Duprey v. HURON & ER CO.

• Decision Date: 18 January 2000
• Docket Number: Docket No. 211118.
• Citation: 237 Mich. App. 662,604 N.W.2d 702
• Parties: Elizabeth DUPREY, Plaintiff-Appellant, v. HURON & EASTERN RAILWAY COMPANY, INC., Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

604 N.W.2d 702

237 Mich. App. 662

Elizabeth DUPREY, Plaintiff-Appellant, v. HURON & EASTERN RAILWAY COMPANY, INC., Defendant-Appellee.

Docket No. 211118.

Court of Appeals of Michigan.

Submitted September 15, 1999, at Detroit.

Decided September 24, 1999, at 9:10 a.m.

Released for Publication January 18, 2000.

Pearlman and Pianin (by Arvin J. Pearlman and Phillip S. Serafini), Southfield, for the plaintiff.

Braun Kendrick Finkbeiner, P.L.C. (by Scott C. Strattard), Saginaw, for the defendant.

Before: COLLINS, P.J., and SAWYER and MARK J. CAVANAGH, JJ.

PER CURIAM.

Plaintiff appeals from an order of the circuit court granting summary disposition to defendant. We reverse and remand for further proceedings.

Plaintiff was injured while in the course of her employment by Cooperative Elevator Company. Specifically, she had climbed atop a grain car operated by defendant Huron & Eastern Railway Company, Inc., in order to open a lid or hatch of the car so that grain could be loaded. Plaintiff alleged that the lid was defective, causing her to expend an extraordinary amount of energy to lift it. Further, she alleged that the lid suddenly flew up and knocked her to the ground, causing her to sustain serious, disabling, and permanent injuries. Defendant denies that the hatch was defective.

The trial court granted defendant's motion for summary disposition, concluding that plaintiff's claims under state law are preempted by the Federal Railroad Safety Act (FRSA), 49 U.S.C. 20101 et seq. We disagree.

Plaintiff first argues that defendant's duty under state law to properly inspect and maintain the hatch or lid on top of the grain car is excepted from pre-emption by the FRSA. We agree.

Continued state regulation of railroads, with restrictions, is permitted under the FRSA. Specifically, § 20106, 49 U.S.C. 20106, provides in part as follows:

A State may adopt or continue in force a law, regulation, or order related to railroad safety until the Secretary of Transportation prescribes a regulation or issues an order covering the subject matter of the State requirement.

In the case at bar, both sides concede that there are no federal regulations covering duties related to grain car hatches or lids. Therefore, we conclude that, under the express terms of § 20106, any state laws, regulations, or orders related to grain car hatches or lids remain in force until and unless the federal Secretary of Transportation adopts a regulation or issues an order regarding grain car hatches or lids.

This interpretation is consistent with the United States Supreme Court's holding in CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). In Easterwood, the Court clarified that legal duties imposed by state common law fall within the scope of § 20106, addressing the question whether the Secretary of Transportation had issued regulations covering the same subject matter as state negligence law. The Easterwood Court outlined a specific approach to be used in these types of cases:

To prevail on the claim that the regulations have pre-emptive effect, petitioner must establish more than that they "touch upon" or "relate to" that subject matter, ... for "covering" is a more restrictive term which indicates that pre-emption will lie only if the federal regulations substantially subsume the subject matter of the relevant state law. [Easterwood, supra at 664

, 113 S.Ct. 1732 (citation omitted).]

The Supreme Court's limited holding in Easterwood and the statute's emphasis on the states' reserved power are both reflective of the general presumption in the law against federal pre-emption. See Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947) (the historic powers of the states to regulate train safety must not be superseded unless it is the clear purpose of Congress). Federal preemption derives from the Supremacy Clause of the United States Constitution, U.S. Const., art. VI, cl. 2, CSX Transportation, Inc. v. City of Plymouth, Michigan, 86 F.3d 626 (C.A.6, 1996), and occurs only under certain conditions:

"The Supremacy Clause of Art. VI of the Constitution provides Congress with the power to pre-empt state law. Pre-emption occurs when Congress, in enacting a federal statute, expresses a clear intent to pre-empt state law, when there is outright or actual conflict between federal and state law, where compliance with both federal and state law is in effect physically impossible, where there is implicit in federal law a barrier to state regulation, where Congress has legislated comprehensively, thus occupying an entire field of regulation and leaving no room for the States to supplement federal law, or where the state law stands as an obstacle to the accomplishment and execution of the full objectives of Congress." [Id. at 627, quoting Louisiana Public Service Comm. v. Federal Communications Comm., 476 U.S. 355, 368-369, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986) (citations omitted).]

See also Grand Trunk W R Co. v. Fenton, 439 Mich. 240, 243-244, 482 N.W.2d 706 (1992).

Defendant relies on Fenton in support of its position, but that reliance is misplaced. Fenton dealt with a challenge to a local speed limit ordinance that imposed a lower limit than that of the federal regulations. Thus, Fenton did not deal with an area that was unregulated by federal rules, such as hatches on grain cars, but with an area that is extensively regulated, speed limits.

Fenton is an example of the second area of state regulation permitted under § 20106, which provides that states may

adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety when the law, regulation, or order—

(1) is necessary to eliminate or reduce an essentially local safety hazard (2) is not incompatible with a law, regulation, or order of the United States Government; and

(3) does not unreasonably burden interstate commerce.

This is a separate provision from that referred to earlier in this opinion and does not apply to the case at bar. Indeed, the error in the trial court's reasoning in this case is that it reviewed this matter under this second provision and not the first.

The first saving provision allows for state regulation in areas not regulated under the FRSA, while the second allows for state regulation in limited circumstances, involving local safety hazards, where the area is covered by federal regulations. That is, the first covers state regulations in the absence of federal regulations, while the second covers local regulations more stringent than existing federal regulations. Because, as the parties agree, the federal government has not regulated grain car hatches, that means that the first provision, not the second, applies. Accordingly, the trial court erred in applying the second saving provision rather than the first.

This interpretation is consistent with the Supreme Court's holding in Easterwood, supra at 664,113 S.Ct. 1732 which clarified that "[l]egal duties imposed on railroads by the common law fall within the scope of" § 20106. In other words, state negligence law is counted among the laws, regulations, or orders that states may adopt or continue in force.

Defendant also argues that a finding of pre-emption is supported by the fact that the Secretary of Transportation has issued regulations covering the subject area of plaintiff's claims. Defendant cites 49 C.F.R. 215.1, 215.11, 215.13, and 215.101 et seq., as support for this assertion. The regulation at 49 C.F.R. 215.1 describes the scope of part 215: "This part prescribes minimum Federal safety standards for railroad freight cars." Section 215.11 requires the designation of and states the qualifications for railroad freight car inspectors. 49 C.F.R. 215.11. Section 215.13 requires that freight cars be inspected before the train departs, 49 C.F..R 215.13(a); that the inspection be performed by a designated inspector to determine whether...