Noice v. BNSF Ry. Co.

• Decision Date: 18 August 2016
• Docket Number: S–1–SC–35198
• Citation: 2016 NMSC 032,383 P.3d 761
• Parties: Lenard Noice, II as Personal Representative for Lenard E. Noice, Plaintiff–Respondent, v. BNSF Railway Company, Defendant–Petitioner.
• Court: New Mexico Supreme Court

383 P.3d 761

2016 NMSC 032

Lenard Noice, II as Personal Representative for Lenard E. Noice, Plaintiff–Respondent,

v.BNSF Railway Company, Defendant–Petitioner.

S–1–SC–35198

Supreme Court of New Mexico.

Filing Date: August 18, 2016

Atkinson, Baker & Rodriguez, P.C., Clifford K. Atkinson, Justin Duke Rodriguez, John S. Thal, Ryan T. Jerman, Albuquerque, NM, for Petitioner.

Long, Komer & Associates, P.A., Mark E. Komer, Santa Fe, NM, for Respondent.

Modrall Sperling, John R. Cooney, Sarah M. Stevenson, Albuquerque, NM, Association of American Railroads, Daniel Saphire, Washington, DC, for Amicus Curiae Association of American Railroads.

OPINION

NAKAMURA

, Justice

{1} Lenard E. Noice (Noice) worked as a conductor for Petitioner BNSF Railway Company (BNSF). He fell from a BNSF train that was moving at speed and perished. The Respondent, Lenard Noice II, acting as personal representative for Noice (the Estate), filed a wrongful death action against BNSF under the Federal Employee's Liability Act (FELA), 45 U.S.C. §§ 51

–60 (2012), asserting, among other claims, that BNSF negligently permitted the train from which Noice fell to operate at an excessive speed. The undisputed facts established that the train from which Noice fell never exceeded the speed limit for the class of track upon which it was operating. BNSF moved for summary judgment arguing that the Estate's FELA excessive-speed claim was precluded by the Federal Railroad Safety Act (FRSA),

49 U.S.C. §§ 20101

–20168 (2012), and the track-speed regulations promulgated under FRSA and codified at 49 C.F.R. § 213.9(a) (1992). The district court accepted this argument and dismissed the Estate's FELA claim. The Court of Appeals reversed, concluding that FRSA does not preclude a FELA excessive-speed claim. Noice v. BNSF Ry. Co. , 2015–NMCA–054, ¶ 24, 348 P.3d 1043, cert. granted , 2015–NMCERT–005, 367 P.3d 440 (No. 35,198, May 11, 2015). Because FRSA contains no provision expressly precluding the Estate's FELA excessive-speed claim and because permitting the Estate's FELA claim to proceed furthers the purposes of both statutes, we affirm the Court of Appeals.

I. BACKGROUND

{2} In January of 2009, Noice was conducting a BNSF train traveling from Clovis to Belen. The train was pulled by four locomotives. At some point around 6:00 p.m., Noice ceded operation of the train to his assistant, John Royal. Noice exited the lead locomotive and proceeded rearwards. Before leaving the lead locomotive, however, Noice instructed Royal to “start pulling on the train.” Royal understood this as an instruction to accelerate.

{3} At the time Noice left the lead locomotive, the train was traveling at approximately 11 mph, or, as Royal put it, “very slowly.” After Noice departed, Royal set the throttle to the maximum position. The train approached 55 mph—the speed limit assigned to the class of track upon which the train was traveling—but never exceeded this speed.

{4} How, exactly, Noice fell from the train is unclear. Royal observed Noice proceeding rearwards toward the second locomotive and saw him enter its cabin. The train neared a crossing that required Royal to blow the train's horn. Royal looked back again to ensure that Noice was not returning to the lead locomotive and, thus, near the horn, but Royal could not see Noice. Royal attempted to signal Noice by use of an attendant bell. Noice did not respond and Royal brought the train to a stop. Royal searched the three trailing locomotives, could not locate Noice, and reported to dispatch that Noice was missing. Noice's body was discovered a short time later near the tracks in the direction from which Noice and Royal had traveled.

{5} The Estate's complaint for wrongful death asserts five counts. We are concerned here only with count one, the Estate's FELA negligence claim. The district court construed count one as claiming three types of possible negligence: “(1) defective equipment, (2) failure by Noice's co-employee Royal to engage in a job briefing, and (3) Royal's increase of speed to 55 [mph] while Noice was walking on the exterior of the locomotive on a catwalk.” The court concluded that there were insufficient facts to support theories one and two. As to the third theory, the court understood the Estate to be claiming that the increase in speed created rough riding conditions on locomotive two and subjected Noice to 55 mph winds while outside the train. A video in evidence, the court noted, shows Noice walking on the second locomotive and experiencing the rough ride.

{6} Although the court found no “direct evidence that the speed of the train caused Noice to fall from” it, the court nevertheless determined that, because juries are permitted wider latitude to draw inferences under FELA, the Estate's excessive-speed claim created a triable issue of fact. “[I]t is logical,” the court found, “that a bucking locomotive combined with a heading wind of 55 [mph] caused by an increase in speed could cause a person to fall....”

{7} Yet, the court concluded that the Estate's excessive-speed claim could not proceed. The court determined that an excessive-speed claim under FELA is “pre-empted so long as the train is within the regulated speed limit,” and the parties agreed that the train from which Noice fell never exceeded the permissible track speed. Accordingly, the court granted summary judgment to BNSF on the Estate's FELA claim, and subsequently dismissed the Estate's complaint in its entirety.

{8} The Estate appealed the court's dismissal of its FELA negligence claim and challenged the court's “rejection of each theory of negligence.” Noice , 2015–NMCA–054, ¶ 8, 348 P.3d 1043

. The Court of Appeals

concluded that the district court properly rejected the Estate's non-speed-based theories. Id. ¶¶ 20–23

. As to the excessive-speed claim, however, the Court determined that the district court erred in concluding that FRSA “pre-empted” the claim. Id. ¶¶ 1, 13, 24. The Court determined that the doctrine of pre-emption was inapplicable. Id. ¶ 13. Rather, the issue presented was whether one federal statute, FRSA, precluded an action under another federal statute, FELA. Id. ¶ 8. The Court held that FRSA did not preclude the Estate's FELA excessive-speed claim. Id. ¶ 24.

{9} BNSF filed a petition for a writ of certiorari with this Court. We granted the petition, exercising our jurisdiction under Article VI, Section 3 of the New Mexico Constitution

and NMSA 1978, Section 34–5–14(B) (1972), to consider whether FRSA precludes the Estate's FELA excessive-speed claim.

II. DISCUSSION

A. Standard of Review

{10} We review de novo the district court's decision on a motion for summary judgment. Smith v. Durden , 2012–NMSC–010, ¶ 5, 276 P.3d 943

. “Summary judgment is appropriate when ‘there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.’ ” Id. (omission in original) (quoting Rule 1–056 NMRA ). Whether FRSA precludes the Estate's FELA excessive-speed claim is a pure question of law that we review de novo. See

POM Wonderful LLC v. Coca–Cola Co. , –––U.S. ––––, 134 S.Ct. 2228, 2236, 189 L.Ed.2d 141 (2014) (observing that preclusion analysis is driven by the established principles of statutory interpretation); Bd. of Comm'rs of Rio Arriba Cnty. v. Greacen , 2000–NMSC–016, ¶ 4, 129 N.M. 177, 3 P.3d 672 (holding that issues of statutory construction are pure questions of law subject to de novo review).

B. Preclusion Analysis

{11} We begin by noting that this is not a pre-emption case. “In pre-emption cases, the question is whether state law is pre-empted by a federal statute, or in some instances, a federal agency action.” POM Wonderful , ––– U.S. ––––, 134 S.Ct. at 2236

. The pre-emption doctrine “flows from the Constitution's Supremacy Clause, U.S. Const., Art. VI, cl. 2, which invalidates state laws that interfere with, or are contrary to, federal law. The doctrine is inapplicable to a potential conflict between two federal statutes.” Tufariello v. Long Island R.R. Co. , 458 F.3d 80, 86 (2d Cir. 2006) (internal quotation marks and citation omitted). This is because “the state-federal balance does not frame the inquiry.” POM Wonderful , –––U.S. ––––, 134 S.Ct. at 2236.

{12} Rather, because this case concerns two federal acts, it presents an issue of preclusion, not pre-emption. The principles that govern in the preclusion context are well established. “When there are two acts upon the same subject, the rule is to give effect to both if possible.” United States v. Borden Co. , 308 U.S. 188, 198, 60 S.Ct. 182, 84 L.Ed. 181 (1939)

. “[C]ourts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” Morton v. Mancari , 417 U.S. 535, 551, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974). This is so even where redundancies across statutes manifest, events that are hardly unusual. Conn. Nat. Bank v. Germain , 503 U.S. 249, 253, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992).

{13} A later-enacted statute can operate to repeal an earlier statutory provision, but “[i]n the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable.” Morton , 417 U.S. at 550, 94 S.Ct. 2474

. Repeals by implication are rare, J.E.M. Ag Supply, Inc. v. Pioneer Hi–Bred Int'l, Inc. , 534 U.S. 124, 142, 122 S.Ct. 593, 151 L.Ed.2d 508 (2001), and should be found only if necessary to make the later-enacted law work, and even then only to the minimum extent necessary. Radzanower v. Touche Ross & Co. , 426 U.S. 148, 155, 96 S.Ct. 1989, 48 L.Ed.2d 540 (1976).

{14} In P OM Wonderful

, a recent preclusion case, the United States Supreme Court clarified that these well-established principles necessitate a two-part inquiry. First, a court must look to the...