Carrillo v. ACF Industries, Inc.

MOSK, J.

I dissent.

I disagree that Jose Carrillo’s claims for injuries sustained when he fell from the top of a hopper car unequipped with guardrails were preempted by the Safety Appliance Acts (hereafter SAA), 49 United States Code sections 20301 to 20306 or the Federal Railroad Safety Act (hereafter FRSA), 49 United States Code section 20101 et seq. The regulations under the SAA make no mention of the particular safety appliances at issue here—protective guardrails on the top of hopper cars—that would have prevented Carrillo’s fall. Nor do the regulations under the FRSA. As the Court of Appeal correctly held, where the federal regulations are silent concerning the use of *1171 particular safety devices, there is no preemption of state common law claims.

The majority conclude that Congress intended to so occupy the field of railway “safety appliances” as to preempt all state common law tort claims for damages. Not so. Since the SAA was enacted, between 1883 and 1910, no United States Supreme Court or lower federal court decision in point has ever so held: in each case where the SAA was found to preempt state law, it was because the particular safety device at issue was specifically enumerated in federal regulations. With regard to the FRSA, Congress expressly protected the right of states to regulate railroad safety as to matters not covered by federal regulation.

Ignoring the strong presumption against preemption of state law, the majority rely on isolated dicta and broad generalities—what they call “guiding principles”—about the “vital” need for national standards in this area. In my view, the better “guiding principles” in this area support the conclusion that when the SAA has not spoken, safety comes first.

I

The factual and procedural background are as follows.

In June 1992, Carrillo, a truck driver for Amoco Chemical Company, was delivering pellets of polystyrene to Wincup Holdings, Inc. (hereafter Win-cup). The pellets were transferred from his truck through a heavy steel hose into the top of a hopper car operated by Wincup. The hopper car was 15 [A feet high; its top constitutes a work platform and has 2 walkways on each side. It is completely open and has no guardrails.

During the delivery, Carrillo and Wincup employees used a rope to lift the truck’s hose to the top of the hopper car, where it was inserted into a hatch. The Wincup employees left the area, saying they would return in 30 minutes, and Carrillo began pumping the delivery into the car. After about 30 minutes, Carrillo noticed that the material was coming out of the top of the car. Unable to locate any Wincup employees, he shut off the pump. When they did not return after another 20 minutes, he climbed to the top of the hopper car to adjust the hose. He stood over the hatch and bent over to untie the rope that was attached to the hatch and hose. As he lifted the hose, it began sliding down the side of the car. The rope came free from the hose and Carrillo fell backwards off the top of the car. He hit the wall of a building with both hands and then fell to the ground. He sustained serious injuries to his wrist, leg, and heel, requiring extensive surgeries.

*1172 Carrillo sued Wincup for negligence and ACF Industries, Inc. (hereafter ACF Industries) for negligence, breach of warranty, and products liability. Wincup settled. During trial, Carrillo dismissed all causes of action except for those based on products liability, including design defect and failure to warn. He contended that the hopper car should have been equipped either with a 42-inch guardrail, retractable or stationary, or with a lower railing to which a lanyard and safety harness could be attached. He also claimed that the design for harnessing should have been accompanied by a sign warning workers not to work on top of the car without such “fall protection.”

The jury, by special verdict, found that there had been both design defect and a failure to warn and awarded economic and noneconomic damages. After adjustments based on the jury’s assessment of comparative fault, the total judgment against ACF Industries was $1,429,274.13.

ACF Industries appealed on the ground, inter alia, that the common law tort claims were preempted by federal laws regulating railroad safety. The Court of Appeal affirmed. It concluded that Congress did not act to broadly preempt the field of “safety appliances”; the SAA and FRSA bar common law relief only with respect to the equipment they have specifically enumerated. Because there is no provision in the SAA or FRSA regulating the use of guardrails on hopper cars, there is no preemption of Carrillo’s claims.

We granted review. I would now affirm.

II

In Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504 [ 112 S.Ct. 2608 , 120 L.Ed.2d 407 ], the United States Supreme Court summarized the law of preemption as follows.

“Article VI of the Constitution provides that the laws of the United States ‘shall be the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.’ [U.S. Const., art. VI, cl. 2.] Thus, since our decision in McCulloch v. Maryland [(1819) 17 U.S. (4 Wheat.) 316, 427 [ 4 L.Ed. 579 ]], it has been settled that state law that conflicts with federal law is ‘without effect.’ [Citation.] Consideration of issues arising under the Supremacy Clause ‘start[s] with the assumption that the historic police powers of the States [are] not to be superseded by . . . Federal Act unless that [is] the clear and manifest purpose of Congress.’ [Citation.] Accordingly, ‘ “[t]he purpose of Congress is the ultimate touchstone” ’ of pre-emption analysis. [Citation.]

“Congress’ intent may be ‘explicitly stated in the statute’s language or implicitly contained in its structure and purpose.’ [Citation.] In the absence *1173 of an express congressional command, state law is pre-empted if that law actually conflicts with federal law, [citation], or if federal law so thoroughly occupies a legislative field ‘ “as to make reasonable the inference that Congress left no room for the States to supplement it.” ’ ” (Cipollone v. Liggett Group, Inc., supra, 505 U.S. at p. 516 [ 112 S.Ct. at p. 2617 ].)

In CSX Transp., Inc. v. Easterwood (1993) 507 U.S. 658, 668 [ 113 S.Ct. 1732, 1739-1740 , 123 L.Ed.2d 387 ], a case involving preemption of common law tort claims involving railroad safety, the United States Supreme Court referred to the “presumption against pre-emption.” (Italics added.) “In the interest of avoiding unintended encroachment on the authority of the States ... a court interpreting a federal statute pertaining to a subject traditionally governed by state law will be reluctant to find pre-emption.” (Id. at pp. 663-664 [ 113 S.Ct. at p. 1737 ].) The federal law must do more than “ ‘touch upon’ ” or “ ‘relate to’ ” the subject matter of relevant state law; preemption will lie only if the federal regulations “substantially subsume” that subject matter (Id. at p. 664 [ 113 S.Ct. at p. 1738 ].) The court also specifically rejected the argument, echoed here, that the “ ‘hit-or-miss common law method’ ” of enforcing state common law standards, runs counter to the federal laws, observing that “the scheme of negligence liability could just as easily complement [the] regulations.” (Id. at p. 668 [ 113 S.Ct. at p. 1739 ].)

ACF Industries contends that the common law tort claims in this matter are preempted by two sets of federal laws concerning railroad safety: the SAA and FRSA. The former contains no express preemption language; ACF Industries argues, however, that it is implied. The latter contains an express preemption provision, section 20106 of title 49 of the United States Code, which provides, in relevant part, that “[a] State may adopt or continue in force a law, regulation, or order related to railroad safety until the Secretary of Transportation prescribes a regulation or issues an order covering the subject matter of the State requirement.” 1

I address the two points in turn.

With regard to the SAA, Carrillo’s claim is preempted only if it may fairly be implied either that the SAA was intended by Congress to occupy the entire field of railroad safety appliances or, more narrowly, that existing *1174 regulations concerning guardrails on hopper cars actually conflict with state law. Neither is the case.

The SAA states specific requirements for the use of particular safety devices on railroad cars. These include secure sill steps and hand brakes, ladders and running boards, roof handholds or grab irons at the top of ladders, side and end handholds or grab irons for security in coupling. ( 49 U.S.C. § 20302 (a)(1), (2).) Nothing on the face of the statutory scheme, which provides for a narrow list of equipment for certain types of railroad cars, indicates that Congress intended to occupy the entire field of safety equipment for railroad cars. Nor does the majority point to any legislative history suggesting a broader purpose.

Review of relevant Supreme Court decisions going back to the beginning of the century confirms that the SAA does not have preemptive effect when the federal law is silent about a particular safety feature.

Atlantic Coast Line v. Georgia (1914) 234 U.S. 280 [ 34 S.Ct. 829 , 58 L.Ed. 1312 ] (Atlantic) involved a claim by the plaintiff railroad that a Georgia statute requiring locomotives to be equipped with headlights was preempted by the SAA and other federal provisions. The high court disagreed. Enumerating the specific requirements of the federal provisions, including the SAA and the regulations thereunder, it explained: “[I]t is manifest that none of these acts provides regulations for locomotive headlights. . . . As to these, the situation has not been altered by any exertion of Federal power .... The most that can be said is that. . . Congress has not yet decided to establish regulations, either directly or through its subordinate body, as to the appliance in question. The intent to supersede the exercise of the State’s police power with respect to this subject cannot be inferred from the restricted action which thus far has been taken.” (Id. at pp. 293-294 [34 S.Ct. at pp. 832-833].)

Subsequently, in Napier v. Atlantic Coast Line (1926) 272 U.S. 605 [ 47 S.Ct. 207 , 71 L.Ed. 432 ] (Napier), the Supreme Court considered the validity of state laws requiring that locomotives be equipped with firebox doors and cab curtains. As in Atlantic, the court enumerated the federal requirements under the SAA and other provisions, observing that the regulations under the SAA did not specifically address these appliances. With regard to preemption, it stated, as relevant here: “The intention of Congress to exclude States from exerting their police power must be clearly manifested. [Citations.] Does the legislation of Congress manifest the intention to occupy the entire field of regulating locomotive equipment? Obviously it did not do so by the Safety Appliance Act, since its requirements are specific.” ( 272 U.S. at p. 611 *1175 [ 47 S.Ct. at p. 209 ], italics added.) Napier expressly distinguished the preemptive scope of the then recently amended Boiler Inspection Act (BIA, presently the Locomotive Inspection Act, 49 U.S.C. § 20701 et seq.), concluding that its provisions were intended to occupy the general field of locomotive health and safety appliances. ( 272 U.S. at p. 613 [ 47 S.Ct. at p. 210 ].)

Consistent with Napier , the Supreme Court has limited the application of the SAA’s strict liability provisions to claims involving specific devices enumerated by its regulations. Thus, in A. T. & S.F. Ry. v. Scarlett (1937) 300 U.S. 471, 475 [ 57 S.Ct. 541, 543 , 81 L.Ed. 748 ], it held that because the injurious design of a brace rod on the side of a railcar was not covered under the SAA, the plaintiff could recover damages only in an action for common law negligence. In Jordan v. Southern Ry. Co. (4th Cir. 1992) 970 F.2d 1350 , the Fourth Circuit Court of Appeals, following Napier , explained: “ ‘Safety appliance’ is a popular name given to the statute and the equipment it treats; however, the statute nowhere defines a generic class of ‘safety appliances.’ Instead, the statute contains a strikingly specific laundry list of equipment a railroad must have on each type of car: ladders, brakes, automatic couplers, hand holds, running boards, etc.” (Id. at p. 1352; accord, Moses v. Union Pacific R.R. (8th Cir. 1995) 64 F.3d 413, 418 [“[T]he FSAAs do not extend to devices not enumerated in [the SAA].”) 2

The majority purport to rely instead on Penna. R.R. Co. v. Pub. Service Comm. (1919) 250 U.S. 566 [ 40 S.Ct. 36 , 63 L.Ed. 1142 ] (Penna.) to support their conclusion that the SAA is preemptive. Referring to dicta in Penna. to the effect that the safety of railroad rolling stock is a subject matter that “is peculiarly one that calls for uniform law” ( 250 U.S. at p. 569 [ 40 S.Ct. at p. 37 ]), they urge that any lesser standard than complete preemption in this area would be unworkable. The actual holding in Penna., however, was far more limited, addressing a direct conflict between state and federal law about particular safety requirements. Specifically, it held that the absence of a rear platform, rails, and steps on a mail car could not be the basis for a state law penalty because federal regulations under the SAA both regulated those cars and permitted them without such equipment. Nor has the Supreme Court endorsed such a sweeping view of Penna. Thus, in Terminal Assn. v. Trainmen (1943) 318 U.S. 1 [ 63 S.Ct. 420 , 87 L.Ed. 571 ], the Supreme Court held that neither the SAA nor the BIA preempted a state requirement for cabooses in the absence of federal regulations on the subject matter, noting that, if enacted, such regulations would be controlling: “This and no more is the effect of [Penna.].” (Id. at pp. 4-5 [ 63 S.Ct. at p. 422 ].)

*1176 The majority also point to dicta in Southern Ry. Co. v. R.R. Comm., Indiana (1915) 236 U.S. 439, 447 [ 35 S.Ct. 304, 305 , 59 L.Ed. 661 ] (Southern) to the effect that “Congress has so far occupied the field of legislation relating to the equipment of freight cars with safety appliances as to supersede existing and prevent further legislation on that subject.” Southern, too, involved the preemptive effect of specific regulations under the SAA concerning grab irons and handholds. In that context, the language relied upon by the majority, rather than referring to the general class of safety appliances, would appear to refer only to safety appliances specified by the SAA. Such a conclusion finds support in the court’s previous decision in Atlantic, supra, 234 U.S. 280 , and is confirmed by its subsequent decision in Napier, supra, 272 U.S. 605 .

Texas & Pacific Ry. Co. v. Rigsby (1916) 241 U.S. 33 [ 36 S.Ct. 482 , 60 L.Ed. 874 ], cited by appellant, also does not support preemption. Rigsby held that a worker injured because of a defective handhold or grab iron had a strict right of recovery under the SAA—which specifically regulated those safety appliances—and that such right could not be limited by state law doctrines such as negligence. This case, too, offers no support for the majority’s conclusion that Congress intended to preempt the broad subject of “safety appliances” in general.

Nor does the existence of regulations concerning guardrails on tank cars necessarily preempt state regulation of guardrails on all types of rail freight cars, as the majority incorrectly conclude. Their reliance on Shields v. Atlantic Coast Line R. Co. (1956) 350 U.S. 318 [ 76 S.Ct. 386 , 100 L.Ed. 364 ] for this proposition is misplaced. Shields involved an action by an independent contractor for absolute liability against the railroad for injuries caused by a defective running board located on the dome of a tank car. The United States Supreme Court concluded that, for the purposes of such an action, a “dome running board” came within the meaning of the term “running boards” as used in a provision of the SAA requiring “secure running boards” on certain freight cars. (Id. at pp. 321-323 [76 S.Ct. at pp. 389-390].) While it is undoubtedly true that guardrails on a hopper car, like guardrails on a tank car, would constitute a “safety appliance”—and that any federal regulations concerning their use would be preemptive if they existed—the dis-positive point for our purposes is that guardrails are not specified for hopper cars. There can be no preemption in the absence of any regulation in this area. 3

Turning briefly to the FRSA, as discussed, it contains an express preemption provision. ( 49 U.S.C. § 20106 .) As discussed, it provides that states may *1177 adopt or continue regulation of matters relating to railroad safety until the Secretary of Transportation “prescribes a regulation or issues an order covering the subject matter of the State requirement.” (Ibid.)

The Supreme Court has held that “pre-emption [under the FRSA] will lie only if the federal regulations substantially subsume the subject matter of the relevant state law.” (CSX Transp., Inc. v. Easterwood, supra, 507 U.S. at p. 664 [ 113 S.Ct. at p. 1737 ].) Carrillo’s claim is thus preempted only if the Secretary of Transportation has adopted regulations that “cover[] the subject matter” of guardrails and warnings on hopper cars. None of the items required by the federal regulations cover or duplicate the types of safety measures Carrillo alleged were required.

Defendant urges that the existence of regulations concerning safety railings on tank cars ( 49 C.F.R. §§ 231.7 (f), 231.8(h) (1977)) signifies, by negative implication, that there is no such requirement for hopper cars. Not so. The regulations concerning tank cars do not cover fall protection measures concerning hopper cars—a different kind of railroad car. There are no regulations concerning fall protection on the top of hopper cars. (See id., §§ 231.2, 231.4, 231.5 [listing safety regulations concerning hopper cars].) Because of the lack of specific provisions covering the safety devices at issue here, there was no preemption: the regulations do not address, and therefore cannot “substantially subsume” the subject matter of Carrillo’s tort claims.

Ill

Congress has not expressed, or implied, an intention to preempt the entire undefined field of railroad safety appliances. Carrillo’s claims involve particular safety appliances on hopper cars that are not the subject of any federal regulations. The majority’s conclusions to the contrary find no support in the SAA, the FRSA, or decisions of the United States Supreme Court. Accordingly, I dissent.

In the case of a particular subject matter covered by such federal regulation, “A state may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety when the law, regulation, or order— [f] (1) is necessary to eliminate or reduce an essential local safety hazard; fl[] (2) is not incompatible with a law, regulation, or order of the United States Government; and ft]] (3) does not unreasonably burden interstate commerce.” ( 49 U.S.C. § 20106 .)

State courts have similarly held that the SAA preempts state law only when there is a direct conflict. (See, e.g., Rucker v. Norfolk & W. Ry. Co. (1979) 77 III.2d 434, 440 [33 III.Dec. 145, 396 N.E.2d 534, 537 ]; Apache Ry. Co. v. Shumway (1945) 62 Ariz. 359, 370 [ 158 P.2d 142, 147 ].)

The majority also warn, in dicta, that safety requirements imposed by individual states might create an unconstitutional burden on interstate commerce. No such question was raised here; nor are we called upon to speculate about hypothetical constitutional violations. Moreover, the fact that Congress expressly permits the state regulation of matters relating to *1177 railroad safety under the FRSA, so long as it does not unreasonably burden interstate commerce ( 49 U.S.C. § 20106 ), strongly undercuts any implication that it will inevitably, or even likely, do so.