Shawn Ezell v. Kansas City Southern Rwy Co.

Case: 16-60409 Document: 00514096225 Page: 1 Date Filed: 07/31/2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 16-60409 FILED

July 31, 2017

SHAWN T. EZELL, Lyle W. Cayce

Clerk

Plaintiff - Appellant

v.

KANSAS CITY SOUTHERN RAILWAY COMPANY,

Defendant - Appellee

Appeal from the United States District Court

for the Northern District of Mississippi

Before PRADO, HIGGINSON, and COSTA, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

Plaintiff-Appellant Shawn Ezell drove his car into a stationary train that

was blocking a traffic crossing. Ezell sued the train’s operator, Defendant-

Appellee Kansas City Southern Railway (KCSR), asserting various Mississippi

common law negligence claims based on his allegations that the train blocked

the crossing for an impermissible amount of time and the train’s crew failed to

adequately warn approaching drivers of the obstructed crossing. KCSR filed a

motion for summary judgment, which the district court granted. We affirm.

I

In the early morning hours of July 12, 2011, a train operated by KCSR

temporarily stopped in West Point, Mississippi, so the crew could perform a

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switching operation. 1 The operation required the train to fully occupy and

block three West Point traffic crossings. Ezell’s expert estimates that the train

was stopped in West Point for approximately 24 minutes.

While the crew was performing its switching operation, Ezell approached

one of the blocked crossings in his car. He passed a reflectorized advanced

warning sign, a reflectorized railroad crossing sign, and a yield sign. Although

Ezell testified at his deposition that he does not recall seeing the signs on the

night of the accident, he acknowledged that knew they were there because he

had passed through the crossing many times and was familiar with it. Ezell

also testified that the night was dark and “kind of . . . foggy.” He described the

road as having “a little dip” and then an incline leading to the tracks, which

were elevated in comparison to the approaching road. Because of the incline in

the road and the position of the black train car on the track, Ezell says his

headlights shone under the train as he approached and that he could see

beneath the stationary train car to the road on the other side.

According to Ezell, he did not see the train blocking his path until it was

too late to stop. He crashed into its side, his car lodging beneath the train car

he struck. Ezell was airlifted to a medical center for treatment and

rehabilitation. He suffered horrific injuries and remained hospitalized for two

months followed by a long rehabilitation process. As a result of the accident,

Ezell is an “incomplete quadriplegic,” meaning he suffers from severe paralysis

throughout his body, but is not completely paralyzed and is able to walk with

a walker, though not for long periods of time.

1 “Switching” is the process of removing cars from the train to move them from the

main line to an industry track or side track. “Side tracks are used to park a train going one

direction on a main line while a train going the opposite direction passes. They can also be

used as a detour to circumvent places on the main line where the tracks become unusable

due to washouts, accidents, maintenance, etc.” Friberg v. Ks. City S. Ry. Co., 267 F.3d 439,

440 n.1 (5th Cir. 2001).

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Ezell filed a lawsuit in Mississippi state court against KCSR, seeking

damages based on various Mississippi common law negligence theories. Ezell

alleges that the KCSR train crew “was careless, negligent and partially at

fault” because the crew: (1) blocked the crossing for longer than permitted by

Mississippi law; (2) blocked the crossing for longer than permitted by KCSR’s

internal operating rules; and (3) failed to adequately warn approaching drivers

of the obstructed crossing.

KCSR removed the case to federal court based on federal question

jurisdiction, arguing that Ezell’s two blocking claims were completely

preempted by the federal ICC Termination Act (ICCTA). 2 KCSR then moved

for summary judgment on all of Ezell’s claims. In addition to urging that Ezell’s

two blocking claims are preempted, KCSR argued that Ezell’s failure to warn

claim is barred by Mississippi’s Occupied Crossing Rule. The district court

granted KCSR’s motion, and Ezell timely appealed.

2 Ordinarily, “[u]nder the well-pleaded complaint rule, a federal court does not have

federal question jurisdiction unless a federal question appears on the face of the plaintiff’s

well-pleaded complaint.” Elam v. Ks. City S. Ry. Co., 635 F.3d 796, 803 (5th Cir. 2011). As a

result, there is generally “no federal [question] jurisdiction if the plaintiff properly pleads

only a state law cause of action.” Id. (quoting Gutierrez v. Flores, 543 F.3d 248, 252 (5th Cir.

2008) (alteration in original)). However, “[a]n exception to the well-pleaded complaint rule,”

complete preemption doctrine, “arises when Congress ‘so completely preempt[s] a particular

area that any civil complaint raising this select group of claims is necessarily federal in

character.’” Id. (quoting Gutierrez, 543 F.3d at 252). Under the complete preemption doctrine,

“what otherwise appears as merely a state law claim is converted to a claim arising under

federal law for jurisdictional purposes because the federal statute so forcibly and completely

displaces state law that the plaintiff’s cause of action is either wholly federal or nothing at

all.” New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 330 (5th Cir. 2008) (internal

quotation marks and brackets omitted); see also Franks Inv. Co. v. Union Pacific R.R. Co.,

593 F.3d 404, 407–08 (5th Cir. 2010) (en banc) (“[Complete] preemption actually creates

federal jurisdiction by its domination of the arena.”). As explained in greater depth below,

we have previously determined that state law tort claims arising out of the Mississippi

statute relied on by Ezell for his first blocking claim are completely preempted, such that

those claims give rise to federal question jurisdiction. Elam, 635 F.3d at 802 (“We hold the

district court had removal jurisdiction over this action because the ICCTA completely

preempts the [plaintiffs’] negligence per se claim.”).

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II

We review a district court’s grant of summary judgment de novo,

applying the same legal standards as the district court. Robinson v. Orient

Marine Co., 505 F.3d 364, 365 (5th Cir. 2007). Summary judgment is only

appropriate “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). Any reasonable inferences are to be drawn in favor of the non-

moving party. Robinson, 505 F.3d at 366.

“Whether a state statute or common law cause of action is preempted by

federal law is a question of law we review de novo.” Friberg, 267 F.3d at 442;

accord Elam, 635 F.3d at 802; Franks, 593 F.3d at 407. “The party asserting

federal preemption has the burden of persuasion.” Elam, 635 F.3d at 802

(citing AT&T Corp. v. Pub. Util. Comm’n of Tex., 373 F.3d 641, 645 (5th Cir.

2004)).

III

Two of Ezell’s negligence claims are based solely on the allegation that

KCSR’s train blocked the three crossings for an impermissible amount of time.

The first is a negligence per se claim based on KCSR’s alleged violation of

Mississippi’s Anti-Blocking Statute, which prohibits trains from blocking

crossings for longer than five minutes. 3 The second is a Mississippi common

law negligence claim premised on KCSR’s violation of its own internal

operating rules, specifically General Code of Operating Rules 6.32.4, which

directs crews to avoid blocking crossings in excess of ten minutes “when

3 The statute provides in relevant part: “Every railroad company, upon stopping any

train at a place where such railroad shall cross a highway, shall so uncouple its cars as not

to obstruct travel upon such highway for a longer period than five (5) minutes.” Miss. Code.

Ann. § 77-9-235.

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practical.” The district court held that both claims are preempted by the

ICCTA. We agree.

The ICCTA, 49 U.S.C. § 10101, et seq., overhauled federal railroad

regulatory policy and established the Surface Transportation Board (STB),

which is tasked with regulating rail transportation throughout the United

States. PCI Trans., Inc. v. Fort Worth & W. R.R. Co., 418 F.3d 535, 538 (5th

Cir. 2005). “The purpose of the ICCTA is to ‘build[] on the deregulatory policies

that have promoted growth and stability in the surface transportation sector,’”

and, specifically, “to implement a ‘[f]ederal scheme of minimal regulation for

this intrinsically interstate form of transportation,’ and to retain only

regulations ‘that are necessary to maintain a safety net or backstop of remedies

to address problems of rates, access to facilities, and industry restructuring.’”

Elam, 635 F.3d at 804 (quoting H.R. Rep. No. 104-311, at 93, 96 (1995); 1995

U.S.C.C.A.N. 793, 805, 808).

Section 10501(b) of the ICCTA “defin[es] the authority of the STB in

dealing with the fundamental aspects of railroad regulation, and bar[s] others

from interfering with those decisions by making the jurisdiction exclusive.”

Franks, 593 F.3d at 410. Section 10501(b) additionally makes clear that the

“remedies available at the STB dealing with ‘rates, classification, rules, . . .

practices, routes, services, and facilities of such carriers,’ are exclusive.” Id. at

409; accord Elam, 635 F.3d at 805. We have observed that “[t]he language of

the statute could not be more precise, and it is beyond peradventure that

regulation of . . . train operations, as well as the construction and operation of

. . . side tracks, is under the exclusive jurisdiction of the STB unless some other

provision of the ICCTA provides otherwise.” Friberg, 267 F.3d at 443. Thus, we

have held that § 10501(b) expressly preempts “laws that have the effect of

managing or governing rail transportation[.]” Franks, 593 F.3d at 410.

Further, “‘[t]o the extent remedies are provided under laws that have the effect

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of regulating [i.e., managing or governing] train transportation,’ they too are

expressly preempted.” Elam, 635 F.3d at 805 (quoting Franks, 593 F.3d at 410)

(alterations in original).

We have emphasized that “Congress was particularly concerned about

state economic regulation of railroads when it enacted the ICCTA.” Id. On the

other hand, § 10501(b) “does not expressly preempt generally applicable state

laws that have a mere ‘remote or incidental effect on rail transportation.’” Id.

(quoting Franks, 593 F.3d at 410). 4 Nonetheless, a state law claim that is not

expressly preempted by the ICCTA may be impliedly preempted, such as when,

as applied in a particular case, the claim has “the effect of unreasonably

burdening or interfering with rail transportation.” Franks, 593 F.3d at 414.

Based on the scope, purpose, and jurisdictional statement of the ICCTA,

we have previously invalidated state laws and claims that regulate the amount

of time trains block crossings. See, e.g., Friberg, 267 F.3d at 443–44. 5 We

explained that “[r]egulating the time a train can occupy a rail crossing impacts,

in such areas as train speed, length, and scheduling, the way a railroad

operates its trains, with concomitant economic ramifications . . . .” Friberg, 267

4 See also Fla. E. Coast Ry. Co. v. City of W. Palm Beach, 266 F.3d 1324, 1331 (11th

Cir. 2001) (“Congress narrowly tailored the ICCTA pre-emption provision to displace only

‘regulation,’ i.e., those state laws that may reasonably be said to have the effect of

‘manag[ing]’ or govern[ing]’ rail transportation, . . . while permitting the continued

application of laws having more remote or incidental effect on rail transportation.” (internal

citations omitted)).

5 See also Pace v. CSX Transp., Inc., 613 F.3d 1066, 1070 (11th Cir. 2010) (“[T]o permit

monetary liability to accrue under a state law nuisance claim where that liability is based on

decisions the ICCTA purposefully freed from outside regulation would contradict the

language and purpose of the ICCTA. The ICCTA expressly preempts state remedies involving

the operation of the side track. Therefore, we will not permit landowners to circumvent that

Congressional decision through state law nuisance claims.”); Rushing v. Ks. City S. Ry. Co.,

194 F. Supp. 2d 493, 499 (S.D. Miss. 2001) (“[A]lthough the relevant Mississippi laws of

negligence and nuisance may be construed as a exercise of the police power of the state to

safeguard the health and safety of its citizens, the Plaintiffs are attempting to use these laws

to impose regulations on the Defendant regarding the manner in which it operates its switch

yard thereby potentially interfering with interstate rail operations.”).

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F.3d at 443. Indeed, in Elam v. Kansas City Southern Railway, we held that a

negligence per se claim based on the precise Mississippi Anti-Blocking Statute

at issue here was completely preempted by the ICCTA. 635 F.3d at 807–08. We

agree with the district court that Elam squarely forecloses Ezell’s negligence

per se claim based on the Mississippi Anti-Blocking Statute.

Our analysis in Elam makes clear that Ezell’s blocking claim based on

KCSR’s internal operating rules is preempted by the ICCTA as well. Like his

negligence per se claim, Ezell’s second blocking claim is based solely on the

amount of time that KCSR’s train blocked a crossing, and “the effect of [such

a] claim is to economically regulate KCSR’s switching operations.” Id. at 807;

see also id. (“[A] state law tort remedy that would directly regulate a railroad’s

switching rates and services falls squarely under § 10501(b) . . . . [because] a

rail operator’s decisions about switching rates and services are economic

decisions.” (citing Friberg, 267 F.3d at 444)); Franks, 593 F.3d at 411 (“It is

clear that a tort suit that attempts to mandate when trains can use tracks and

stop on them is attempting to manage or govern rail transportation in a direct

way[.]”); Friberg, 267 F.3d at 443 (“[N]or does the all-encompassing language

of the ICCTA’s preemption clause permit the federal statute to be

circumvented by allowing liability to accrue under state common law, where

that liability arises from a railroad’s economic decisions such as those

pertaining to train length, speed or scheduling.”).

Ezell has not attempted to distinguish Elam or this court’s other ICCTA

preemption caselaw. Instead, he cites the preemption clause of a different

federal railroad regulatory statute, the Federal Railroad Safety Act (FRSA), 49

U.S.C. § 20101, et seq., as his sole argument for why his blocking claim based

on KCSR’s operating rules is not preempted by the ICCTA. The FRSA’s

preemption clause clarifies that a state law claim is not preempted by that

statute if the claim is based on operating rules adopted pursuant to an order

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or regulation issued by either the Secretary of Transportation or the Secretary

of Homeland Security. 49 U.S.C. § 20106(b)(1)(B). Ezell does not explain how

or why the FRSA’s preemption clause would bear on our ICCTA preemption

analysis, nor does he acknowledge that the preemption exception he relies on

to rebut KCSR’s ICCTA argument is from a different statute. Notably, even if

Ezell were to convince us that the FRSA’s preemption exception could save his

blocking claim from ICCTA preemption, he has failed to show that the KCSR

operating rule he cites qualifies as a “plan, rule, or standard that is created

pursuant to a regulation or order of the Secretaries.” 49 U.S.C.

§ 20106(b)(1)(B). Ezell’s FRSA argument is unavailing, and we conclude that

both blocking claims are preempted by the ICCTA. 6

IV

Ezell also alleges that KCSR “failed to adequately warn motorist[s] on

North Division Street of the obstructed crossing by a train.” We agree with the

district court that this claim is barred by Mississippi’s Occupied Crossing Rule.

“Under Mississippi law, ‘ordinarily a train legitimately stopped or standing

6 We note that the FRSA may inform ICCTA preemption analysis in some

circumstances. Caselaw from this circuit and others has highlighted the complicated

relationship between the two statutes and the difficulty that may arise when a state action

or common law claim falls at the intersection of ICCTA’s realm of economic regulation and

the FRSA’s realm of safety regulation. See, e.g., Elam, 635 F.3d at 807–08 (“To be sure, not

every state law targeting rail operations is completely preempted by the ICCTA. Under the

standards we have discussed, the ICCTA will not completely preempt valid exercises of a

state’s police powers in most cases. Indeed, the [FRSA] expressly provides that states may

enact (and citizens may enforce) rail safety laws in certain circumstances.”); Tyrell v. Norfolk

S. Ry. Co., 248 F.3d 517, 522–23 (6th Cir. 2001) (“[T]he district court’s decision erroneously

preempts state rail safety law that is saved under FRSA if it tangentially touches upon an

economic area regulated under the ICCTA. . . . [T]he ICCTA and its legislative history contain

no evidence that Congress intended for the STB to supplant the FRA’s authority over rail

safety.”). In some cases, it may be difficult to discern whether a particular state law or claim

is better characterized as an economic or safety regulation. But, as discussed, we have

already determined that claims based solely on how long a train blocks a crossing are

economic regulations preempted by the ICCTA. See Elam, 635 F.3d at 814 n.13 (“To the

extent the Elams allege KCSR was negligent solely because it blocked the . . . crossing, that

claim is impliedly preempted.”).

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over a public crossing because of its tremendous size is all the warning the

traveling public is entitled to.’” King v. Ill. Cent. R.R., 337 F.3d 550, 553 (5th

Cir. 2003) (quoting Clark v. Columbus & Greenville Ry. Co., 473 So. 2d 947,

950 (Miss. 1985)). Under this doctrine, the Occupied Crossing Rule,

a railroad company may leave its train, or any part of it, standing

over a public crossing, night or day, and whether light or dark,

without any light or warning of any kind to the traveling public;

that the presence of the car or cars themselves is all the warning

the traveling public is entitled to unless the conditions were

unusual.

Miss. Exp. R.R. Co. v. Summers, 11 So. 2d 429, 430 (Miss. 1943).

However, there is an exception to the rule when “the railroad should

foresee that a motorist using ordinary care may not see the train because of a

peculiar environment or hazardous condition.” King, 337 F.3d at 553. Put

another way:

A railroad has the right to occupy a crossing for its legitimate

purposes, and, while so occupying it, the carrier is not required to

maintain lights on its cars or to station a man with a lantern at

the crossing to give warning that it is obstructed . . . by cars, unless

the conditions and circumstances are such that the employees of the

railroad know, or in the exercise of reasonable care and caution

should have known, that a person driving upon the highway at a

reasonable rate of speed in an automobile properly equipped with

lights, and carefully operated, could not see, or might not be able

to see, the cars in time to avoid a collision with them.

Owens v. Int’l Paper Co., 528 F.2d 606, 609 (5th Cir. 1976) (quoting Ill. Cent.

R.R. v. Williams, 135 So. 2d 831, 834 (Miss. 1961)) (emphasis added).

To invoke this exception, the Mississippi Supreme Court has emphasized

that plaintiffs must show the existence of “unusual hazards” and “peculiar

conditions,” Boyd v. Ill. Cent. R.R. Co., 52 So. 2d 21, 25 (Miss. 1951), and the

court has described the factual inquiry as one to determine “whether [the]

crossing was more than ordinarily hazardous or dangerous,” Williams, 135 So.

2d at 835. We have interpreted this exception to be narrow, explaining that

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“there must be some peculiar environment which renders the crossing

unusually dangerous.” Owens, 528 F.2d at 609 (internal quotation marks

omitted). Further, we have cautioned that Mississippi courts set the bar high

and “have only found the exception applicable where extraordinary physical

environments or landscapes make the crossing difficult to see.” King, 337 F.3d

at 553.

Ezell argues that the Occupied Crossing Rule should not bar his failure

to warn claim because of the conditions present on the night of the accident. In

sum, the conditions described by Ezell are a “kind of” foggy night, darkness

around the area of the track, a small dip in the road followed by an incline to

the track, a black train car, and that he could see a traffic light beyond the

railroad track. Although the conditions described by Ezell do resemble facts

present in some of the cases in which Mississippi courts applied the exception,

those cases involved a number of additional hazardous conditions that are not

present here and which rendered the conditions more clearly “peculiar” and

“unusually dangerous.” See, e.g., Boyd, 52 So. 2d at 22 (observing that, in

addition to a “slight dip” in the road, there was also no warning of any kind of

the approaching crossing (in violation of state law), and the only visible part of

the train blocking the crossing was the narrow, 15-18 inch bed of an empty

flatcar with its wheels positioned so that they were not visible to approaching

drivers and there was no light at all); Williams, 135 So. 2d at 835 (observing

that the approach to the crossing was an “abruptly steep and varied incline,”

which, combined with the unusually high grade of the crossing, created a

particularly hazardous approach).

We agree with the district court that, even taking all of Ezell’s

allegations to be true, his summary judgment evidence fails to show that the

conditions on the night of the accident were “peculiar” and “unusually

dangerous” such that application of this narrow exception is appropriate.

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Owens, 528 F.2d at 609. As explained, the bar for the exception is high, and

Ezell’s evidence does not show “extraordinary physical environments or

landscapes.” King, 337 F.3d at 553. The relatively ordinary conditions

described by Ezell do not meet this threshold. Thus, the Occupied Crossing

Rule bars his failure to warn negligence claim. 7

V

Accordingly, we AFFIRM the district court’s judgment.

7 At oral argument, KCSR invoked a recent Mississippi Supreme Court decision to

argue that our Occupied Crossing Rule analysis cannot consider hazardous factors that the

railroad cannot control, such as the conditions or characteristics of the road leading the

crossing. Because we find that the Occupied Crossing Rule bars Ezell’s claim regardless of

which of the alleged conditions we consider, we need not reach KCSR’s argument.

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