Smith v. Bur. Northern and Santa Fe Ry. Co.

Decision Date20 June 2008
Docket NumberNo. DA 06-0649.,DA 06-0649.
Citation187 P.3d 639,344 Mont. 278,2008 MT 225
PartiesAmelia M. SMITH by and through her mother and next friend Samantha R. Reinert, conservator and personal representative of the estate of Phillip David Smith, deceased, Plaintiff and Appellant, v. The BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, Don Boespflug and Lance Vallone, Defendants and Appellees.
CourtMontana Supreme Court

For Appellant: A. Clifford Edwards, Triel D. Culver, John Heenan, Edwards, Frickle, Anner-Hughes & Culver, Billings, Montana.

For Appellee: Randy J. Cox, Matthew B. Hayhurst, Boone Karlberg, P.C., Missoula, Montana.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Amelia Smith appeals a decision of the Thirteenth Judicial District Court granting Burlington Northern and Santa Fe Railway Company's (BNSF) motion for partial summary judgment. We reverse the grant of summary judgment and remand for further proceedings consistent with this Opinion.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 On June 13, 2002, a twenty-six-year-old man named Phillip Smith was killed when his automobile collided with a BNSF train at the Hesper railroad crossing outside of Billings, Montana. On August 25, 2004, his daughter, appellant Amelia Smith (Smith), filed a wrongful death and survival action against BNSF in the District Court of the Thirteenth Judicial District, Yellowstone County. Smith's suit sought compensatory and punitive damages based on BNSF's alleged negligence in the maintenance of the Hesper crossing and its negligent operation of the train involved in the collision. A significant portion of Smith's claims revolved around allegations that BNSF was negligent in the installation of warning devices at the Hesper crossing which would adequately protect people who were traveling along the highway.

¶ 3 On April 26, 2006, BNSF moved for partial summary judgment seeking an order that Smith's state law claims concerning the adequacy of the warning devices at the Hesper crossing were preempted by federal law in accordance with Norfolk Southern Ry. Co. v. Shanklin, 529 U.S. 344, 120 S.Ct. 1467, 146 L.Ed.2d 374 (2000). In that case, the United States Supreme Court held that when federal funds are used to install warning devices at railroad crossings, the Federal Railway Safety Act of 1970 (FRSA), Pub.L. No. 91-458, 84 Stat. 971 (1970), preempts state law tort claims. Shanklin, 529 U.S. at 357, 120 S.Ct. at 1476. It was BNSF's contention that federal funds had been used to upgrade the Hesper crossing under project RRP 4139, a joint statewide project between the Montana Department of Transportation (MDOT) and the Federal Highway Administration (FHWA) under the Federal Rail-Highway Crossings Program (Crossings Program). Project RRP 4139 was designed to replace existing crossbucks at designated railway crossings with double reflectorized crossbucks—i.e., crossbucks with reflective material on the back and front of both the crossbucks—in accordance with the standards set forth in the Manual on Uniform Traffic Control Devices. BNSF maintained that double reflectorized crossbucks had been installed at Hesper crossing under project RRP 4139, and thus Smith's state law tort claims were preempted by federal law as set forth in Shanklin.

¶ 4 The District Court held a hearing on the motion on July 21, and granted partial summary judgment to BNSF on August 3, 2006. The District Court found that those state law tort claims which were premised upon the adequacy of the warning devices at Hesper crossing were federally preempted under Shanklin because: (1) the federal government had approved a project to install warning devices at several hundred railroad crossings in Montana; (2) these improvements were actually completed; and (3) federal funds were actually used to complete these projects, including the installation of double reflectorized crossbucks at the Hesper crossing. Although Smith had alleged some state law claims which were unaffected by this ruling, the grant of partial summary judgment effectively disposed of a huge portion of Smith's case against BNSF. Therefore, on August 14, 2006, the District Court certified its ruling on the federal preemption issue as a final judgment pursuant to M.R. Civ. P. 54(b).

¶ 5 A notice of appeal was filed with this Court on August 26, 2006. On August 8, 2007, after the case was fully briefed, Smith petitioned this Court for leave to file supplemental briefs. Smith argued that Section 1528 of the "Implementing Recommendations of the 9/11 Commission Act of 2007" (9/11 Act), Pub.L. No. 110-53, 121 Stat. 266 (2007), signed into law by President Bush on August 3, 2007, essentially rendered moot the Shanklin preemption analysis upon which the District Court based its decision to grant partial summary judgment. Smith asked us to reexamine the continued viability of the Shanklin preemption analysis, and, consequently, the legal basis for the District Court's grant of summary judgment. We granted Smith's motion, allowing BNSF and Smith to simultaneously file supplemental briefs "directed solely to the ramification of the [9/11] Act upon this case."

¶ 6 Both parties have filed supplemental briefs on this issue, and the matter is now properly before this Court.

ISSUES

¶ 7 We state the issues on appeal as follows:

¶ 8 Issue One: Does Section 1528 of the 9/11 Act overrule the federal preemption analysis from Norfolk Southern Ry. Co. v. Shanklin?

¶ 9 Issue Two: Did the District Court err when it granted partial summary judgment to BNSF?

STANDARD OF REVIEW

¶ 10 We review de novo a district court's grant of summary judgment, using the same standards applied by the district court under M.R. Civ. P. 56. Rich v. Ellingson, 2007 MT 346, ¶ 12, 340 Mont. 285, ¶ 12, 174 P.3d 491, ¶ 12. The moving party has the burden of establishing the absence of a genuine issue of material fact, and entitlement to judgment as a matter of law. Rich, ¶ 12. Once the moving party has met this burden, the non-moving party must present substantial evidence essential to one or more elements of the case to raise a genuine issue of material fact. Rich, ¶ 12. "The non-moving party must set forth specific facts and cannot simply rely upon their pleadings, nor upon speculative, fanciful, or conclusory statements." Hiebert v. Cascade Co., 2002 MT 233, ¶ 21, 311 Mont. 471, ¶ 21, 56 P.3d 848, ¶ 21 (quotation omitted).

¶ 11 We review the conclusions of law upon which the district court bases its decision to determine if they are correct. Rich, ¶ 12.

DISCUSSION

¶ 12 Issue One: Does Section 1528 of the 9/11 Act overrule the federal preemption analysis from Norfolk Southern Ry. Co. v. Shanklin?

¶ 13 In Shanklin the Supreme Court held that "[w]hen the FHWA approves a crossing improvement project and the State installs the warning devices using federal funds ... [federal law] establish[es] a federal standard for the adequacy of those devices that displaces state tort law addressing the same subject ... [and] pre-empts state tort actions." Shanklin, 529 U.S. at 357-58, 120 S.Ct. at 1476. In addition to the preemptive force of the Supremacy Clause to the U.S. Constitution, U.S. Const. Art. IV. cl. 2, the Shanklin decision rested on two statutory grounds: (1) the "preemption clause" of FRSA, 49 U.S.C. § 20106 (1994); and (2) regulations promulgated by the FHWA under the authority of the Secretary of Transportation—found at 23 C.F.R. § 646.214(b)(3) and (4) (1999)—concerning the design and adequacy of railway crossing warning devices installed under the Crossings Program. Shanklin, 529 U.S. at 347-49, 120 S.Ct. at 1471-72.

¶ 14 Section 1528 of the 9/11 Act amended the preemption clause of FRSA upon which the holding in Shanklin was premised. From the time Shanklin was decided in 2000 until the passage of the 9/11 Act in 2007, the FRSA preemption clause read as follows:

§ 20106 National uniformity of regulation.

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.

49 U.S.C. § 20106 (1994).

¶ 15 Section 1528 of the 9/11 Act (Section 1528) renumbered, but did not substantively alter, the original preemption clause. After the passage of Section 1528, the FRSA preemption clause reads as follows:

§ 20106 Preemption.

(a) National uniformity of regulation.— (1) Laws, regulations, and orders related to railroad safety and laws, regulations, and orders related to railroad security shall be nationally uniform to the extent practicable.

(2) A State may adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), 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 or security when the law, regulation, or order—

(A) is necessary to eliminate or reduce an essentially local safety or security hazard;

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

(C) does not unreasonably burden interstate commerce.

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