Harrison v. BNSF Ry. Co.

• Decision Date: 30 January 2014
• Docket Number: No. 02–12–00476–CV.,02–12–00476–CV.
• Citation: 508 S.W.3d 331
• Parties: Mark B. HARRISON, Appellant v. BNSF RAILWAY COMPANY, Appellee.
• Court: Texas Court of Appeals

508 S.W.3d 331

Mark B. HARRISON, Appellant

v.BNSF RAILWAY COMPANY, Appellee.

No. 02–12–00476–CV.

Court of Appeals of Texas, Fort Worth.

Jan. 30, 2014.

W. Mark Lanier, Kevin P. Parker, Benjamin T. Major, The Lanier Law Firm, P.C., Houston, TX, for Appellant.

Jeffrey J. Wolf, Lauren M. Lockett, The Wolf Law Firm, P.C. Southlake, TX, for Appellee.

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

OPINION

BILL MEIER, Justice.

I. INTRODUCTION

We consider in this appeal whether a ballast regulation promulgated under the Federal Railroad Safety Act (FRSA) precludes Appellant Mark B. Harrison's ballast-related claim under the Federal Employers' Liability Act (FELA). We hold that it does and will therefore affirm the trial court's grant of summary judgment in favor of Appellee BNSF Railway Company.

II. BACKGROUND

BNSF hired Harrison in 1993. He worked as a brakeman for a year before being promoted to a locomotive engineer.

One day in April 2008, Harrison directed a train onto a siding located in Becker, New Mexico (the Becker Siding). Harrison had been instructed to tie down the train and then catch a taxi to Belen, New Mexico. BNSF owned and maintained the track at the Becker Siding and used railroad ballast to support the track structure.¹

According to Harrison, he set the hand brakes on the engines while the conductor set the brakes on the cars. Harrison then disembarked one of the engines without any incident, but he climbed back onto the train to confirm that he had removed the reverser. When Harrison descended down the engine's steps a second time, a "big piece" of ballast gave way under his foot, and he "went down" on his knee. Harrison recalled that in the area where he fell, the ballast ranged in size from roughly 2–1/2 or 3 inches in diameter to about as large as a softball or a small grapefruit.

Harrison sued BNSF under the FELA, alleging that he "suffered injuries to his knee and body generally as a result of slipping on oversized ballast on a steep incline," that BNSF owed him "a duty to provide a reasonably safe place to work and a duty to provide reasonably safe ballast and a reasonably safe area to disembark and walk so that he could safely do his job," and that BNSF breached those duties owed to him, causing his injuries. [Emphasis added.] BNSF pleaded the affirmative defense of preemption and filed a traditional and no-evidence motion for summary judgment. BNSF argued in the motion that an FRSA ballast regulation covers the subject matter of mainline ballast characteristics and precludes Harrison's ballast-related FELA negligence claim. The trial court granted the motion.² This appeal followed.

III. STANDARD OF REVIEW

In a summary judgment case, the issue on appeal is whether the movant met the summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c) ; Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.2009). We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex.2010).

We take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex.2008) ; Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). We consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could and disregarding evidence contrary to the nonmovant unless reasonable jurors could not. Mann Frankfort, 289 S.W.3d at 848. A defendant is entitled to summary judgment on an affirmative defense if the defendant conclusively proves all the elements of the affirmative defense. Chau v. Riddle, 254 S.W.3d 453, 455 (Tex.2008) ; see Tex.R. Civ. P. 166a(b), (c).

IV. FRSA PRECLUSION OF HARRISON'S FELA CLAIM CONCERNING MAINLINE BALLAST SIZE AND COMPOSITION

Harrison argues in his first issue that the trial court erred by granting BNSF summary judgment because the FRSA does not preclude his FELA claim. In his second issue, Harrison argues that the trial court erred by granting BNSF summary judgment because even if his FELA claim is precluded, BNSF failed to establish the defense as a matter of law. BNSF responds that it met its burden to show that Harrison's FELA claim is precluded by the FRSA.

A. Preclusion Conditioned Upon Preemption

The purpose of the FRSA is "to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." 49 U.S.C.A. § 20101 (West 2007). In furtherance of this purpose, it requires that "[l]aws, regulations, and orders related to railroad safety ... shall be nationally uniform to the extent practicable." Id. § 20106(a) (West Supp.2013). To maintain this goal of national uniformity, the FRSA requires the Secretary of Transportation to "prescribe regulations ... for every area of railroad safety." Id. § 20103(a) (West 2007). One such regulation promulgated under the authority of the FRSA addresses ballast:

Unless it is otherwise structurally supported, all track shall be supported by material which will—

(a) Transmit and distribute the load of the track and railroad rolling equipment to the subgrade;

(b) Restrain the track laterally, longitudinally, and vertically under dynamic loads imposed by railroad rolling equipment and thermal stress exerted by the rails;

(c) Provide adequate drainage for the track; and

(d) Maintain proper track crosslevel, surface, and alinement.

49 C.F.R. § 213.103 (2012). The FRSA also contains an express preemption clause, which states that "[a] State may adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation ... prescribes a regulation or issues an order covering the subject matter of the State requirement." 49 U.S.C.A. § 20106(a)(2) (emphasis added).

Federal preemption of state law is grounded in the Supremacy Clause of the United States Constitution, which provides that "the Laws of the United States ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Delta Air Lines, Inc. v. Black, 116 S.W.3d 745, 748 (Tex.2003), cert. denied, 540 U.S. 1181, 124 S.Ct. 1418, 158 L.Ed.2d 84 (2004) (quoting U.S. Const., art. VI, cl. 2 ). Thus, "if a state law conflicts with federal law, the state law is preempted and ‘without effect.’ " Id.

The United States Supreme Court has explained that when an FRSA regulation, under § 20106(a)(2), covers the subject matter of a state law, it thereby preempts the state law. See CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664–65, 113 S.Ct. 1732, 1737–38, 123 L.Ed.2d 387 (1993). In Easterwood, Thomas Easterwood was killed when a CSX train collided with his truck at a street crossing. Id. at 661, 113 S.Ct. at 1736. Easterwood's widow sued CSX for wrongful death, alleging that CSX was negligent under Georgia law for, among other things, operating the train at an excessive speed. Id. CSX argued that the excessive-speed claim was preempted by the FRSA because an FRSA speed regulation set the maximum allowable operating speeds by which all freight and passenger trains could travel for each particular class of railroad track, thereby "cover[ing] the subject matter" of Easterwood's widow's state claim, and the train involved in the collision was traveling at a speed less than the maximum speed permitted for the class of track where the collision occurred. Id. at 663, 673, 113 S.Ct. at 1737, 1742. The Supreme Court agreed with CSX on the issue, explaining that to demonstrate that the FRSA regulation had preemptive effect, CSX had to establish that it did more than simply "touch upon" or "relate to" the subject matter of the Georgia negligence law pertaining to excessive speed; the regulation had to "substantially subsume" the subject matter of the relevant state law. Id. at 664, 113 S.Ct. at 1738. The Supreme Court reasoned,

On their face, the provisions of § 213.9(a) address only the maximum speeds at which trains are permitted to travel given the nature of the track on which they operate. Nevertheless, related safety regulations adopted by the Secretary reveal that the limits were adopted only after the hazards posed by track conditions were taken into account. Understood in the context of the overall structure of the regulations, the speed limits must be read as not only establishing a ceiling, but also precluding additional state regulation of the sort that [Easterwood's widow] seeks to impose on [CSX].

Id. at 674, 113 S.Ct. at 1742. Thus, as BNSF points out, the FRSA speed regulations substantially subsume state common-law speed restrictions.

In this case, Harrison did not allege a state-law claim; he alleged a FELA claim, which provides railroad employees with a federal cause of action for injuries "resulting in whole or in part from the negligence" of the railroad. 45 U.S.C.A. § 51 (West 2007). This distinction is significant because the doctrine of federal preemption is inapplicable to a potential conflict between two federal statutes—here, the FRSA and the FELA. See Tufariello v. Long Island R.R. Co., 458 F.3d 80, 86 (2nd Cir.2006). Nonetheless, a number of federal courts have determined that the FRSA's express preemption clause, § 20106(a)(2), considered in Easterwood, can be applied to preclude a federal tort claim under the FELA if a state-law claim implicating similar conduct would be preempted by the FRSA. See, e.g., Lane v. R.A. Sims, Jr. Inc., 241 F.3d 439 (5th Cir.2001) ; Waymire v. Norfolk & W. Ry. Co., 218 F.3d 773 (7th Cir.2000), cert. denied, 531 U.S. 1112, 121 S.Ct. 856, 148 L.Ed.2d 770 (2001).

For example, in Lane, Lane asserted a FELA claim against his employer, CSX, for injuries that he sustained when the train on which he was...