Henning v. Union Pacific R. Co.

• Decision Date: 19 June 2008
• Docket Number: No. 06-7034.,06-7034.
• Parties: Karen HENNING, as Administrator of the Estate of Derek Shockey, Deceased, Plaintiff-Appellant, v. UNION PACIFIC RAILROAD COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

530 F.3d 1206

Karen HENNING, as Administrator of the Estate of Derek Shockey, Deceased, Plaintiff-Appellant, v. UNION PACIFIC RAILROAD COMPANY, Defendant-Appellee.

No. 06-7034.

United States Court of Appeals, Tenth Circuit.

June 19, 2008.

Michael T. Blotevogel, The Lakin Law Firm, Wood River, IL (Charles W. Armbruster III and Gail G. Renshaw, The Lakin Law Firm, Wood River, IL; Robert H. Mitchell, Mitchell & Manchester, Oklahoma City, OK, with him on the briefs), for Plaintiff-Appellant.

Robert D. Hart (Tom L. Armstrong and Christopher D. Wolek with him on the briefs), Gibbs Armstrong Borochoff Mullican

& Hart, P.C., Tulsa, OK, for Defendant-Appellee.

Before MURPHY, SEYMOUR, and BALDOCK, Circuit Judges.

MURPHY, Circuit Judge.

This case arises out of a car-train accident, in which Derek Shockey was killed. Shockey's estate sought damages from Union Pacific Railroad Company ("Union Pacific") on various claims of negligence. The district court granted Union Pacific's motion for partial summary judgment on claims relating to the adequacy of the warning devices at the crossing based on federal preemption. The remaining claims went to trial. The jury returned a verdict for the defendant railroad company. Shockey's estate appeals from the district court's grant of partial summary judgment to Union Pacific and its denial of a motion for a new trial.

In this court, Shockey's estate argues recent amendments to the Federal Railroad Safety Act save its signalization and negligent delay claims from preemption. We exercise jurisdiction pursuant to 28 U.S.C. § 1291. Because the amendments do not apply to this case, we affirm the district court's summary judgment ruling. The district court, however, erred by applying the wrong standard to the motion for a new trial. We hold this error was not harmless and therefore reverse and remand to the district court to consider the motion under the proper standard.

I. BACKGROUND

Derek Shockey was killed on October 27, 2002, when the vehicle he was driving collided with a train operated by Union Pacific at the Shurley Street crossing in Sallisaw, Oklahoma. Shockey was fifteen years old at the time of his death. Teresa Henning, individually and as Administrator of Shockey's Estate (hereafter "Henning")¹, brought a wrongful-death action under the Oklahoma Wrongful Death Act. She alleged Union Pacific acted in a negligent or reckless manner by, inter alia, failing to timely install active warning devices,² such as lights and gates. The district court granted partial summary judgment in favor of Union Pacific, concluding the Federal Railroad Safety Act ("FRSA"), 49 U.S.C. § 20101-20155, preempted Henning's claims relating to the adequacy of the warning devices installed at the Shurley Street crossing, including any claims that Union Pacific negligently delayed installing a new warning device.³

A four-day trial was held on Henning's remaining claims, which alleged Union Pacific negligently or recklessly (1) failed to timely sound its horn as the train approached the crossing; (2) failed to sound a proper horn pattern as the train approached the crossing; and (3) failed to clear vegetation from the right-of-way at the crossing. The jury returned a verdict for Union Pacific. Henning moved for a new trial, pursuant to Rule 50 of the Federal Rules of Civil Procedure, citing evidentiary and instructional errors. The court denied the motion but erroneously applied the standard for judgment as a matter of law.

II. FEDERAL PREEMPTION

The Shurley Street crossing was equipped with crossbucks⁴ and a stop sign to alert drivers to the potential danger of passing trains. This passive warning system was installed with the use of federal funds. On March 2, 1999, the City of Sallisaw, Oklahoma requested the installation of flashing signals and gates at the Shurley Street crossing. The Oklahoma Transportation Commission approved the upgrades on September 4, 2001 and the Federal Highway Administration ("FHWA") followed suit, approving the upgrades and agreeing to furnish the funds for the upgrades on September 11, 2001. The active warning system was completed with federal funds in November of 2002, less than a month following the fatal accident. Henning's complaint alleged Union Pacific was negligent by failing to install the lights and gates at the crossing (inadequate "signalization") and for negligently delaying their installation. The district court held these claims were preempted by the FRSA. On appeal, Henning renews her argument that her claim of negligent delay is not preempted because the regulations do not "substantially subsume the subject matter" of state tort law where the claim is negligent delay, not negligent selection of a crossing design. See CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993) (explaining preemption lies only where federal law substantially subsumes the subject matter of the relevant state law). She also argues recent amendments to the preemption provision of the FRSA permit her claim that Union Pacific failed to comply with federal standards. We review a district court's preemption ruling de novo. Steinbach v. Dillon Companies, Inc., 253 F.3d 538, 539 (10th Cir.2001). Because we conclude the FRSA preempts both Henning's inadequate signalization and negligent delay claims, the district court's summary judgment ruling is affirmed.

A. The FRSA and Preemption

The Supremacy Clause of the United States Constitution provides the laws of the United States "shall be the supreme Law of the Land." U.S. Const. art. VI, cl. 2. It is well-established that Congress possesses the power to preempt state law and that a federal agency, acting within the scope of its congressionally delegated authority may also preempt state law. La. Pub. Serv. Comm'n. v. FCC, 476 U.S. 355, 369, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986).

The FRSA was enacted in 1970 to "promote safety in every area of railroad operations and to reduce railroad-related accidents and incidents." 49 U.S.C. § 20101. The FRSA grants the Secretary of Transportation the authority to "prescribe regulations and issue orders for every area of railroad safety." Id. § 20103(a). Under this grant of authority, the Secretary is instructed to "maintain a coordinated effort to develop and carry out solutions to the railroad grade crossing problem." Id. § 20134(a). The FRSA also contains an express preemption provision:

Laws, regulations, and orders related to railroad safety and laws, regulations, and orders related to railroad security shall be nationally uniform to the extent practicable. A State may adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), prescribes a regulation or issues an order covering the subject matter of the State requirement.

Id. § 20106(a).

Congress then enacted the Highway Safety Act in 1973, which created the Federal Railway-Highway Crossings Program ("Crossings Program"). See 23 U.S.C. § 130. Under this program, states are eligible for federal funds for the "cost of construction of projects for the elimination of hazards of railway-highway crossings." Id. § 130(a). States must conduct and systematically maintain a survey of all highways and identify which crossings require warning devices. Id. § 130(d). The state must then implement a schedule of projects that, at a minimum, provide signs for all railway-highway crossings. Id.

The Secretary, through the FHWA, has promulgated several regulations implementing the Crossings Program. At issue in this case are the regulations addressing the design of the grade crossing improvements. Where certain conditions are present, such as multiple main line railroad tracks or high-speed trains, the railway crossing warning system is deemed adequate if it contains automatic gates and flashing lights. 23 C.F.R. § 646.214(b)(3). Otherwise, a crossing device is adequate so long as it is subject to the approval of FHWA. Id. § 646.214(b)(4).⁵ In CSX Transportation, Inc. v. Easterwood, the Supreme Court held that § 646.214(b)(3) and (4) "establish requirements as to the installation of particular warning devices" and "when they are applicable, state tort law is preempted." 507 U.S. at 670, 113 S.Ct. 1732. This conclusion was premised on the rationale that § 646.214(b)(3) and (4) "displace state and private decisionmaking authority by establishing a federal-law requirement that certain protective devices be installed or federal approval obtained." Id. Thus, those regulations "effectively set the terms under which railroads are to participate in the improvement of crossings." Id.

The Supreme Court revisited this regulation in Norfolk Southern Railway Co. v. Shanklin, 529 U.S. 344, 352-59, 120 S.Ct. 1467, 146 L.Ed.2d 374 (2000). It explained that Easterwood established the broad preemptive effect of federal law in this area. Sections 646.214(b)(3) and (4) "preempt state tort claims concerning the adequacy of all warning devices installed with the participation of federal funds." Id. at 357, 120 S.Ct. 1467. The Court held because the warning device at the crossing had been approved by the FHWA and "installed using federal funds, the federal standard for adequacy displaced [state] statutory and common law[,]" thus preempting the plaintiff's wrongful death claim. Id. at 359, 120 S.Ct. 1467. Federal preemption will apply to a state-law claim even when there is no specific determination by the federal or state authorities that the devices were "adequate" for that particular crossing; the touchstone is federal funding. Id. at 353-57, 120 S.Ct. 1467.

Once state regulation of a railroad crossing is preempted, later decisions to upgrade warning devices at a crossing do not "suspend" preemption. See Armijo v. Atchison, Topeka & Santa Fe...