Armijo v. Atchison, Topeka and Santa Fe Ry. Co., s. 91-2084

• Decision Date: 22 March 1994
• Docket Number: 91-2088,Nos. 91-2084,s. 91-2084
• Citation: 19 F.3d 547
• 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

Page 547

19 F.3d 547

28 Fed.R.Serv.3d 433

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.

Nos. 91-2084, 91-2088.

United States Court of Appeals, Tenth Circuit.

March 22, 1994.

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, Albuquerque, NM, with him on the brief), for defendant-appellee/cross-appellant.

Before SEYMOUR, Chief Judge, and HOLLOWAY and McWILLIAMS, Circuit Judges.

HOLLOWAY, Circuit Judge.

The plaintiff-appellant, Nancy Armijo (Armijo), brought this wrongful death diversity action as the personal representative of the estate of her husband, Luz Armijo, against the Atchison, Topeka, and Santa Fe Railway Company (Santa Fe). After a period of discovery, Santa Fe moved for a partial summary judgment on Armijo's claim that Santa Fe negligently failed to provide adequate warnings of the crossing at issue. Santa Fe argued there was preemption of such a state law claim by federal action. The district judge granted partial summary judgment for Santa Fe, upholding its preemption theory. 754 F.Supp. 1526 (1990). In addition, the judge granted a motion in limine by Armijo to exclude all evidence relating to a potential "seat belt defense" by Santa Fe. The judgment embodying both rulings was certified as final under Fed.R.Civ.P. 54(b), and this appeal followed.

I

Luz Armijo was killed when his car collided with a Santa Fe train at the North Gabaldon Road crossing, north of Belen, New Mexico, on October 23, 1987. Nancy Armijo instituted this wrongful death action in March 1989 against Santa Fe, asserting a claim of negligent failure to provide adequate warnings of the crossing and of negligent operation of its train through the crossing. She also made a claim for punitive damages, alleging that the Santa Fe's conduct in failing to cure the dangerous condition of the crossing was reckless, willful and wanton and in complete disregard of the decedent's safety. As noted, Santa Fe moved for a partial summary judgment on the claim of negligence in not providing adequate warnings, arguing that federal law had preempted such a state common law claim of negligence respecting railroad crossing safety. Armijo filed a motion in limine to exclude all evidence concerning her husband's use or failure to use his seat belt at the time of the accident. She argued that N.M.Stat.Ann. Sec. 66-7-373(B) (Supp.1990) prohibited consideration of failure to use a seat belt in determining apportionment of fault or damages.

The district judge granted Santa Fe's motion for a partial summary judgment, upholding its preemption theory. He simultaneously granted Armijo's motion to exclude the seat belt evidence. In a separate judgment, the judge ordered that Santa Fe have judgment "on plaintiff's claims that defendant had a duty to install additional warning devices at the railroad-highway crossing at issue," and declared the judgment as set forth to be a final judgment pursuant to Fed.R.Civ.P. 54(b). The judgment also stated that the court's ruling on seat belt defense would be included in the same Rule 54(b) "final judgment." ¹ Appellant's Appendix at 72. Mrs. Armijo timely appealed.

II

A.

Congress has developed a detailed scheme to address the problem of railroad grade crossing safety. In the Federal Railroad Safety Act of 1970 (FRSA), 84 Stat. 971, 45 U.S.C. Secs. 421-447 (1988 ed. and Supp. II), Congress directed the Secretary of Transportation to study and develop solutions to safety problems posed by grade crossings. 45 U.S.C. Sec. 433. In order to promote national uniformity in rules and regulations relating to railroad safety, Congress gave the Secretary broad powers to "prescribe, as necessary, appropriate rules, regulations, orders and standards for all areas of railroad safety...." Sec. 431(a). Section 434 governs the preemptive effect of those regulations. It permits a state to adopt or continue in force laws, rules, and regulations until the Secretary adopts a rule, regulation, or standard "covering the subject matter of such State requirement." 45 U.S.C. Sec. 434.

In the Highway Safety Act of 1973, 87 Stat. 282, 23 U.S.C. Sec. 130, et seq., Congress again addressed railway-highway crossings, providing for the "entire cost of construction of projects for the elimination of hazards of railroad-highway crossings...." Regulations issued under the Highway Safety Act require that states adopt the Federal Highway Administration Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD) in order to receive federal highway funding. 23 C.F.R. Secs. 655.601, 655.603(b)(1) (1987).

Santa Fe argues that these federal regulations and New Mexico's adoption of MUTCD preempted state law concerning the installation of warning devices at railroad crossings. After the argument of this appeal, this court upheld a similar preemption argument, which was premised on the adoption by Kansas of the MUTCD, in Hatfield v. Burlington Northern R. Co., 958 F.2d 320 (10th Cir.1992) (Hatfield I ). Shortly after our opinion in Hatfield I, the Supreme Court granted certiorari in a case that also raised the issue of the extent to which the FRSA preempts state negligence law pertaining to the maintenance of, and the operation of trains at, grade crossings. C.S.X. Transp., Inc. v. Easterwood, --- U.S. ----, 112 S.Ct. 3024, 120 L.Ed.2d 896 (1992). We abated our proceedings in the instant case to await the decision of the Supreme Court in Easterwood.

In its Easterwood opinion in April 1993, the Supreme Court determined that the standard for preemption Congress established in Sec. 434 is a relatively strict one: the federal regulation must cover the same subject matter as the state law. C.S.X. Transp., Inc. v. Easterwood, --- U.S. ----, ----, 113 S.Ct. 1732, 1738, 123 L.Ed.2d 387 (1993). Given the strict language of Sec. 434 and the presumption against preemption, the Court held that the general mandates of 23 C.F.R. pt. 924 did not preempt a state law claim that the railroad was negligent in failing to maintain adequate warning devices at a grade crossing. Id. at ---- - ----, 113 S.Ct. at 1739-40. Likewise, the Court held that the requirement that states comply with the MUTCD does not cover the subject matter of the tort law of grade crossings. Id. The MUTCD provides standards for traffic control installation but does not require their installation. MUTCD at 1A-4.

The remaining arguable sources of preemption in grade crossing cases are the provisions of 23 C.F.R. Secs. 646.214(b)(2), (3), and (4). These sections, unlike the MUTCD provisions, do establish requirements as to the installation of particular warning devices. When these provisions are applicable, state tort law is preempted. --- U.S. at ---- - ----, 113 S.Ct. at 1740-41. Subsection (b)(2) is only applicable to crossings "located within the limits of or near the terminus of a Federal-aid highway project for construction of a new highway or improvement of an existing roadway." Sec. 646.214(b)(2). For projects in which "federal funds participate in the installation of [warning] devices," regulations specify the type of warning devices that must be installed. As the Supreme Court explained,

Thus, States must employ automatic gates with flashing light signals as part of any improvement project that concerns a crossing which features, inter alia, multiple tracks, high speed trains operating in areas of limited visibility, heavy vehicle or train traffic, or if a diagnostic team made up of "representatives of the parties of interest in [the crossing]" recommends them. For federally funded installations at crossings that do not present the track conditions specified in Sec. 646.214(b)(3), "the type of warning device to be installed, whether the determination is made by a State ... agency, and/or the railroad, is subject to the approval of the FHWA." Sec. 646.214(b)(4).

Id. at ----, 113 S.Ct. at 1739 (footnote omitted).

The Supreme Court held that Secs. 646.214(b)(3) and (4) displace state decisionmaking authority by establishing a federal-law requirement that certain protective devices be installed or that federal approval be obtained. Id. at ----, 113 S.Ct. at 1741. "Indeed, Secs. 646.214(b)(3) and (4) effectively set the terms under which railroads are to participate in the improvement of crossings." Id. The Court concluded:

In short, for projects in which federal funds participate in the installation of warning devices, the Secretary has determined the devices to be used and the means by which railroads are to participate in their selection. The Secretary's regulations therefore cover the subject matter of state law which, like the tort law on which respondent relies, seeks to impose an independent duty on a railroad to identify and/or repair dangerous crossings.

Id. Under Easterwood, the determinative question in a particular case is whether the preconditions for the application of either regulation have been met, specifically, whether federal funds have participated in the installation of warning devices. ²

Five days after issuing its Easterwood opinion, the Supreme Court vacated our opinion in Hatfield I and remanded the case to us for further consideration in light of Easterwood. --- U.S. ----, 113 S.Ct. 1940, 123 L.Ed.2d 646 (1993). Upon reconsideration, we in turn remanded the case to the district court for a specific determination of whether federal funds participated in the installation of warning devices in the railroad crossing at issue there.

If so, the court must determine when and how participation occurred. If the court finds participation did not occur or did not take place until after Mr. Hatfield's incident, the court must...