Easterwood v. CSX Transp., Inc.

Decision Date20 June 1991
Docket NumberNo. 90-8851,90-8851
Citation933 F.2d 1548
PartiesMrs. Lizzie Beatrice EASTERWOOD, Plaintiff-Appellant, v. CSX TRANSPORTATION, INC., Defendant-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

James Irvin Parker, William Lundy, Tambra P. Colston, Parker & Lundy, Cedartown, Ga., for plaintiff-appellant.

Jack Harrell Senterfitt, Richard Thomas Fulton, Alston & Bird, Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before JOHNSON and COX, Circuit Judges, and HENDERSON, Senior Circuit Judge.

JOHNSON, Circuit Judge:

This case arises on appeal following the district court's grant of a motion for summary judgment in favor of the defendant on the basis of federal preemption. 742 F.Supp. 676.


Thomas Easterwood, on February 24, 1988, was working for the Duncan Wholesale Company delivering wood products in a long bed truck in Cartersville, Georgia. While crossing the Cook Street railroad grade crossing, he was struck and killed by a CSX train.

On June 3, 1988, Lizzie Beatrice Easterwood, Thomas' widow, filed the wrongful death action in district court. CSX answered but it made no reference to the Federal Railroad Safety Act in its pleading. The District Court ordered discovery completed by November 30, 1989 and any motions for summary judgment filed within 20 days of that date. On December 19, 1989, CSX moved for summary judgment, alleging, among other things, that the Federal Railroad Safety Act provided a complete defense. Easterwood did not complain to the district court about CSX's failure to raise this defense in its answer. The district court granted summary judgment. Easterwood brought a timely appeal to this court.


The district court order granting summary judgment is subject to de novo review by this Court. See Shipes v. Hanover Ins. Co., 884 F.2d 1357 (11th Cir.1989). This Court must ask whether there is any genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

A. The Failure to Raise the Pre-Emption Defense in the Answer

In its motion for a summary judgment, CSX raised for the first time the possibility that Easterwood's state law negligence claims were pre-empted by federal law. Easterwood now claims that federal pre-emption is an affirmative defense which should have been raised in CSX's answer. See Fed.R.Civ.P. 8(c). If federal pre-emption is an affirmative defense, CSX's failure to specifically plead the defense in its answer or amended answer results in the waiver of this defense. See Morgan Guar. Trust Co. of N.Y. v. Blum, 649 F.2d 342, 345 (5th Cir. Unit B 1981).

Easterwood's failure, in the district court, to raise the argument that federal pre-emption is an affirmative defense prevents us from sanctioning CSX for its failure to include this affirmative defense in its answer. As a "general principle of appellate review[,] an appellate court will not consider issues not presented to the trial court." McGinnis v. Ingram Equip. Co., Inc., 918 F.2d 1491, 1495 (11th Cir.1990) (en banc). One exception to this rule is "when a pure question of law is involved and a failure to consider it would result in a miscarriage of justice." Martinez v. Mathews, 544 F.2d 1233, 1237 (5th Cir.1976). While it is undisputed that whether this affirmative defense was waived is a pure question of law, neither party can argue that our decision not to reach the issue would result in a miscarriage of justice. First, had Easterwood mentioned this technical failure of the pleadings before the district court, the district court could have given CSX leave to amend its answer, see Fed.R.Civ.P. 15(a), thus remedying any problem. Second, our Circuit has noted that the purpose of requiring affirmative defenses to be pled in the answer is to facilitate trial preparation. See Hassan v. United States Postal Serv., 842 F.2d 260 (11th Cir.1988). In the past, we have been reluctant to enforce strictly the harsh waiver requirement where the plaintiff is unable to demonstrate any prejudice due to the lack of notice. Id. Easterwood has not established any prejudice due to this technical failure of the pleadings. Not only did Easterwood fail to move to reopen discovery, but she also told the district court, during oral arguments, that the existing exhibits, affidavits, and depositions were sufficient to defeat the motion for summary judgment. Therefore, it is not a miscarriage of justice if we decline to allow Easterwood to raise this argument, for the first time, on appeal.

B. The Appropriateness of Summary Judgment

Easterwood alleged that CSX was negligent for a number of reasons. First, Easterwood alleged that CSX was negligent for failing to maintain the crossing properly by failing to trim vegetation and level a hump near the tracks. Second, Easterwood alleged that CSX was negligent in maintaining the crossing properly by failing to install adequate warning signals. And third, Easterwood alleged that the train was negligently exceeding a reasonable speed at the time of the accident. 1 We will first examine whether, as CSX claims, federal law pre-empts each of these state law claims. We will then determine whether summary judgment was warranted for any of the surviving claims.

1. Federal Pre-emption

The Supreme Court has recognized that state law 2 is pre-empted under the Supremacy Clause in three circumstances. First, pre-emption will occur when Congress explicitly indicates that it intends to pre-empt state law. English v. General Elec., --- U.S. ----, 110 S.Ct. 2270, 2275, 110 L.Ed.2d 65 (1990). The courts, however, will attempt to narrowly tailor the scope of the pre-emption to match congressional intent. Id. Second, pre-emption will be implied when Congress has indicated that the federal government will exclusively occupy a field of regulation. The English Court noted that congressional intent can be implied when the statutes and regulations are so pervasive that there is no room left for state regulation or when there are strong federal interests in exclusively regulating the field. Id. However, congressional intent must be " 'clear and manifest' " if the allegedly pre-empted field includes areas of traditional state interest. Id. (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977)). Third, pre-emption will be implied when state law "actually conflicts with federal law." Id. Under this variety of pre-emption, if a party cannot comply with both federal and state law or when state law interferes with the accomplishment of congressional objectives, courts will imply pre-emption.

With these standards in mind, we turn to the legislative history of the Federal Railroad Safety Act of 1970, Pub.L. No. 91-458 (codified as amended at 45 U.S.C.A. Sec. 421 et seq. (1986)). The Railroad Safety Act is the primary source of legislation dealing with the various railroad safety problems. The legislative history indicates that Congress was wary of the role of the states in rail safety. The House report stated that "[t]he committee does not believe that safety in the Nation's railroads would be advanced sufficiently by subjecting the national rail system to a variety of enforcement in 50 different judicial and administrative systems." H.Rep. No. 1194, 91st Cong., 2d Sess., reprinted in 1970 U.S.Code Cong. & Admin.News 4104, 4109 (hereinafter House Report). The committee also noted that "where the federal government has authority, with respect to rail safety, it preempts the field." House Report at 4108 (emphasis added).

The Railroad Safety Act was the outgrowth of a report from a task force on railroad safety. The task force was primarily concerned with grade crossing accidents and derailments. See House Report, Appendix F, 4125, 4126-27. The task force noted the problems inherent in a hodgepodge of state safety regulations and concluded that "railroad safety ... requires a more comprehensive national approach." Id. at 4127. The task force recognized the potential tension between the need for increased speed and efficiency and the need for safety. Id. at 4128. One of its conclusions was that in order to obtain both higher speeds and increased safety, safer grade crossings and a better educated public were needed. Id. The task force concluded that "[t]he motoring public is part of the safety problem at the grade crossing." Id. The task force recommended, among other things, a set of "uniform procedures and standards" to regulate grade crossings. Id. at 4130.

The Railroad Safety Act sought "to promote safety ... and to reduce railroad-related accidents." 45 U.S.C.A. Sec. 421 (1986). The Secretary of Transportation, through the Act, was authorized to "prescribe, as necessary, appropriate rules, regulations, orders, and standards for all areas of railroad safety ..." 45 U.S.C.A. Sec. 431(a)(1) (1986). Congress declared "that laws, rules, regulations, orders, and standards relating to railroad safety shall be nationally uniform to the extent practicable." 45 U.S.C.A. Sec. 434 (1986). However, Congress passed a savings clause, allowing states to adopt or continue in force any law relating to railroad safety until the Secretary of Transportation adopted a rule covering the same subject matter. 3 Id.

We can draw a few conclusions from this legislative history. The legislative history makes clear that because Congress was concerned with the problems created by the hodgepodge of state regulations it explicitly stated that it intended to pre-empt all state regulations covering the same subject matter as the federal regulations. Therefore, our initial task is to examine each claim and determine if any federal regulations have been promulgated which cover the conduct at issue. In such cases, we will find...

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