Angela Horton and Kevin Houser v. the Kansas City Southern Railway Company

Supreme Court of Texas

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No. 21-0769

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Angela Horton and Kevin Houser,

Petitioners,

v.

The Kansas City Southern Railway Company,

Respondent

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On Petition for Review from the

Court of Appeals for the Fifth District of Texas

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Argued January 31, 2023

JUSTICE BOYD delivered the opinion of the Court.

JUSTICE BUSBY filed a concurring opinion, in which Justice

Devine, Justice Blacklock, and Justice Young joined.

Petitioners sued the Kansas City Southern Railway Company

(KC Southern) for the wrongful death of their mother, alleging KC

Southern negligently maintained a railroad crossing by raising the

crossing grade over time to form a “humped crossing” and by failing to

replace a missing yield sign. In response to a single broad-form

negligence question, the jury found both parties negligent and equally

responsible for causing the accident, and the trial court entered

judgment on the jury’s verdict. The court of appeals held that the

evidence supports a finding that the missing yield sign proximately

caused the accident, but that federal law preempts a negligence claim

based on the humped crossing. 666 S.W.3d 1, 9, 10 (Tex. App.—Dallas

2021). Because the appellate court could not determine which of the two

allegations the jury relied on when it found KC Southern negligent, it

reversed and remanded for a new trial. Id. at 12. We disagree with the

court of appeals on both issues and hold: (1) federal law does not preempt

the humped-crossing claim, and (2) no evidence supports the jury’s

finding that the absence of the yield sign proximately caused the

accident. Based on these holdings, however, we agree with the court of

appeals that a new trial is required. We thus affirm the court of appeals’

judgment, but for different reasons.

I.

Background

A KC Southern train collided with Ladonna Sue Rigsby’s pickup

truck as she drove across a railroad track on a rural county road near

her home. The track had been there for over a century, and KC Southern

maintained it by lifting and adding materials under the rails and ties,

incrementally raising the track over the course of many years. This

created a “humped crossing,” with the mid-point rising around thirty

inches above the level road thirty feet away. No signal lights, bells, or

barrier gates protected the crossing, but “crossbuck” signs—white,

X-shaped signs reading “Railroad Crossing”—marked the tracks from

both directions. The posts holding those signs also previously included

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yield signs, but—for reasons no one could explain—the yield signs were

missing at the time of Rigsby’s accident.

According to a video of the accident, recorded by a camera

installed on the train, Rigsby slowed her vehicle to around seven miles

per hour as she approached the track, and then to three or

three-and-a-half miles per hour as she began to ascend the hump.

Rigsby, who was deaf in her left ear, continued to cross the track as if

she never saw or heard the train approaching from her left. She did not

survive the collision.

Rigsby’s adult children, Angela Horton and Kevin Houser

(together, Horton), sued KC Southern, alleging negligence based on the

humped crossing and missing yield sign. KC Southern filed a

summary-judgment motion, asserting, among other things, that federal

law preempts Horton’s claim. The trial court denied the motion, and KC

Southern filed a motion for reconsideration, arguing federal law at least

preempts Horton’s claim to the extent it is based on the humped

crossing. The trial court did not rule on that motion, and the case

proceeded to trial.

The trial court submitted a single broad-form question to the jury,

asking whether the negligence of Rigsby or KC Southern proximately

caused the accident. KC Southern objected to the question, arguing the

court should submit two separate negligence questions—one based on

Horton’s humped-crossing allegation and the other on the

missing-yield-sign allegation. The trial court overruled that objection.

The jury found both Rigsby and KC Southern negligently caused the

accident and assigned fifty percent of the responsibility to each. The trial

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court entered a final judgment based on the verdict, awarding Horton

$200,000 in damages.

KC Southern appealed, and the court of appeals reversed, with

one justice dissenting. 666 S.W.3d at 4, 25. The court concluded the

evidence supports liability under the yield-sign allegation, but federal

law preempts the claim to the extent it is based on the humped-crossing

allegation. Id. at 14–15. Because the court could not “determine whether

the jury rested its liability determination on [Horton’s] preempted

humped crossing theory, which should not have been submitted, or the

missing yield sign theory,” it remanded the case for a new trial only on

the yield-sign allegation. Id. at 18. Horton and KC Southern both filed

petitions for review, which we granted.

II.

Preemption

We begin by addressing whether federal law preempts Horton’s

negligence claim based on the humped crossing.1 The United States

Constitution provides that federal law “shall be the supreme Law of the

Land; and the Judges in every State shall be bound thereby.” U.S.

CONST. art. VI, cl. 2. As a result, federal statutes may preempt state laws

and render them ineffective. Altria Grp., Inc. v. Good, 555 U.S. 70, 76

(2008). They may do this expressly, by declaring that intent on the face

of the statute, Arizona v. United States, 567 U.S. 387, 399 (2012), or

impliedly, by demonstrating an intent to “occup[y] the field” or creating

an irreconcilable “conflict,” Cipollone v. Liggett Grp., Inc., 505 U.S. 504,

1 KC Southern no longer argues federal law preempts the negligence

claim to the extent it is based on the missing yield sign.

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516 (1992) (first quoting Pac. Gas & Elec. Co. v. State Energy Res.

Conservation & Dev. Comm’n, 461 U.S. 190, 204, (1983), and then

quoting Fid. Fed. Sav. & Loan Ass’n v. De la Cuesta, 458 U.S. 141, 153

(1982)). KC Southern asserts—and the court of appeals agreed—that

provisions of the federal ICC Termination Act of 1995, Pub. L. No. 104-

88, 109 Stat. 803 (1995) (codified at 49 U.S.C. §§ 10101–16106),

expressly and impliedly preempt Horton’s humped-crossing claim. We

disagree. To explain, we describe the ICCT Act and its relevant

provisions, the separate Federal Rail Safety Act and its relationship to

the ICCT Act, and other court decisions addressing preemption under

the ICCT Act before turning to our own preemption analysis.

A. The ICCT Act

Congress enacted the ICCT Act “to reform economic regulation of

transportation, and for other purposes.” 109 Stat. at 803. The Act

amended numerous federal statutes, including Subtitle IV of Title 49 of

the United States Code, which addresses and governs interstate

transportation. Id. at 803–04. Part A of Subtitle IV specifically

addresses rail transportation. 49 U.S.C. §§ 10101–11908. KC Southern’s

contention that the Act preempts Horton’s humped-crossing claim relies

on this part, which we refer to as the Rail Provisions.

As part of its reform of “economic regulation of transportation,”

the ICCT Act abolished the Interstate Commerce Commission and

created a new federal agency called the Surface Transportation Board,

granting it “jurisdiction over transportation by rail carrier that

is . . . only by railroad” or, in some circumstances, “by railroad and

water.” 109 Stat. at 807; see 49 U.S.C. § 10501(a)(1). More specifically,

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Section 10501(b) grants the Surface Transportation Board “exclusive”

jurisdiction over:

(1) transportation by rail carriers, and the remedies provided

in [the Rail Provisions] with respect to rates,

classifications, rules (including car service, interchange,

and other operating rules), practices, routes, services, and

facilities of such carriers; and

(2) the construction, acquisition, operation, abandonment, or

discontinuance of spur, industrial, team, switching, or side

tracks, or facilities, even if the tracks are located, or

intended to be located, entirely in one State.

49 U.S.C. § 10501(b). Immediately following this jurisdictional grant,

the section includes a preemption clause: “Except as otherwise provided

in [the Rail Provisions], the remedies provided under [the Rail

Provisions] with respect to regulation of rail transportation are exclusive

and preempt the remedies provided under Federal or State law.” Id.

(emphasis added).

The Act defines the term “rail carrier” to mean “a person

providing common carrier railroad transportation for compensation.” Id.

§ 10102(5). And it defines the term “transportation” to include a “facility,

instrumentality, or equipment of any kind related to the movement of

passengers or property, or both, by rail,” and “services related to that

movement.” Id. § 10102(9). The parties here do not dispute that KC

Southern is a “rail carrier” and that its tracks and crossings qualify as

“facilities” or “equipment,” and thus “transportation.”2

2 The Second Circuit has held that rail crossings do not qualify as a

“facility” under the Act, see Island Park, LLC v. CSX Transp., 559 F.3d 96, 103

n.9 (2d Cir. 2009), and the Fifth Circuit has expressed similar skepticism, see

Franks Inv. Co. v. Union Pac. R.R. Co., 593 F.3d 404, 411 (5th Cir. 2010). In

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B. The Federal Rail Safety Act

The ICCT Act is not the only federal statute that addresses rail

transportation. The Federal Rail Safety Act (the Safety Act) created a

separate statute contained within Subtitle V of Title 49 of the United

States Code. See id. §§ 20101–21311. The Safety Act directly addresses

rail-safety concerns, as its express purpose “is to promote safety in every

area of railroad operations and reduce railroad-related accidents and

incidents.” Id. § 20101. The Safety Act delegates rail-safety regulation

to the federal Secretary of Transportation, not to the Surface

Transportation Board. Id. § 20103. Because Horton alleges the humped

crossing created safety issues, the Safety Act complicates the question

of whether the ICCT Act preempts Horton’s common-law negligence

claim, particularly because the Safety Act contains its own preemption

provisions that explicitly address common-law claims concerning safety

issues.

The Safety Act’s preemption provisions permit states to adopt

their own regulations governing rail safety, but only if the state

regulation is “not incompatible with” federal regulations and “does not

unreasonably burden interstate commerce.” Id. § 20106(a)(2); see CSX

Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993) (holding federal

this case, the dissenting opinion in the court of appeals expressed a similar

concern that a broad construction of the term “facility” could preclude any state

regulatory authority over any movement—by vehicles, bicycles, or

pedestrians—over a rail crossing. 666 S.W.3d at 20 n.2 (Carlyle, J., dissenting).

Because the parties here do not raise the issue, we assume without deciding

that the Rail Provisions reach rail crossings, although that assumption does

not affect our conclusions regarding the types of state laws Section 10501(b)

preempts.

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regulations adopted under the Safety Act preempt state-law regulations

“if the federal regulations substantially subsume the subject matter of

the relevant state law”). In 2002, however, Congress amended the Safety

Act to “clarify” that nothing in Section 20106 “shall be construed to

preempt an action under State law seeking damages for personal injury,

death, or property damage” if the action alleges that a party (a) “failed

to comply with the Federal standard of care established by a regulation

or order issued by the Secretary of Transportation,” (b) “failed to comply

with its own plan, rule, or standard that it created pursuant to a

regulation or order issued by” the Secretary, or (c) “failed to comply with

a State law, regulation, or order that is not incompatible with subsection

(a)(2).” 49 U.S.C. §20106(b). As a result, federal rail-safety regulations

can provide the “standard of care by which a defendant’s actions are

judged for negligence.” Gallo v. Union Pac. R.R. Co., 372 F. Supp. 3d

470, 483 (W.D. Tex. 2019) (addressing cases). In the absence of a federal

safety regulation covering the subject matter at issue, the Safety Act has

no preemptive effect. Id. (citing Easterwood, 507 U.S. at 664).

Addressing the relationship between the Safety Act and the ICCT

Act, courts have generally agreed that “the federal statutory scheme

places principal federal regulatory authority for rail safety with the

Federal Railroad Administration . . . not the [Surface Transportation

Board]” and thus the Safety Act “provides the appropriate basis for

analyzing whether a state law, regulation or order affecting rail safety

is pre-empted by federal law.” Island Park, 559 F.3d at 107; see BNSF

Ry. Co. v. Hiett, 22 F.4th 1190, 1195–96 (10th Cir.), cert. denied sub

nom. City of Edmond v. BNSF Ry. Co., 142 S. Ct. 2835 (2022). As the

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Sixth Circuit explained, the Federal Railroad Administration’s and the

Surface Transportation Board’s “complementary exercise of their

statutory authority accurately reflects Congress’s intent for the [ICCT

Act] and [the Safety Act] to be construed in pari materia,” granting the

Federal Railroad Administration “primary authority over rail safety

matters” and subjecting state laws related to rail safety to “preemption

analysis under the Safety Act,” not under the ICCT Act. Tyrrell v.

Norfolk S. Ry. Co., 248 F.3d 517, 523 (6th Cir. 2001). Moreover, the

Safety Act specifically addresses safety issues affecting “grade crossings

and railroad rights of way,” which it expressly refers to as “the railroad

grade crossing problem.” Iowa, Chi. & E. R.R. Corp. v. Washington

County, 384 F.3d 557, 559 (8th Cir. 2004) (quoting 49 U.S.C. § 20134(a)).

As a result, the Safety Act, rather than the ICCT Act, appears to be the

primary authority governing federal preemption of state-law claims

addressing rail safety, and particularly the safety of railroad crossings.

But the Safety Act and the ICCT Act have a “complicated”

relationship, particularly “when a state action or common law claim falls

at the intersection of [the ICCT Act’s] realm of economic regulation and

the [Safety Act]’s realm of safety regulation.” Ezell v. Kan. City S. Ry.

Co., 866 F.3d 294, 300 n.6 (5th Cir. 2017). The Surface Transportation

Board has suggested that “the overwhelming weight of precedent holds

that safety issues are generally governed by [the Safety Act]

preemption.” Jimmy Lee Waneck & Starr Swearingen Waneck, et al.-

Petition for Declaratory Order, FD 36167, 2018 WL 5723286, at *4

(S.T.B. Oct. 31, 2018). Although “there can be rare cases when both the

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Safety Act and [the ICCT Act] preemption may apply,” such cases do not

include allegations of unsafe conditions at a railroad crossing.

KC Southern does not contend the Safety Act preempts Horton’s

humped-crossing negligence claim but instead asserts that the final

sentence of Section 10501(b) of the ICCT Act expressly preempts

Horton’s claim because it would regulate KC Southern’s construction,

repair, and maintenance of the humped crossing. And in the event it

does not, KC Southern contends the Rail Provisions impliedly preempt

such claims. We must thus consider whether these facts provide one of

the circumstances under which the ICCT Act may have a preemptive

effect over a state-law rail-safety claim.

C. Precedent

We are not the first to consider this thorny question. Numerous

courts have addressed the scope of preemption under Section 10501(b)

and have reached varying conclusions. Many have addressed the

question of whether the section preempts state and local legislative

enactments—particularly statutes, regulations, and ordinances—as

opposed to state common-law claims like the negligence claim at issue

in this case. Most of these have concluded Section 10501(b) expressly or

“completely”3 preempts state and local legislation that attempts to

3Many federal courts have analyzed preemption under Section 10501(b)

to determine their jurisdiction under the federal removal statute. Under the

“complete preemption doctrine,” a state-law claim arises under federal law and

can be removed to federal court if a federal statute wholly displaces the

state-law claim. See Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 8 (2003).

Although complete preemption and express preemption are not identical

concepts, they are sufficiently similar to each other—and sufficiently distinct

from implied (or “as-applied”) preemption—to render the complete preemption

cases helpful guidance in this case.

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“regulate,” “manage,” “govern,” or “restrain” a rail carrier’s “operations,”

or at least its operations “in the economic realm.”4 Conversely, others

have held Section 10501(b) does not expressly preempt state and local

legislation that does not attempt to “regulate” or “interfere with” a rail

carrier’s operations.5

4 See, e.g., Hiett, 22 F.4th at 1192 (holding Section 10501(b) expressly

preempted a state statute regulating trains blocking track crossings because

the statute “regulates railroad operations”); Tex. Cent. Bus. Lines Corp. v. City

of Midlothian, 669 F.3d 525, 533 (5th Cir. 2012) (holding Section 10501(b)

expressly preempted a city ordinance that prevented a rail carrier from

expanding transloading operations because the ordinance dictated

“construction design and layout of railroad tracks” and thus “would frustrate

[the carrier’s] economic decision making”); Elam v. Kan. City S. Ry. Co., 635

F.3d 796, 807 (5th Cir. 2011) (holding Section 10501(b) expressly and

completely preempted a state statute regulating trains blocking track

crossings because the statute “is a direct attempt to manage [the rail carrier’s]

decisions in the economic realm”); Green Mountain R.R. v. Vermont, 404 F.3d

638, 643 (2d Cir. 2005) (holding Section 10501(b) expressly preempted a state

environmental-land-use statute requiring a pre-construction permit for a

transloading facility because the statute restrained a rail carrier from

developing its land); see also State v. CSX Transp., Inc., 200 N.E.3d 215, 220

(Ohio 2022) (holding Section 10501(b) expressly preempted a state statute

regulating trains blocking track crossings because the statute regulates,

manages, and governs rail traffic), petition for cert. filed, 91 U.S.L.W. 3130

(U.S. Nov. 10, 2022) (No. 22-459); A & W Props., Inc. v. Kan. City S. Ry. Co.,

200 S.W.3d 342, 348 (Tex. App.—Dallas 2006, pet. denied) (holding Section

10501(b) expressly preempted a landowner’s suit to enforce a rail carrier’s

alleged statutory obligation to widen a bridge and culvert to prevent flooding

of the landowners’ land because the statute would regulate rail operations);

Burlington N. & Santa Fe Ry. Co. v. City of Houston, 171 S.W.3d 240, 248–49

(Tex. App.—Houston [14th Dist.] 2005, no pet.) (holding Section 10501(b)

preempted a state statute limiting a rail carrier’s condemnation power and

preempted a state paramount-purpose doctrine because they prevented the

rail carrier from constructing and operating a rail line the Surface

Transportation Board had approved).

5 See, e.g., Island Park, 559 F.3d at 103–04 (holding Section 10501(b)

did not expressly preempt a state agency order requiring a rail carrier to close

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Several courts have also addressed Section 10501(b)’s preemptive

effect on common-law claims, including claims for negligence,6 trespass,

nuisance, and even inverse condemnation. Some have held that Section

10501(b) expressly preempted such common-law claims—which

complained of noise and vibrations from a rail carrier’s operations or of

a train’s speed, length, scheduling, use of side tracks, and extended

a private rail crossing because the order did not interfere with the carrier’s

operations); New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 332–33

(5th Cir. 2008) (holding Section 10501(b) did not completely preempt a state

law governing landowners’ access across rail lines because local crossing

disputes typically do not regulate carriers); Iowa, Chi. & E. R.R. Corp., 384

F.3d at 561–62 (holding Section 10501(b) did not expressly preempt a state

statute requiring rail carriers to construct and maintain safe bridges and

crossings, at least absent evidence that the carrier obtains federal funding for

such projects); Fla. E. Coast Ry. Co. v. City of West Palm Beach, 266 F.3d 1324,

1329, 1331 (11th Cir. 2001) (holding Section 10501(b) did not preempt a city

zoning and licensing ordinance as applied to an aggregate company leasing

land from a rail carrier because application “does not constitute ‘regulation of

rail transportation’”).

6 Courts have employed a different analysis when addressing

negligence per se claims based on a rail carrier’s alleged violation of a statute,

regulation, or ordinance, usually holding Section 10501(b) preempts such

claims when they are “based solely on [a] preempted state statute.” Elam, 635

F.3d at 807; see Ezell, 866 F.3d at 299–301 (holding Section 10501(b) expressly

preempted a negligence per se claim alleging violation of an anti-blocking

statute); R.R. Ventures, Inc. v. Surface Transp. Bd., 299 F.3d 523, 563 (6th Cir.

2002) (“Congress intended to preempt the Ohio state statutes, and any claims

arising therefrom, to the extent that they intrude upon the [Surface

Transportation Board’s] exclusive jurisdiction over ‘transportation by rail

carriers’. . . .”); Friberg v. Kan. City S. Ry. Co., 267 F.3d 439, 443 (5th Cir. 2001)

(holding Section 10501(b) preempted a negligence per se claim based on alleged

violations of a state anti-blocking statute because “regulation of KCS train

operations, as well as the construction and operation of the KCS side tracks, is

under the exclusive jurisdiction of the [Surface Transportation Board] unless

some other provision in the [ICCT Act] provides otherwise”). We need not and

do not address preemption of such negligence per se claims in this case.

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blocking of crossings—because such claims (like the state and local

legislation discussed above) sought to regulate, manage, or govern a rail

carrier’s operations or rail transportation.7

Other courts, however, have held that Section 10501(b) does not

expressly preempt common-law claims, for various reasons. Some

concluded the rail carrier’s allegedly negligent conduct was not the type

of “transportation”-related conduct the Rail Provisions address and for

which they provide remedies that carry preemptive power under

7 See, e.g., Ezell, 866 F.3d at 299–300 (holding Section 10501(b)

expressly preempted a negligence claim based on a train’s blocking of a

crossing because the claim would “economically regulate [the carrier’s]

switching operations” (quoting Elam, 635 F.3d at 807)); Tubbs v. Surface

Transp. Bd., 812 F.3d 1141, 1145–46 (8th Cir. 2015) (holding Section 10501(b)

expressly preempted a landowners’ common-law claims for trespass, nuisance,

negligence, inverse condemnation, and statutory trespass, alleging a rail

carrier built embankments that caused flooding on the landowner’s land,

because the claims “would unreasonably burden or interfere with rail

transportation”); Franks, 593 F.3d at 411 (stating Section 10501(b) would

expressly preempt “a tort suit that attempts to mandate when trains can use

tracks and stop on them” because the suit would “attempt[] to manage or

govern rail transportation in a direct way”); Friberg, 267 F.3d at 444 (holding

Section 10501(b) expressly preempts common-law claims seeking to impose

liability for “a railroad’s economic decisions such as those pertaining to train

length, speed or scheduling”); Rushing v. Kan. City S. Ry. Co., 194 F. Supp. 2d

493, 500 (S.D. Miss. 2001) (holding Section 10501(b) expressly preempted

common-law nuisance and negligence claims complaining of a rail carrier’s

annoying switch-yard operations); Guckenberg v. Wis. Cent. Ltd., 178 F. Supp.

2d 954, 959 (E.D. Wis. 2001) (holding Section 10501(b) expressly preempted a

common-law nuisance claim complaining of a rail carrier’s use of a side track

because the claim would effectively regulate the carrier’s operations); A & W

Props., 200 S.W.3d at 351 (holding Section 10501(b) expressly preempted a

landowner’s common-law nuisance, trespass, and negligence claims seeking to

force a rail carrier to widen a bridge and culvert to prevent flooding of the

landowners’ land because the claims would regulate the carrier’s operations).

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Section 10501(b).8 Others focused on the idea that an adverse judgment

on a common-law claim would not necessarily require the carrier to alter

its operations, see Elam, 635 F.3d at 813–14, or observed that a common-

law claim seeking only compensatory damages does not attempt to

“manage” or “govern” operations, even in the “economic realm,” id. at

813.9 And several concluded that common-law claims, by their nature,

do not “directly” address rail-carrier operations and instead have only

an “incidental” effect on rail transportation. See, e.g., id. (citing Franks,

593 F.3d at 411).

8 See, e.g., Emerson v. Kan. City S. Ry. Co., 503 F.3d 1126, 1131 (10th

Cir. 2007) (holding Section 10501(b) did not expressly preempt claims for

trespass, unjust enrichment, nuisance, and negligence based on a rail carrier’s

alleged dumping of used railroad ties and vegetation in a drainage culvert,

causing flooding to the plaintiffs’ land, because “these acts or omissions are not

‘transportation’ under § 10102(9)”); Rushing, 194 F. Supp. 2d at 501 (holding

although Section 10501(b) expressly preempted negligence and nuisance

claims complaining of noise and vibrations caused by a carrier’s rail-yard

operations, it did not preempt such claims complaining that a carrier’s

construction of a berm to minimize rail-yard noise resulted in flooding the

plaintiff’s property because the carrier’s “design/construction of the berm does

not directly relate to the manner in which the Defendant conducts its switching

activities”).

9 See Elam, 635 F.3d at 813 (holding Section 10501(b) did not expressly

preempt a negligent-failure-to-warm claim by a driver who drove into the side

of a stopped train because a “typical negligence claim seeking damages for a

typical crossing accident (such as the Elams’ simple negligence claim) does not

directly attempt to manage or govern a railroad’s decisions in the economic

realm”); Rushing, 194 F. Supp. 2d at 501 (holding Section 10501(b) did not

expressly preempt negligence and nuisance claims complaining that a carrier’s

construction of a berm to minimize rail-yard noise resulted in flooding the

plaintiffs’ property because “an order by the Court directing the Defendant to

compensate and correct drainage problems resulting from the construction of

the berm would not implicate the type of economic regulation Congress was

attempting to prescribe when it enacted the [ICCT Act]”).

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The Fifth Circuit focused on this direct-versus-incidental

distinction in Franks, holding that Section 10501(b) did not expressly

preempt a landowner’s claim seeking to enforce a covenant in an

easement deed to prevent a rail carrier from removing a track crossing

on the landowner’s land, explaining that the claim was “governed by

Louisiana property laws and rules of civil procedure that have nothing

to do with railroad crossings. Railroads are only affected when the

[easement] happens to cross a railroad.” 593 F.3d at 411. The same court

later applied that distinction to conclude the ICCT Act did not expressly

preempt a negligent-failure-to-warn claim, explaining that, “[l]ike state

property laws and rules of civil procedure that generally ‘have nothing

to do with railroad crossings,’ the effects of state negligence law on rail

operations are merely incidental.” Elam, 635 F.3d at 813 (quoting

Franks, 593 F.3d at 411). As a Texas federal district court explained

when applying this Fifth Circuit approach, although tort claims may

“affect the management or governance of railroads if the railroad

company is the tortfeasor, these claims arise under state common law

and are not intended to regulate railroad transportation even if they

may incidentally affect it.” Gallo, 372 F. Supp. 3d at 480.10

Two other federal district courts within the Fifth Circuit,

however, have addressed “humped crossing” negligence claims like the

one at issue here, and both concluded that Section 10501(b) expressly

10See Battley v. Great W. Cas. Ins. Co., No. CIV.A. 14-494-JJB, 2015

WL 1258147, at *4–5 (M.D. La. Mar. 18, 2015) (“[T]he plaintiffs’ negligence

claim [does not] challenge [the carrier’s] general operating procedures,” and a

“judgment for the plaintiffs based on the circumstances presented in this case

would have only an incidental and limited effect on rail transportation.”).

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preempted such claims. Addressing claims by those injured and killed

when a train struck a tour bus that got stuck on a humped crossing, a

federal district court in Mississippi reasoned that the plaintiffs’

negligent-maintenance claims were “tantamount to a claim regarding

the design and construction of the crossing” and thus “directly attempt

to manage or govern a railroad’s decisions in the economic realm such

as the construction and operation of tracks.” Waneck v. CSX Corp., No.

1:17CV106-HSO-JCG, 2018 WL 1546373, at *5 (S.D. Miss. Mar. 29,

2018). Addressing similar claims arising from a similar train–bus

collision, a Texas federal district court reasoned that an adverse

judgment would require “changes in design and construction of railroad

tracks and crossings” and thus “have the effect of managing or governing

rail transportation in the economic realm.” Voight v. CSX Transp., Inc.,

No. 3:17-CV-01018-N, slip op. at 7, 9 (N.D. Tex. June 19, 2017).

A federal district court in Kentucky, however, expressly rejected

the reasoning in Voight and Waneck, concluding that both “cases are

inconsistent with Sixth Circuit and Supreme Court law on complete

preemption.” Minton v. Paducah & Louisville Ry., Inc., 423 F. Supp. 3d

375, 383 (W.D. Ky. 2019). And the Surface Transportation Board itself

rejected their reasoning in response to requests for administrative

rulings from the parties involved in Waneck. See Waneck, 2018 WL

5723286, at *4. According to the Board, the question of federal

preemption of these types of humped-crossing claims “should be

governed by the preemption provisions of the Federal Railway Safety

Act . . . and not by 49 U.S.C. § 10501(b).” Id. at *1. Expressly rejecting

the courts’ holdings in Voight and Waneck, the Board opined that the

16

plaintiffs’ negligent-maintenance claims based on humped crossings

“appear to be focused on purely safety-related issues” and thus “are not

in direct conflict with the Board’s exclusive jurisdiction over

transportation that is part of the interstate rail network.” Id. at *7.

Having described the ICCT Act’s relevant provisions and its

complex relationship with the Safety Act, as well as the broad array of

precedent considering this question, we now turn to the question of

whether Section 10501(b) expressly or impliedly preempts Horton’s

humped-crossing claim. We agree with KC Southern that federal law

can expressly preempt common-law negligence claims in some

circumstances,11 but we hold that the ICCT Act does not expressly

11 It is well-established that federal law can preempt a state

common-law negligence claim. See Cont’l Airlines, Inc. v. Kiefer, 920 S.W.2d

274, 282 (Tex. 1996); see also Easterwood, 507 U.S. at 676; Ezell, 866 F.3d at

298. But courts have applied presumptions both for and against federal

preemption of state laws—particularly state common-law claims like

negligence—that are relevant here. Courts presume, for example, that federal

law does not preempt “the historic police powers of the State . . . unless that

was the clear and manifest purpose of Congress” and that presumption

“applies with particular force when Congress legislates in a field traditionally

occupied by the states.” Altria, 555 U.S. at 77 (quoting Rice v. Santa Fe

Elevator Corp., 331 U.S. 218, 230 (1947)). And as the Supreme Court noted

long ago, “[t]he care of [railroad] grade crossings is peculiarly within the police

power of the states.” Lehigh Valley R. Co. v. Bd. Of Pub. Util. Comm’rs, 278

U.S. 24, 35 (1928). This presumption “is nowhere stronger than under

circumstances in which a state is exercising” authority “in matters involving

their citizens’ public health and safety” because states have traditionally

“exercised primary authority” in such matters. Great Dane Trailers, Inc. v. Est.

of Wells, 52 S.W.3d 737, 743 (Tex. 2001) (first citing Medtronic, Inc. v. Lohr,

518 U.S. 470, 475 (1996), and then citing Hillsborough County v. Automated

Med. Labs., Inc., 471 U.S. 707, 718–19 (1985)). Because common-law

negligence claims “involve the state’s power to regulate health and safety

17

preempt Horton’s humped-crossing claim. We reach this conclusion

based on the ICCT Act’s clear language, which much of the precedent

has underemphasized.

D. Express Preemption

It is clear that Section 10501(b) expressly “preempts” something,

but we must focus on the statute’s language to determine the scope of

that preemption. “Where, as in this case, Congress has superseded state

legislation by statute, our task is to ‘identify the domain expressly

pre-empted.’ To do so, we focus first on the statutory language, ‘which

necessarily contains the best evidence of Congress’ pre-emptive intent.’”

Dan’s City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 260 (2013) (first

quoting Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541 (2001), and

then quoting Easterwood, 507 U.S. at 664).

As noted, Section 10501(b) states that “the remedies provided”

under the Rail Provisions “with respect to regulation of rail

matters,” overcoming the presumption against preemption of a negligence

claim presents a “difficult burden.” Id.

On the other hand, the presumption against preemption applies with

less force when the federal statute addresses a field in which the federal

government has historically been significantly involved, as is true for railroad

regulation. Elam, 635 F.3d at 803–04. Congress and federal courts have long

recognized a need for federal regulation of railroad operations. City of Auburn

v. United States, 154 F.3d 1025, 1029 (9th Cir. 1998). These considerations

make the usual presumption against preemption somewhat hazy in the context

of this case. But we are guided here by our previous recognition that, “while a

federal requirement would ordinarily not preempt general state common law

requirements such as a duty of care or a duty to warn in the abstract, a federal

requirement would preempt a particularized application of such duties that

imposed a specific ‘standard of care or behavior’ different or in addition to the

federal requirement.” Worthy v. Collagen Corp., 967 S.W.2d 360, 371 (Tex.

1998) (quoting Medtronic, 518 U.S. at 504–05 (Breyer, J., concurring)).

18

transportation” are “exclusive and preempt” the “remedies” provided

under state law. 49 U.S.C. § 10501(b). In a statement other courts have

often quoted, one federal district court suggested that it “is difficult to

imagine a broader statement of Congress’s intent to preempt state

regulatory authority over railroad operations.” CSX Transp., Inc. v. Ga.

Pub. Serv. Comm’n, 944 F. Supp. 1573, 1581 (N.D. Ga. 1996). We agree

with the Eleventh Circuit, however, that “[a]lthough this subsection on

its surface seems to provide for broad pre-emption, the text contains

limitations on the reach of pre-emption.” West Palm Beach, 266 F.3d at

1330. Specifically, the section grants preemptive power only to the

“remedies” provided in the Rail Provisions “with respect to regulation of

rail transportation.” 49 U.S.C. § 10501(b). To determine the scope of

preemption, we must explore the section’s references to “remedies,”

“with respect to,” and “regulation” of rail transportation.

1. “Remedies”

Section 10501(b)’s preemption clause uses “remedies” twice—first

to describe what has preemptive power (remedies “provided under [the

Rail Provisions] with respect to regulation of rail transportation”), and

then to describe what is preempted (remedies “provided under Federal

or State law”). Id. Thus, per the clause’s explicit text, the “remedies” that

preempt state law are those provided in the Rail Provisions. The Rail

Provisions provide “remedies” in Sections 11701 through 11708,

including the recovery of “damages sustained by a person as a result of

an act or omission of” a rail carrier “in violation of” the Rail Provisions.

Id. § 11704(b). A person who sustains such damages as a result of a

violation may assert a claim for those damages before the Surface

19

Transportation Board and through a civil action to enforce the Board’s

order. Id. § 11704(c)(1)–(2), (d)(1)–(2).

Relying primarily on the ICCT Act’s purpose and legislative

history, some courts have concluded that the Rail Provisions’ remedies

address only economic regulation of rail transportation. See, e.g., Elam,

635 F.3d at 805 (relying on legislative history to “observe Congress was

particularly concerned about state economic regulation of railroads

when it enacted the [ICCT Act]”). Based on this conclusion, they have

construed Section 10501(b) to grant preemptive power to (and against)

only “laws (and remedies based on such laws) that directly attempt to

manage or govern a railroad’s decisions in the economic realm.” Id. at

807 (emphasis added).12 Other courts have disagreed, see, e.g., N.Y.

Susquehanna & W. Ry. Corp. v. Jackson, 500 F.3d 238, 252 (3d Cir.

2007) (“[The ICCT Act] does not preempt only explicit economic

regulation.”), as has the Surface Transportation Board, see CSX

Transp., Inc.—Petition for Declaratory Order, Fed. Carr. Cas. (CCH)

¶ 37186, 2005 WL 584026, at *7−8 (S.T.B. Mar. 14, 2005) (concluding

that Section 10501’s preemption scope “is broader than just direct

economic regulation of railroads” and that states and municipalities

“cannot take an action that would have the effect of foreclosing or unduly

restricting a railroad’s ability to conduct its operations”).

12Although the Elam court acknowledged that the “preemptive effect of

§ 10501(b) may not be limited to state economic regulation,” it nevertheless

concluded that because “economic regulation is at the core of [the ICCT Act]

preemption,” it expressly and completely preempts only state laws that

“directly attempt to manage or govern a railroad’s decisions in

the economic realm.” Elam, 635 F.3d at 806–07.

20

Based on the ICCT Act’s text, we also disagree. The Act’s

introduction states that its purpose is “to reform economic regulation of

transportation, and for other purposes,” 109 Stat. at 803 (emphasis

added), and we find nothing in its text that strictly limits its remedies

to address only violations of “economic” regulations. Yet we note that, as

even the Board has suggested, characterizing the ICCT Act as

regulating “economic” operations can provide a helpful label for

distinguishing between the ICCT Act and the Safety Act, which

generally governs rail-safety issues, along with their respective

preemption provisions. See Waneck, 2018 WL 5723286, at *4 (agreeing

that “safety issues are generally governed by [the Safety Act]

preemption” but concluding “there can be rare cases when both [the

Safety Act] and [the ICCT Act] preemption may apply”). In other words,

whether we label13 the ICCT Act’s regulatory scope as “economic” or

merely “non-safety operational-related,” as the Board has labeled it,14

the important point is that the two Acts generally address different

regulatory scopes, although they may overlap.

13As the Second Circuit has explained, labels distinguishing between

“economic” and other types of regulation, such as “environmental” regulation,

are not particularly “useful” in this context because various types of regulation

can and often do overlap. Green Mountain, 404 F.3d at 644–45 (explaining how

a regulation labeled as “environmental” can “in fact amount to ‘economic

regulation’ when it prevents a carrier from conducting economic activities”

(quoting City of Auburn, 154 F.3d at 1031)).

14 Waneck, 2018 WL 5723286, at *7 (agreeing it can be “difficult for

courts and the Board to draw the line between safety-related claims (subject to

[the Safety Act] preemption) and non-safety operational-related claims

(subject to [the ICCT Act] preemption)” (citing Griffioen v. Cedar Rapids &

Iowa City Ry. Co., 914 N.W.2d 273, 289 (Iowa 2018))).

21

These observations about the remedies the Rail Provisions

provide (in contrast to those the Safety Act provides) matter here

because the types of state-law “remedies” Section 10501(b) preempts are

the same types of federal-law remedies the Rail Provisions provide.

Although the sentence does not expressly limit its reference to

state-provided remedies to those “with respect to regulation of rail

transportation,” the sentence clearly imposes that limitation. See, e.g.,

Franks, 593 F.3d at 410 (explaining that the preempted state-law

“remedies receive their meaning from the earlier part of the sentence”).

We thus conclude that Section 10501(b) grants preemptive power only

to remedies provided in the Rail Provisions “with respect to regulation

of rail transportation,” and those remedies only preempt state-law

remedies “with respect to regulation of rail transportation.” We thus

turn to the meaning of that limitation.

2. “With respect to regulation”

Consistent with the jurisdiction the ICCT Act grants exclusively

to the Surface Transportation Board, the Rail Provisions address a rail

carrier’s “rates, classifications, rules . . . practices, routes, services, and

facilities” and the “construction, acquisition, operation, abandonment,

or discontinuance of” its tracks and facilities. 49 U.S.C. § 10501(b); see

Franks, 593 F.3d at 409 (addressing the Act’s exclusive remedies);

Jackson, 500 F.3d at 252 (same). Section 10501(b), however, does not

grant preemptive power to or against all laws that merely affect these

types of activities, but instead grants such power only to and against

remedies provided “with respect to regulation” of such activities.

Rather than encompassing any law that might indirectly touch

on the relevant subject matter, the phrase “with respect to” limits the

22

clause’s preemptive effect so that it includes only those remedies that

directly “concern” or “involve” the matter the clause describes. Dan’s

City, 569 U.S. at 261–62.15 And the matter the clause describes—

“regulation of rail transportation”—further narrows its

preemptive scope. Section 10501(b) does not preempt “all state laws”16

or even all state-law remedies “with respect to rail transportation.”

Instead, it preempts state-law remedies with respect to “regulation of”

rail transportation. 49 U.S.C. § 10501(b). The inclusion of the word

“regulation” within the description of the section’s preemptive scope

“necessarily means something qualitatively different from remedies

‘with respect to rail transportation.’” West Palm Beach, 266 F.3d at 1331.

Both the Supreme Court and this Court have recognized the

narrow scope of a statutory reference to laws that “regulate” a subject

matter. Concluding that an insured’s common-law claims against an

insurance carrier for breach of contract, breach of fiduciary duty, and

15See also Consumer Data Indus. Ass’n v. Frey, 26 F.4th 1, 8 (1st Cir.

2022) (holding a statute that preempted state laws “with respect to” a subject

intentionally narrowed the scope of preemption to those laws that directly

concern the subject matter), cert. denied, 143 S. Ct. 777 (2023); Galper v. JP

Morgan Chase Bank, N.A., 802 F.3d 437, 446 (2d Cir. 2015) (same).

16 As the Eleventh Circuit has noted, see West Palm Beach, 266 F.3d at

1330, Section 11321 of the same chapter provides a helpful contrast. See 49

U.S.C. § 11321(a). There, the statute expressly provides that a rail carrier is

exempt from “all other law, including State and municipal law,” as necessary

to permit the carrier to participate in a corporate consolidation, merger, or

acquisition the Surface Transportation Board has approved. Id. (emphasis

added). As the Supreme Court has recognized, this language “is clear, broad,

and unqualified.” Norfolk & W. Ry. Co. v. Am. Train Dispatchers Ass’n, 499

U.S. 117, 128 (1991). Section 10501(b), by contrast, does not preempt “all other

law,” but only state remedies “with respect to the regulation of rail

transportation.”

23

fraud did not “regulate insurance,” the Supreme Court explained that a

“common-sense view of the word ‘regulates’ would lead to the conclusion

that in order to regulate insurance, a law must not just have an impact

on the insurance industry, but must be specifically directed toward that

industry.” Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 50 (1987)

(emphasis added).17 And applying that same “common-sense view,” we

held that Texas laws that empower state-agency executives to discipline

licensees for violations of other laws that “regulate” abortions are not

themselves laws that regulate abortions because such laws are not

“specifically directed toward” that subject. Whole Woman’s Health v.

Jackson, 642 S.W.3d 569, 578 (Tex. 2022). Similarly, as discussed above,

the Fifth Circuit has held that Section 10501(b) expressly preempts

state “laws that have the effect of managing or governing rail

transportation.” Franks, 593 F.3d at 410 (emphasis added).

Under this “common-sense view,” a state statute that restricts the

amount of time a train may block a crossing “regulates” rail

transportation because the statute “homes in on ‘railroad compan[ies]’”

and “has no application” at all “except with respect to the operation of

railroads at rail crossings.” Elam, 635 F.3d at 807 (quoting MISS.

CODE § 77–9–235). But general laws that are not specifically directed

toward rail transportation, such as general state property laws, “are not

meant to regulate railroad transportation, though at times they may

have an incidental effect on railroad transportation.” Franks, 593 F.3d

17See also Ky. Ass’n of Health Plans, Inc. v. Miller, 538 U.S. 329, 334

(2003); Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 365–66 (2002);

UNUM Life Ins. Co. of Am. v. Ward, 526 U.S. 358, 368 (1999); FMC Corp. v.

Holliday, 498 U.S. 52, 61 (1990).

24

at 411. The same is true of “standard building, fire, and electrical codes,”

which do not specifically “target[] the railroad industry,” Jackson, 500

F.3d at 254, and even common-law contract laws, which enforce

“[v]oluntary agreements between parties” and “are not presumptively

regulatory acts,” PCS Phosphate Co. v. Norfolk S. Corp., 559 F.3d 212,

218 (4th Cir. 2009). In the same way, a common-law negligence claim

does not ordinarily “regulate” rail transportation because it is not

specifically directed toward rail transportation and only incidentally

affects rail transportation when the alleged tortfeasor happens to be a

rail carrier.

As we have previously recognized, although “the term ‘law’ can

include both common law and statutory law” and “jury awards can have

an effect akin to regulation,” generally, such a “regulatory effect is not

as direct as that of positive enactments,” and thus a federal law that

preempted state “laws and regulations” did not preempt state

common-law claims. Moore v. Brunswick Bowling & Billiards Corp., 889

S.W.2d 246, 247, 249–50 (Tex. 1994) (holding the Federal Boat Safety

Act did not preempt a “state law tort claim that a boat was defective

because it lacked a propeller guard”).18

18 We are aware, of course, of the Supreme Court’s observations that

state “regulation can be as effectively exerted through an award of damages as

through some form of preventive relief” and that an “obligation to pay

compensation can be, indeed is designed to be, a potent method of governing

conduct and controlling policy.” San Diego Bldg. Trades Council, Millmen’s

Union, Loc. 2020 v. Garmon, 359 U.S. 236, 246–47 (1959). And the Court

quoted this principle again as part of its preemption analysis in Cipollone. 505

U.S. at 521. In this context, however, the text of Section 10501(b) indicates a

narrower understanding of the term “regulation.” Neither of those cases

addressed a clause preempting state laws or remedies related to “regulation”

25

The combination of these phrases, with their respective histories,

is determinative, especially when considered within the context of the

chapter that also includes the Safety Act. Section 10501(b) does not

expressly preempt this common-law negligence claim. It may be, as

other courts have held, that a common-law claim could so directly seek

to control, manage, or govern the core operational functions of a rail

carrier that it could only be said to seek a “remedy with respect to

regulation of rail transportation.”19 But in our view, negligence claims

based on railroad-crossing safety will rarely meet that standard.

of a subject matter, much less “with respect to” such “regulation.” Because the

federal law at issue in Garmon provided essentially no guidance on the scope

of its preemptive effect, the Court based its decision in that case on its own

perception of the federal law’s “national purposes,” 359 U.S. at 244, not on a

statute that preempted state “regulation” of anything, id. at 240 (noting that

the federal law “leaves much to the states, though Congress has refrained from

telling us how much” (quoting Garner v. Teamsters, Chauffeurs & Helpers Loc.

Union No. 776 (A.F.L.), 346 U.S. 485, 488 (1953))). Similarly, in Cipollone, the

federal law at issue preempted any “requirement or prohibition . . . imposed

under state law,” not any state law that “regulated” the subject matter. 505

U.S. at 515 (emphasis added). The Court concluded this “broad” language, not

any reference to “regulation,” effected preemption of state common-law claims.

Id. at 520. In fact, the Court recognized that a prior version of the federal law,

which did not target state “requirements or prohibitions,” “most naturally

refers to positive enactments by those bodies, not to common-law damages

actions” and thus preempted “rulemaking bodies from mandating particular

cautionary statements and did not pre-empt state-law damages actions.” Id. at

519–20. The prior law, the Court explained, was concerned not with

“requirements or prohibitions” but with “‘regulations’—positive enactments,

rather than common-law damages actions.” Id. at 521 n.19.

19See, e.g., West Palm Beach, 266 F.3d at 1331 (holding Section 10501(b)

preempts “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 a more remote or incidental effect on rail

transportation” (quoting Regulation, BLACK’S LAW DICTIONARY (6th ed.

1990))); Elam, 635 F.3d at 805 (holding Section 10501(b) expressly preempts

26

Considering Section 10501(b)’s language limiting its preemptive

effect to “remedies” provided by state law “with respect to regulation” of

rail transportation, the Safety Act’s primary role in addressing

rail-safety issues, and its clause expressly allowing certain common-law

claims, we conclude that Section 10501(b) does not expressly preempt

Horton’s common-law claim that KC Southern negligently maintained

the crossing resulting in an allegedly distracting and dangerous hump.

E. Implied Preemption

We now turn to the issue of whether Section 10501(b) impliedly

preempts Horton’s humped-crossing claim. As stated above, a federal

law may impliedly preempt state law if Congress intended federal law

to occupy the field exclusively or if the state law is in actual conflict with

and creates an obstacle for the federal law. See Cipollone, 505 U.S. at

545 (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). Within the

context of the ICCT Act, courts have relied on the “conflict” prong of

implied preemption to hold that Section 10501(b) may impliedly

preempt a generally applicable state-law remedy if, as applied to a

particular case, that remedy has the effect of “unreasonably burdening

or interfering with rail transportation.” Elam, 635 F.3d at 805 (quoting

Franks, 593 F.3d at 410); see CSX Transp., Inc. v. City of Sebree, 924

F.3d 276, 284 (6th Cir. 2019); Tubbs, 812 F.3d at 1145–46; PCS

laws that “have the effect of managing or governing rail transportation,” but

not “generally applicable state laws that have a mere ‘remote or incidental’

effect on rail transportation” (quoting Franks, 593 F.3d at 410)); City of

Midlothian, 669 F.3d at 532 (“[E]nactments that ‘have the effect of managing

or governing,’ and not merely incidentally affecting, rail transportation are

expressly or categorically preempted under the ICCTA.” (quoting Franks, 593

F.3d at 410)).

27

Phosphate Co., 559 F.3d at 220–21; Jackson, 500 F.3d at 254; Emerson,

503 F.3d at 1133. We might question whether an unreasonable burden

or interference, standing alone, is sufficient to create the kind of legal

“conflict” required to establish implied preemption, but the parties here

agree that this is the proper test in this context. So, for purposes of this

case, and for the sake of consistency with courts across the country, we

will apply this standard here, without suggesting that it provides the

proper test for evaluating conflict preemption in other contexts.

A party arguing for implied preemption has the burden on that

issue. Mo. Pac. R.R. v. Limmer, 299 S.W.3d 78, 84 (Tex. 2009). In the

context of Section 10501(b) and a claim involving a rail crossing, this

means the rail carrier must provide specific evidence regarding the

crossing at issue, rather than rely on assertions about the effect of grade

crossings on rail transportation in general. See Elam, 635 F.3d at 813;

Franks, 593 F.3d at 415. This requirement is consistent with the

requirements of an “as-applied” preemption analysis, which considers

the degree to which a specific scenario conflicts with requirements and

objectives of the federal law at issue. Thus, for example, evidence that

private crossings can affect drainage, increase track maintenance costs,

and cause trains to move at slower speeds, without evidence that the

particular private crossing at issue would have those effects, is

insufficient to establish the kind of unreasonable burden or interference

necessary to trigger implied preemption. Franks, 593 F.3d at 415; see

Emerson, 503 F.3d at 1133.

Here, Horton’s negligence claim does not seek a court order

requiring KC Southern to alter its operations. Horton sought only

28

economic damages, not any sort of injunctive requirement that could

prevent KC Southern from maintaining the lines, crossings, services,

rates, or other operations in which it was engaged at the time of Rigsby’s

death. Consistent with the typical purpose of a negligence claim, Horton

sought only compensation for damages resulting from the accident. See

Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Rsch. Corp.,

299 S.W.3d 106, 122 (Tex. 2009) (“A negligence claim . . . is about

compensating an injured party.”).

As KC Southern notes, however, the effect of a successful

negligence claim can far exceed the payment of compensatory damages

to a particular claimant. KC Southern contends that a successful claim

in this case would effectively require KC Southern to alter all of its

humped crossings, or at least this particular line and crossing, and that

requirement would unreasonably burden KC Southern or interfere with

its operations. The trial court made no factual findings on this assertion,

so we must presume the court resolved any factual disputes against

preemption. See Pharo v. Chambers County, 922 S.W.2d 945, 948 (Tex.

1996). Thus, KC Southern must conclusively demonstrate its contention

as a matter of law. Nevertheless, even if we assume that KC Southern

could have established an unreasonable burden or interference based on

changes in its tracks and operations (as opposed to the damages award),

we conclude KC Southern’s evidence is insufficient here.

A lack of definitive evidence regarding costs and operational

methods will render evidence insufficient to establish an unreasonable

burden or interference as a matter of law. In Gallo, for example, the

federal district court found the evidence of unreasonable burden was

29

insufficient when the parties offered competing visions for how a

railroad could remedy a potential drainage issue, and different cost

estimates for those changes, without any clear evidence that the

defendant’s more burdensome proposed change was required. See 372 F.

Supp. 3d at 481.

On the other hand, in Union Pacific Railroad Co. v. Taylor Truck

Line, Inc., No. 15-0074, 2018 WL 1750516 (W.D. La. Apr. 10, 2018), the

railroad offered evidence that lowering the specific crossing at issue

would require extensive studies and redesign of the drainage, signal

circuits, and nearby crossings; rehabilitation of the switches, adjacent

tracks, and drainage culverts; and extensive construction work at the

crossing and three-quarters of a mile of track on both sides, at a cost of

approximately $2,000,000. Id. at *7–8. It also provided evidence that the

work would require closure of the mainline track through the area for at

least three to four days, impacting five road crossings. Id. The court

found this evidence, in the absence of any sufficient opposing evidence,

established that the change would pose an unreasonable burden and

result in regulation of the railroad. Id. at *8–9.

Here, KC Southern failed to provide such definitive evidence. At

trial, Horton’s railroad-maintenance expert, Allen Blackwell, testified

without opposition that KC Southern could address the humped

crossing either by lowering the track to the level of the county road or

by raising the county road to create a gradual incline up to the track.

KC Southern did not present its own expert or other specific evidence of

the likely cost and burden of either option. Instead, it relied on

Blackwell’s deposition testimony that lowering the track might cost up

30

to $300,000. But at trial, Blackwell testified that number was inaccurate

and that the project would more likely cost between $50,000 to $150,000.

Horton also offered evidence that the cost of removing the hump would

be comparable to KC Southern’s routine-maintenance process, which,

incidentally, created the hump in the first place, saving KC Southern

about $100,000 that could be deducted from the cost of removing the

hump.

Even if this cost were unreasonable, courts have generally

concluded that increased costs alone cannot create the type of

“unreasonable” burden or interference necessary to trigger implied

preemption. See Barrois, 533 F.3d at 335; Adrian & Blissfield R.R. v.

Village of Blissfield, 550 F.3d 533, 541 (6th Cir. 2008); City of Sebree,

924 F.3d at 284–85. KC Southern therefore also relied on Horton’s

expert to describe the type of construction required to lower the track to

the road level. Blackwell agreed that lowering the track by thirty-two

inches—the amount required for KC Southern to comply with its own

adopted safety guidelines—would require “major revision to the

alignment, elevation, or profile of the track.” According to Blackwell, KC

Southern would have to remove asphalt up to six feet away from each

side of the track rails, cut and remove the rails and track panel at the

crossing, resurface the crossing area with new ballast, pour new asphalt,

and then install new crossing panels. The parties also agreed that KC

Southern would need to extend the renovation out at least 661 feet on

each side to maintain required evenness of the track. KC Southern’s

corporate representative testified that a culvert present under the track

could make it impossible to lower the track by the full thirty-two inches.

31

Thus, KC Southern argued this project would far exceed the scope and

cost of a typical crossing rehabilitation.

On the other hand, Horton provided evidence that, despite the

seemingly broad scope of work, it would take relatively little time.

Blackwell testified that undercutting the track would take the same

amount of time as a routine resurfacing (six to eight hours). He also

specified that, to the extent work could not be completed in a day, KC

Southern could run trains in the evening at a reduced speed, with

subsequent speed and tonnage restrictions lasting no more than

forty-eight hours. KC Southern did not contest this evidence.

All of this evidence, however, addressed only one possible means

of eliminating the hump. Other testimony established that KC Southern

could address the safety issue by raising the county road on each side of

the crossing. Blackwell testified that, while KC Southern would not have

a sufficient right-of-way to complete that project alone, it would not be

unusual for the railroad to coordinate with county and state authorities

to complete the work. KC Southern argued it could not alter the road

alone but failed to dispute that it could do so in coordination with the

county. More importantly, it offered no evidence regarding the probable

costs and burdens of such a project.

We conclude that KC Southern did not meet its burden to

establish that Horton’s negligence claim complaining of the humped

crossing would pose the “unreasonable burden or interference with rail

transportation” required to trigger implied preemption under Section

10501(b). Even assuming we should consider more than the burden of

the compensatory damages alone, KC Southern failed to provide

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definitive evidence of the cost of any of the possible solutions needed to

eliminate the hazard at this specific crossing. And even if we assume, as

KC Southern argues, that Horton’s claim could require it to lower all the

humps on all of its crossings, it provided no evidence of those costs and

burdens either.

The most specific evidence KC Southern presented to establish an

“unreasonable” burden involved testimony that the curvature of this

section of track, which was in a hilly area, would require undercutting

a longer section of track than normal and would be further complicated

by the presence of a flood-control culvert in the area. KC Southern’s

witness testified that this would not be “a very feasible function for us

to perform.” But even accepting KC Southern’s assertions that lowering

the track would exceed the scope of a typical crossing rehabilitation, KC

Southern failed to contest Horton’s evidence that lowering the track

would close the track for less than a day and would only require weight

and speed restrictions for forty-eight hours. As to the less burdensome

option of raising the road, KC Southern provided no evidence of possible

delays associated with such a solution, nor did it successfully refute

Horton’s evidence that partnering with the local road authority for such

a project would be routine.

We thus hold that KC Southern failed to meet its burden to

establish that Section 10501(b) impliedly preempts Horton’s

humped-crossing negligence claim. And having also concluded that the

section does not expressly preempt the claim, we reverse the court of

appeals’ judgment to the extent it was based on the trial court’s contrary

conclusion.

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III.

Yield Sign

In addition to the complaint about the humped crossing, Horton

also argued and put on evidence that KC Southern negligently caused

the accident by failing to ensure that yield signs remained in place on

the posts containing the crossbuck signs at the crossing. KC Southern

argues that no evidence could support a finding that the lack of a yield

sign proximately caused the accident. We agree.

In reviewing the legal sufficiency of evidence to support a jury

verdict, we honor the rule that the jurors “are the sole judges of the

credibility of the witnesses and the weight to give their testimony,” and

it is their role to resolve any conflicts in the evidence. City of Keller v.

Wilson, 168 S.W.3d 802, 819–21 (Tex. 2005) (citations omitted). We

“credit favorable evidence if reasonable jurors could, and disregard

contrary evidence unless reasonable jurors could not.” Id. at 827. We

must consider the evidence “in the light most favorable to the verdict,

and indulge every reasonable inference that would support it,” and we

must credit any evidence that “allows of only one inference.” Id. at 822

(citations omitted). We cannot substitute our judgment for the jury’s. Id.

Applying these standards, we conclude that the following

evidence, presented through expert testimony and supporting studies

and documents, supports Horton’s yield-sign theory:

- Like a yield sign, “[t]he purpose of a crossbuck sign is to

tell a motorist they need to yield.” In a sense, it sends the

same message as a yield sign. But it is “a more specific yield

sign,” specifically telling drivers “there’s a railroad

crossing” and they need to “yield for [a] train.”

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- “[S]tudies have shown that [a] crossbuck [sign] alone does

not give the kind of warning . . . that reminds people that

there is a potential train coming.”

- This is because the same type of crossbuck sign is used at

both active rail crossings (those with lights, bells, or

protective gates that automatically warn a driver that a

train is approaching) and passive crossings (those lacking

such automatic signals). As a result, drivers “tend to regard

the crossbuck sign as marking there’s a railroad track

here” and then rely on “active signals as being the devices

that control whether they should stop or go through the

crossing.” So, at passive crossings, drivers “sometimes

think the crossbuck sign merely marks the location of the

grade crossing when, in fact, it . . . also needs to [warn

drivers to] yield to trains.”

- Because “research . . . showed road users do not fully

comprehend the message being communicated by the

crossbuck” sign, and because “there is an advantage for

awareness improvement with the use of a yield sign,” in

2009, federal law began requiring yield signs be posted

along with crossbuck signs at passive crossings.

- Studies “indicate that [adding a] yield sign . . . conveys the

message that the driver has the responsibility to look for

and yield to an oncoming train better than . . . the

crossbuck alone.”

- Adding the yield sign “adds awareness and it makes people

recognize yield more than they recognize a crossbuck

[sign]. So the combination together works well.”

- This is particularly true for drivers who are not as familiar

with the crossing. “[D]rivers who are crossing the tracks for

the first time or very infrequently would be more prone to

respond by slowing somewhat and more conscientious

about searching for oncoming traffic.” But drivers who

cross the tracks “on a frequent basis” are likely to

“eventually . . . revert back to [their] behavior before the

yield sign was installed.” Warnings “tend to be less

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effective” for those who “use the same crossing over and

over.”

We agree with Horton that this evidence would support a finding that

adding a yield sign to an already existing crossbuck sign would help

alert drivers and cause them to look for an oncoming train before

actually crossing an otherwise unprotected track. And so conversely, we

agree that the evidence would support a finding that the absence of the

yield sign made it less likely that Rigsby would have looked and stopped

for the train that struck her pickup. But it is not sufficient to support

the finding Horton had to obtain to prevail on the yield-sign claim: that,

more likely than not, the absence of the yield sign proximately caused

Rigsby to proceed into the train’s path.

Other evidence, which a reasonable juror could not have ignored,

established that no studies or empirical data confirm that adding a yield

sign helps reduce crashes. The literature on which the experts relied

provides “little empirical basis regarding the change in crash rates at

crossings with either a yield or a stop sign,” and “no study has been

conducted on crash effect when yield signs are used.” As one report

explained, “[i]t is expected that this knowledge [a yield sign provides]

should increase advanced searching [for oncoming trains], but how this

apparent effectiveness carries over to actual locations, especially if most

passive crossings were to have a yield sign, is a matter of conjecture.”

A jury finding of proximate causation cannot be based on such

“conjecture.” Horton’s expert conceded that he could not point to any

study or evidence that the absence of the yield sign, “more likely than

not, would have been a difference” for this accident. And he could not

say that “this accident more likely than not would not have happened if

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the yield sign was present.” Nor does any other evidence support such a

finding. Horton’s expert testified that, in his opinion, the addition of a

yield sign more likely than not provides a more effective warning, but

he based that opinion merely on the fact that the federal government

recommended the addition of yield signs in 2000 and required them in

2009. This is not the type of basis that could support such an opinion,

and the opinion itself was insufficient to support a finding that the

absence of the yield sign more likely than not caused this particular

accident.

As to this accident, the video recording confirms that Rigsby, who

lived near the crossing and regularly crossed it for years up until she

was hospitalized several weeks before the accident in fact did slow down

as she approached the crossing, and then slowed even more, to three or

three-and-a-half miles per hour, before reaching the rails. As Horton’s

expert confirmed, Rigsby “was cautious. She showed approach. It looked

like she was intent. The purpose of those kind of signs and a warning

sign is to alert that.” We must conclude that no evidence supports a

finding that, more likely than not, Rigsby would have approached the

crossing any more cautiously or intently had the yield sign been present,

or that the absence of the yield sign more likely than not caused Rigsby

to drive into the train’s path.

IV.

Harmful Error

Having concluded that the ICCT Act does not preempt Horton’s

negligence claim based on the humped crossing, but no evidence

supports the negligence claim based on the missing yield sign, we must

finally determine whether the trial court’s submission of both negligence

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theories through a single broad-form negligence question constituted

harmful error. KC Southern objected to the broad-form question on the

ground that it would permit the jury to find negligence on an invalid

liability theory, and it offered a proposed charge that included two

blanks for the jury to separately determine the parties’ negligence

liability for the humped crossing and the missing yield sign.

The trial court overruled the objection and refused the proposed

question, believing it improperly granulated a single negligence cause of

action. The court of appeals—after agreeing with KC Southern that

federal law preempts the humped-crossing claim and agreeing with

Horton that the evidence supports the yield-sign claim—concluded that

the trial court erred by submitting both theories in one question and

that the error was harmful under Crown Life Insurance Co. v. Casteel,

22 S.W.3d 378 (Tex. 2000), because the court could not determine

whether the jury found negligence on a valid or invalid theory. See 666

S.W.3d at 19.

We have also concluded that only one of Horton’s two allegations

can support the jury’s negligence finding, albeit the opposite one. Thus,

we too must determine whether submission of the broad-form question

over KC Southern’s objection resulted in harmful error. KC Southern

argues it did because the question “commingle[d] valid and invalid

liability theories . . . and a proper reason for the verdict cannot be

ascertained from the record.” Horton argues it did not because the

question properly submitted Horton’s single claim for negligence,

leaving it to the jury to determine what acts would support that claim.

We agree with KC Southern.

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We held in Casteel that “when a trial court submits a single

broad-form liability question incorporating multiple theories of liability,

the error is harmful, and a new trial is required when the appellate court

cannot determine whether the jury based its verdict on an improperly

submitted invalid theory.” 22 S.W.3d at 388. Horton argues Casteel does

not apply here, however, because that case involved multiple, distinct

“theories of liability,” some of which were valid and others of which were

not. But here, Horton contends, the court submitted just one liability

theory—negligence. According to Horton, Casteel does not apply because

“[f]ailing to maintain tracks and failing to post a yield sign are different

negligent acts, not separate theories of liability.” We disagree.

It is true that Casteel involved a single broad-form liability

question with instructions addressing “thirteen independent grounds

for liability,” four of which we concluded were invalid. Id. at 387. But in

holding that the error was harmful because appellate courts could not

determine whether the jury based its verdict on an invalid theory, we

relied on and reaffirmed our prior decision in Lancaster v. Fitch, 246

S.W. 1015 (Tex. 1923), in which “the trial court submitted a single

general negligence issue with instructions regarding three distinct

theories of negligence liability.” Casteel, 22 S.W.3d at 389. Lancaster

applied the same rule in a case in which the plaintiff “pleaded three

separate acts of negligence as the proximate cause of his injury” and the

trial court submitted a single negligence question. 246 S.W. at 1015–16.

We held that the submission of one invalid negligence theory along with

two valid theories, where it was impossible to tell which theory the jury

relied on, was harmful error. Id. at 1015–17.

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We have since applied Casteel’s harmful-error rule in cases

involving a variety of circumstances that created the same problem for

the appellate courts, including the broad-form submission of multiple

elements of damages, Harris County v. Smith, 96 S.W.3d 230, 231 (Tex.

2002), the inclusion of two theories within a single

apportionment-of-responsibility question, Romero v. KPH Consol., Inc.,

166 S.W.3d 212, 215 (Tex. 2005), and a trial court’s refusal to submit

necessary instructions with a broad-form question, Columbia Rio

Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 865 (Tex. 2009).

Most recently, and most importantly, we specifically rejected Horton’s

argument in Benge v. Williams, 548 S.W.3d 466 (Tex. 2018).

At the trial in Benge, the plaintiff “argued and offered

evidence that her physician was negligent both in using an

inexperienced resident to assist with performing her surgery and in not

disclosing the resident’s level of involvement.” Id. at 467–68. But the

plaintiff only claimed a right to recover based on the physician’s

negligent use of the inexperienced resident and did “not claim a right to

recover for the nondisclosure.” Id. at 468. The trial court submitted a

broad-form negligence question, after refusing the physician’s request

for an instruction that the jury should disregard the plaintiff’s

arguments and evidence regarding the nondisclosure, and the jury

found in the plaintiff’s favor. Id. at 470. We held that the court erred in

refusing to submit the requested instruction, and we found that error

harmful under Casteel because the jury could have found negligence

based on the nondisclosure even though the plaintiff “does not assert

that claim.” Id. at 474. We did so even though the question the trial court

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submitted, “unlike the one in Casteel, did not include multiple theories,

some valid and some invalid. It inquired about a single theory:

negligence.” Id. at 475.

To the extent Horton contends that the Casteel rule applies only

when a broad-form question permits a liability finding based on a theory

or ground that is legally “invalid” as opposed to, as here, a ground

lacking sufficient evidence, our precedent has also rejected that

argument. We have applied the rule not only when the question permits

a finding based on a legally “invalid” theory, but when it permits an

erroneous finding based on a ground the evidence does not support,

Harris County, 96 S.W.3d at 231; Romero, 166 S.W.3d at 227–28, a

ground that is “jurisdictionally barred,” Tex. Comm’n on Hum. Rts. v.

Morrison, 381 S.W.3d 533, 535 (Tex. 2012), and, in Benge, a claim the

plaintiff simply “does not assert,” 548 S.W.3d at 474. As we explained in

Hawley, “[s]ubmission of an invalid theory” simply “involves ‘[a] trial

court’s error in instructing a jury to consider erroneous matters.’” 284

S.W.3d at 865 (quoting Harris County, 96 S.W.3d at 233).

Horton relies on our opinion in Dillard v. Texas Electric

Cooperative, where we stated that, under broad-form submission rules,

“jurors need not agree on every detail of what occurred so long as they

agree on the legally relevant result. Thus, jurors may agree that a

defendant failed to follow approved safety practices without deciding

each reason that the defendant may have failed to do so.” 157 S.W.3d

429, 434 (Tex. 2005) (citing Burk Royalty Co. v. Walls, 616 S.W.2d 911,

924 (Tex. 1981)). Indeed, we went on to say in Dillard that jurors “could

have unanimously found [the defendant] negligent, even if half believed

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the negligent act was overloading his truck and half believed it was

failing to warn oncoming traffic—acts that preceded two different

collisions.” Id. We read Horton’s reliance on Dillard to argue that the

trial court’s broad-form submission of his two negligence allegations was

not error at all, much less harmful under Casteel.

But Dillard involved a completely different issue: “whether the

trial court abused its discretion in refusing to submit one of two different

instructions on the defendants’ inferential rebuttal defenses.” Id. at 430.

We held that the court sufficiently instructed the jury on those defenses

and thus committed no error, and we made the statements on which

Horton relies to explain why additional instructions would have been

duplicative and unnecessary. Id. Our discussion addressed only the

defendants’ defenses, not the plaintiff’s claims, and the statements on

which Horton relies presumed that each of the acts supporting a

negligence finding were themselves valid and supported by the evidence.

Here, by contrast, we have concluded that the evidence does not support

one of the acts on which Horton relied for a negligence finding. Jurors

finding negligence may not all have to agree on the same valid and

supported grounds to find negligence, but they cannot rely on invalid or

unsupported grounds.

Finally, Horton argues that application of the Casteel rule in this

case would undermine our strong preference for broad-form

submissions, as set forth in Texas Rule of Civil Procedure 277. We think

this argument goes too far. Although Rule 277 is “intended to simplify

jury charges for the benefit of the jury, the parties, and the trial court,”

it “was certainly never intended to permit, and therefore encourage,

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more error in a jury charge.” Romero, 166 S.W.3d at 230. As we

explained when addressing this argument in Romero, Rule 277 requires

that issues be submitted to a jury in broad form “whenever feasible.” Id.

(quoting TEX. R. CIV. P. 277). We adhere to that rule today, but “Rule

277 is not absolute,” and “[s]ubmitting alternative liability standards

when the governing law is unsettled might very well be a situation

where broad-form submission is not feasible.” Casteel, 22 S.W.3d at 390

(quoting Westgate, Ltd. v. State, 843 S.W.2d 448, 455 n.6 (Tex. 1992)).

Our holding does not overhaul the general preference for

broad-form submission. Rather, it emphasizes that, despite our rules’

preference for broad-form jury questions, “broad-form submission

cannot be used to broaden the harmless error rule to deny a party the

correct charge to which it would otherwise be entitled.” Romero, 166

S.W.3d at 230. Where, as here, true doubt exists as to the validity of one

underlying theory and the trial court must resolve a close call20 as to

whether sufficient evidence supports a separate act of negligence,

submitting either separate questions or separate blanks within the

same question may be helpful. Separate jury questions are not the only

means to avoid a Casteel problem. In some cases, rephrasing the

question or giving an instruction not to consider theories that are

20 We note that this case does not present an issue of whether KC

Southern preserved its objection to the trial court’s error. KC Southern

objected that there was a Casteel-type defect in the form of the negligence

question because the humped-crossing theory was preempted, and the

missing-yield-sign theory was not supported by the evidence. Although this

objection was sufficient to make the court aware of its complaint, KC Southern

also tendered an alternative charge that separated the theories.

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unpled, invalid, or lacking in evidentiary support will be sufficient.21

And that alternative is preferable to separate questions when it is

feasible. Again, we emphasize that this holding does not undermine the

general preference for broad-form submission, but rather provides

additional guidance as to how courts should approach instances where

broad-form submission is not feasible.

Because the trial court submitted Horton’s negligence claim as a

broad-form question subsuming both his humped-crossing theory and

his missing-yield-sign theory, we are unable to discern whether the jury

found KC Southern negligent based on the yield-sign theory, which the

evidence does not support. Because the question “allows a finding of

liability based on evidence that cannot support recovery,” Casteel’s

“presumption-of-harm rule must be applied.” Benge, 548 S.W.3d at 475.

V.

Conclusion

We hold that the ICCT Act does not expressly preempt Horton’s

humped-crossing negligence claim, that KC Southern failed to bear its

burden of proving that the Act impliedly preempts that claim, that the

evidence does not support liability based on Horton’s missing-yield-sign

negligence claim, and that the trial court’s submission of both negligence

21 See, e.g., Benge, 548 S.W.3d at 474–76 (holding it was error to deny a

jury instruction not to consider an unpled negligence theory regarding failure

to disclose a resident’s level of involvement in surgery); Morrison, 381 S.W.3d

at 535–36 (holding that it was error to deny a request to rephrase an

employment discrimination liability question to specify discriminatory

termination rather than a term that encompassed actions that had not been

administratively exhausted); Hawley, 284 S.W.3d at 863–65 (holding it was

error to deny a limiting instruction that the jury should not consider actions of

a doctor who was not the hospital’s agent in determining hospital liability).

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theories using a broad-form question constituted harmful error in this

case. We thus affirm the court of appeals’ judgment reversing the trial

court’s judgment and remanding the case to that court for a new trial.

Jeffrey S. Boyd

Justice

OPINION DELIVERED: June 30, 2023

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