Akin v. Missouri Pacific R. Co., 86,632

CourtSupreme Court of Oklahoma
Citation977 P.2d 1040,1998 OK 102
Docket NumberNo. 86,632,86,632
PartiesMary Jane AKIN, Surviving spouse of John D. Akin, Deceased, Plaintiff-Appellant. v. MISSOURI PACIFIC RAILROAD CO., d/b/a Union Pacific Railroad Co., a foreign corporation, Defendant-Appellee.
Decision Date13 October 1998

¶0 Mary Jane Akin brought in the District Court, Mayes County, James D. Goodpaster, trial judge, an action to recover damages for the wrongful death of her husband, John D. Akin, who was killed when his automobile was struck by a train owned and operated by the Missouri Pacific Railroad Co. The trial court granted defendant's pre-trial motion for "partial summary judgment" as to one of plaintiff's theories of liability, and the case was tried on plaintiff's remaining theory. The jury returned a verdict in favor of the defendant. Plaintiff's combined motion for vacation of judgment and motion for new trial was denied, and plaintiff appealed. The Court of Civil Appeals, Division No. 4, affirmed. On certiorari granted upon the plaintiff's petition.


W.C. "Bill" Sellers, Sr., Sapulpa, James W. Keeley, and Randall A. Gill, Tulsa, for Appellant.

Tom L. Armstrong and Carey Cobb Calvert, Tom L. Armstrong & Associates, Tulsa, for Appellee.


¶1 The dispositive issues tendered on certiorari are (1) whether the trial court erred in granting defendant's motion for summary disposition of plaintiff's inadequate signalization theory of recovery on the grounds that it was pre-empted by federal law, and if so, (2) whether plaintiff is entitled to an opportunity to present that theory in a new trial. We answer the first question in the affirmative and the second in the negative.


¶2 In the early morning hours of July 15, 1991, John D. Akin was traveling westbound in his pickup truck along Main Street/Highway 28 in Adair, Oklahoma. In front of him, traversing Main Street/Highway 28, was a railroad grade crossing (the "Adair crossing") owned and maintained by Missouri Pacific Railroad Co. ("Missouri Pacific" or "defendant"). At the time of Mr. Akin's accident, certain passive warning signs as well as crossbucks with flashing lights were present on both sides of the Adair crossing to warn motorists and others of the approach or presence of a train. No automatic gates were present. As Mr. Akin's vehicle was nearing the Adair crossing from the east, a train, owned and operated by Missouri Pacific, heading north, was approaching the Adair crossing from the south. The warning lights were flashing as he approached and entered the crossing, but Mr. Akin did not stop or slow down. As his vehicle crossed the tracks, it was struck by defendant's train. Mr. Akin was killed instantly.

¶3 His widow, Mary Jane Akin, brought a wrongful-death action against Missouri Pacific. Plaintiff alleged that the flashing lights at the crossing had a history of malfunctioning and that, as a result, the motoring public had ceased to view the flashing lights as a serious and reliable warning of the imminent approach of a train. Also alleged was that flashing lights were an inadequate warning device for this particular crossing, and that automatic gates were required in order to operate the crossing safely.

¶4 On the day of trial, Missouri Pacific filed a series of motions, including the "Motion for Partial Summary Judgment" 1 ¶5 The Court of Civil Appeals, Division 4, held that the conditions set forth in Easterwood for the application of federal pre-emption of state tort law had not been met, and, therefore, the trial court had erred in granting summary relief on plaintiff's inadequate signalization theory. The appellate court nevertheless affirmed the judgment in favor of Missouri Pacific, holding that the overwhelming evidence of Mr. Akin's own negligence in failing to stop at the crossing rendered harmless the trial court's error in eliminating one theory by summary adjudication. Consequently, the Court of Civil Appeals held that it was not an abuse of discretion for the trial court to deny plaintiff's motion for a new trial.

                which is the subject of this appeal.  Relying on the United States Supreme Court's decision in CSX Transportation, Inc. v. Easterwood, 2 defendant asked for summary adjudication of plaintiff's inadequate signalization theory of liability on the grounds of federal pre-emption. 3  The trial court granted the defendant's motion, and plaintiff was precluded from submitting her inadequate signalization theory. 4  The trial proceeded on plaintiff's other theory, that of improper maintenance of the flashing lights.  The trial ended in a jury verdict for the defendant.  Plaintiff brought a combined motion for vacation of judgment and motion for new trial, claiming that the trial court's pre-emption ruling as to plaintiff's inadequate signalization theory was erroneous.  Plaintiff's motion was denied and she appealed

¶6 We granted certiorari on plaintiff's petition and now affirm.



¶7 Summary adjudication process is a singular pretrial procedure conducted with the aid of acceptable probative substitutes. It is an inquiry into the existence of undisputed material fact issues, which may be conducted, sans forensic combat, in the course of the judicial decision-making process. Its purpose is to identify and isolate non-triable fact issues, not to defeat an opponent's right to trial by jury. Only that evidentiary material which entirely eliminates from trial some or all fact issues may afford legitimate support for nisi prius resort to summary process. 5

¶8 The issues on review of a motion for summary adjudication stand before this court for de novo examination 6 pursuant to several well-known principles: (1) the movant for summary disposition has the burden of showing that there is no genuine issue of material fact and that it is entitled to summary relief as a matter of law; 7 (2) the court ¶9 To prevail as the moving party on a motion for summary adjudication, one who defends against a claim by another must either (a) establish that there is no genuine issue of fact as to at least one essential component of the plaintiff's theory of recovery or (b) prove each essential element of an affirmative defense, showing in either case that, as a matter of law, the plaintiff has no viable cause of action. 10

                may consider, in addition to the pleadings, such items as depositions, affidavits, admissions, answers to interrogatories, and other evidentiary materials submitted to the trial court by the parties and shall view all facts and inferences in the light most favorable to the non-moving party; 8  and (3) only where the court concludes that there is no substantial controversy as to any material facts which would justify a trial is the movant entitled to summary adjudication as a matter of law. 9



¶10 Pre-emption is a well-established legal principle which gives substance to the hierarchy of power established by the Supremacy Clause of the United States Constitution, subordinating the laws of the states to those of the federal government which were enacted pursuant to its constitutionally conferred authority. 11 Pre-emption occurs when federal law displaces a body of state law on the same subject. 12 Whether pre-emption occurs is a matter of congressional intent, 13 which may be effected even by regulations of a federal agency acting within the scope of congressionally delegated authority. 14

¶11 Congress's intent to pre-empt may be conveyed in four ways: (1) by express statutory language; (2) by a pervasive regulatory scheme from which it can be inferred that Congress intended no state-law supplementation of federal regulations; (3) when an actual conflict between state and federal law makes it impossible to comply with both; and (4) where the objectives and purposes of Congress would be thwarted by state law. 15 Unless it is the clear and manifest purpose of Congress, whether express or implied, to substitute its law for that of the states, a presumption against pre-emption is employed out of respect for federalism and to give effect to the historic role of the states as ¶12 Easterwood, 17 the controlling United States Supreme Court decision in this case, involved the interpretation of a statutory provision that expressly pre-empts state law. 18 Thomas Easterwood was killed in 1988 when a train owned and operated by CSX Transportation, Inc. struck Easterwood's truck as he was driving through a railroad crossing in Cartersville, Georgia. His widow sued CSX in the District Court for the Northern District of Georgia, 19 alleging that the railroad was liable under Georgia negligence law for failing to provide adequate warning devices at the crossing and for operating the train at an excessive speed. CSX moved for summary judgment on the ground that common-law negligence claims were pre-empted by the provisions of the Federal Railroad Safety Act of 1970 ("FRSA"), 84 Stat. 971, as amended, 45 U.S.C. §§ 421-447 (1988 ed. and Supp. II). 20 The federal district court agreed with CSX and granted summary judgment in its favor as to both of plaintiff's theories. 21 Mrs. Easterwood appealed, and the Eleventh Circuit Court of Appeals, affirming in part and reversing in part, held that while the excessive speed claim was indeed pre-empted, the theory of negligence based on the inadequacy of warning devices was not. 22 The Supreme Court granted certiorari to resolve a disagreement among the federal circuit courts on the pre-emptive effect of FRSA. 23

the primary regulators of matters of health and safety. 16

¶13 The Court began its opinion by examining the statutory language of FRSA to...

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