Norfolk S. Ry. Co. v. Hartry

• Decision Date: 23 December 2019
• Docket Number: S19G0008
• Citation: 837 S.E.2d 303,307 Ga. 566
• Parties: NORFOLK SOUTHERN RAILWAY CO. v. HARTRY et al.
• Court: Georgia Supreme Court

307 Ga. 566

837 S.E.2d 303

NORFOLK SOUTHERN RAILWAY CO.

v.HARTRY et al.

S19G0008

Supreme Court of Georgia.

Decided: December 23, 2019

Eileen M. Crowley, Hall, Bloch, Garland & Meyer, LLP, 900 Circle 75 Parkway, Suite 500, Atlanta, Georgia 30339-3099, Laurie Webb Daniel, Matthew D. Friedlander, Holland & Knight, LLP, Suite 2000, One Atlantic Center, 1180 West Peachtree Street, Suite 1800, Atlanta, Georgia 30309-3400, Amanda Rodman Smith, Hall, Bloch, Garland & Meyer, LLP, P.O. Box 5088, Macon, Georgia 31208-5088, Virginia A. Seitz, Tobias S. Loss-Eaton, Raymond A. Atkins, Sidley Austin, LLP, 1501 K Street, NW, Washington, DC 20005, for Appellant.

Michael J. Warshauer, Trent Scott Shuping, Lyle Griffin Warshauer, Warshauer Law Group, P.C., 2740 Bert Adams Road, Atlanta, Georgia 30339, Richard Crawford Foster, Elizabeth Lynn Bentley, Carlock Copeland & Stair LLP, 191 Peachtree Street NE, Suite 3600, Atlanta, Georgia 30303, Frank Mitchell Lowrey, IV, Michael Rosen Baumrind, Bondurant, Mixson & Elmore, LLP, 1201 West Peachtree Street, N.W., Suite 3900, Atlanta, Georgia 30309-3417, for Appellee.

Christopher Randall Jordan, Hunter Maclean Exley & Dunn, 777 Gloucester St., Suite 400, Brunswick, Georgia 31520, Kathryn D. Kirmayer, Daniel Saphire, Association of American Railroads, 425 3rd Street, S.W., Washington, DC 20024, for Amicus Appellant.

Frank T. Burge, Sr., Burge & Burge, P.C., 2001 Park Place, Suite 1350, Birmingham, Alabama 35203-3204, Lawrence M. Mann, Alpers & Mann, PC, 9205 Redwood Ave., Bethesda, Maryland 20817, for Amicus Appellee.

Bethel, Justice.

We granted certiorari in this case to consider whether Winford Hartry’s claim under the Federal Employers’ Liability Act ("FELA"), 45 USC § 51 et seq., is precluded by regulations issued pursuant to the Federal Railroad Safety Act ("FRSA"), 49 USC § 20101 et seq. Because we conclude that FRSA and its regulations do not preclude Hartry’s FELA claim, we affirm the decision of the Court of Appeals.

1. Viewed in the light most favorable to the plaintiffs as the nonmoving party on a motion for summary judgment, the underlying facts, as the Court of Appeals presented them, are as follows:

The record shows that on June 16, 2010, crossing gates were down at a public railway-roadway crossing, which position normally indicates that a train is approaching the crossing; occasionally gates will be down if a railway is performing maintenance or if they are malfunctioning. As [Marvin Ronald Johnson, Jr.] approached the railroad crossing driving his 28-foot-long truck with attached dumpster, he saw that the gates were down but cars were driving around the gates and over the crossing. Johnson followed suit, driving around the crossing gates into the path of an oncoming train on which [Winford] Hartry was serving as engineer. Hartry was injured as a result of the collision.

Witnesses in the area averred that the crossing gates were down by at least 9:00 a.m. on June 15, 2010 (the day before the accident), and because they were down without trains crossing, drivers were traversing the crossing despite the gates being down. A delivery driver averred that he had traversed the crossing at least 15 to 20 times over the course of June 15 and 16 while the gates were down and prior to the accident. Johnson had traversed the crossing in spite of the warning gates being down a number of times since 4:00 p.m. on June 15 without incident.

[Norfolk Southern Railway Company] employees also worked in the area of the crossing on two occasions during the day on June 15 and were in the vicinity for several other hours of the day during which other witnesses testified that the gates were staying down and signaling without trains actually approaching during that time. The employees contended, however, that they did not witness any malfunctions.

Hartry v. Ron Johnson Jr. Enter., Inc. , 347 Ga. App. 55, 56, 815 S.E.2d 611 (2018).

Hartry and his wife, Geraldine, brought suit against Johnson, alleging claims of negligence, loss of consortium, bad faith, and punitive damages under Georgia law. Hartry also brought claims against Norfolk Southern under FELA for violations of that act, ultimately focusing on his allegation that Norfolk Southern was responsible for maintaining the crossing gates, which dangerously malfunctioned, resulting in Norfolk Southern’s failure to provide Hartry with a reasonably safe place to work. See id. at 55, 815 S.E.2d 611.

Norfolk Southern moved for summary judgment on this FELA claim, which the trial court granted on the basis that Hartry’s FELA claim was precluded by regulations promulgated under FRSA by the Federal Railroad Authority ("FRA"). Thereafter, the case proceeded to a jury trial on the state-law claims in which the jury returned a verdict for the Hartrys.

Following the conclusion of the case, the Hartrys appealed, arguing that the trial court erred in granting summary judgment to Norfolk Southern after determining that Hartry’s FELA claim was precluded by the FRSA regulations and in determining that no question of fact existed as to whether Norfolk Southern had notice of a gate malfunction. The Court of Appeals agreed with the Hartrys that the trial court erred in determining that Hartry’s FELA claim against Norfolk Southern was precluded by the FRSA regulations and in determining that questions of fact did not exist as to the claims. See Hartry , 347 Ga. App. at 58-65, 815 S.E.2d 611.

2. We granted certiorari and asked whether Hartry’s FELA claim is precluded by the regulations under FRSA. Norfolk Southern argues that its duty was controlled by 49 CFR § 234.107, promulgated by the

FRA under FRSA, which lays out the actions to be taken after a railway receives a "credible report" of a crossing malfunction, and that because there was no "credible report" as defined under that regulation, Hartry’s FELA claim was precluded. We disagree.

(a) FELA

Enacted in 1908, FELA provides railroad employees with a federal cause of action for injuries "resulting in whole or in part from the negligence" of a railroad. 45 USC § 51. "Cognizant of the physical dangers of railroading that resulted in the death or maiming of thousands of workers every year, Congress crafted a federal remedy that shifted part of the human overhead of doing business from employees to their employers." (Citation and punctuation omitted.) Consol. Rail Corp. v. Gottshall , 512 U. S. 532, 542 (II) (A), 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994). "In order to further FELA’s humanitarian purposes, Congress did away with several common-law tort defenses that had effectively barred recovery by injured workers." Id. What constitutes negligence under FELA is a federal question governed by the provisions of the statute and federal common law. See id.

(b) FRSA

FRSA was enacted in 1970 "to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." 49 USC § 20101. FRSA grants the Secretary of Transportation the authority to "prescribe regulations and issue orders for every area of railroad safety supplementing laws and regulations in effect on October 16, 1970," 49 USC § 20103 (a), "which laws include FELA." Norfolk Southern R. Co. v. Zeagler , 293 Ga. 582, 598 (3), 748 S.E.2d 846 (2013). The Secretary of Transportation has delegated this authority to the FRA. See id. ; Henderson v. Nat. R. Passenger Corp. , 87 F.Supp.3d 610, 613 (II) (A) (S.D.N.Y. 2015). FRSA does not create a private right of action; enforcement powers under the statute are vested solely with the Secretary of Transportation and, under certain conditions, the States or the Attorney General.¹ See 49 USC §§ 20111 - 20113.

(c) Preemption under FRSA

To maintain uniformity, FRSA contains an express preemption clause, pursuant to which "[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."

49 USC § 20106 (a) (2). FRSA regulations preempt covered state law tort claims, in addition to covered state statutes and regulations. See CSX Transp., Inc. v. Easterwood , 507 U. S. 658, 670-671 (II), 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). Indeed, "the preemption doctrine is a product of the Supremacy Clause, see U.S. CONST ., art. VI, cl. 2, which invalidates state laws that interfere with, or are contrary to, federal law." (Punctuation omitted.) Zeagler , 293 Ga. at 598 (3) (a), 748 S.E.2d 846. A FRSA regulation covers and thus preempts a state law tort claim if the regulation "substantially subsume[s] the subject matter" of that claim. Easterwood , 507 U. S. at 664, 113 S.Ct. 1732. However, FRSA does not preempt state law claims that allege a party "has failed to comply with the Federal standard of care established by a regulation or order issued by the [FRA]" or "has failed to comply with its own plan, rule, or standard that it created pursuant to a regulation or order issued by" the FRA. 49 USC § 20106 (b) (1) (A – B). Because this case concerns two federal acts, the preemption doctrine and the express preemption provision in FRSA are inapplicable. See Zeagler , 293 Ga. at 598 (3) (a), 748 S.E.2d 846 ; Henderson , 87 F.Supp.3d at 614 (II) (B).

(d) Preclusion

"If FRSA regulations were to bar a FELA negligence claim, it could only be under the doctrine of preclusion, which deals with the compatibility of multiple federal laws." Zeagler , 293 Ga. at 598 (3) (a), 748 S.E.2d 846. While FRSA contains an express preemption provision of state law claims, there is not a similar provision pertaining to preclusion, and nothing in the statute directly addresses the effect of the federal statute on federal claims that are brought under FELA. See POM Wonderful LLC v. Coca-Cola Co. , 573 U. S. 102, 112 (II) (A), 134 S.Ct. 2228, 189 L.Ed.2d 141 (2014) (applying "traditional rules of statutory interpretation" in determining that the express terms of the federal statu...