Armijo v. Atchison, Topeka and Santa Fe Ry. Co., s. 91-2084
| Decision Date | 17 June 1994 |
| Docket Number | 91-2088,Nos. 91-2084,s. 91-2084 |
| Citation | 27 F.3d 481 |
| Parties | Nancy ARMIJO, personal representative of the Estate of Luz Armijo, Deceased, Plaintiff-Appellant/Cross-Appellee, v. ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a Delaware corporation, Defendant-Appellee/Cross-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Chris Key, Albuquerque, NM, for plaintiff-appellant/cross-appellee, Nancy Armijo.
John S. Thal of Modrall, Sperling, Roehl, Harris & Sisk, Albuquerque, NM (Timothy C. Holm of Modrall, Sperling, Roehl, Harris & Sisk, with him on the brief), for defendant-appellee/cross-appellant.
Before SEYMOUR, Chief Judge, and HOLLOWAY and McWILLIAMS, Circuit Judges.
On consideration of the petition for rehearing and suggestion of rehearing en banc of defendant-appellee Atchison, Topeka and Santa Fe Railway Company (Santa Fe), the response thereto of plaintiff-appellant Nancy Armijo (Armijo), and of the subsequent submissions this court has permitted to be filed, the court finds and concludes as follows:
Our panel opinion filed March 22, 1994, 19 F.3d 547, details the factual background of this controversy and its procedural posture and need not be repeated. We will note herein only those facts especially pertinent to the disposition of the petition for rehearing and the suggestion of rehearing en banc and our disposition.
The petition and suggestion argue that our disposition in the panel opinion was in error in concluding, 19 F.3d at 551, that the case need not be remanded for further determinations on the preemption issue as was done in the Order on Remand in Hatfield v. Burlington Northern Railroad Company, 1 F.3d 1071 (10th Cir.1993) (Hatfield II ); that in fairness we should remand for further development of the evidence on the preemption issue as we did in Hatfield II, id. at 1072; that at the time the summary judgment record was developed, Santa Fe did not have the benefit of the Supreme Court's opinion in C.S.X. Transportation, Inc. v. Easterwood, --- U.S. ----, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993), or our Hatfield II opinion. Appellee's Petition for Rehearing and Suggestion for Rehearing In Banc, 5-6. Plaintiff Armijo responds that our panel decision and Hatfield II are thoroughly consistent with each other in full and fair application of Easterwood; that in our panel opinion we were able to find sufficient exploration of the facts to allow us to come to a conclusion on the preemption question, with no remand on that issue being necessary; and that the panel properly held there was no preemption, the North Gabaldon crossing not being a project where federal funds had participated in the installation of warning devices. Appellant's (Armijo's) Response to Appellee's Petition for Rehearing and Suggestion for Rehearing In Banc, 4-5. Armijo's argument opposes remand for further factual development on the preemption issue.
We are persuaded that we should modify our prior opinion and disposition to remand the preemption issue so as to permit both parties to develop any further evidence available on the issue of preemption and particularly on the circumstances bearing on the issue whether and when Federal-aid funds may have participated in the installation of warning devices at the North Gabaldon crossing. We are moved to modify our disposition to this extent due to the fairness element alluded to in Hatfield II, 1 F.3d at 1072, and due to the procedural posture of the instant case. In our panel opinion when we reversed the summary judgment on the preemption ruling of the district judge in favor of the Santa Fe, we then held there was "no evidence that the events necessary for preemption occurred before the accident on October 23, 1987." 19 F.3d at 551. We remanded only the state law negligence issue for further proceedings. We in effect granted summary judgment on the preemption...
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