Zimmerman v. Norfolk S. Corp.

• Decision Date: 23 January 2013
• Docket Number: No. 11–3369.,11–3369.
• Citation: 706 F.3d 170
• Parties: Robert ZIMMERMAN, Appellant v. NORFOLK SOUTHERN CORPORATION.
• Court: U.S. Court of Appeals — Third Circuit

706 F.3d 170

Robert ZIMMERMAN, Appellant

v.NORFOLK SOUTHERN CORPORATION.

No. 11–3369.

United States Court of Appeals,Third Circuit.

Argued Sept. 10, 2012.

Filed: Jan. 23, 2013.

Joshua M. Autry, Dennis E. Boyle, [Argued], Boyle, Autry & Murphy, Camp Hill, PA, Emily M. Bell, Jeffrey A. Conrad, Clymer, Musser, Brown & Conrad, Lancaster, PA, for Appellant.

Richard K. Hohn, [Argued], Robert M. Stroh, Hohn & Scheuerle, Philadelphia, PA, for Appellee.

Before: SMITH, CHAGARES, and ALDISERT, Circuit Judges.

OPINION

SMITH, Circuit Judge.

Robert Zimmerman was riding his motorcycle on a summer evening in 2008. He approached a railroad crossing, but it was dark and a building obscured the tracks. When he was less than seventy-six feet away, he noticed that a train was approaching. He tried to stop, but his front brake locked and he flew over the handlebars, colliding headfirst with a locomotive. The collision left him partially paralyzed. He sued Norfolk Southern Corporation in federal court, asserting three state tort claims.¹

Railroads are among the most heavily regulated American industries. Unfortunately for Zimmerman, many of these regulations preempt state tort claims. The Federal Railroad Safety Act (“FRSA”) contains a provision that outlines the scope of preemption. 49 U.S.C. § 20106. The District Court for the Eastern District of Pennsylvania relied on this provision in granting summary judgment for Norfolk Southern, concluding that most of Zimmerman's claims were preempted. We will reverse in part and affirm in part.

I

Diller Avenue is a two-lane road that runs diagonally through New Holland, Pennsylvania. In the southern part of town, Diller Avenue intersects a railroad track owned and operated by Norfolk Southern. Because of the location of a tavern northwest of the crossing, southbound motorists have a difficult time seeing eastbound trains. For example, a motorist who is seventy-six feet away can see only sixty-five feet down the tracks. The speed limit on Diller Avenue is thirty-five miles per hour, while the speed limit on the tracks is subject to some disagreement. Norfolk Southern argues that the limit is at least twenty-five and maybe forty miles per hour, but Zimmerman argues that it is ten miles per hour.

The Diller Avenue crossing has been the scene of a number of accidents over the years. Five accidents were reported at the crossing in the 1970s. A decade later, the Commonwealth of Pennsylvania and the crossing's former owner installed two white railroad-crossing signs, called crossbucks, with the use of federal funds. Since the installation of these signs, five more accidents have been reported. At the time of Zimmerman's accident, there was a crossbuck fixed on each side of the track; there was also a yellow warning sign on Diller Avenue, 150 feet north of the crossing, together with painted warnings on the street. Zimmerman contends that these warnings had fallen into disrepair—tree branches covered the signs on the north side and the street markings had faded.

On June 12, 2008, Zimmerman celebrated his thirty-eighth birthday. After a game of church softball and a trip to his mother's house, he headed for home on his motorcycle. It was dark, and Zimmerman was wearing a helmet and riding within the speed limit. He turned south onto Diller Avenue and approached the crossing—a crossing he did not believe was still active. Meanwhile, an eastbound Norfolk Southern train consisting of only two engines approached the crossing travelling twenty-four miles per hour. It sounded its horn.

Zimmerman apparently failed to notice that the train was about to enter the crossing until he was less than seventy-six feet away.² At that point, he was too close to the track to stop.³ One of the train operators noticed Zimmerman around this time but could not stop the train soon enough to avoid the collision. Zimmerman aggressively applied the brake of his motorcycle, causing the front wheel to lock. He flipped over the handlebar and flew headfirst into the gas tank of the lead engine. The collision left him partially paralyzed.

Zimmerman sued Norfolk Southern in the Eastern District of Pennsylvania under Pennsylvania tort law. His complaint listed four counts: failure to warn; failure to maintain a safe crossing; failure to ensure that the crossing devices complied with federal regulations; and punitive damages. On August 17, 2011, the District Court granted Norfolk Southern's motion for summary judgment, concluding that some of Zimmerman's claims were preempted and that others did not create a genuine issue of material fact.

Zimmerman filed a timely notice of appeal.⁴ We exercise plenary review over the District Court's decision to grant a motion for summary judgment. Orvosh v. Program of Grp. Ins. for Salaried Emps. of Volkswagen of Am., 222 F.3d 123, 129 (3d Cir.2000). We construe the evidence in the light most favorable to Zimmerman, Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587–88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and we affirm “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law,” Fed.R.Civ.P. 56(a). A “genuine dispute” exists if a reasonable jury could find for the nonmoving party. Fakete v. Aetna, Inc., 308 F.3d 335, 337 (3d Cir.2002).

II

The doctrine of preemption permeates Zimmerman's appeal. Norfolk Southern argues that various federal regulations preempt Zimmerman's claims under the FRSA preemption provision. 49 U.S.C. § 20106. We have interpreted the provision a few times over the years, but Congress changed it in 2007. We begin our discussion by providing a framework for analyzing preemption under the amended FRSA. We do so because we have yet to interpret the amendment and because this analysis is relevant to each of Zimmerman's claims. We then turn to those claims.

The Supremacy Clause of the United States Constitution is the source of preemption. U.S. Const. art. VI, cl. 2. Under the Supremacy Clause, federal law trumps or preempts state law whenever the two are in conflict. Preemption can be express or implied—either way, the effect is the same: preemption renders the relevant state law invalid. See Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992); Holk v. Snapple Beverage Corp., 575 F.3d 329, 334 (3d Cir.2009) (recognizing that implied preemption comes in two varieties: field preemption and conflict preemption). We tend to interpret federal statutes in a way that avoids implied preemption. Holk, 575 F.3d at 334 (citing Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449, 125 S.Ct. 1788, 161 L.Ed.2d 687 (2005)). The same is not true of express preemption.

Here, the FRSA expressly preempts state railroad law. Subsection (a) outlines the scope of FRSA preemption: “Laws, regulations, and orders related to railroad safety ... shall be nationally uniform to the extent practicable.” 49 U.S.C. § 20106(a)(1). Yet the FRSA does not preempt all state railroad law: “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.” Id § 20106(a)(2). Moreover, states may adopt a “more stringent law” if it is necessary to eliminate a “local safety or security hazard.” Id. § 20106(a)(2)(A). As the Supreme Court has noted, the FRSA “displays considerable solicitude for state law.” CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 665, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993); see also Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344, 352–54, 120 S.Ct. 1467, 146 L.Ed.2d 374 (2000).

Before the 2007 amendment, we held that a federal regulation preempts state law under subsection (a) if the regulation “substantially subsume[s] the subject matter of the relevant state law.” Strozyk v. Norfolk S. Corp., 358 F.3d 268, 271 (3d Cir.2004) (quoting Easterwood, 507 U.S. at 664, 113 S.Ct. 1732) (quotation marks omitted). The regulation must do more than simply “touch upon or relate to [the] subject matter” of the state law. Id. at 273 (quoting Easterwood, 507 U.S. at 664, 113 S.Ct. 1732) (internal quotation marks omitted).

Congress amended the FRSA preemption provision in 2007 by adding subsection (b), which is a “[c]larification regarding State law causes of action”:

(1) Nothing in this section shall be construed to preempt an action under State law seeking damages for personal injury, death, or property damage alleging that a party—

(A) has failed to comply with the Federal standard of care established by a regulation or order issued by the Secretary of Transportation ... or the Secretary of Homeland Security ..., covering the subject matter as provided in subsection (a) of this section;

(B) has failed to comply with its own plan, rule, or standard that it created pursuant to a regulation or order issued by either of the Secretaries; or

(C) has failed to comply with a State law, regulation, or order that is not incompatible with subsection (a)(2).

49 U.S.C. § 20106(b)(1).

The question before us is how to interpret the FRSA preemption provision in light of the 2007 amendment. Zimmerman argues that the amendment restricts the scope of preemption and thus supersedes all prior cases interpreting subsection (a), including our decision in Strozyk and the Supreme Court's decisions in Shanklin and Easterwood. Norfolk Southern agrees that the amendment restricts preemption in some respects but argues that it preserves cases interpreting the phrase “covering the subject matter of the State requirement.” Id. § 20106(a)(2). We agree with Norfolk Southern's interpretation.

Statutory interpretation requires that we begin with a careful reading of the text. See Bruesewitz v. Wyeth Inc., 561 F.3d 233, 244 (3d Cir.2009) (noting that this Court “decline[s] to employ legislative history if a statute is clear on...