehicle. Waymire, 218 F.3d at 774. The railroad worker conducting the train was
16
1 injured and sued his railroad employer under FELA, claiming that his employer was
2 negligent for permitting the train to travel at an unsafe speed. Id. And as in
3 Easterwood, the train never exceeded the maximum permissible track speed
4 established by the FRA regulations. Waymire, 218 F.3d at 774.
5 {27} The Waymire court recognized that Easterwood did not control the issue before
6 it and that pre-emption analysis was inapplicable. Waymire, 218 F.3d at 775-76. The
7 issue before the court concerned the interaction of two federal statutes, not the
8 interplay of state and federal law. Id. at 775. Nevertheless, the Waymire court
9 determined that Easterwood’s reasoning provided the foundation for resolution of the
10 case. Waymire, 218 F.3d at 775. The Waymire court emphasized both Easterwood’s
11 conclusion that the FRA regulations cover the subject matter of train speed, Waymire,
12 218 F.3d at 775-76, and Easterwood’s determination that the federal track-speed
13 regulations serve not only as ceilings on the maximum legally permissible train speed,
14 but also prohibit the imposition of liability under state law even where conditions
15 would reasonably call for lower speeds. Waymire, 218 F.3d at 776. The Waymire
16 court concluded that “in order to uphold FRSA’s goal of uniformity we must strike
17 the same result.” Id. The court explained that,
18 [i]n Easterwood, the train was operating within the FRSA prescribed 60 19 miles per hour speed limit, as was [the] train in this case. It would thus
17
1 seem absurd to reach a contrary conclusion in this case when the 2 operation of both trains was identical and when the Supreme Court has 3 already found that the conduct is not culpable negligence.
4 Waymire, 218 F.3d at 776. The court added that “[t]o treat cases brought under
5 federal law differently from cases brought under state law would defeat FRSA’s goal
6 of uniformity[,]” Id. at 777, and illustrated this point with a hypothetical. Imagining
7 a collision between a motorist and train where both driver and conductor are injured,
8 the court could see no defensible justification for barring the motorist’s state-tort
9 negligence suit on pre-emption grounds while simultaneously permitting the
10 conductor to proceed with his FELA negligence action. Id. “We do not believe,” the
11 court stated, that this result is “envisioned by the statute or by the Supreme Court’s
12 decisions.” Id. Accordingly, the Waymire court held that the railroad worker’s FELA
13 excessive-speed claim was precluded by FRSA. Id. at 777. See also Lane, 241 F.3d
14 at 442-44 (reaching the same holding for the same reasons under nearly identical
15 facts); cf. Nickels v. Grand Trunk W. R.R., Inc., 560 F.3d 426 (6th Cir. 2009)
16 (concluding that FRSA, and regulations promulgated under FRSA regarding track
17 ballast, precluded two railroad workers from asserting FELA negligence claims for
18 injuries sustained as a result of having to walk continuously on oversized track
18
1 ballast). Waymire and its progeny are unpersuasive for a number of reasons, and
2 BNSF’s reliance on these cases is misplaced.
3 {28} First, the United States Supreme Court has routinely rejected attempts to curtail
4 FELA by inference. See Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557,
5 558-67 (1987) (agreeing that the Railway Labor Act (RLA), 45 U.S.C. §§ 151-165
6 (2012), provides a comprehensive framework for resolution of labor disputes in the
7 railroad industry, but nevertheless concluding that FELA was enacted “to serve as the
8 statutory basis for the award of damages to employees injured through an employer’s
9 or co-worker’s negligence,” and concluding that, “absent an intolerable conflict
10 between the two statutes,” the RLA shall not be interpreted “as repealing any part of
11 the FELA”); Urie, 337 U.S. at 165-95 (reversing the Missouri Supreme Court’s
12 decision that injuries arising from an alleged violation of the Boiler Inspection Act
13 (BIA), Act of Feb. 17, 1911, ch. 103, § 2, 36 Stat. 913-14, (repealed 1994) (current
14 version at 49 U.S.C. §§ 20701-20703 (2012)), were not compensable under FELA
15 because the BIA is supplemental to FELA and was intended to facilitate, not restrict,
16 recovery under FELA, and further concluding that any reading of the interplay of
17 these statutes that would restrict FELA by inference would be error). BNSF fails to
18 acknowledge this point, and Waymire and its progeny diverge from this tradition.
19
1 {29} Second, BNSF’s contention that Waymire and its progeny control the issue
2 presented in this case overlooks that, in Easterwood, the Supreme Court expressly
3 declined to address or decide whether FRSA pre-empts a state-law claim for breach
4 of the duty to slow or stop a train to “avoid a specific, individual hazard.”
5 Easterwood, 507 U.S. at 675 n.15. To be sure, this is not a pre-emption case, and the
6 Estate’s sole remedy is FELA. Nevertheless, footnote 15 in Easterwood is significant
7 in light of the Seventh Circuit’s reasoning in Waymire: because FRSA pre-empts
8 state-law excessive-speed claims, FRSA must also preclude FELA excessive-speed
9 claims. This logic must fail if the underlying FELA claim is premised on the
10 assertion that a specific, individual hazard warranted reduced speed. The claim
11 would not be subject to pre-emption and, thus, not precluded.
12 {30} Lower federal and state courts “have not been uniform in fleshing out the
13 content of the specific, individual hazard concept.” Myers v. Missouri Pac. R.R. Co.,
14 2002 OK 60, ¶ 27, 52 P.3d 1014.
15 Generally, courts considering this issue have ruled that a “specific 16 individual hazard” must be a discrete and truly local hazard, such as a 17 child standing on the railway. They must be aberrations which the 18 Secretary could not have practically considered when determining train 19 speed limits under the FRSA. More precisely phrased, the “local 20 hazard” cannot be statewide in character and cannot be capable of being 21 adequately encompassed within uniform, national standards.
20
1 O’Bannon v. Union Pac. R.R. Co., 960 F. Supp. 1411, 1420-21 (W.D. Mo. 1997)
2 (footnote and citations omitted). Compare Anderson v. Wis. Cent. Transp. Co., 327
3 F. Supp. 2d 969, 978 (E.D. Wis. 2004) (“A specific individual hazard is a unique
4 occurrence which could cause an accident to be imminent rather than a generally
5 dangerous condition.”) with Hesling v. CSX Transp., Inc., 396 F.3d 632, 640 (5th Cir.
6 2005) (“A condition that can be or is present at many, or most sites cannot be a
7 specific, individual hazard.”). In Bakhuyzen v. Nat’l Rail Passenger Corp., 20 F.
8 Supp. 2d 1113, 1118 (W.D. Mich. 1996), a case we find instructive, the court held
9 that poor visibility due to snowy weather conditions posed a specific, individual
10 hazard imputing to the train conductor a duty, not pre-empted by FRSA, to operate
11 the train at a speed no greater than would be prudent given the conditions. In
12 reaching this conclusion, the court observed that “[m]aximum train speeds, like
13 automobile speed limits, do not remove from the driver the obligation to exercise due
14 care when and if the circumstances . . . make operation at the maximum speed
15 careless.” Id. This reasoning is sound.
16 {31} In the present case, the district court understood the Estate’s FELA excessive
17 speed claim as asserting that BNSF was negligent in permitting Noice’s train to travel
18 at or near 55 mph because, at the time the train was permitted to travel at this speed,
21
1 Noice was outside the lead locomotive cabin, navigating the catwalk of a bucking
2 locomotive, and exposed to high winds and other external forces. In other words,
3 Noice’s precarious circumstances constituted a specific, individual hazard that
4 imputed to BNSF a duty to ensure the train traveled at a rate of speed no faster than
5 would be prudent to ensure Noice’s safety. The Estate’s claim would not be pre
6 empted if brought as a state-tort action; thus, there is no reason to accept Waymire’s
7 conclusion that Easterwood leads inevitably to the conclusion that excessive-speed
8 claims like the Estate’s must be precluded.
9 {32} Third, Waymire and its progeny improperly inject concerns about the
10 supremacy clause, which underlies the federal pre-emption doctrine, into the
11 preclusion context. Waymire does so by giving undue weight to Easterwood’s
12 conclusion that the FRA regulations cover the field of track speed. But this
13 determination in Easterwood merely resolved that a particular kind of state-law
14 excessive-speed claim could not exist in the covered field; the determination is
15 inapposite as to whether FELA can co-exist alongside FRSA. There is no meaningful
16 consideration in Waymire and its progeny given to this question, i.e., whether the two
17 statutes may work together to further railroad safety. Rather, both cases conclude that
18 the Supreme Court’s pre-emption holding in Easterwood leads inescapably to the
22
1 conclusion that FRSA precludes FELA excessive-speed claims. But this does not
2 follow; Waymire and its progeny conflate separate legal doctrines. See POM
3 Wonderful, ___ U.S. at ____, 134 S. Ct. at 2238 (“Pre-emption of some state
4 requirements does not suggest an intent to preclude federal claims.”).
5 {33} Fourth, it is an established axiom in the preclusion context that courts are not
6 free to pick and choose among federal enactments. See Morton, 417 U.S. at 551. Yet
7 Waymire and its progeny do just this. These decisions unnecessarily overemphasize
8 the purposes of FRSA at the expense of the equally valid purposes of FELA, and they
9 ignore the distinct remedial purposes of FELA. Indeed, the “absurdity” Waymire
10 perceives arising from the hypothetical scenario where a vehicle and train collide,
11 where both driver and conductor are injured, but where the driver is pre-empted from
12 filing a state-law negligence action based on excessive speed whereas the conductor
13 can proceed on exactly those grounds under FELA, see Waymire, 218 F.3d at 777,
14 ignores the possibility that this result is precisely what Congress intended. See
15 Henderson, 87 F. Supp. 3d at 617 (“[H]olding railroads to a standard of care with
16 respect to their employees that is higher than the state law standards applicable to the
17 general public is precisely the purpose of the FELA.” (citing Brotherhood of R.R.
18 Trainmen v. Va. ex rel. Va. State Bar, 377 U.S. 1, 3 (1964) (stating that the FELA was
23
1 enacted “to provide for recovery of damages for injured railroad workers and their
2 families by doing away with harsh and technical common-law rules which sometimes
3 made recovery difficult or even impossible”))); cf. Crane v. Cedar Rapids & I. C. Ry.
4 Co., 395 U.S. 164, 167 (1969) (recognizing the “injustice” of permitting a railroad
5 employee to recover through FELA in circumstances where a non-railroad employee
6 ineligible to sue under FELA could not, but noting that this is the design Congress
7 enacted and courts are not at liberty to rewrite FELA).
8 {34} Fifth, Waymire offers a distorted account of FRSA’s purpose. The purpose of
9 FRSA is to enhance railroad safety and reduce accidents. 49 U.S.C. § 20101.
10 Waymire narrowly emphasizes the purpose of FRSA’s pre-emption provision: to
11 ensure national uniformity of the laws and regulations related to railroad safety. 49
12 U.S.C. § 20106(a)(1). Unlike the Waymire court, and contrary to BNSF’s arguments,
13 we do not read FRSA’s provision pre-empting state law as expressing FRSA’s central
14 purpose. Accord Henderson, 87 F. Supp. 3d at 617 (observing that “the principal
15 purpose of the FRSA is to promote railroad safety, not to achieve nationally uniform
16 railroad safety laws”); cf. Food & Drug Admin. v. Brown & Williamson Tobacco
17 Corp., 529 U.S. 120, 133 (2000) (“It is a fundamental canon of statutory construction
24
1 that the words of a statute must be read in their context and with a view to their place
2 in the overall statutory scheme.” (internal quotation marks and citation omitted)).
3 {35} Nor do we agree that allowing FELA excessive-speed claims will undermine
4 FRSA’s ancillary purpose of securing national uniformity. “FRSA—and in
5 particular, its speed regulations—were adopted to address the patchwork effect of
6 each state applying its own set of regulations.” Cowden v. BNSF Ry. Co., 690 F.3d
7 884, 891 (8th Cir. 2012). As BNSF acknowledges, FELA is a federal statute and is
8 to be applied uniformly throughout the country. Urie, 337 U.S. at 174. Therefore,
9 “it is not clear how negligence claims brought under the federal common law threaten
10 the uniformity sought by the FRSA.” Cowden, 690 F.3d at 891. And even if
11 permitting FELA excessive-speed claims to proceed leads to some variability given
12 the possibility of disparate jury verdicts, see Lane, 241 F.3d at 443-44, we do not
13 foresee the type of disuniformity that would arise from application of the multitude
14 of state laws, state regulations, state administrative agency rulings, and state court
15 decisions that are expressly forbidden by FRSA’s express pre-emption provision.
16 And the variability that FELA actions would potentially produce is tolerable. See
17 POM Wonderful, ___ U.S. at ____, 134 S. Ct. at 2240 (“Congress not infrequently
25
1 permits a certain amount of variability by authorizing a federal cause of action even
2 in areas of law where national uniformity is important.”).
3 {36} Sixth and lastly, we do not accept BNSF’s contention that permitting FELA
4 excessive-speed claims to proceed render the FRA track regulations meaningless.
5 “FRSA’s regulations are simply to be treated like any other regulation in that
6 complying with them may provide non-dispositive evidence of due care, while
7 violating them requires a finding of negligence per se.” Henderson, 87 F. Supp. 3d
8 at 617 (internal quotation marks and citations omitted). And, contrary to the
9 arguments advanced by BNSF, we do not agree that the FRA regulations exhaust or
10 define a railroad’s duty of care towards its employees. See Earwood v. Norfolk S. Ry.
11 Co., 845 F. Supp. 880, 885 (N.D. Ga. 1993) (observing that the regulations regarding
12 track speed propounded by the Secretary are merely minimum safety requirements for
13 railroad track, and that neither the regulations nor FRSA “purport to define the
14 standard of care with which railroads must act with regard to employees”).
15 “Compliance with a legislative enactment or an administrative regulation does not
16 prevent a finding of negligence where a reasonable man would take additional
17 precautions.” Restatement (Second) of Torts § 288C (1965). This well-settled
26
1 principle of tort law is particularly salient here as the United States Supreme Court
2 has previously recognized that
3 the theory of the FELA is that where the employer’s conduct falls short 4 of the high standard required of him by this Act, and his fault, in whole 5 or in part, causes injury, liability ensues. And this result follows 6 whether the fault is a violation of a statutory duty or the more general 7 duty of acting with care, for the employer owes the employee, as much 8 as the duty of acting with care, the duty of complying with his statutory 9 obligations.
10 Kernan, 355 U.S. at 438-39 (emphasis added).
11 F. FELA and FRSA Are Complementary and Permitting the Estate’s 12 Excessive-Speed Claim to Proceed Furthers the Purposes of Both Statutes
13 {37} Rather than being in irreconcilable conflict, we conclude that FRSA and FELA
14 are complementary in purpose and effect. Both statutes further railroad safety in
15 meaningfully distinct ways. See Henderson, 87 F. Supp. 3d at 621 (“[T]he FELA and
16 the FRSA complement each other in significant respects, in that each statute is
17 designed to accomplish the same goal of enhancing railroad safety through different
18 means.”). FRSA seeks to enhance safety in every area of railroad operation, and to
19 protect the public as well as railroad workers. See 49 U.S.C. § 20101. It does so with
20 national, comprehensive regulatory standards which are enforced by government
21 entities. FELA, by comparison, focuses solely on the safety of railroad workers, and
22 does so by providing railroad employees a private right of action. Cf. Pom
27
1 Wonderful, ___ U.S. at ____, 134 S. Ct. at 2236-38 (concluding that specific
2 regulations regarding juice labeling promulgated under the Federal Food, Drug, and
3 Cosmetic Act did not preclude the plaintiff’s Lanham Act claim which asserted that
4 the plaintiff’s market competitor mislabeled its juice product and emphasizing the two
5 statutes different enforcement mechanisms as one of the grounds for denying
6 preclusion).
7 {38} Permitting FELA claims like the Estate’s to proceed is likely to enhance the
8 overall safety of railroad operation. Fair v. BNSF Ry. Co., 189 Cal. Rptr. 3d 150,
9 160-61 (2015), cert. denied, 136 S. Ct. 1378 (2016) (“Allowing safety-related suits
10 under FELA will enhance FRSA’s stated purpose of promoting railroad safety and
11 reducing accidents.”). In addition, FELA claims may shed light upon potentially
12 dangerous circumstances that regulators might otherwise not identify or that are less
13 amenable to uniform, regulatory solutions. See Jerry J. Phillips, An Evaluation of the
14 Federal Employers’ Liability Act, 25 San Diego L. Rev. 49, 54 (1988) (“The
15 fault-based FELA system, with its compensation exceeding the typical workers’
16 compensation award (particularly for the more serious injuries), is designed to serve
17 as a real and present safety incentive.”). In sum, we conclude that what the Supreme
18 Court said in POM Wonderful is directly applicable here: allowing FELA suits like
28
1 the Estate’s to proceed “takes advantage of synergies among multiple methods of
2 regulation” and is “consistent with the congressional design to enact two different
3 statutes, each with its own mechanisms to enhance” railroad safety.

Outcome:

FRSA does not preclude the Estate’s FELA excessive-speed claim. Accordingly, we affirm the Court of Appeals and remand this case to the district court for further proceedings consistent with this opinion.

Plaintiff's Experts:

Defendant's Experts:

Comments:

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