Largo v. ATCHISON, TOPEKA AND SANTA FE RY.

Decision Date10 December 2001
Docket NumberNo. 21,927.,21,927.
Citation131 N.M. 608,2002 NMCA 21,41 P.3d 347
CourtCourt of Appeals of New Mexico
PartiesWilbert LARGO, Plaintiff-Appellant, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a Delaware corporation, and J.P. Bigley, Defendants-Appellees.

Scott E. Borg, Rosenfelt, Barlow & Borg, P.A., Albuquerque, NM, Robert A. Schuetze, Cortez Macaulay Bernhardt & Schuetze LLC, Denver, CO, for Appellant.

Tim L. Fields, Earl E. Debrine, Jr., Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, NM, for Appellees.

OPINION

FRY, Judge.

{1} This case concerns a fatal collision between a train and a pickup truck driven by Hudson Benally at a railroad crossing near Coolidge, New Mexico. Benally was killed, and his passenger, Plaintiff Wilbert Largo, was injured. Virginia Tom, Benally's personal representative, and Largo filed suit against the Atchison, Topeka and Santa Fe Railway Company (Railroad) and the engineer, alleging negligence. Tom and Defendants have settled, and Largo remains as Plaintiff.

{2} At issue in this interlocutory appeal is the trial court's order granting Defendants summary judgment on Plaintiff's claims that warnings at the crossing were inadequate and that excessive speed of the train contributed to the accident. The court held that Plaintiff's state law negligence claims were preempted by the Federal Railroad Safety Act (FRSA), 49 U.S.C. § 20101 (1994).1 We affirm in part and reverse in part. We hold that Plaintiff's excessive speed claim is preempted by federal law, but Plaintiff's claim that warnings were inadequate is not preempted. We reject Defendants' alternative argument, not ruled on below, that the Railroad had no duty to maintain adequate warnings.

BACKGROUND

{3} On December 23, 1994, at approximately 6:30 p.m., Benally and Largo were returning from a shopping trip. They were driving north on County Road 27, a gravel road in McKinley County, in a pickup truck Benally had borrowed from his brother. There is some evidence that Benally had not driven on the road before that evening. Conditions were dark, clear, and dry.

{4} As Benally approached the crossing, a westbound train was also approaching the crossing at approximately 70 miles per hour, which is below the legal limit set by federal law. J.P. Bigley, the engineer, said that as he approached the crossing he sounded the horn in the normal pattern. The conductor, Lesley Sharp, in the train with Bigley, said they saw the vehicle approaching the crossing and the engineer was blowing the horn. Sharp said, "It looked like the car was slowing and possibly going to stop, and just before we got to the crossing, the car took a surge and just jumped out in front of the train." The evidence suggested that the Benally vehicle was struck at the near rail, just as it proceeded into the train's path.

DISCUSSION

{5} Summary judgment is appropriate when there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Rule 1-056(C) NMRA 2001; Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. Whether Defendants were entitled to judgment as a matter of law based on federal preemption is a legal question we review de novo. Self, 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582.

{6} The doctrine of preemption is based on the Supremacy Clause of Article VI of the United States Constitution. Id. ¶ 7. The purpose of the preemption doctrine is to allow Congress to promulgate a uniform federal policy without states frustrating it through either legislation or judicial interpretation. Id. Federal regulations may preempt common law as well as statutory duties. CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). However, there is "a strong presumption against preemption." Montoya v. Mentor Corp., 1996-NMCA-067, ¶ 7, 122 N.M. 2, 919 P.2d 410. Additionally, "[t]here is ... a reluctance to preempt state laws relating to health and safety matters because those matters have been the exclusive concern of the states." Id.

{7} The relevant statute is the FRSA, which directs the Secretary of Transportation to "maintain a coordinated effort to develop and carry out solutions to the railroad grade crossing problem." 49 U.S.C. § 20134(a). The FRSA also contains a preemption provision stating that "[l]aws, regulations, and orders related to railroad safety shall be nationally uniform to the extent practicable." 49 U.S.C. § 20106.

{8} The party seeking to establish preemption must establish that federal regulations cover "the same subject matter as [state] negligence law pertaining to the maintenance of, and the operation of trains at, grade crossings." Easterwood, 507 U.S. at 664, 113 S.Ct. 1732; see also Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344, 352, 120 S.Ct. 1467, 146 L.Ed.2d 374 (2000)

. It is not sufficient that the federal regulations "`touch upon' or `relate to' that subject matter." Shanklin, 529 U.S. at 352 (quoting Easterwood, 507 U.S. at 664,

113 S.Ct. 1732). Federal regulations "cover" the same subject matter "only if the federal regulations substantially subsume the subject matter of the relevant state law." Easterwood, 507 U.S. at 664,

113 S.Ct. 1732; Shanklin, 529 U.S. at 352,

120 S.Ct. 1467.

I. Inadequate Warning

{9} Defendants argue that federal law preempts Plaintiff's claim that the warning devices at the crossing were inadequate. In Shanklin, the Supreme Court held that the FRSA "pre-empts state tort claims concerning a railroad's failure to maintain adequate warning devices at crossings where federal funds have participated in the installation of the devices." 529 U.S. at 351, 120 S.Ct. 1467. Because Federal Highway Administration (FHWA) regulations "`establish requirements as to the installation of particular warning devices,'" when these regulations are applicable, "`state tort law is pre-empted.'" Shanklin, 529 U.S. at 352, 120 S.Ct. 1467 (quoting Easterwood, 507 U.S. at 670, 113 S.Ct. 1732). However, Easterwood and Shanklin, when read together, make it clear that federal law preempts state law only when federal funds are actually spent on warning devices. In Easterwood, the Court held that FHWA regulations did not preempt state tort law because the warning devices contemplated by the crossing project were never actually installed, and therefore, there was no evidence "that federal funds participate[d] in the installation of the [warning] devices" at the crossing—a prerequisite to preemption. Easterwood, 507 U.S. at 671-72, 113 S.Ct. 1732 (citation and internal quotation marks omitted). By contrast, but in a holding consistent with Easterwood, the Court in Shanklin held that preemption applied because federal funds paid for the warning devices installed as part of the crossing improvement project. Shanklin, 529 U.S. at 354, 120 S.Ct. 1467. Under both Easterwood and Shanklin, "the determinative question in a particular case is ... whether federal funds have participated in the installation of warning devices." Armijo v. Atchison, Topeka & Santa Fe Ry. Co., 19 F.3d 547, 550 (10th Cir.1994).

{10} In the case at bar, the record does not establish that any federal money was spent installing warning devices at the crossing. In 1978, a federal program provided $2,056 to widen and install sixteen track feet of timber planking at the crossing. However, the record indicates that no warnings were placed at the crossing as the result of the federal program. The minimal level of federal involvement at this crossing does not cover or substantially subsume "the same subject matter as [state] negligence law pertaining to the maintenance of, and the operations of trains at, grade crossings." Easterwood, 507 U.S. at 664,113 S.Ct. 1732; see also, Shanklin, 529 U.S. at 352,

120 S.Ct. 1467.

{11} Defendants argue that under Shanklin, 529 U.S. at 354, 120 S.Ct. 1467, a state tort action is pre-empted when federal funds participate at any level in the crossing improvement project. They contend that this is so because as a prerequisite to undertaking the improvement project the FHWA necessarily must have determined that the warnings were adequate. We disagree. The Shanklin Court made it clear that FHWA's determination of, or its failure to determine, the adequacy of warning devices is irrelevant to the preemption inquiry. Id. at 357-58, 120 S.Ct. 1467. Instead, the relevant consideration is whether FHWA's regulations "establish a federal standard for the adequacy of those devices that displaces state tort law addressing the same subject." Id. at 357, 120 S.Ct. 1467.

{12} We hold that because federal funds were not actually used to install warning devices at the crossing, preemption does not bar Plaintiff's state law claim that warnings were inadequate. We reverse summary judgment for Defendants on this claim and remand it for trial.

II. The Railroad's Duty to Ensure Safe Crossings

{13} As an alternative to their preemption argument, Defendants contend that they have no duty to install and maintain adequate warning devices at railroad crossings because state statutes give the state highway department and applicable local governmental entities the exclusive authority to place warning devices. See NMSA 1978, §§ 66-7-102, -103, -108, -109, and -342 (1978). Plaintiff counters that the district court did not rule on this issue and therefore we should not consider it. It is true that the district court did not rule on this issue; however, Defendants raised it below and we therefore consider it as a possible ground for affirmance. See State v. Torres, 1999-NMSC-010, ¶ 22, 127 N.M. 20, 976 P.2d 20

(holding that the trial court will be affirmed if right for any reason, unless it would be unfair to the other party).

{14} The interpretation of statutes is a question of law, Bajart v. Univ. of N.M., 1999-NMCA-064, ¶ 7, 127 N.M. 311, 980 P.2d 94, and our goal in interpreting statutes is to determine legislative intent. State v. Shop Rite...

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