Southern California Regional Rail Authority v. Superior Court, B200777.

• Decision Date: 03 June 2008
• Docket Number: No. B200777.,B200777.
• Citation: 163 Cal.App.4th 712,77 Cal. Rptr. 3d 765
• Court: California Court of Appeals Court of Appeals
• Parties: SOUTHERN CALIFORNIA REGIONAL RAIL AUTHORITY et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; JAMES TUTLNO et al., Real Parties in Interest.

163 Cal.App.4th 712

77 Cal. Rptr. 3d 765

SOUTHERN CALIFORNIA REGIONAL RAIL AUTHORITY et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; JAMES TUTLNO et al., Real Parties in Interest.

No. B200777.

Court of Appeals of California, Second District, Division Three.

June 3, 2008.

Randolph Cregger & Chalfant, Joseph P. Mascovich; Cummins & White, James R. Wakefield; Sims Law Firm and Michael E. Murphy for Petitioners.

Landman Corsi Ballaine & Ford, Ameet B. Kabrawala and William G. Ballaine for National Railroad Passenger Corporation as Amicus Curiae on behalf of Petitioners.

Kirkpatrick & Lockhart Preston Gates Ellis, Raymond E. Loughrey; and James LaRusch for American Public Transportation Association as Amicus Curiae on behalf of Petitioners.

Louis P. Warchot, Daniel Saphire; Ernster Law Offices, John H. Ernster and Ryan K. Marden for Association of American Railroads as Amicus Curiae on behalf of Petitioners.

Hanson Bridgett Marcus Vlahos & Rudy, David J. Miller, Michael N. Conneran, Kimon Manolius and Warren R. Webster for Peninsula Corridor Joint Powers Board (Caltrain) as Amicus Curiae on behalf of Petitioners.

O. J. Solander, Matthew B. George and Bruce A. Behrens, Chief Counsel, Thomas C. Fellenz, Deputy Chief Counsel, and Ronald W. Beals, Assistant Chief Counsel, for State of California Department of Transportation as Amicus Curiae on behalf of Petitioners.

Best Best & Krieger, C. Michael Cowett and Paula C.P. de Sousa for North County Transit District as Amicus Curiae on behalf of Petitioners.

Neumiller & Beardslee, Thomas J. Shephard, Sr., John W. Stovall and Jeremy B. Price for San Joaquin Regional Rail Commission as Amicus Curiae on behalf of Petitioners.

No appearance for Respondent.

Ringler Kearney Alvarez, Jerome L. Ringler, Thomas A. Kearney, Richard L. Rosett; Esner, Chang & Ellis and Stuart B. Esner for Real Parties in Interest.

Arkin & Glovsky and Sharon J. Arkin for Consumer Attorneys of California as Amicus Curiae on behalf of Real Parties in Interest.

OPINION

KLEIN, P. J.

This petition for writ of mandate arises out of the January 26, 2005 commuter train derailment incident near Glendale, California. Approximately 100 plaintiffs consisting of passengers, railroad workers and their survivors, brought a consolidated wrongful death and personal injury lawsuit against petitioners Southern California Regional Rail Authority doing business as Metrolink and the Los Angeles County Metropolitan Transit Authority (collectively referred to as Metrolink). The only issue presented at this juncture in the case is whether federal regulations preempt plaintiffs' claim Metrolink was negligent by reason of operating one of the trains involved in the incident in push mode, i.e., with the locomotive at the rear of the train and an occupied cab car in the lead. A cab car has seats for passengers and a control cab from which the engineer can operate the train.

We first provide an overview of the case, the trial court's ruling and our holding. In the Facts and Procedural Background that follows the overview, we detail the federal regulatory process that resulted in the promulgation of "Passenger Equipment Safety Standards" in 1999. We also consider the trial court's ruling in greater detail and the developments subsequent to it. In the Discussion section, we apply the express preemption provision found at title 49 United States Code section 20106, subdivision(a)(2) and conclude federal regulations that address the construction of cab cars and permit the use of an occupied cab car in the lead position of a Tier I commuter train, i.e., one operating at speeds below 125 miles per hour, preempt plaintiffs' claim Metrolink was negligent in that regard.

We therefore grant the writ petition and issue a peremptory writ of mandate directing the trial court to vacate its order holding to the contrary.

OVERVIEW OF THE CASE AND OUR HOLDING

1. The derailment.

On the morning of January 26, 2005, an individual operating a sports utility vehicle (SUV) turned onto the railroad right-of-way at the grade crossing at Chevy Chase Road in Glendale, California. The driver proceeded down the right-of-way adjacent to the tracks for 150 feet before turning onto the tracks, stopping the SUV on the tracks and dousing the interior of the SUV with gasoline. Moments later, Metrolink Train 100, a commuter train being operated in push mode, struck the SUV and derailed. Train 100 struck a parked freight locomotive, then collided with Metrolink Train 901, a locomotive-led commuter train travelling in the opposite direction. The rear end of the cab car of Train 100 struck the side of passenger cars in Train 901, crushing occupied areas of that train. The incident resulted in eight fatalities in Train 100, three fatalities in Train 901 and many injuries.¹

2. Plaintiffs' allegations of negligence in the use of push mode.

Plaintiffs' operative pleading, the second amended master allegations (SAMA), includes a cause of action against Metrolink for negligence based on the operation of Train 100 in push mode in an urban area with multiple grade crossings. The SAMA asserts Metrolink "knew or should have known ... there was significant risk of derailment if a commuter train would strike any object upon the track ... in the push mode as opposed to in the pull mode. It was further known to defendants ... that the increased likelihood of derailment at high speed was occasioned by the fact that in the push mode there was inadequate weight at the front of the train in order to move objects off the track when contact with the commuter train was made."

In briefs filed in this court, plaintiffs further assert Metrolink was negligent (a) in failing to prohibit passenger seating in a cab car when it is in the lead; (b) in failing to use a cabbage car in the lead (a cabbage car is an older locomotive that has had its engine removed but continues in use, usually for baggage, with ballast to replace the weight of the engine); and (c) in failing to use some form of track surveillance or a scout vehicle.

We do not address the application for federal preemption principles to the other theories of liability asserted by plaintiffs' in the SAMA. (See Discussion, part 2.d., page 739, post.)

3. The pretrial ruling is certified to this court.

At a hearing on a pretrial motion to determine whether federal regulations preempted plaintiffs' claim of negligence in Metrolink's use of push mode, the trial court observed plaintiffs could not allege negligence per se in as much as federal regulations expressly permit such operation. However, in a written order issued June 1, 2007, the trial court concluded plaintiffs' claim was not preempted to the extent it involved the "time, place and manner" of Metrolink's push mode operation. The trial court certified the issue pursuant to Code of Civil Procedure section 166.1.² Metrolink thereafter filed the instant writ petition seeking a determination plaintiffs' claim of negligence in the use of push mode operation was preempted by federal regulations.

4. Proceedings in this court.

We issued an order to show cause. In order to resolve Metrolink's claim of preemption, we first review the history of federal regulation of passenger rail service, then apply the preemption provision enacted as part of the Federal Railroad Safety Act of 1970, title 49 United States Code section 20106(a)(2), which, as relevant to this case, provides: "A State may adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation ... prescribes a regulation or issues an order covering the subject matter of the State requirement." (49 U.S.C. § 20106(a)(2).) Here, the "State requirement" is the application of state or local common law negligence principles to Metrolink's use of push mode operation.

CSX Transp., Inc. v. Easterwood (1993) 507 U.S. 658 [123 L.Ed.2d 387, 113 S.Ct. 1732] (Easterwood), the seminal and controlling decision in the area of Federal Railroad Safety Act preemption, construed this provision and held that, in order for a federal regulation to "cover" the same subject matter as a state law, it must do more than merely "`touch upon' or `relate to' that subject matter." (Id. at p. 664.) Rather, "pre-emption will lie only if the federal regulations substantially subsume the subject matter of the relevant state law." (Ibid.)

The regulations in place at the time of the Glendale, California incident were promulgated by the Federal Railroad Administration (FRA) in 1999 pursuant to a Congressional mandate after five years of consideration of proposed rules and comments thereon from members of the rail industry and other interested parties. The final Passenger Equipment Safety Standards address not only the construction of passenger cars, including cab cars, but also contemplate the use of an occupied cab car in the lead position of a Tier I commuter train, i.e., a commuter train traveling at speeds below 125 miles per hour.³

We conclude these regulations substantially subsume plaintiffs' allegations of negligence to the extent they are based on Metrolink's operation of commuter trains in push mode. Thus, plaintiffs may not, through application of common law negligence principles, impose additional or different requirements. We therefore grant the writ petition and issue a peremptory writ of mandate directing the trial court to vacate the order of June 1, 2007, and to conduct further proceedings in accordance with the views expressed in this opinion.

FACTS AND PROCEDURAL BACKGROUND

In this section of the opinion, we provide background information necessary to place the relevant federal regulations and the trial court's ruling in their proper context. We start with a brief history of push mode operation. We then proceed chronologically to examine the Congressional mandate pursuant to which the regulations were promulgated, review...