Myers v. Missouri Pacific R. Co.

Decision Date02 July 2002
Docket NumberNo. 93,313.,93,313.
Citation2002 OK 60,52 P.3d 1014
PartiesSteve and Violet MYERS, individually and on behalf of the Estate of Lesa Myers, Respondents/Appellants, v. MISSOURI PACIFIC RAILROAD COMPANY, d/b/a Union Pacific Railroad Company, and/or Union Pacific Railroad Company and Jim Q. Collins, Petitioners/Appellees.
CourtOklahoma Supreme Court

Roy Dickinson, Norman, OK, for Appellants.

Tom L. Armstrong and Robert D. Hart, Gibbs Armstrong Harmon Borochoff Calvert & Mullican, Tulsa, OK, for Appellees.


¶ 1 The dispositive issues tendered on certiorari are (1) does federal law preempt plaintiffs' state-tort-law theory that the railroad provided inadequate warning devices at the grade crossing in question? and (2) does federal law preempt plaintiffs' state-tort-law theory that the train was traveling at an excessive speed at the time of the collision? We answer both of these questions in the affirmative and then consider other questions that, though raised by plaintiffs' appeal, were left undecided by the intermediate appellate court's opinion.


¶ 2 In the late afternoon of 20 February 1995 four teenage girls got into a pickup truck in Apache, Oklahoma and began a short journey that would end in injury and death. Traveling west on Highway 19, the pickup truck struck the lead car of a northbound train owned by the Union Pacific Railroad Company (the "railroad") and operated that day by engineer, Jim Q. Collins (collectively "defendants"). The driver of the pickup, Raewynn Gilmore ("Gilmore") and passenger Lesa Myers were killed. Two other passengers were injured but survived.

¶ 3 On 18 February 1997 Lesa Myers' parents, Steve and Violet Myers ("plaintiffs"), brought a wrongful death action against defendants in the District Court, Caddo County, in which they sought compensatory and punitive damages for their daughter's death. They alleged inter alia that defendants were negligent in (1) failing to equip the Highway 19 crossing with adequate warning devices, (2) traveling at an excessive speed, (3) failing to reduce the train's speed in sufficient time to avoid the accident, (4) failing to maintain the crossing's warning devices in proper working order, and (5) failing to adequately sound the train's whistle. In their quest for punitive damages, plaintiffs alleged that the defendants' acts and omissions evidenced a wilful, wanton, and reckless disregard for the safety of the public.

¶ 4 On 10 August 1998 defendants moved for summary judgment on the grounds that Gilmore's failure to stop for the flashing lights at the crossing constituted negligence per se and was the proximate cause of the collision.1 The trial court ruled that material fact issues remained in dispute and denied the motion.

¶ 5 On 16 March 1999 defendants sought summary adjudication of plaintiffs' claim insofar as it based negligence liability on (1) the inadequacy of the crossing's warning devices, (2) the unreasonableness of the train's speed, and (3) the inadequacy of the locomotive's warning devices. Defendants argued that each of these theories was preempted by federal law. Plaintiffs conceded the motion insofar as it asserted the inadequacy of the locomotive's warning devices, and the trial court ruled that federal law did indeed preempt the other two theories.

¶ 6 In April/May 1999 the case was tried to a jury, which returned a verdict for defendants. Judgment was entered on the verdict and plaintiffs appealed, assigning as error the trial court's pretrial summary rulings regarding federal preemption, certain of its evidentiary rulings at trial, and several of its decisions to give or refuse to give instructions to the jury.2 Defendants urged in their response review of error in the trial court's denial of their 10 August 1998 motion for summary judgment.

¶ 7 The Court of Civil Appeals, Division II (COCA), reversed the judgment, holding that the trial court's speed preemption ruling was overbroad, preventing plaintiffs from presenting non-preempted theories of recovery. COCA concluded that preemption does not bar proof, including that of the train's actual speed, that the railroad failed "to operate its train safely, with due regard for the locale and other conditions within its knowledge."

¶ 8 We granted certiorari on defendants' petition and now vacate COCA's opinion. Because COCA viewed the question of speed preemption as dispositive, it left unaddressed certain of plaintiffs' other assignments of error. We must hence treat those issues as undecided in the Hough v. Leonard3 sense. Having now reviewed all issues properly preserved and presented for appellate review, we affirm the nisi prius judgment.


¶ 9 Summary process is a procedural pretrial device for the prompt and efficient disposition of an action sans forensic combat. It is applied where neither the material facts nor any inferences that may be drawn from undisputed facts are in dispute, and the law favors the movant's claim or liability-defeating defense.4 It is not the purpose of summary process to substitute a trial by affidavit for one by jury. Rather, its goal is to afford a method of summarily terminating a case (or eliminating from trial some of its issues on the merits of a claim or defense) where only questions of law remain.5 Summary relief issues stand before us for de novo review in which this court's scrutiny of the entire record is pursued independently and without deference to the trial court's resolution.6


¶ 10 Congress in 1970 enacted the Federal Railroad Safety Act (the "FRSA").8 Its stated purpose is "to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents."9 It authorizes the Secretary of Transportation (the "Secretary") to "prescribe regulations and issue orders for every area of railroad safety."10 Until the Secretary adopts a rule, regulation, order or standard covering the subject matter of a particular state safety requirement, the FRSA permits states to adopt or continue in force their own laws regulating that safety issue.11 Once the Secretary promulgates regulations or issues an order covering the subject matter of a particular safety requirement, the provisions of 49 U.S.C. § 20106 preempt most state laws purporting to regulate the same safety concern.12

¶ 11 The Secretary issued federal regulations in 1973 covering the adequacy of warning devices at grade crossings.13 The United States Supreme Court held in CSX Transportation., Inc. v. Easterwood14 that where these regulations "are applicable" and federal funds participate in the installation of warning devices, state tort law imposing different requirements is preempted.15 The Supreme Court recently elaborated on the scope of this federal preemption in Norfolk Southern Railway Company v. Shanklin,16 holding that the federal protective device regulations do not depend for their applicability on "an individualized determination of adequacy" by a diagnostic team or by federal officials,17 but rather "`are applicable' to all warning devices actually installed with federal funds."18

¶ 12 Plaintiffs alleged that defendants were negligent for having provided inadequate warning devices at the Highway 19 crossing. Defendants moved for summary adjudication of that theory on the grounds that it was preempted by the federal warning device regulations. In support of their motion, defendants tendered a copy of a contract between the railroad's predecessor and the State of Oklahoma dated 30 January 1962, which provides for the installation of an "Automatic Grade Crossing Protective Device" at the Highway 19 crossing. The contract states that the project was to be financed with federal funds provided through the Federal Aid Program. Defendants also tendered an affidavit from the railroad's Director of Public Projects, Cliff Shoemaker, confirming that federal money was in fact expended and comprised 90% (ninety percent) of the funds for the project.

¶ 13 Plaintiffs did not dispute the 1962 participation of federal money in installing the existing warning devices, but argued that the use of federal money in 1962 could not give rise to federal preemption under the FRSA because that legislation was not enacted until eight years after the expenditure of federal funds at the Highway 19 crossing. The trial court disagreed and ruled that plaintiffs' inadequate warning device theory was preempted.

¶ 14 On the morning the trial of this cause was set to begin, defendants presented to the court a number of newly discovered documents showing that the Highway 19 crossing's protective devices had again been upgraded using federal funds in 1987. Defendants did not ask leave of court to supplement the summary adjudication record with these documents, but simply announced their existence and provided copies of them to the court and opposing counsel. Defendants did not request a revised preemption ruling to take into account the additional evidentiary material.

¶ 15 Plaintiffs reacted to defendants' eleventh-hour production of the documents by asking the trial court to sanction defendants, but did not specifically object to the trial judge taking them into consideration nor make a motion to strike or for a continuance.19 In fact, plaintiffs' counsel stated on the record more than once that the documents provided proof of post-FRSA funding. Plaintiffs nevertheless argued (two years before the Supreme Court in Shanklin held to the contrary) that the 1987 documents actually proved that preemption was inapplicable because they lacked a specific, written determination by a diagnostic team that gates were not necessary at the Highway 19 crossing. Plaintiffs then moved the trial court to reverse its earlier preemption ruling. The trial judge refused. Plaintiffs subsequently re-pressed this argument in...

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