Fair v. BNSF Ry. Co.

• Decision Date: 30 June 2015
• Docket Number: F068769
• Citation: 189 Cal.Rptr.3d 150,238 Cal.App.4th 269
• Court: California Court of Appeals Court of Appeals
• Parties: Delton R. FAIR, Plaintiff and Respondent, v. BNSF RAILWAY COMPANY, Defendant and Appellant.

238 Cal.App.4th 269

189 Cal.Rptr.3d 150

Delton R. FAIR, Plaintiff and Respondent

v.BNSF RAILWAY COMPANY, Defendant and Appellant.

F068769

Court of Appeal, Fifth District, California.

Filed June 30, 2015

Dowling Aaron, Fresno, Steven M. Vartabedian ; Flesher McKague, Gold River, Jacob D. Flesher, Jason W. Schaff ; BNSF Railway Company, Wayne L. Robbins, Jr. ; Kelly Hart & Hallman and Marianne M. Auld, for Defendant and Appellant.

Law Offices of Ruel Walker, San Francisco, W. Ruel Walker ; Hildebrand, McLeod & Nelson, Oakland, Anthony S. Petru and Kristoffer S. Mayfield, for Plaintiff and Respondent.

OPINION

GOMES, J.

Plaintiff Delton R. Fair was working on the railroad. After he injured his back and knee while trying to throw a switch, he brought this action against BNSF Railway Company (BNSF) under the federal Employers' Liability Act (FELA) (45 U.S.C. § 51 et seq. ), alleging that he was injured as a result of BNSF's negligence. A jury found in Fair's favor and awarded him a total of $3,216,000 in damages.

BNSF's primary argument on appeal is that the Federal Railroad Safety Act of 1970 (FRSA) (49 U.S.C. § 20101 et seq. ), and the regulations promulgated thereunder, preclude Fair's FELA claim in its entirety. In support of its argument, BNSF relies on the authority of several federal appellate courts. Guided by recent court decisions that have reanalyzed the preclusion issue in light of the United States Supreme Court's recent decision in POM Wonderful v. Coca–Cola Co. (2014) ––– U.S. ––––, 134 S.Ct. 2228, 189 L.Ed.2d 141 (POM Wonderful ), we reject BNSF's argument, and instead conclude that FRSA and its regulations do not preclude federal claims under FELA. We reject BNSF's other contentions in the unpublished portion of the opinion.

FACTUAL AND PROCEDURAL BACKGROUND

In the early hours of January 27, 2011, 46–year–old Fair was working as a “herder” in BNSF's Fresno railroad yard, attaching together a group of locomotives. About 1:30 a.m., he injured his back when he tried to throw the 5176 switch;¹ pain immediately shot into his leg and up his back. When he tried to walk the pain off, his knees went out from under him; his left knee was injured when it hit what Fair believed was the edge of a railroad tie.

In December 2011, Fair brought this action for damages against BNSF under FELA. The case was tried to a jury in September 2013. The jury returned a special verdict finding BNSF negligently caused Fair's injuries and awarded the following: (1) $236,000 for past economic loss; (2) $1.5 million for future economic loss; (3) $300,000 for future medical expenses; (4) $380,000 for past noneconomic loss; and (5) $800,000 for future noneconomic loss.

BNSF moved for a new trial, asserting, among other arguments, the same arguments it pursues in this appeal. The trial court denied the motion, and BNSF filed this timely appeal.

As necessary, other relevant facts are included in the discussion that follows.

DISCUSSION

I. FELA Overview

While injured employees in California generally are entitled to workers' compensation benefits regardless of whether the employer was at fault (Lab.Code, § 3200 et seq. ), those benefits are not available to railroad employees who suffer on-the-job injuries. Instead, their right of recovery is governed by FELA, which permits recovery only if the employer acted negligently. (Lund v. San Joaquin Valley Railroad (2003) 31 Cal.4th 1, 6, 1 Cal.Rptr.3d 412, 71 P.3d 770 (Lund ); Bergman v. St. Louis Southwestern Ry. Co. (1982) 134 Cal.App.3d 696, 700–701, 185 Cal.Rptr. 150 [noting a railroad is not strictly liable for its employee's injuries; instead, the employee must prove the employer was negligent].) A FELA action may be brought in either federal or state court. (Lund, supra, 31 Cal.4th at p. 6, 1 Cal.Rptr.3d 412, 71 P.3d 770 ; see also Kinsey v. Union Pacific Railroad Co. (2009) 178 Cal.App.4th 201, 204, 100 Cal.Rptr.3d 253.) “When, as here, a FELA action is brought in state court, state law governs procedural questions, while federal law governs substantive issues. (St. Louis Southwestern R. Co. v. Dickerson (1985) 470 U.S. 409, 411, 105 S.Ct. 1347, 84 L.Ed.2d 303.) State procedure does not apply, however, if it results in the denial of a federal right granted by Congress.” (Lund, supra, 31 Cal.4th at pp. 6–7, 1 Cal.Rptr.3d 412, 71 P.3d 770.)

Under FELA, a railroad employee has the right to sue his or her employer for “such injury ... resulting in whole or in part from the negligence” of the railroad or its employees. (45 U.S.C. §§ 51, 56 ; Woods v. Union Pac. R. Co. (2008) 162 Cal.App.4th 571, 577, 75 Cal.Rptr.3d 748 (Woods ).) FELA was enacted “because the Congress was dissatisfied with the common-law duty of the master to his servant. [It] supplants that duty with the far more drastic duty of paying damages for injury or death at work due in whole or in part to the employer's negligence.” (Rogers v. Missouri Pac. R.R. Co. (1957) 352 U.S. 500, 507, 77 S.Ct. 443, 1 L.Ed.2d 493 (Rogers ), fn. omitted.) “FELA imposes upon a railroad a continuing and nondelegable duty to use reasonable care to provide railroad employees a safe place to work.” (Woods, supra, 162 Cal.App.4th at p. 577, 75 Cal.Rptr.3d 748.)

The standard under FELA is a relaxed one; to prove that a railroad breached its duty, a “plaintiff must show circumstances which a reasonable person would foresee as creating a potential for harm [and] then show that this breach played any part, even the slightest, in producing the injury.” (McGinn v. Burlington N.R. Co. (7th Cir. 1996) 102 F.3d 295, 300, citation omitted.) “It is well established that the quantum of evidence required to establish liability in an FELA case is much less than in an ordinary negligence action.” ( Harbin v. Burlington Northern R. Co. (7th Cir. 1990) 921 F.2d 129, 131.) If the negligence of the employer “played any part, however small, in the injury,” the employer is liable. (Rogers, supra, 352 U.S. at pp. 507–508, 77 S.Ct. 443, italics added.) Neither assumption of the risk nor the contributory negligence of the employee bars recovery, if the injury was at least in part the result of the employer's negligence. (45 U.S.C. §§ 53, 54.)

II. FRSA Preclusion

BNSF first contends Fair's FELA claim is precluded completely by FRSA and its regulations. Before trial, BNSF moved in limine to preclude Fair from establishing his FELA claim based on conduct that complies with regulations promulgated pursuant to FRSA. BNSF argued that in light of the preclusive effect of FRSA, the regulation that addresses switch inspections, 49 Code of Federal Regulations section 213.235, effectively set the standard of care in this case. BNSF thus contended that Fair should be precluded from offering any evidence that the relevant standard of care required more frequent inspections than that set forth in the regulation or that inspections be conducted in a particular manner. In opposing BNSF's motion, Fair argued that while FRSA preempts state law claims covered by its regulations, it does not preclude federal claims under FELA. Fair also argued his negligence claim encompassed conduct that was not covered by the switch inspection regulation.

The trial court denied BNSF's motion based on the reasoning in an unpublished decision from the Eastern District of California, Powell v. Union Pacific Railroad Co. (E.D. Cal. 2013) 2013 WL 1857893, in which that court determined the same FRSA switch inspection regulation did not preclude the plaintiff's FELA claim based on the railroad's failure to inspect a switch more frequently than once a month.²

At trial, Fair presented evidence on, and argued, several theories of negligence.

Specifically, Fair argued BNSF was liable for his injuries if the jury found either (1) BNSF did not uphold its duties to properly inspect and maintain the switch, or (2) an employee damaged the switch by running through it, thereby bending the connecting rod, but failed to report it.

On appeal BNSF contends the trial court erred in finding preclusion did not apply. The parties agree that whether FRSA precludes Fair's FELA claim presents a question of law governed by the de novo standard of review.

FRSA was enacted in 1970 with the stated purpose of “promot[ing] safety in every area of railroad operations and reduc[ing] railroad-related accidents and incidents.” (49 U.S.C. § 20101.) While FELA is a general negligence statute that neither prohibits nor requires certain conduct by the railroad, FRSA proscribes railroad conduct by empowering the Secretary of Transportation to implement comprehensive and detailed railroad safety regulations. (Waymire v. Norfolk and Western Ry. Co. (7th Cir. 2000) 218 F.3d 773, 775 (Waymire ); 49 U.S.C. § 20103.) The Secretary of Transportation has delegated this authority to the Federal Railroad Administration (FRA). (Union Pac. R.R. Co. v. Cal. Pub. Utils. Comm'n (9th Cir. 2003) 346 F.3d 851, 858, fn. 8.)

In a section addressing the preemption of certain state laws, FRSA provides that “[l]aws, regulations, and orders related to railroad safety ... shall be nationally uniform to the extent practicable.” (49 U.S.C. § 20106(a)(1).)³ To maintain such uniformity, FRSA contains an express preemption clause, pursuant to which “[a] State may adopt or continue in force a law, regulation, or order related to railroad safety ... until the Secretary of Transportation (with respect to railroad safety matters) ... prescribes a regulation or issues an order covering the subject matter of the State requirement ....” (§ 20106(a)(2).) FRSA preempts covered state law tort claims, in addition to covered statutes and regulations. (See CSX Transp., Inc. v. Easterwood (1993) 507 U.S. 658, 664, 670–671, 113 S.Ct. 1732, 123 L.Ed.2d 387 (Easterwood ).) An FRSA regulation covers and thus preempts a state law tort claim if it “substantially subsume[s] the subject matter” of that claim. (Easterwood, supra, 507 U.S. at p. 664, 113 S.Ct. 1732 ; see Norfolk Southern Ry. Co. v. Shanklin (2000)...