In re Miamisburg Train Derailment Litigation

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In re Miamisburg Train Derailment Litigation.

[Cite as In re Miamisburg Train Derailment Litigation

(1994), Ohio St.3d .]

Railroads -- Railroad car transporting hazardous material

involved in derailment ruptures and creates dangerous

phosphorous cloud -- Federal Railroad Safety Act does not

preempt common-law tort claims,

(No. 92-1244 -- Submitted June 3, 1993 -- Decided February

9, 1994.)

Appeal from the Court of Appeals for Montgomery County, No.

12590.

On July 8, 1986, a train operated by CSX Transportation,

Inc. ("CSX") derailed in Miamisburg, Ohio. One railroad car

involved in the derailment was UTLX 79499, a tank car

manufactured and owned by Union Tank Car Company ("UTC"), and

leased to Albright & Wilson, Inc. UTLX 79499 was being used to

transport yellow phosphorous, a hazardous material, by a

corporation affiliated with Albright & Wilson, ERCO Company.

(Albright & Wilson and ERCO are hereinafter referred to as "A&W".)

UTLX 79499 was ruptured in the derailment, and phosphorous

escaped and ignited upon exposure to the air, creating a

dangerous phosphorous cloud. One of the ruptures was a six-inch

hole in the bottom of the tank shell at the brake support

attachment, where the brake attachment had separated from the

tank shell. Local public safety officials ordered mass

evacuations of the surrounding area due to the potentially toxic

effects of the phosphorous cloud.

Appellants, various individuals who were allegedly injured

as a result of the derailment, instituted this class action

against CSX, UTC, and A&W. In addition to certifying the case as

a class action, the trial court certified the issues of

negligence, qualified nuisance, and punitive damages for trial.

Appellants reached a settlement with CSX during trial, and

proceeded against UTC and A&W, appellees, claiming that

phosphorous escaped because UTLX 79499 was not equipped with a

reinforcing pad where the brake attachment connected to the shell

of the tank car. Such a pad would have allegedly reduced the

possibility of a rupture to the car during a derailment.

In 1971, federal regulations pertaining to the

transportation of hazardous materials were amended. The

regulations required all new railroad tank cars engaged in the

transportation of hazardous materials to be equipped with

reinforcing pads where any attachments (including brakes) met the

shell of the tank car. Section 179.200-19(b), Title 49, C.F.R.

A separate regulation allowed tank cars manufactured prior to the

1971 adoption of this regulatory mandate to continue in use.

Section 179.1(c), Title 49, C.F.R. UTLX 79499, manufactured in

1966, was thus allowed to remain in use without complying with

the reinforcing pad regulatory requirement.

Prior to trial, UTC and A&W moved for summary judgment,

arguing that appellants' common-law tort claims were preempted by

the federal regulations governing tank car specifications. The

trial court in effect overruled both motions, finding that

alleged compliance with federal regulations did not preempt

appellants' claims. At the close of appellants' evidence,

however, the court granted UTC's and A&W's motions for directed

verdicts. As to UTC, the trial court found it significant that

appellants' experts acknowledged that UTC had met all the

applicable United States Department of Transportation ("DOT")

regulations in effect for the transportation of hazardous

materials, and held that UTC had no regulatory duty to retrofit

UTLX 79499 with reinforcing pads. A&W was held to be not

negligent because appellants had been unable to show that A&W

should reasonably have known that the tank car was unsafe for its

intended use.

On appeal, the court of appeals affirmed. However, the

court based its decision on its finding that the Federal Railroad

Safety Act ("the FRSA") preempted appellants' common-law tort

claims against UTC and A&W. Thus, the court of appeals

effectively found that the trial court should have granted

summary judgment to appellees on preemption grounds.

The cause is now before this court pursuant to the allowance

of a motion to certify the record.

Waite, Schneider, Bayless & Chesley Co., L.P.A., Stanley M.

Chesley and Terrence L. Goodman; Ruppert, Bronson & Chicarelli

Co., L.P.A., and James D. Ruppert, for appellants.

Freund, Freeze & Arnold, Gordon D. Arnold and Patrick J.

Janis; Johnson & Bell, Ltd., William V. Johnson, Thomas H. Fegan

and William A. Geiser, for appellee Union Tank Car.

Rendigs, Fry, Kiely & Dennis, W. Roger Fry, Ralph F.

Mitchell and Jonathan P. Saxton, for appellees Albright & Wilson

and ERCO.

Per Curiam. This case requires us to determine whether

appellants' common-law tort claims are preempted by federal law.

For the reasons which follow, we answer this question in the

negative.

I

A

The United States Congress enacted the FRSA in 1970 "to

promote safety in all areas of railroad operations and to reduce

railroad-related accidents, and to reduce deaths and injuries to

persons and to reduce damage to property caused by accidents

involving any carrier of hazardous materials." Section 421,

Title 45, U.S.Code. The FRSA gives the United States Secretary

of Transportation ("the Secretary") powers to "prescribe, as

necessary, appropriate rules, regulations, orders, and standards

for all areas of railroad safety ***." Section 431, Title 45,

U.S.Code. Section 434, Title 45, U.S. Code is the preemption

provision of the FRSA, and provides that "*** laws, rules,

regulations, orders, and standards relating to railroad safety

shall be nationally uniform to the extent practicable. A State

may adopt or continue in force any law, rule, regulation, order,

or standard relating to railroad safety until such time as the

Secretary [of Transportation] has adopted a rule, regulation,

order, or standard covering the subject matter of such State

requirement. ***" (Emphasis added.) Thus, under the FRSA, a

state requirement may remain in effect until the Secretary has

adopted a regulation "covering the subject matter" of the state

requirement.1

In 1971, the Secretary of Transportation adopted Section

179.200-19(b), Title 49, C.F.R., detailing when "[r]einforcing

pads must be used between external brackets and shells ***" for

tank cars hauling hazardous materials. The parties essentially

agree that this provision would have applied to require

reinforcing pads where the brake attachment met the tank shell of

UTLX 79499 had the Secretary not adopted another regulation

allowing tank cars manufactured prior to 1971, such as UTLX

79499, to continue in use without compliance. Thus, the

reinforcing pad requirement applies only to tank cars

manufactured after 1971 (the time the regulation was adopted),

because of the language in Section 179.1(b), Title 49, C.F.R.

that "[e]xcept as provided in paragraph (c) of this section,

tanks to which this part is applicable, must be built to the

specifications prescribed in this part"; and the further language

of Section 179.1(c), Title 49, C.F.R. that "[t]anks built to

specifications predating those in this part may continue in use

as provided in [Section] 173.31 of this subchapter."

Appellees essentially claim that, through these regulations,

the Secretary of Transportation has "cover[ed] the subject

matter" (in reference to Section 434, Title 45, U.S.Code)

regarding reinforcing pads for external attachments, such as the

brakes at issue in this case. For that reason, appellees argue

that appellants' state common-law tort claims alleging that

appellees were negligent in operating UTLX 79499 without the

reinforcing pads are preempted.

B

Before we proceed to consider whether appellants' claims are

preempted by Section 434 of the FRSA, we must consider whether

another preemption standard should more appropriately be applied

to this case. Specifically, we consider whether the preemption

provision of the Hazardous Materials Transportation Act ("the

HMTA") is applicable to appellants' common-law tort claims.

Because the regulations promulgated by the Secretary which we

consider in this case by their terms govern only tank cars

hauling hazardous materials, an argument could be made that the

HMTA preemption provision is the applicable one.

In 1975, the United States Congress enacted the HMTA in

order to "protect the nation adequately against the risks to life

and property which are inherent in the transportation of

hazardous materials in commerce." Section 1801, Title 49,

U.S.Code. The HMTA authorizes the Secretary of Transportation to

issue "regulations for the safe transportation in commerce of

hazardous materials. Such regulations shall be applicable to any

person who transports *** a hazardous material ***." Former

Section 1804(a), Title 49, U.S.Code.

The HMTA preemption provision (Section 1811[a], Title 49,

U.S.Code) states that "[e]xcept as provided in subsection (b) of

this section, any requirement, of a State or political

subdivision thereof, which is inconsistent with any requirement

set forth in this chapter, or in a regulation issued under this

chapter, is preempted." (Emphasis added.) Unlike the preemption

provision of the FRSA, which allows a state to adopt or continue

in force a regulation or standard until the Secretary has issued

regulations "covering the subject matter," the HMTA permits such

state regulation so long as the state regulation is not

"inconsistent" with the federal requirement.

In CSX Transp., Inc. v. Pub. Util. Comm. (C.A.6, 1990), 901

F.2d 497, certiorari denied (1991), 498 U.S. 1066, 111 S.Ct. 781,

112 L.Ed.2d 845, the Sixth Circuit Court of Appeals considered

whether the FRSA preemption provision or the HMTA preemption

provision should be applied to determine if an Ohio statute and

Ohio regulations regarding the transportation of hazardous

materials by rail were preempted. The court posed the question

before it as, "[s]hould a train carrying a load of hazardous

waste be considered a railroad which happens to be carrying

hazardous waste (thus suggesting application of the FRSA

preemption provision) or hazardous waste which happens to be

carried by rail (thus suggesting application of the HMTA

preemption provision)?" Id., 901 F.2d at 501.

After considering statutory histories of the HMTA and the

FRSA, the court concluded that "*** the purpose of the HMTA was

to consolidate regulation of hazardous material transportation at

the Secretarial level, and not to remove such regulation of

hazardous material transportation by rail from the preemption

provision of the FRSA." Id. The court based this conclusion in

part on the legislative history of the HMTA, as well as the plain

language of Section 434 of the FRSA: "We find that the language

of the FRSA, 'any law *** relating to railroad safety,' ***

applies to the HMTA as it relates to the transportation of

hazardous material by rail." Id.

Like the Sixth Circuit in CSX Transp., Inc. v. Pub. Util.

Comm., we conclude that Section 434 of the FRSA is the applicable

preemption provision in analyzing whether the Secretary's

regulations at issue in this case preempt appellants' claims.

See CSX Transp. Corp. v. Easterwood (1993), 507 U.S. , ,

113 S.Ct. 1732, 1737, 123 L.Ed.2d 387, 396, fn. 4 ("[T]he plain

terms of Section 434 do not limit the application of its express

pre-emption clause to regulations adopted by the Secretary

pursuant to FRSA. Instead, they state that any regulation

'adopted' by the Secretary may have pre-emptive effect,

regardless of the enabling legislation.")

II

A

The Supremacy Clause (Clause 2, Article VI) of the United

States Constitution provides that the laws of the United States

"shall be the supreme law of the land ***." Pursuant to this

provision, the United States Congress possesses the power to

preempt state law. In Cipollone v. Liggett Group, Inc. (1992),

505 U.S. , , 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407,

422-423, the United States Supreme Court observed: "Congress'

intent [to preempt] may be 'explicitly stated in the statute's

language or implicitly contained in its structure and purpose.'

Jones v. Rath Packing Co., 430 U.S. 519, 525 [97 S.Ct. 1305,

1309, 51 L.Ed.2d 604, 614] (1977). In the absence of an express

congressional command, state law is pre-empted if that law

actually conflicts with federal law, see Pacific Gas & Elec. Co.

v. Energy Resources Conservation and Dev. Comm'n., 461 U.S. 190,

204 [103 S.Ct. 1713, 1722, 75 L.Ed.2d 752, 765] (1983), or if

federal law so thoroughly occupies a legislative field '"as to

make reasonable the inference that Congress left no room for the

States to supplement it."' Fidelity Federal Savings & Loan Assn.

v. De la Cuesta, 458 U.S. 141, 153 [102 S.Ct. 3014, 3022, 73

L.Ed.2d 664, 675] (1982) (quoting Rice v. Santa Fe Elevator

Corp., 331 U.S. [218,] at 230 [67 S.Ct. 1146, at 1152, 91 L.Ed.

1447, at 1459 (1947)])."

"Pre-emption may result not only from action taken by

Congress itself; a federal agency acting within the scope of its

congressionally delegated authority may pre-empt state

regulation." Louisiana Pub. Serv. Comm. v. Fed. Communications

Comm. (1986), 476 U.S. 355, 369, 106 S.Ct. 1890, 1899, 90 L.Ed.2d

369, 382.

The key question in any preemption analysis is whether

Congress intended for state law to be superseded by federal law.

Cipollone, 505 U.S. at , 112 S.Ct. at 2617, 120 L.Ed.2d at

422. However, "[c]onsideration of issues arising under the

Supremacy Clause 'start[s] with the assumption that the historic

police powers of the States [are] not to be superseded by ***

Federal Act unless that [is] the clear and manifest purpose of

Congress.'" Id., quoting Rice, 331 U.S. at 230, 67 S.Ct. at

1152, 91 L.Ed. at 1459. "If the statute contains an express

pre-emption clause, the task of statutory construction must in

the first instance focus on the plain wording of the clause,

which necessarily contains the best evidence of Congress'

pre-emptive intent." Easterwood, 507 U.S. at , 113 S.Ct. at

1737, 123 L.Ed.2d at 396. Further, "Congress' enactment of a

provision defining the pre-emptive reach of a statute implies

that matters beyond that reach are not pre-empted." Cipollone,

505 U.S. at , 112 S.Ct. at 2618, 120 L.Ed.2d at 423.

Since the FRSA contains an express preemption clause,

Section 434, there is no need to look beyond the text of that

clause to determine if Congress intended for appellants' claims

to be preempted.2

B

Prior to the United States Supreme Court's recent decision

in CSX Transp. Corp. v. Easterwood, supra, some courts had tended

to take the view that Section 434 evidences a Congressional

intent to preempt most state regulations and standards, almost to

the point of applying a presumption in favor of preemption

whenever Section 434 is at issue. For example, in Missouri

Pacific RR. Co. v. RR. Comm. of Texas (W.D.Tex.1987), 671 F.Supp.

466, affirmed (C.A.5, 1988), 850 F.2d 264, the court conducted an

analysis of Congressional intent behind Section 434. The court

concluded that "it is clear that Congress intended to establish

uniform national rail safety standards. Courts that have

considered the phrase in the entire context of section 434, have

read it as a narrow exception to a broad preemption of state

regulation in rail safety matters. National Ass'n. of Regulatory

Commissioners v. Coleman, 542 F.2d 11, 13 (3d Cir.1976); Donelon

v. New Orleans Terminal Co., 474 F.2d 1108 (5th Cir.1973);

Consolidated Rail Corp. v. Pennsylvania Public Utility Comm'n,

536 F.Supp. 653, 657 (E.D.Penn.1982); Atchison, Topeka & Santa Fe

Railway Co. v. Illinois Commerce Commission, 453 F.Supp. 920, 926

(N.D.Ill.1977). In short, the statute evinces a total preemptive

intent in rail safety matters, with very limited exceptions."

Missouri Pacific RR. Co., 671 F.Supp. at 471.

We do not agree with this expansive interpretation of

Section 434, at least insofar as the preemption of state

common-law tort claims is at issue, as in the case before us. In

spite of the fact that the railroad industry is heavily

regulated, Easterwood underscores that the preemptive reach of

Section 434 is not all-encompassing. Moreover, Easterwood

establishes that a presumption against preemption is the

appropriate point from which to begin an analysis of whether

common-law tort claims are preempted: "In the interest of

avoiding unintended encroachment on the authority of the States,

however, a court interpreting a federal statute pertaining to a

subject traditionally governed by state law will be reluctant to

find pre-emption." Easterwood, 507 U.S. at , 113 S.Ct. at

1737, 123 L.Ed.2d at 396. There could be no better example of a

subject which is "traditionally governed by state law" than a

common-law tort claim.

III

A

In CSX Transp. Corp. v. Easterwood, supra, the United States

Supreme Court considered the preemptive reach of Section 434,

Title 45, U.S.Code, as it applied to areas of railroad safety.

In Easterwood it was argued that regulations adopted by the

Secretary of Transportation had preempted state common-law tort

claims. The decision in Easterwood is instructive as we consider

whether appellants' common-law tort claims are preempted by the

FRSA.

In Easterwood, plaintiff's husband was killed when a train

owned and operated by defendant CSX collided with decedent's

truck at a Georgia crossing. Plaintiff alleged that CSX was

negligent under Georgia law for, inter alia, failing to maintain

an adequate warning device at the crossing, and for operating the

train at an excessive speed. The district court granted summary

judgment for defendant CSX on each claim, finding that both were

preempted by the FRSA. See (N.D.Ga.1990), 742 F.Supp. 676, 678.

Plaintiff appealed to the United States Court of Appeals for the

Eleventh Circuit, which affirmed the district court's

determination that the claim based on the train's speed was

preempted, but reversed on the allegation regarding warning

devices, finding that claim not preempted. See (C.A.11, 1991),

933 F.2d 1548, 1553-1556.

The United States Supreme Court then granted certiorari to

determine whether certain regulations adopted by the Secretary of

Transportation regarding speed and grade crossings "cover[ed] the

subject matter" of plaintiff's state tort claims in reference to

Section 434, Title 45, U.S.Code, so that plaintiff's claims were

preempted. The Easterwood court began its analysis by finding

that "[l]egal duties imposed on railroads by the common law fall

within the scope of" Section 434's preemption language regarding

any state "law, rule, regulation, order, or standard relating to

railroad safety." 507 U.S. at , 113 S.Ct. at 1737, 123

L.Ed.2d at 396-397. The Supreme Court thus determined that, in

the appropriate case, a state common-law tort claim can be within

the preemptive reach of Section 434.

In determining whether the regulations adopted by the

Secretary regarding crossing warning devices covered the subject

matter of plaintiff's claims, the Easterwood court examined the

terms and natures of the relevant regulations. One of those

regulations established the terms under which states could use

federal aid to eliminate highway hazards. Another regulation

required states to employ warning devices at grade crossings

conforming to standards set out in a Federal Highway

Administration manual.

Easterwood court found that the regulation regarding terms

under which states could eliminate hazards by using federal aid

did not cover the subject matter of, and therefore did not

preempt, plaintiff's claim. The Supreme Court stated: "In light

of the relatively stringent standard set by the language of

[Section] 434 and the presumption against pre-emption, and given

that the regulations provide no affirmative indication of their

effect on negligence law, we are not prepared to find pre-emption

solely on the strength of the general mandates of [the

regulation]." 507 U.S. at , 113 S.Ct. at 1739-1740, 123

L.Ed.2d at 399. In addition, the court found the regulation

requiring warning devices to comply with standards set out in the

government manual did not preempt plaintiff's claim. Id., 507

U.S. at , 113 S.Ct. at 1740, 123 L.Ed.2d at 399-400.3

The Supreme Court also affirmed the court of appeals as to

plaintiff's claim based on excessive speed, finding that claim

preempted. The court determined that the regulation promulgated

by the Secretary setting train speed limits covered the subject

matter of plaintiff's claim that CSX breached a common-law duty

to operate the train at a safe rate of speed: "Understood 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 of the sort which

[plaintiff] seeks to impose on [CSX]." Id., 507 U.S. at ,

113 S.Ct. at 1742, 123 L.Ed.2d at 402-403.

B

In Hatfield v. Burlington N. RR. Co. (C.A.10, 1992), 958

F.2d 320, vacated and remanded (1993), 508 U.S. , 113 S.Ct.

1940, 123 L.Ed.2d 646, for further consideration in light of CSX

Transp. Inc. v. Easterwood, the plaintiff claimed that the

railroad was negligent for failing to install an adequate warning

device at a crossing. The court of appeals held that, pursuant

to Section 434, the Secretary's regulations regarding grade

crossings preempted any state law relating to grade crossing

safety devices, and stated that "the Secretary has absolved

railroads from complying with duties imposed by state law

regarding safety devices at grade crossings. Without such a

duty, a railroad cannot be liable in common law negligence for

failure to provide adequate safety devices at a grade crossing."

Id., 958 F.2d at 324. The court of appeals stated that "[t]he

hit-or-miss common law method [of jury trials to enforce state

common law standards of care] runs counter" to the scheme

embodied by the Secretary's regulations on rail crossings. Id.,

958 F.2d at 324. The Supreme Court in Easterwood, in the course

of invalidating the holding in Hatfield, specifically addressed,

and disapproved of, that statement, recognizing that state tort

law can be compatible with federal regulations, and that "the

scheme of negligence liability could just as easily complement

[the] regulations." Easterwood, 507 U.S. at , 113 S.Ct. at

1739, 123 L.Ed.2d at 399.4

IV

A

We next employ an analysis similar to that employed in

Easterwood to determine whether the Secretary's regulations

"cove[r] the subject matter" of appellants' tort claims against

appellees pertaining to tank car specifications.

In Easterwood, the court stated the issue before it as

"whether the Secretary of Transportation has issued regulations

covering the same subject matter as Georgia negligence law

pertaining to the maintenance of, and the operation of trains at,

grade crossings." 507 U.S. at , 113 S.Ct. at 1738, 123

L.Ed.2d at 397. The court observed that "[t]o prevail on the

claim that the regulations have pre-emptive effect, petitioner

must establish more than that they 'touch upon' or 'relate to'

that subject matter[;] *** pre-emption will lie only if the

federal regulations substantially subsume the subject matter of

the relevant state law." Id.

Therefore, to prevail in this case, appellees must establish

that the federal regulations "substantially subsume" the subject

matter of appellants' tort claims. The applicable preemption

provision must be read narrowly "in light of the presumption

against pre-emption of state police power regulations."

Cipollone, 505 U.S. at , 112 S.Ct. at 2618, 120 L.Ed.2d at 424.

B

In the case at bar, it is apparent that the Secretary's

regulation requiring that non-pressure tank cars which haul

hazardous materials must have reinforcing pads between external

attachments and the shell of the car (Section 179.200-19[b],

Title 49, C.F.R.) would "cove[r] the subject matter" of, and

therefore preempt, any claim regarding the sufficiency of the

reinforcing pads of a tank car manufactured after 1971. That

regulation places a duty on tank car manufacturers to use the

reinforcing pads, and sets out the specifications which must be

followed when the pads are welded in place between the attachment

brackets and the tank car shells. However, UTLX 79499 was

manufactured in 1966, and thus Section 179.200-19(b) does not

directly apply to it. Instead, the specific question we address

is whether the Secretary's regulation upon which appellees rely,

providing that tank cars predating these specifications "may

continue in use," Section 179.1(c), Title 49, C.F.R., covers the

subject matter of appellants' claims.

We find that appellees have not overcome the presumption

against preemption which accompanies any preemption inquiry. The

mere general provision of Section 179.1(c), Title 49, C.F.R.,

that tanks mounted on or forming part of a tank car "built to

specifications predating those in this part may continue in use"

is not equivalent to an affirmative specific statement that the

owner or operator of a tank car built prior to 1971 is under no

duty to retrofit with reinforcing pads; and is also not

equivalent to the further specific statement that one who does

not retrofit a pre-1971 built tank car with reinforcing pads is

shielded from liability under state tort law. Due to its lack of

specificity, Section 179.1(c) does not "cove[r] the subject

matter" of appellants' claims. This regulation does not

specifically address, and so does not "substantially subsume,"

the subject matter of appellants' tort claims. We thus liken

this regulation to the regulations pertaining to grade crossings

at issue in Easterwood. As in Easterwood, "[i]n light of the

relatively stringent standard set by the language of [Section]

434 ***, we are not prepared to find pre-emption solely on the

strength" of a general provision, Easterwood, 507 U.S. at ,

113 S.Ct. at 1739-1740, 123 L.Ed.2d at 399, in this case Section

179.1(c), Title 49, C.F.R.

Section 179.1(c) allowed UTLX 79499 to continue in use

without reinforcing pads. We think it likely that the regulation

would have preempted any effort by the state of Ohio to enact a

state law or adopt a state regulation which required reinforcing

pads on tank cars, such as UTLX 79499, built before 1971.

However, we draw a distinction between state regulation and

common-law tort claims in this circumstance. Reliance upon the

mere statement that UTLX 79499 could "continue in use" is

insufficient to insulate appellees from tort liability. We

believe that Congress could not have intended such an imprecise

provision to have the sweeping consequences which would result

from a finding that the regulation "cover[s] the subject matter"

of appellants' claims. "The term 'covering' is *** employed

within a provision [Section 434] that displays considerable

solicitude for state law ***." Easterwood, 507 U.S. at , 113

S.Ct. at 1738, 123 L.Ed.2d at 397. Appellees may have

established that the regulation "touches upon" or "relates to"

the subject matter of appellants' claims. See id. However,

appellees must do more. They must establish that the regulation

"substantially subsume[s]" the subject matter. That they have

not done. Section 179.1(c), Title 49, C.F.R. does not cover the

subject matter of appellants' state common-law tort claims and

therefore does not preempt them.5

C

The analysis employed by the Easterwood court in determining

that plaintiff's claim in that case based on excessive speed was

preempted does not require a different result in this case. In

Easterwood, the court noted that the Secretary has adopted

regulations specifically addressing the maximum speed limits at

which trains may travel. 507 U.S. at , 113 S.Ct. at 1742, 123

L.Ed.2d at 402. Plaintiff claimed that the train involved in the

accident was going too fast, even though the train was traveling

at a speed below the allowable maximum. The court acknowledged

that "[o]n their face, [the regulations] address only the maximum

speeds at which trains are permitted to travel ***," but went on

to determine that plaintiff's excessive speed claim was

preempted. Easterwood, 507 U.S. at , 113 S.Ct. at 1742, 123

L.Ed.2d at 402-403.

The way the court arrived at its determination compels us to

find that plaintiff's excessive speed claim in Easterwood is

distinguishable from appellants' claims in the case before us.

In Easterwood, the court determined that the Secretary had

adopted safety regulations which indicated that speed limit

regulations "were adopted only after the hazards posed by track

conditions were taken into account." 507 U.S. at , 113 S.Ct.

at 1742, 123 L.Ed.2d at 402. The court found plaintiff's claim

preempted only after the speed limit regulation was "[u]nderstood

in the context of the overall structure of the regulations ***."

Id. The court went on to observe that "safety regulations

established by the Secretary concentrate on providing clear and

accurate warnings of the approach of oncoming trains to drivers.

Accordingly, the Secretary's regulations focus on providing

appropriate warnings given variations in train speed." (Footnote

omitted.) Id., 507 U.S. at , 113 S.Ct. at 1742-1743, 123

L.Ed.2d at 403. The court, in a footnote, quoted from U.S. Dept.

of Transportation, Railroad-Highway Safety, Part I (1991): A

Comprehensive Statement of the Problem, at iv: "[A]ny effective

program for improving [crossing] safety should be oriented around

the driver and his needs in approaching, traversing, and leaving

the crossing site as safely and efficiently as possible[.]"

Easterwood, 507 U.S. at , 113 S.Ct. at 1743, 123 L.Ed.2d at

403, fn. 14.

Thus, the court determined that the Secretary, when adopting

safety regulations, had chosen to focus on warning drivers of a

train's approach, rather than focusing on speed limits, because

rail crossing safety is not greatly affected by speed limits.

The Secretary's speed limit regulations covered the subject

matter of plaintiff's claim only because the speed limits were

one part of an overall scheme to improve safety at crossings, and

"the limits *** were set with safety concerns already in mind."

Easterwood, 507 U.S. at , 113 S.Ct. at 1743, 123 L.Ed.2d at

403. Plaintiff's claim in Easterwood therefore was preempted

because the Secretary's regulation directly addressed the maximum

speeds at which trains could safely travel, and plaintiff's claim

alleged that the defendant railroad was negligent, even though

the train was traveling below the speed limit set by the

Secretary.6

V

Having established that the court of appeals below erred in

determining that appellants' claims are preempted, we next

resolve whether this cause should be remanded to the court of

appeals for further consideration, or should be remanded to the

trial court for a new trial.

Appellees in this case moved for summary judgment at trial,

urging that appellants' claims were preempted by federal law.

Although the trial court overruled those motions, the trial court

did later grant directed verdicts in favor of both appellees.

The court of appeals based its decision to affirm the trial court

on the determination that appellants' claims were preempted.

Thus, the court of appeals did not consider whether the directed

verdicts were proper. However, the court of appeals observed:

"Although the trial court's rationale for directing the verdicts

was not couched in terms of federal preemption, the concept of

federal preemption nevertheless appears to have influenced its

determination that UTC and A&W, as a matter of law, were not

negligent."

Our review of the record leads us to agree with this

characterization of the trial court's judgment. While the trial

court did not expressly base its decision on preemption, it is

obvious that preemption analysis did play a significant role in

the trial court's determination that appellees were not

negligent. For example, it is apparent that the fact that UTC

complied with all federal regulations regarding tank cars was a

significant factor underlying the trial court's determination

that UTC exercised ordinary care. However, as was discussed

above, appellees' compliance with a nonspecific regulation

(Section 179.1[c], Title 49, C.F.R.) does not preempt appellants'

claims and also does not conclusively insulate UTC from

liability. For that reason, appellants' claims against UTC must

be remanded for a new trial.

In addition, while the trial court directed a verdict in

A&W's favor because it determined that appellants were unable to

prove that A&W "should reasonably have known that the tank car

was unsafe for the use to which it was put," it is apparent that

the trial court's view of federal preemption also played a role

in the decision that A&W was not negligent. Just as compliance

with applicable federal regulations does not in and of itself

insulate UTC from liability, compliance with the regulations does

not insulate A&W either. The terms of the lease between UTC and

A&W make A&W responsible for determining whether any car leased

by it is appropriate for transporting the intended material.

Therefore, questions remain regarding A&W's negligence, so that

appellants' claims against A&W must be remanded for a new trial.7

In summary, we find that appellants' claims are not

preempted by federal law. We reverse the judgment of the court

of appeals and remand this cause to the trial court for further

proceedings consistent with this opinion.

Judgment reversed

and cause remanded.

A.W. Sweeney, Acting C.J., Douglas, Resnick, F.E. Sweeney

and Pfeifer, JJ., concur.

Christley and Wright, JJ., dissent.

Judith A. Christley, J., of the Eleventh Appellate District,

sitting for Moyer, C.J.

FOOTNOTES:

1 We find it unnecessary to consider the impact of the "saving

clause" set forth in the final sentence of Section 434, Title 45,

U.S.Code, which provides: "*** A State may adopt or continue in

force an additional or more stringent law, rule, regulation,

order, or standard relating to railroad safety when necessary to

eliminate or reduce an essentially local safety hazard, and when

not incompatible with any Federal law, rule, regulation, order,

or standard, and when not creating an undue burden on interstate

commerce."

2 Since we find that appellants' claims are outside the

preemptive reach explicitly set out by Congress in Section 434,

we do not consider whether some other type of federal preemption,

i.e., implicit preemption, applies in this case. If appellants'

claims are beyond the preemptive reach of Section 434, they are

also beyond the preemptive reach of the FRSA. See Cipollone, 505

U.S. at , 112 S.Ct. at 2625, 120 L.Ed.2d at 432-433, Blackmun,

J., concurring ("We resort to principles of implied pre-emption

*** only when Congress has been silent with respect to

pre-emption.").

3 The Easterwood court did find that common-law claims based on

inadequate warning devices would be preempted in some

circumstances. The Supreme Court found that "for projects in

which federal funds participate in the installation of warning

devices, the Secretary has determined the devices to be installed

and the means by which railroads are to participate in their

selection. The Secretary's regulations therefore cover the

subject matter of state law ***." 507 U.S. at , 113 S.Ct.

at 1241, 123 L.Ed.2d at 401.

4 On remand, the Hatfield court recognized that the Supreme

Court's decision in Easterwood regarding the preemptive reach of

Section 434 was influenced by "the Court's reliance upon a

presumption against preemption." Hatfield v. Burlington Northern

RR. Co. (C.A.10, 1993), 1 F.3d 1071, 1072.

5 If we were to analyze this case under the "inconsistency"

preemption provision of the HMTA, former Section 1811(a), Title

49, U.S.Code, we would also find that appellants' claims are not

preempted. Our determination that Section 179.1(c), Title 49,

C.F.R. does not cover the subject matter of appellants' claims

leads to the further conclusion that appellants' claims are not

"inconsistent" with that regulation. Subjecting appellees to

potential tort liability under appellants' common-law claims is

not inconsistent with the terms of a regulation stating merely

that tank cars such as UTLX 79499 "may continue in use."

6 Footnote 15 of the court's opinion is most revealing in this

regard. The court states there that "[defendant] is prepared to

concede that the pre-emption of [plaintiff's] excessive speed

claim does not bar suit for breach of related tort law duties,

such as the duty to slow or stop a train to avoid a specific,

individual hazard. *** As [plaintiff's] complaint alleges only

that [defendant's] train was traveling too quickly given the

'time and place,' *** this case does not present, and we do not

address, the question of FRSA's pre-emptive effect on such

related claims." Easterwood, 507 U.S. at , 113 S.Ct. at 1743,

123 L.Ed.2d at 404, fn. 15.

It would appear in light of this comment that some claims

relating to speed of a train may not be preempted, i.e., a claim

involving the breach of a duty to slow or stop a train to avoid a

specific, individual hazard. Such a claim apparently would

present an entirely different situation than that presented in

Easterwood. In that differing situation, the "subject matter" of

a plaintiff's claim would be much narrower, and the court

expressed no opinion whether the claim would be preempted.

7 Our holding in this case is limited to a determination that

appellants' claims are not preempted. We remand the cause to the

trial court for a new trial, rather than remanding to the court

of appeals for consideration of the propriety of the trial

court's directed verdict, because in our view the concept of

federal preemption played too great a role in the trial court's

decision to direct a verdict in favor of appellees. Of course,

we make no comment regarding the merits of appellants' claims.

Christley, J., dissenting. I respectfully dissent from

the majority opinion because I believe its decision is contrary

to the logic and rationale set forth by the United States Supreme

Court in its recent opinion in CSX Transp., Inc. v. Easterwood

(1993), 507 U.S. , 113 S.Ct. 1732, 123 L.Ed.2d 387.

A review of the applicable federal statutory and regulatory

provisions, in light of Easterwood, leads me to conclude that

appellants' claims against appellees are pre-empted by the

Federal Railroad Safety Act of 1970, as amended ("FRSA"). I

would, therefore, affirm the decision of the court of appeals

below.

Initially, I note that I agree with the following

determinations of the majority: that Section 434 of the FRSA

contains the controlling pre-emption provision in this matter,

that a state common-law tort claim can be within the pre-emptive

reach of Section 434, and that the Easterwood case controls our

analysis. However, despite the presumption against pre-emption

of subjects traditionally governed by state law, I believe that

the analytical framework put forth in Easterwood requires a

finding of pre-emption in this case.

In Easterwood, the court determined that FRSA does not, on

its face, pre-empt state common-law tort causes of action

involving the transportation of hazardous material by rail.

Rather, the court held that under FRSA, if it can be shown that

the relevant federal law and regulations "cover[ed] the same

subject matter" of the state cause of action, pre-emption will

lie. Easterwood, 507 U.S. at , 113 S.Ct. at 1738, 123 L.Ed.2d

at 397.

In 1970, Congress enacted FRSA:

"*** to promote safety in all areas of railroad operations

and to reduce railroad-related accidents, and to reduce deaths

and injuries to persons and to reduce damage to property caused

by accidents involving any carrier of hazardous material."

Section 421, Title 45, U.S. Code.

The Act required the Secretary of Transportation to

prescribe appropriate rules, regulations, orders, and standards

for all areas of railroad safety. Section 431, Title 45, U.S.

Code. As noted above, the Act also contained the following

express pre-emption provision:

"The Congress declares that laws, rules, regulations,

orders, and standards relating to railroad safety shall be

nationally uniform to the extent practicable. A State may adopt

or continue in force any law, rule, regulation, order, or

standard relating to railroad safety until such time as the

Secretary has adopted a rule, regulation, order, or standard

covering the subject matter of such State requirement. A State

may adopt or continue in force an additional or more stringent

law, rule, regulation, order, or standard relating to railroad

safety when necessary to eliminate or reduce an essentially local

safety hazard, and when not incompatible with any Federal law,

rule, regulation, order, or standard, and when not an undue

burden on interstate commerce." (Emphasis added.) Section 434,

Title 45, U.S. Code.

In Easterwood, the court concluded that the issue before the

court was "whether the Secretary of Transportation has issued

regulations covering the same subject matter as Georgia

negligence law pertaining to the maintenance of, and the

operation of trains at grade crossings." Easterwood, 507 U.S.

at , 113 S.Ct. at 1738, 123 L.Ed.2d at 397. The court went on

to define the phrase "covering the subject matter" to mean that

"pre-emption will lie only if the federal regulations

substantially subsume" the subject matter of the relevant state

law. Id.

The defendant railroad in Easterwood argued that the

regulations promulgated by the Secretary relating to train speed

and grade crossings "cover[ed] the subject matter" of, and

therefore pre-empted, the state common-law tort claims raised by

the plaintiff.

As to the excessive-speed claim, the court determined that

the Secretary, acting through the Federal Railroad

Administration, promulgated regulations in 1971 under FRSA,

setting maximum train speeds for different classes of track. The

court held that the regulations at Section 213.9(a), Title 49,

C.F.R. adopted by the Secretary establishing maximum allowable

operating speeds for different classes of track, pre-empted

Easterwood's tort law claim of excessive speed. The regulations

set the maximum train speed at the crossing in question at sixty

miles per hour.

Although the train was being operated within the maximum

allowable speed, plaintiff contended that defendant railroad

nevertheless breached its common-law duty to operate its train at

a moderate and safe rate of speed.

The court determined that, on their face, the federal

regulations setting maximum allowable operating speeds "address

only the maximum speeds at which trains are permitted to travel

given the nature of the track on which they operate." (Emphasis

added.) Id., 507 U.S. at , 113 S.Ct. at 1742, 123 L.Ed.2d at

402.

In arguing against a finding of pre-emption as to her

excessive-speed claim, plaintiff in Easterwood emphasized that

the excessive-speed claim focused upon railroad safety as it

related to the potentially hazardous conditions posed by grade

crossings. Plaintiff argued that the regulations in Section 213,

Title 49, C.F.R., establishing maximum allowable operating speeds

for freight and passenger trains, were based on varying

characteristics of the track itself (i.e., track geometry, track

structure, the number and quality of crossties, etc.).

Therefore, plaintiff argued that the Secretary's maximum-speed

regulations only addressed railroad safety as it related to

varying characteristics of the track, and did not cover the

subject matter of maximum train speeds as they "related to"

safety conditions posed by grade crossings.

It was only because the state common-law tort claim (the

state "requirement") appeared to "relate to" a different aspect

of railroad safety than that addressed by Section 213, that the

court then found it necessary to consider "related safety

regulations adopted by the Secretary." Id., 507 U.S. at , 113

S.Ct. at 1742, 123 L.Ed.2d at 402. By doing so, the court was

able to conclude that the speed limits had been established only

after taking into account the "hazards posed by track

conditions," the precise subject matter of plaintiff's

excessive-speed tort claim. Id.

Thus, despite the fact that the Secretary's maximum speed

limits "related to" differing track characteristics, the court

nevertheless concluded that the speed limits also "cover[ed] the

subject matter of train speed with respect to *** conditions

posed by grade crossings." Id., 507 U.S. at , 113 S.Ct. at

1743, 123 L.Ed.2d at 403.

Applying the Easterwood analysis to the instant case leads

to the proposition that appellants' claims against appellees are

pre-empted only if the Secretary has adopted regulations which

"cove[r] the subject matter" of safety standards for bottom

attachments to railroad tank cars engaged in the transportation

of hazardous material. Examination of the Code of Federal

Regulations concerning rail transportation of hazardous materials

and, specifically, the regulation directly concerning brake

attachments for railroad tank cars (Section 179.200-19, Title 49,

C.F.R.) reveals that this section required that all tank cars

manufactured after 1971 shall have reinforcing brake pads between

the brake attachments and the tank shell.

However, Section 179.1(c) specifically exempts, or

grandfathers, tank cars built prior to 1971 from this

requirement. The parties do not dispute that on the date of the

Miamisburg derailment, UTLX 79499 was exempted from the

regulatory requirement of reinforcing brake pads.

The record clearly demonstrates that the Secretary's tank

car specifications pertaining to the transportation of hazardous

materials "related to" a concern over the potential release of

hazardous materials. For better or worse, the Secretary

determined that tank cars manufactured prior to 1971 do not need

to be retrofitted with reinforcing pads where the brake

attachments meet the shell of the tank car.

Had it been demonstrated that this exemption was based on

safety concerns other than the risk of the release of hazardous

materials, then an Easterwood analysis might require a further

inquiry into the "overall structure of the regulations" to

determine whether the exemption was established after taking into

account the "related" safety concern of the release of hazardous

materials. However, unlike the court in Easterwood, there is no

need for this court in its analysis to consider "the context of

the overall structure of the regulations" in order to conclude

that Section 179.1(c) was established with the safe

transportation of hazardous materials by rail "already in mind."

Id., 507 U.S. at , 113 S.Ct. at 1742-1743, 123 L.Ed.2d at

402-403.

The majority in the instant case states that:

"The mere general provision of Section 179.1(c), Title 49,

C.F.R., that tanks mounted on or forming part of a tank car

'built to specifications predating those in this part may

continue in use' is not equivalent to an affirmative specific

statement that the owner or operator of a tank car built prior to

1971 is under no duty to retrofit with reinforcing pads; and is

also not equivalent to the further specific statement that one

who does not retrofit a pre-1971 built tank car with reinforcing

pads is shielded from liability under state tort law."

However, if the preceding rationale had been applied by the

court in Easterwood, the result would have been that plaintiff's

excessive-speed claim would not have been pre-empted by the

federal regulations. In other words, that court would have found

that the "mere general provision" establishing maximum speed

limits for different classes of track was not "equivalent to an

affirmative specific statement" that a railroad is shielded from

liability under state tort law if it fails to reduce the train's

speed when approaching a grade crossing, where the train's speed

is already below the maximum permitted by Section 213.9(a).

Thus, if the Easterwood court had employed the present

majority's rationale, there would have been a finding of no

pre-emption, as the two statements were not equivalent. To the

contrary, the Easterwood court, unlike the majority in the

instant case, found that there was pre-emption without a finding

of "equivalence."

Further, the Easterwood court found that "Section 434 does

not *** call for an inquiry into the Secretary's purposes, but

instead directs the courts to determine whether regulations have

been adopted which, in fact, cover the subject matter of train

speed." Id., 507 U.S. at , 113 S.Ct. at 1743, 123 L.Ed.2d at

403.

Pursuant to Section 179.1(c), Title 49, C.F.R., the

Secretary has specifically authorized appellees to continue to

transport hazardous materials in UTLX 79499 without being

required to retrofit the tank car with reinforcement pads.8

Section 434, Title 45, U.S. Code, as applied to the instant

action, permits a state such as Ohio to "adopt or continue in

force" a tortious cause of action, such as the issue before us

now, but only until the Secretary has adopted a regulation

"covering the subject matter" of the common-law tort cause of

action.

The majority concludes that the regulation specifically

authorizing UTLX 79499 to continue to transport hazardous

materials without having installed reinforcing pads between the

brake attachments and the tank car shell "does not specifically

address, and so does not 'substantially subsume,' the subject

matter of appellants' tort claims." The majority characterizes

appellants' tort claim as an allegation "that phosphorous escaped

because UTLX 79499 was not equipped with a reinforcing pad where

the brake attachment connected to the shell of the tank car."

The majority, however, only grudgingly concedes that the

regulation might "relate to" appellants' tort claims. The

majority finds it "likely" that Section 179.1(c) would pre-empt a

state law or regulation "which required reinforcing pads on tank

cars built before 1971." The majority "draw[s] a distinction

between state regulation and common-law tort claims in this

circumstance." However, Easterwood clearly rejects employing

such a distinction for purposes of determining the pre-emptive

reach of Section 434.8

Therefore, I find it difficult to reach any other conclusion

but that Section 179.1(c), Title 49, C.F.R., authorizing

appellees' continued use of UTLX 79499 without a reinforcement

pad retrofit, "substantially subsume[s]" or "*** embrace[s] in an

effective scope of treatment" appellants' tort claims alleging

negligence due to the failure to retrofit UTLX 79499 with a

reinforcing pad. Id., 507 U.S. at , 113 S.Ct. at 1738, 123

L.Ed.2d at 397. The majority concludes that "[r]eliance upon the

mere statement that UTLX 79499 could 'continue in use' is

insufficient to insulate appellees from tort liability."

However, Easterwood, in effect, held that the defendant

railroad's reliance on the "mere statement" that it could operate

its train through a grade crossing at speeds up to sixty miles

per hour was sufficient to insulate it from tort liability.

I fail to see any distinction between the maximum-speed

regulation of Easterwood and the instant regulation explicitly

authorizing UTLX 79499 to continue transporting hazardous

materials without retrofitting with reinforcement pads, in terms

of "cover[ing] the subject matter" of whether defendants owed

plaintiffs any additional common-law duty of care.10

I must conclude, therefore, that the manner in which the

court arrived at its pre-emption determination as to the

excessive-speed claim in Easterwood supports rather than

contradicts the conclusion that appellants' common-law tort

claims are pre-empted under FRSA.

I, therefore, further conclude that the distinction drawn by

the majority between the rationale employed in Easterwood and the

rationale employed in the instant case is illusory.

Accordingly, I would affirm the appellate court and,

therefore, dissent.

Wright, J., concurs in the foregoing dissenting opinion.

FOOTNOTES:

8 Furthermore, the Secretary, through his congressionally

delegated agencies, has declined to require the retrofitting of

pre-1971 tank car brake attachments, determining that no further

action is warranted. See, e.g., Railroad Tank Car Research and

Test Project, Phase 02 Report on Analysis of Non-Pressure Tank

Car Behavior in Accidents, Association of American Railroads,

Report No. RA-02-4-47, March 24, 1983: "The current DOT

regulations for non-pressure tank cars prescribe design rules for

assuring safe breakaway of attachments [par. 179.200-19]. Based

on past performance, it is concluded that these rules are

adequate."

9 "Legal duties imposed on railroads by the common law fall

within the scope of [Section 434's] broad phrases." Id., 507

U.S. at , 113 S.Ct. at 1737, 123 L.Ed.2d at 396-397.

10 If I were to analyze the Secretary's brake-attachment

exemption for pre-1971 tank cars under the less imposing

"inconsistency" standard of the HMTA pre-emption provision, it is

evident that a state "requirement" that UTLX 79499 be retrofitted

with reinforcing pads would be "inconsistent" with a federal

standard expressly authorizing continued hazardous materials

service without any such retrofit. See, e.g., S. Pac. Transp. v.

Pub. Serv. Comm. of Nev. (C.A.9, 1990), 909 F.2d 352; Jersey

Cent. Power & Light Co. v. Lacey Twp. (C.A.3, 1985), 772 F.2d

1103, certiorari denied (1986), 475 U.S. 1013, 106 S.Ct. 1190, 89

L.Ed.2d 305; Missouri Pacific RR. Co. v. RR. Comm. of Texas

(C.A.5, 1988), 850 F.2d 264, certiorari denied (1989), 488 U.S.

1009, 109 S.Ct. 794, 102 L.Ed.2d 785.