Jesse L. Case, Administrator of the Estates of Timothy L. Keller , and Chad A. Keller v. Norfolk & Western Railway Co.
| Decision Date | 18 October 1991 |
| Docket Number | 91-LW-5443,S-90-24 |
| Parties | JESSE L. CASE, ADMINISTRATOR OF THE ESTATES OF TIMOTHY L. KELLER, DECEASED, AND CHAD A. KELLER, DECEASED, Appellants v. NORFOLK & WESTERN RAILWAY COMPANY, et al., Appellees Court of Appeals Trial Court No. 86 CV 920. |
| Court | Ohio Court of Appeals |
Jeffrey R. Gaither, for Appellants.
Jack Zouhary and Jean Ann S. Sieler, for Appellees.
DECISION
This case comes on appeal from a judgment of the Sandusky County Court of Common Pleas which granted summary judgment in favor of defendant-appellee, Norfolk & Western Railway Company. Plaintiff-appellant, Mildred G. Case, administrator of the estate of Melanie D. Hay, and Jesse L. Case, administrator of the estate of Chad A. Keller and Timothy R. Keller, filed a timely notice of appeal and assert as error:
"The trial court erred in ruling that federal law pre-empts Appellants' common law action against Appellee railroad for its negligent failure to propose or install automated crossing gates where this court previously ruled that Appellants are entitled to trial by jury on their common law claims."
Defendant/cross-plaintiff-appellant Mark A. Robinson, administrator of the estate of Kathy A Keller, also appeals and sets forth a single assignment of error:
"THE TRIAL COURT ERRED IN GRANTING THE RAILROAD'S MOTION IN LIMINE REGARDING PREEMPTION WHICH WOULD HAVE PRECLUDED APPELLANTS FROM INTRODUCING EVIDENCE AT TRIAL THAT THE RAILROAD WAS RESPONSIBLE FOR INADEQUATE GRADE CROSSING WARNING DEVICES."
This is the second time that this case is before the court on appeal. In Case v. Norfolk & Western Ry Co. (1988), 59 Ohio App. 3d 11, this court reversed the grant of summary judgment to appellee and remanded this cause to the trial court for further proceedings. Because the facts underlying appellants' causes of action are fully set forth in Case, supra, we shall, for the most part, focus on the proceedings held subsequent to that decision.
On the evening of December 22, 1984, an automobile driven by Kathy A. Keller collided with a train operated by appellee at a grade crossing located in a rural area of Sandusky County, Ohio. As a result of the collision, Keller and her passengers, Melanie D. Hay, Timothy R. Keller, and Chad A. Keller, suffered severe injuries and died "instantly." Mildred G. Case, administrator of the estate of Melanie D. Hay, and Jesse L. Case, administrator of the estates of Chad and Timothy Keller, filed wrongful death and survivorship actions against appellee and the estate of Kathy A. Keller. Mark Robinson, administrator of the estate of Kathy A. Keller, filed a wrongful death and survivorship action as a cross-claim against appellee.
On August 17, 1987, appellee's motion for summary judgment was granted. This court reversed that judgment on September 16, 1988 finding that a genuine issue as to appellee's negligence in causing the accident was demonstrated by appellants. This court concluded that, among other things, genuine issues of fact existed as to the necessity of crossing gates at this particular grade crossing. Upon remand discovery proceeded and a trial date was eventually scheduled for July 23, 1990.
On May 16, 1990, appellee filed a motion captioned "Motion In Limine Re: Preemption." In its memorandum in support of the motion, appellee asserted that it had no duty to erect crossing gates at the grade where the Keller automobile collided with the train. Appellee claimed that the Federal Railway Safety Act of 1970 ("FRSA"), the Federal Highway Safety Act of 1970 ("FHSA") and the regulations promulgated by the Secretary of Transportation ("Secretary") as a result of these enactments, pre-empt the field of railroad safety as it relates to the installation of automated crossing gates. Therefore, appellee contended, it could not be found negligent for any injuries or deaths resulting from the collision because it did not have the power (duty) to determine which grade crossing required gates.
On July 30, 1990, the trial court granted the "Motion In Limine Re: Preemption." The court held: "No damages are to be awarded and no evidence admitted regarding additional grade crossing warning devices." The court below further held that "federal law has pre-empted state law with reference to determination of the need for ant selection of traffic control devices that are installed at railroad-highway crossings."
A second judgment entry was also filed which states, in relevant part:
Since they address the same issue, appellants' assignments of error shall be considered together.
The sole question before this court is whether federal law has pre-empted appellee's state common law duty to determine the need for and install automatic gates at the grade crossing where the Keller collision occurred. We note that, for the purposes of this appeal, the parties stipulate that the state of Ohio and its agencies comported with federal statutes and regulations controlling the placement of highway warning devices at railroad grade crossings. The parties further stipulate that there is "no evidence of prior orders from PUCO [Public Utilities Commission of Ohio] or the ODOT [Ohio Department of Transportation] for additional warning devices at this crossing."
Appellants contend that federal law has neither explicitly nor implicitly pre-empted state tort law, specifically negligence. They argue that pursuant to established state common law appellee had a duty of reasonable care in providing adequate safeguards at grade crossings and that the question of the railroad's failure to install automated crossing gates at this particular grade crossing is a matter to be determined by a jury under the common law of Ohio. Appellee contends as it did below, that the FRSA, the FHSA and certain regulations promulgated by the Secretary under the authority of these federal statutes constitutes federal pre-emption because the responsibility for the assessment and placement of automated crossing gates at state grade crossings is vested in the local agency, i.e., the state, [1] rather than the railroad company.
Under the Supremacy Clause, Article VI of the Constitution of the United States, the Congress of the United States can enact legislation which pre-empts state law in a particular field. English v. General Elec. Co. (1990), ______ U.S. ______, 110 S. Ct. 2270, 2275. A determination of whether the doctrine of federal pre-emption is applicable depends upon congressional intent in enacting the pertinent statute. Schneidewind v. ANR Pipeline Co. (1988), 485 U.S. 293, 299. Pre-emption can be express or implied. Hillsborough County v. Automated Medical Laboratories (1985), 471 U.S. 707, 713. Express pre-emption occurs when congress makes its intent known through explicit statutory language. English, supra. In the absence of explicit language, an intent to pre-empt state law in an entire field can be inferred from a "`scheme of regulation * * * so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it,' or where an Act of Congress `touch[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude state laws on the same subject.'" Id., citing Rice v. Santa Fe Elevator Corp. (1947), 331 U.S. 218, 230. State law can also be implicitly pre-empted to the extent that it actually conflicts with federal law. Id. Such a conflict arises where compliance with both state and federal law would be impossible or where state law frustrates the purposes and objectives of Congress. Id. (Citations omitted.)
A presumption against pre-emption exists and the party seeking to establish that state law has been pre-empted by a federal law or regulation has the burden of proving pre-emption was intended at the time of enactment. Metropolitan Life Ins. Co. v. Massachusetts (1985), 471 U.S. 724. Finally, in areas which have been traditionally occupied by state law, congressional intent can supersede that law only where it is shown to be "clear and manifest." English, supra.
Appellant relies upon the FRSA, 45 U.S.C. Section 421, et seq., and the FHSA, 23 U.S.C. 101, et seq., to support the proposition that federal law pre-empts any common law duty of a railroad to install automated gates at grade crossings.
FRSA 45 U.S.C. at Section 434, provides:
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