Noice v. BNSF Ry. Co.

• Decision Date: 10 February 2015
• Docket Number: 31,935.
• Citation: 348 P.3d 1043
• Parties: Lenard NOICE II, as Personal Representative for Lenard E. Noice, Decedent, Plaintiff–Appellant, v. BNSF RAILWAY COMPANY, a Delaware corporation, Defendant–Appellee.
• Court: Court of Appeals of New Mexico

348 P.3d 1043

Lenard NOICE II, as Personal Representative for Lenard E. Noice, Decedent, Plaintiff–Appellant

v.BNSF RAILWAY COMPANY, a Delaware corporation, Defendant–Appellee.

31,935.

Court of Appeals of New Mexico.

Feb. 10, 2015.

Certiorari Granted, May 11, 2015, No. 35,198.

Long, Pound & Komer, P.A., Mark E. Komer, Santa Fe, NM, for Appellant.

Atkinson, Thal & Baker, P.C., John S. Thal, Elizabeth Losee, Juan M. Marquez, Albuquerque, NM, for Appellee.

OPINION

KENNEDY, Judge.

{1} When a railroad employee's negligence claim against his employer railroad under the Federal Employers Liability Act (FELA) is based solely on allegations of excessive speed, we conclude that claim is not precluded under the Federal Railroad Safety Act (FRSA). A locomotive engineer disappeared from a train while the conductor was speeding up, but the train was still within the speed regulations prescribed under FRSA. He was later found dead beside the track. His representative sued his employer railroad for negligence under FELA. We are persuaded by other jurisdictions that have considered the issue that FRSA speed regulations cannot preclude a speed-based negligence claim under FELA. We reverse the district court's grant of summary judgment to the railroad.

I. BACKGROUND

{2} Lenard Noice (Decedent) worked as a locomotive engineer for BNSF Railway Company (BNSF). Decedent was operating locomotives on a trip to Belen, New Mexico, along with the conductor, John Royal. The train was traveling between fifteen and twenty miles per hour when Decedent told Royal to take control of the train. Decedent told Royal to “start pulling on it,” and Royal began gradually increasing the train's speed. Decedent exited the locomotive and walked along the outside of the train to the next locomotives. The train's speed reached fifty-five miles per hour. Royal became aware at some point that he could not see Decedent. After repeated attempts to contact Decedent by ringing a bell, Royal slowed and stopped the train to search for him. Decedent was later discovered by another train near the tracks. He had apparently fallen off the train and perished from his injuries. A video revealed that Decedent had disappeared from the second locomotive walkway.

{3} Decedent's son, Lenard Noice II, sued BNSF for negligence in violation of FELA, as well as for strict liability and spoliation of evidence. BNSF moved for partial summary judgment on the FELA negligence count, which is the basis for this appeal. BNSF argued that Noice had failed to prove a breach of duty or causation of Decedent's injuries and that Decedent was negligent. Noice responded. Before filing its reply brief, BNSF filed a motion in limine, asking the district court, among other matters, to prohibit Noice from asserting that the train was traveling at an excessive speed, as such an excessive speed claim was precluded by FRSA. The motion in limine was denied and, in BNSF's reply to its summary judgment motion, it reasserted that Noice's claim could not be based on the speed of the train due to preclusion by FRSA.

{4} The district court held a hearing on the motion for summary judgment, which focused on the issue of causation. There was some discussion as to whether Noice's claims were based solely on speed. The district court granted summary judgment, having determined that the only premise for the FELA claim was excessive speed, which was precluded by FRSA. Noice appealed.

II. DISCUSSION

{5} “An appeal from the grant or denial of a motion for summary judgment presents a question of law. We therefore review de novo the [district] court's denial of summary judgment.” Bartlett v. Mirabal, 2000–NMCA–036, ¶ 4, 128 N.M. 830, 999 P.2d 1062. “Summary judgment is proper if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.” Roth v. Thompson, 1992–NMSC–011, ¶ 17, 113 N.M. 331, 825 P.2d 1241. The movant must make a prima facie showing of entitlement to summary judgment. Id. Then, the “burden shifts to the party opposing the motion to demonstrate the existence of specific evidentiary facts which would require trial on the merits.” Id. “If the facts are not in dispute, and only their legal effects remain to be determined, summary judgment is proper.” Id.

A. The Preclusion Argument Was Briefed Before the District Court

{6} Noice first argues that the district court impermissibly based its order on the issues of speed and preclusion because FRSA had not been discussed at the partial summary judgment hearing. Although Noice claims that the grant of summary judgment on the ground of preclusion “violates basic notions of due process[,]” he fails to include facts or legal authority to support his position. Where a party cites no authority to support an argument, we may assume no such authority exists. In re Adoption of Doe, 1984–NMSC–024, ¶ 2, 100 N.M. 764, 676 P.2d 1329.

{7} However, potential preclusion under FRSA was briefed and discussed several times in the record. Noice raised the issue of the train's speed in his response to BNSF's motion for summary judgment, although he did not then discuss FRSA. BNSF first raised potential preclusion of a claim based on excessive speed under FRSA in September 2011. BNSF included a brief argument regarding FRSA preclusion in its reply in support of its motion for summary judgment. In its attempt to keep evidence of speed from the facts being considered for summary judgment, BNSF fully briefed the preclusion issue in its motion in limine to exclude certain evidence. Noice briefed the legal issue of speed-based claims being precluded under FRSA in his response to that motion. The facts and legal arguments regarding preclusion were therefore presented to the district court. Additionally, despite Noice's argument to the contrary, speed was mentioned as an issue in the negligence case at the hearing.

B. FRSA Does Not Preclude Plaintiff's Speed–Based FELA Claim

{8} The district court granted BNSF's motion for summary judgment. The district court determined that Noice's negligence claim was supported by three distinct theories to support his negligence claim: (1) defective equipment threw Decedent from the train; (2) Decedent's coworker, Royal, should have conducted a safety briefing before Decedent left the locomotive; and (3) Royal increased the train's speed to fifty-five miles per hour while Decedent was walking to a different locomotive. After determining that no facts supported either of the first two theories, the district court analyzed the remaining speed-based theory of negligence and concluded that such an argument was preempted by FRSA when the train was within the speed limit. On appeal, Noice challenges the district court's rejection of each theory of negligence. Regarding preemption of his speed-based claim, Noice argues that his FELA claim remains viable despite FRSA because the cases relied on by the district court stretched a decision about state laws being preempted by FRSA to include FELA preclusion. We agree.

{9} “In 1908, Congress enacted ... [FELA], 45 U.S.C. § 51, ... to provide a remedy to railroad employees injured as a result of their employers' negligence.” Waymire v. Norfolk & W. Ry. Co., 218 F.3d 773, 775 (7th Cir.2000). “FELA imposes on railroads ‘a general duty to provide a safe workplace[.]’ ” Id. (quoting Kossman v. Ne. Ill. Reg'l Commuter R.R. Corp., 211 F.3d 1031, 1035 (7th Cir.2000) ). FELA is a general negligence statute and “neither prohibits nor requires specific conduct by a railroad.” Waymire, 218 F.3d at 775. The legislative intent behind FELA was reduction of injuries and deaths from interstate railroad accidents. Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 542, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994). “Recognizing the physical dangers inherent in the operation of a railroad, Congress ‘crafted a federal remedy that shifted part of the ‘human overhead’ of doing business from employees to their employers.' ” Grimes v. Norfolk S. Ry. Co., 116 F.Supp.2d 995, 999 (N.D.Ind.2000) (quoting Gottshall, 512 U.S. at 542, 114 S.Ct. 2396 ). “FELA is a broad remedial statute[,] which the United States Supreme Court construes liberally in order to effectuate its purposes.” Id.

{10} “Congress passed [FRSA], 49 U.S.C. § 20101... for the purpose of promoting rail safety and making laws, regulations[,] and orders related to railroad safety nationally uniform to the extent possible.” Grimes, 116 F.Supp.2d at 999 (internal quotation marks and citation omitted). FRSA is more specific than the general negligence statute, FELA, and “proscribes railroad conduct by empowering the Secretary of Transportation to implement comprehensive and detailed railroad safety regulations.” Waymire, 218 F.3d at 775.

{11} The United States Supreme Court has determined that FRSA preempts state tort claims to the extent that they are based on an allegation of excessive speed. CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 676, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). In Easterwood, a widow sued a railroad company after one of their trains struck and killed her husband at a crossing. Id. at 661, 113 S.Ct. 1732. Among other claims, she alleged that the train was operated at an excessive speed. The Supreme Court held that, because the regulations in FRSA covered the subject matter of speed fully, her state law claim was precluded. Id. 674–75, 113 S.Ct. 1732. The Supreme Court concluded that the regulations do more than set maximum speed limits, rather, “in the context of the overall structure of the regulations, the speed limits must be read as not only establishing a ceiling, but also precluding additional state regulation.” Id. at 674, 113 S.Ct. 1732. However, Easterwood did not answer the question of any extent to which FRSA would affect a claim under FELA.

{12} Since Easterwood, courts have considered the issue of FRSA preclusion for excessive speed claims and other regulated matters when the claim is brought under FELA, rather than state tort...