Nickels v. Grand Trunk Western RR, Inc.

ROGERS, Circuit Judge,

dissenting.

The plaintiffs’ FELA claims are not categorically precluded by the FRSA in this case. Like the majority, I agree with the well-reasoned holdings from other jurisdictions that a railway-safety claim that would be preempted by the FRSA if brought by a nonemployee under state tort law, would necessarily be precluded by the FRSA if brought by a railroad employee under the FELA. See Lane v. R.A Sims, Jr., Inc., 241 F.3d 439, 443-44 (5th Cir.2001); Waymire v. Norfolk & W. Ry. Co., 218 F.3d 773, 775-76 (7th Cir.2000). However, under the Supreme Court’s FRSA federal preemption analysis, the FRSA regulations that require adequate physical support for rails do not sufficiently imply that railroads may use any grade of sufficiently supportive ballast, no matter the risk to employees who must walk on the ballast. I therefore respectfully dissent.

The Supreme Court’s analysis in CSX Transportation, Inc. v. Easterwood, 507 U.S. 658 , 113 S.Ct. 1732 , 123 L.Ed.2d 387 (1993), the seminal FRSA preemption case, strongly suggests that the FRSA regulation in this case does not preclude an FELA action. The regulation, while putting requirements on railroads regarding adequate physical support for trains, in no way implies that such physical support may be obtained without regard to harms to workers from the roughness of the walking surface of the ballast. This is in direct contrast with the situation in East-erwood, where the Supreme Court relied on just such an implication.

Nothing in 49 C.F.R. § 213.103 or any related regulations addresses the issue of trackside walkways and ballast size. The regulations generally require adequate support for the trains, and advert in no way to the nature of a walking surface. Section 213.103 provides as follows:

Unless it is otherwise structurally supported, all track shall be supported by material which will—

(a) Transmit and distribute the load of the track and railroad rolling equipment to the subgrade;

(b) Restrain the track laterally, longitudinally, and vertically under dynamic loads imposed by railroad rolling equip *434 ment and thermal stress exerted by the rails;

(c) Provide adequate drainage for the track; and

(d)Maintain proper track crosslevel, surface, and alinement.

Sections 213.33 and 213.37 then address roadbed drainage and trackside vegetation. Further regulations set forth highly technical requirements for track geometry. See §§ 213.57 (curves; elevations and speed limitations), 213.63 (track surface), 213.55 (alinement). All of these provisions are primarily concerned with providing a stable track and roadbed. 1 The provisions are essentially silent with respect to conditions of the walkways directly adjacent to the track. 2

Plaintiffs point to nothing in the regulation implicitly permitting the railroad to use whatever size ballast it wants as long as there is adequate support. This is in direct contrast with what the Supreme Court relied upon in Easterwood . In that case the Supreme Court held that a state tort action for wrongful death, to the extent that it was based on a train’s traveling at excessive speed, was preempted by FRSA train-speed regulations. Easterwood, 507 U.S. at 676 , 113 S.Ct. 1732 . The regulations relied upon by the railroad limited the tram’s speed to 60 m.p.h. for the class-four crossing at which the collision with the decedent’s truck took place. Id. at 673 , 113 S.Ct. 1732 . The Supreme Court did not simply say that because the defendant’s train was going under the speed limit, and because the claim was for excessive speed, the claim was preempted. Instead, the Court was at pains to infer that the speed limit was not only a prohibition on going over 60 m.p.h., but also a permission to go up to 60 m.p.h. “Understood in the context of the overall structure of the regulations, the speed limits must be read as not only establishing a ceiling, but also precluding additional state regulation of the sort that respondent seeks to impose on petitioner.” Id. at 674 , 113 S.Ct. 1732 . The Court came to this conclusion by the following reasoning:

Because the conduct of the automobile driver is the major variable in grade crossing accidents, and because trains offer far fewer opportunities for regulatory control, the safety regulations established by the Secretary concentrate on providing clear and accurate warnings of the approach of oncoming trains to drivers. Accordingly, the Secretary’s regulations focus on providing appropriate warnings given variations in train speed. [The Supreme Court here provided several examples in support.]

Read against this background, [the FRSA speed limit regulation] should be understood as covering the subject matter of train speed with respect to track conditions, including the conditions posed by grade crossings.

Id. In other words, the focus in the regulations on grade crossing warnings implied that trains could freely proceed at a speed *435 up to the regulatory limit. Imposing a lower limit would interfere with that regulatory balance.

In contrast, the regulation here cannot be viewed as giving defendants permission to comply in any manner they desire. No interrelation between physical support for trains and the surface of walkways has been identified in the regulatory scheme in this case. Whereas in Easterwood the Court found in effect that the regulatory scheme demanded that safety from cross-way collisions come primarily from signals rather than slow speed, there is no basis for us to read that adequate physical support for trains and safe walkways for workers are interests that have been counterbalanced to permit the use of any grade of surface ballast on walkways.

This case then is no different from one in which a railroad worker brings an FELA suit for being injured by debris when ballast is carelessly unloaded into place, or an FELA suit for injury from worker contact with a carcinogenic herbicide used to keep plants from growing on ballast. Nothing in the ballast-support regulations contemplates that there can categorically be no negligence with respect to a railroad’s construction or maintenance of ballast.

A number of courts have accordingly held that FRSA regulations do not preclude FELA suits based on ballast walkways. See Wilcox v. CSX Transp., Inc., No. 1:05-CV107, 2007 WL 1576708 (N.D.Ind. May 80, 2007); Grimes v. Norfolk S. Ry. Co., 116 F.Supp.2d 995 (N.D.Ind.2000); Elston v. Union Pac. R.R. Co., 74 P.3d 478 (Colo.Ct.App.2003); 3 see also S. Pac. Transp. Co. v. Pub. Utils. Comm’n, 647 F.Supp. 1220 (N.D.Cal.1986), af'd per curiam, 820 F.2d 1111 (9th Cir.1987).

This of course is not to say that a jury may require an action that violates the FRSA regulation. If, for instance, a successful FELA claim effectively created “a walkway requirement or other safety regulation that hindered or prevented a railroad from complying simultaneously with an FRA regulation designed to enhance safety in a different area,” Missouri Pacific Railroad Co. v. Railroad Commission of Texas, 833 F.2d 570, 574 (5th Cir.1987), FELA relief would clearly be precluded on that ground. A jury verdict for the plaintiff cannot impose “ ‘different or higher standards’ of track construction by superimposing the walkway requirement on federal track ... structure regulations.” See id. at 575 . In that instance, the railroad could not comply both with the judgment against it on the FELA claim and with the FRSA regulation.

But nothing like that has yet been shown by defendants in this case. Unlike the regulation at issue in Easterwood , the FRSA regulation is a floor that guarantees a minimum level of safety and there are many ways that the railroad can meet the standard. The manner in which the railroad complies with the standard may involve using ballast that is more or less conducive to creating safe walkways for railroad employees. While compliance *436 with the FRSA regulation is evidence of due care, it “does not preclude finding negligence if reasonable railroads would have taken additional precautions to prevent injury to their employees.” Lane, 241 F.3d at 442 .

Because defendants have not shown that the regulation would preempt state actions under Easterwood’s standard, it similarly does not preclude FELA relief.

. This is not to suggest that § 213.103 is not concerned with employee safety. The FRA adopts all regulations with the objective of "protecting persons along the right-of-way and railroad employees" in mind. 43 Fed.Reg. 10,583, 10,585 (Mar. 14, 1978); see also Lane, 241 F.3d at 444 ("Railroad operations cannot be conducted without railroad employees; therefore, it seems obvious that railroad employee safety is one of the 'area[s] of railroad operations' addressed by the statute and regulations.” (quoting 49 U.S.C. § 20101 )). By preventing train derailments, the FRA is making for much safer employee conditions.

. The only provision that hints at concern with walkways is § 213.37(c), which requires that vegetation on or immediately adjacent to the roadbed be controlled so that it does not "[¡Interfere with railroad employees performing normal trackside duties.”

. I recognize that Norris v. Central of Georgia Railroad Co., 280 Ga.App. 792 , 635 S.E.2d 179 (2006), is to the contrary, and that some non-FELA cases have reasoning that is in some tension with this analysis. See Norfolk & W. Ry. Co. v. Burns, 587 F.Supp. 161, 170 (E.D.Mich.1984) (concluding that walkways are a part of track structure and thus immune from additional state regulation); Black v. Seaboard Sys. R.R., 487 N.E.2d 468, 469 (Ind.Ct.App.1986) (concluding that walkways are a part of track structure and thus covered by FRSA regulations); Black v. Balt. & Ohio R.R. Co., 398 N.E.2d 1361, 1363 (Ind.Ct.App.1980) (deciding that the regulations, "although not specifically dealing with” muddy walkways, regulated the entire track structure).