Missouri Pacific Railroad Company v. Limmer, No. 14-02-00688-CV (TX 10/5/2004)

Decision Date05 October 2004
Docket NumberNo. 14-02-00688-CV.,14-02-00688-CV.
CourtTexas Supreme Court

On Appeal from the 151st District Court, Harris County, Texas, Trial Court Cause No. 95-42790.

Reversed and Rendered and Plurality.

Panel consists of Chief Justice HEDGES and Justices FROST and GUZMAN. (FROST, J., Concurring and HEDGES, C.J., dissenting).


EVA M. GUZMAN, Justice.

In this wrongful death action arising from a collision between decedent Billy Limmer's truck and a train at a railroad crossing, this court must determine whether federal law preempts appellees' negligence claims alleging inadequate warning measures and negligent failure to eliminate sight restrictions. We unanimously conclude that federal law preempts appellees' claim based on allegedly inadequate warning measures. Regarding the negligence claim for failure to eliminate sight restrictions, the concurrence concludes that federal law also preempts this claim; however, two panel members conclude that federal law does not preempt said claim and address whether, under the facts of this case, Texas recognizes a negligence claim for appellant's alleged failure to eliminate sight restrictions along its right-of-way. The author of the plurality concludes that Texas law does not recognize such an independent negligence claim. The dissent maintains that Texas law recognizes such an action as an independent claim. Accordingly, this court reverses the trial court's judgment and renders judgment that appellees take nothing.

Factual and Procedural Background

On April 24, 1994, Billy Limmer was struck and killed by a train, owned by Georgetown Railroad Company and operated by Southern Pacific Railroad Company ("Southern Pacific"), when his pickup truck attempted to cross railroad tracks1 at the Front Street grade crossing in Thorndale, Texas. At the time of the accident, appellant Missouri Pacific Railroad Company d/b/a Union Pacific Railroad Company ("Union Pacific") owned these tracks. The crossing did not have automatic warning devices, which activate when a train approaches the crossing; rather, it had passive warning devices, including what are referred to as "crossbuck" signs, the familiar, white, X-shaped signs with black letters spelling out, "RAILROAD CROSSING." There was testimony at trial that trees and vegetation in the area of the crossing obscured visibility along the tracks at the time of the accident. Also, further down the track, there was a pile of crushed limestone to be used for construction work.

Billy Limmer's heirs, appellees Patricia Limmer, Billye Joyce Smith, and Bobbye Jean Nothnagel (collectively referred to herein as the "Limmers") sued Union Pacific for negligence. The jury found that the Front Street crossing was "extra-hazardous" (Question 1),2 that Union Pacific's negligence in failing to provide automatic signals, a flag man, "and/or" a stop sign was a proximate cause of the collision (Question 2),3 and that Union Pacific's negligence in failing to eliminate sight restrictions caused by the limestone pile "and/or" the vegetation was a proximate cause of the collision (Question 3).4 The jury further found that Mr. Limmer's negligence was also a proximate cause of the accident, and it assigned proportionate responsibility for the collision at 85 percent to Union Pacific and 15 percent to Mr. Limmer. The jury returned separate compensatory damage awards for each of the Limmers. After applying the proportionate-responsibility percentage, the Limmers were awarded a total amount of $8,733,458.70, including prejudgment interest.


On appeal, Union Pacific contends the trial court erred in (1) failing to rule that the Limmers' claims are preempted by federal law because federal funds were expended in the installation and upgrade of the warning devices at the accident site, (2) submitting Union Pacific's alleged failure to eliminate sight restrictions as an independent ground of recovery, (3) submitting a broad-form jury question on damages that included a faulty liability theory, (4) refusing to instruct the jury as to the statutory duty of care owed concerning visual obstructions at public grade crossings, and (5) awarding prejudgment and postjudgment interest that was based on delays that were not Union Pacific's fault. Because the resolution of Union Pacific's first two issues is dispositive of this appeal, we do not reach its remaining issues.

Federal Preemption

A. Introduction

In its first issue, Union Pacific argues that all of the Limmers' common-law negligence claims are preempted by federal regulations concerning warning devices at public grade crossings.5 See generally Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344, 347-558 (2000).

State law is preempted under the Supremacy Clause of the United States Constitution when it conflicts with or frustrates federal law. U.S. CONST. art. VI, cl. 2; CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 663 (1993). However, when a subject is traditionally governed by state law, a court interpreting a federal statute governing the same subject should be reluctant to find preemption unless it is "the clear and manifest purpose of Congress." Id. at 663-64. If the federal statute at issue contains an express preemption clause, then the analysis must focus on the plain meaning of the clause. Id.

In 1970, Congress passed the Federal Railroad Safety Act ("FRSA") for the purpose of promoting "safety in every area of railroad operations and [to] reduce railroad-related accidents." 49 U.S.C. § 20101 (1997).6 The FRSA authorizes the Secretary of Transportation to implement regulations regarding railroad safety. See id. § 20103(a) (Supp. 2003). It also contains an express preemption clause:

Laws, regulations, and orders related to railroad safety . . . 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 . . . until the Secretary of Transportation . . . prescribes a regulation or issues an order covering the subject matter of the State requirement. A State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety . . . when the law, regulation or order—

(1) is necessary to eliminate or reduce an essentially local safety . . . hazard;

(2) is not incompatible with a law, regulation or order of the United States Government; and

(3) does not unreasonably burden interstate commerce.

Id. § 20106 (1997 & Supp. 2003).

In 1973, Congress passed the Highway Safety Act, which created the Federal Highway Crossings Program and made funds available to states for the "construction of projects for the elimination of hazards of railway-highway crossings." 23 U.S.C. § 130(a) (2002). To participate in the program, states were required to "conduct and systematically maintain a survey of all highways to identify those railroad crossings which may require separation, relocation, or protective devices, and establish and implement a schedule of projects for this purpose." Id. § 130(d). The projects had to include, at a minimum, signs for all railway crossings. Id. The Secretary of Transportation, through the Federal Highway Administration, promulgated various regulations implementing the crossings program. The rules found at 23 C.F.R. § 646.214(b) (1999) specifically address the design of grade crossing improvements, and subsections (3) and (4) of that provision address the adequacy of warning devices installed under the crossings program.

In Easterwood, the United States Supreme Court held that, when sections 646.214(b)(3) and (4) are applicable, state tort law is preempted. See Easterwood, 507 U.S. at 670. The Court reasoned that these regulations displace state and private decision-making authority by specifying the devices to be installed and the means by which railroads are to participate in their selection. Id. at 671. In Shanklin, the Court held that the applicability of these regulations to any given railroad crossing does not depend on "an individualized determination of adequacy" by a diagnostic team or federal officials; rather, the regulations are applicable to all crossings where warning devices are installed using federal funds. See Shanklin, 529 U.S. at 356. The Court explained that it is the displacement of State law by the use of federal funds that has preemptive effect, not whether the installation of devices at a particular crossing meets the regulatory standards. See Shanklin, 529 U.S. at 357-58.

B. The Nature of Union Pacific's Preemption Argument

When faced with a federal preemption challenge, a trial court must first ascertain the underlying facts on which the challenge is based. If the evidence is undisputed, the trial court makes a determination of the facts as a matter of law. See Armijo v. Atchison, Topeka & Santa Fe Ry., 19 F.3d 547, 550-51 (10th Cir. 1994) (holding that there was no evidence that federal funds were spent at the crossing before the accident occurred; thus, as a matter of law, the state tort claim was not preempted). If the evidence is disputed, the trial court either acts as a fact finder itself or submits the fact issues to the jury for its determination. See Rushing v. Kansas City S. Ry., 185 F.3d 496, 516-17 (5th Cir. 1999) (holding fact issue precluded summary judgment on preemption defense). Once the facts are established, the trial court then decides the legal question of whether, based on the established facts, federal law preempts the state claims. Trans World Airlines, Inc. v. Morales, 949 F.2d 141, 144-45 (5th Cir. 1991) (per curiam).

Union Pacific argues this court should review the trial court's rejection of its preemption arguments completely under a de novo standard of review because...

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