Friberg v. Kansas City Southern Railway Co., No. 00-40270

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtPOLITZ
Parties(5th Cir. 2001) GUNARD FRIBERG, Etc.; EL AL., Plaintiffs, GUNARD FRIBERG, Individually & as Executor of the Estate of Martha Friberg, Deceased; CARL FRIBERG, Plaintiffs-Appellees, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Defendant-Appellant
Docket NumberNo. 00-40270
Decision Date05 October 2001

Page 439

267 F.3d 439 (5th Cir. 2001)
GUNARD FRIBERG, Etc.; EL AL., Plaintiffs,
GUNARD FRIBERG, Individually & as Executor of the Estate of Martha Friberg, Deceased; CARL FRIBERG, Plaintiffs-Appellees,
v.
KANSAS CITY SOUTHERN RAILWAY COMPANY, Defendant-Appellant.
No. 00-40270
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
October 5, 2001

Page 440

Appeals from the United States District Court for the Eastern District of Texas

Before POLITZ and EMILIO M. GARZA,* Circuit Judges, and HEAD,** District Judge.

POLITZ, Circuit Judge:

The Kansas City Southern Railway Company appeals an adverse jury verdict finding it negligent and negligent per se for repeatedly blocking the primary road leading to the Fribergs' business, allegedly resulting in the failure of that business. Concluding that the causes of action asserted are preempted by the Interstate Commerce Commission Termination Act of 1995, we must reverse.

BACKGROUND

In 1964 the Fribergs purchased a home and acreage near Leesburg, Texas, and began operating a landscape nursery there. The property was located along County Road 3540 just south of State Highway 11, and approximately 250 feet south of both the main line and a side track crossing CR 3540 operated by the Kansas City Southern Railway ("KCS"). Although customers could reach the nursery by two other routes that were not affected by the side track, CR 3540 was the primary access road because it was the most direct route from highway 11. Until the late 1990's the existing side track was seldom used as most trains operated by KCS exceeded the approximate 3300 foot length of the side track.1

Page 441

In 1995, utilizing right-of-way it already owned, KCS lengthened the side track to more than 9900 feet so it could accommodate the longer trains it was operating. As a result of this improvement, in 1996 KCS began using the side track with increased frequency, which meant CR 3540 was blocked by waiting trains more often than in the past and customers using the road encountered delays in getting to or from the nursery.

The Fribergs experienced a general decline in business, occasioned by the county road blockages, and they contacted various authorities and railroad personnel in an attempt to alleviate the blocking problem. All efforts were to no avail. In 1998 the nursery was permanently closed and the Fribergs filed suit against KCS, alleging both negligence and negligence per se.2

KCS moved for summary judgment contending that the Fribergs' claims were preempted by the Interstate Commerce Commission Termination Act of 1995 ("ICCTA"),3 the Federal Railway Safety Act of 1970 ("FRSA"), and the Commerce Clause of the federal Constitution.4 The trial court denied the motion and, after a trial, the jury found the railroad liable on both claims, but it could not reach a unanimous verdict on damages. The Fribergs and KCS then agreed to accept a less-than-unanimous verdict on the damages issue with both sides retaining all rights to appeal, and they agreed to specific terms respecting the damages due depending upon the outcome of any appeal .5

ANALYSIS

I Consent Judgment

We first address the Fribergs' motion asserting that the Final Judgment entered in this case is a consent judgment not subject to appeal. The motion is resolved by a careful examination of the agreement between the Parties. The jury unanimously found the railroad liable on both the negligence and the negligence per se counts, but deadlocked 7-1 on damages, with the nigh-unanimous majority finding that the railroad owed the Fribergs $60,000. The Parties agreed to waive

Page 442

their rights to a unanimous verdict on the damages issue, and the February 14, 2000, Final Judgment reflects both that agreement and the express provision that "each party retain[s] all rights of appeal of that verdict the same as if it had been rendered unanimously."6 Agreeing to accept a less-than-unanimous verdict, where the jury dictates the terms of the Judgment, is patently distinct from consenting to a Judgment wherein the Parties themselves settle and agree to all of the terms.7 Nor do the agreement's terms conditioning damages to be paid upon the outcome of the appeal transform the agreement into a consent judgment. As the Supreme Court found in Haven's Realty Corp. v. Coleman,8 such an agreement merely liquidates the damages due. Accordingly, the Motion to Dismiss is denied.

Preemption

Whether a state statute or common law cause of action is preempted by federal law is a question of law we review de novo.9 Preemption under the Supremacy Clause of the federal Constitution may arise in several ways, i.e., (1) express preemption where the intent of Congress to preempt state law is clear and explicit; (2) field preemption where state law intrudes in an area that Congress has reserved for federal jurisdiction; and (3) conflict preemption, where enforcement of state law cannot be accomplished while simultaneously complying with federal law.10 Our analysis begins by looking to the expression of Congress, i.e., whether Congress either specifically stated that regulation of railroad operations and side tracks is reserved to the federal government, or implicitly so stated in defining the structure and purpose of the relevant federal legislation.11

ICCTA

The ICCTA became effective on January 1, 1996, abolishing the Interstate Commerce Commission and creating the Surface Transportation Board ("STB" or "Board") to perform many of the regulatory functions formerly performed by the Commission. Where a statute contains a specific preemption clause, the language of that clause becomes the focus of our analysis.12

Page 443

Section 10501 of the ICCTA is entitled General Jurisdiction, and states in relevant part:

(b) The jurisdiction of the Board over -

(1) transportation by rail carriers, and the remedies provided in this part [49 U.S.C. §§ 10101 et seq.] with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and

(2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State,

is exclusive. Except as otherwise provided in this part [49 U.S.C. §§ 10101 et seq.], the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law.

The language of the statute could not be more precise, and it is beyond peradventure that regulation of KCS train operations, as well as the construction and operation of the KCS side tracks, is under the exclusive jurisdiction of the STB unless some other provision in the ICCTA provides otherwise.13 The regulation of...

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94 practice notes
  • Minton v. Paducah & Louisville Ry., Inc., CIVIL ACTION NO. 4:19CV-00074-JHM
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • 28 Octubre 2019
    ...L.L.C. v. United States, 2010 WL 925297, at *6 (E.D. La. Mar. 10, 2010) (ordinary preemption); Friberg v. Kansas City S. Ry. Co., 267 F.3d 439, 443 (5th Cir. 2001) (ordinary preemption); Maynard v. CSX Transp., Inc., 360 F. Supp. 2d 836, 840 (E.D. Ky. 2004) (ordinary preemption); Tubbs v. S......
  • Gordon v. New England Cent. R.R., Case No. 2:17-cv-00154
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • 10 Octubre 2019
    ...The court agrees with Defendant that negligence claims are often preempted by the ICCTA. See, e.g., Friberg v. Kansas City S. Ry. Co., 267 F.3d 439, 444 (5th Cir. 2001) (finding ICCTA preemption extends to state common-law claims of negligence and negligence per se based on railroad's opera......
  • People v. Burlington N. Santa FE R.R., No. A133559.
    • United States
    • California Court of Appeals
    • 16 Octubre 2012
    ...Transportation Board (STB) was created in its stead. ( Island Park, at p. 102;Friberg v. Kansas City Southern Ry. Co. (5th Cir.2001) 267 F.3d 439, 442( Friberg ).) The purpose of the ICCTA was to “eliminate many outdated, unnecessary, and burdensome regulatory requirements and restrictions ......
  • Bd. of Selectmen of the Town of Grafton v. Grafton & Upton R.R. Co., CIVIL ACTION NO. 12-cv-40164-TSH
    • United States
    • U.S. District Court — District of Massachusetts
    • 22 Mayo 2013
    ...to the G&U, would include the construction of transloading facilities like the one at issue here. See Friberg v. K.C. S. Ry. Co., 267 F.3d 439, 443 (5th Cir. 2001) ("The language of the statute could not be more precise . . . ."). Moreover, the G&U glosses over the fact that inherent within......
  • Request a trial to view additional results
93 cases
  • Minton v. Paducah & Louisville Ry., Inc., CIVIL ACTION NO. 4:19CV-00074-JHM
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • 28 Octubre 2019
    ...L.L.C. v. United States, 2010 WL 925297, at *6 (E.D. La. Mar. 10, 2010) (ordinary preemption); Friberg v. Kansas City S. Ry. Co., 267 F.3d 439, 443 (5th Cir. 2001) (ordinary preemption); Maynard v. CSX Transp., Inc., 360 F. Supp. 2d 836, 840 (E.D. Ky. 2004) (ordinary preemption); Tubbs v. S......
  • Gordon v. New England Cent. R.R., Case No. 2:17-cv-00154
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • 10 Octubre 2019
    ...The court agrees with Defendant that negligence claims are often preempted by the ICCTA. See, e.g., Friberg v. Kansas City S. Ry. Co., 267 F.3d 439, 444 (5th Cir. 2001) (finding ICCTA preemption extends to state common-law claims of negligence and negligence per se based on railroad's opera......
  • People v. Burlington N. Santa FE R.R., No. A133559.
    • United States
    • California Court of Appeals
    • 16 Octubre 2012
    ...Transportation Board (STB) was created in its stead. ( Island Park, at p. 102;Friberg v. Kansas City Southern Ry. Co. (5th Cir.2001) 267 F.3d 439, 442( Friberg ).) The purpose of the ICCTA was to “eliminate many outdated, unnecessary, and burdensome regulatory requirements and restrictions ......
  • Bd. of Selectmen of the Town of Grafton v. Grafton & Upton R.R. Co., CIVIL ACTION NO. 12-cv-40164-TSH
    • United States
    • U.S. District Court — District of Massachusetts
    • 22 Mayo 2013
    ...to the G&U, would include the construction of transloading facilities like the one at issue here. See Friberg v. K.C. S. Ry. Co., 267 F.3d 439, 443 (5th Cir. 2001) ("The language of the statute could not be more precise . . . ."). Moreover, the G&U glosses over the fact that inherent within......
  • Request a trial to view additional results

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