Petition for Writ of Certiorari — Metro-North Commuter Railroad Co., Petitioner v. Jamey Murphy
Supreme Court briefDec 6, 2019
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No. 19In the
Supreme Court of the United States
METRO-NORTH COMMUTER
RAILROAD CO.,
Petitioner,
v.
JAMEY MURPHY,
Respondent.
On Petition for a Writ of Certiorari to the
Supreme Court of Connecticut
PETITION FOR A WRIT OF CERTIORARI
Charles A. Deluca
Robert O. Hickey
Beck S. Fineman
Ryan Ryan Deluca LLP
1000 Lafayette Blvd.
Suite 800
Bridgeport, CT 06604
Charles G. Cole
A lice E. Loughran
Mark C. Savignac
Counsel of Record
Steptoe & Johnson LLP
1330 Connecticut Ave., N.W.
Washington, D.C. 20036
(202) 429-3000
msavignac@steptoe.com
Counsel for Petitioner
i
QUESTION PRESENTED
The Federal Railroad Safety Act declares that
“[l]aws, regulations, and orders related to railroad
safety … shall be nationally uniform to the extent
practicable.” 49 U.S.C. § 20106(a)(1). The Act
empowers the Secretary of Transportation to
“prescribe regulations and issue orders for every area
of railroad safety.” Id. § 20103(a). And it expressly
preempts state-law claims whenever the Secretary
has prescribed a regulation “covering the subject
matter of the State requirement.” Id. § 20106(a)(2).
Pursuant to the Act, the Secretary has prescribed
regulations providing criteria for determining the
class of each track and fixing maximum operating
speeds for each class. See 49 C.F.R. § 213.9. In CSX
Transportation, Inc. v. Easterwood, this Court held
that § 213.9 “should be understood as covering the
subject matter of train speed with respect to track
conditions.” 507 U.S. 658, 675 (1993). The Court
accordingly concluded that the Act preempts state-law
claims that a train “was traveling too quickly given
the time and place.” Id. at 675 & n.15 (internal
quotation marks omitted).
The question presented is:
Does the Federal Railroad Safety Act preempt a
state-law claim that a train may not travel on a track
next to a passenger platform at the operating speed
set by 49 C.F.R. § 213.9?
ii
PARTIES TO THE PROCEEDING,
CORPORATE DISCLOSURE STATEMENT,
AND LIST OF RELATED PROCEEDINGS
The caption contains the names of all of the parties
to the proceeding in the court whose judgment is
sought to be reviewed. Two other entities—Wilton
Enterprises, Inc., and the Town of Darien,
Connecticut—were initially named as defendants in
the state trial court, but they were dismissed prior to
the proceeding in the state supreme court. See Pet.
App. 2a n.1.
Petitioner Metro-North Commuter Railroad
Company is a public benefit corporation created by
New York law and a wholly owned subsidiary of the
Metropolitan Transportation Authority, which is a
public benefit corporation of the State of New York.
The only directly related proceedings within the
meaning of this Court’s Rule 14.1(b)(iii) are the
proceedings below:
Murphy v. Town of Darien, FBTCV 136039787,
Superior Court of Connecticut, Fairfield at
Bridgeport. Judgment entered April 10, 2017.
Murphy v. Town of Darien, SC 19983, Supreme
Court of Connecticut. Judgment entered July
9, 2019.
iii
TABLE OF CONTENTS
QUESTION PRESENTED................................ i
PARTIES TO THE PROCEEDING,
CORPORATE DISCLOSURE STATEMENT,
AND LIST OF RELATED PROCEEDINGS ... ii
TABLE OF CONTENTS ................................. iii
TABLE OF APPENDICES ............................. iv
TABLE OF AUTHORITIES ............................. v
OPINIONS BELOW ......................................... 1
JURISDICTION ............................................... 1
STATUTORY AND REGULATORY
PROVISIONS INVOLVED .............................. 1
STATEMENT OF THE CASE ......................... 2
A. Legal Background .................................. 2
B. Factual and Procedural Background .... 7
REASONS FOR GRANTING THE
PETITION ...................................................... 11
I. The decision below contravenes
Easterwood ................................................ 12
II. The decision below infringes upon the
federal interest in railroad safety ............ 17
CONCLUSION ............................................... 19
iv
TABLE OF APPENDICES
APPENDIX A — OPINION OF THE
SUPREME COURT OF CONNECTICUT,
DATED JULY 9, 2019 .................................... 1a
APPENDIX B — OPINION OF THE
SUPERIOR COURT OF CONNECTICUT,
FAIRFIELD AT BRIDGEPORT, DATED
APRIL 10, 2017 ............................................ 33a
APPENDIX C — RELEVANT STATUTORY
AND REGULATORY PROVISIONS ........... 51a
v
TABLE OF AUTHORITIES
Cases
Anderson v. City of Bessemer City,
470 U.S. 564 (1985) .............................................. 13
Bashir v. Amtrak,
119 F.3d 929 (11th Cir. 1997) ................................ 9
Bashir v. National Railroad Passenger Corp.,
929 F. Supp. 404 (S.D. Fla. 1996) ................ passim
Bouchard v. CSX Transportation, Inc.,
196 F. App’x 65 (3d Cir. 2006) ............................... 6
Consolidated Edison Co. v. NLRB,
305 U.S. 197 (1938) .............................................. 13
Cooper v. Harris,
137 S. Ct. 1455 (2017) .......................................... 12
Cox Broadcasting Corp. v. Cohn,
420 U.S. 469 (1975) ................................................ 1
CSX Transportation, Inc. v. Easterwood,
507 U.S. 658 (1993) ...................................... passim
Dresser v. Union Pacific Railroad Co.,
809 N.W.2d 713 (Neb. 2011) ........................ passim
Goodyear Atomic Corp. v. Miller,
486 U.S. 174 (1988) ................................................ 1
vi
Herndon v. National Railroad Passenger Corp.,
814 A.2d 934 (D.C. 2003) ....................................... 6
Hightower v. Kansas City Southern Railway Co.,
70 P.3d 835 (Okla. 2003)........................................ 6
Illinois Central Gulf Railroad Co. v. Travis,
106 So. 3d 320 (Miss. 2012) ................................... 6
Lane v. R.A. Sims, Jr., Inc.,
241 F.3d 439 (5th Cir. 2001) .................................. 6
Ludwig v. Norfolk Southern Railway Co.,
50 F. App’x 743 (6th Cir. 2002) ............................. 6
Macfarlane v. Canadian Pacific Railway Co.,
278 F.3d 54 (2d Cir. 2002) ..................................... 6
Michael v. Norfolk Southern Railway Co.,
74 F.3d 271 (11th Cir. 1996) .................................. 6
Norfolk Southern Railway Co. v. Shanklin,
529 U.S. 344 (2000) .............................................. 18
Pierce v. Underwood,
487 U.S. 552 (1988) .............................................. 13
St. Louis Southwestern Railway Co. v. Pierce,
68 F.3d 276 (8th Cir. 1995) .................................... 6
U.S. Bank N.A. ex rel. CWCapital Asset Mgmt.
LLC v. Village at Lakeridge, LLC,
138 S. Ct. 960 (2018) ............................................ 13
vii
Veit ex rel. Nelson v.
Burlington Northern Santa Fe Corp.,
249 P.3d 607 (Wash. 2011) .................................... 6
Waymire v. Norfolk & Western Railway Co.,
218 F.3d 773 (7th Cir. 2000) .................................. 6
Zimmerman v. Norfolk Southern Corp.,
706 F.3d 170 (3d Cir. 2013) ................................... 7
Statutes & Other Authorities:
28 U.S.C. § 1257 .......................................................... 1
49 C.F.R. § 1.89 ........................................................... 2
49 C.F.R. § 213.9 ............................................... passim
49 C.F.R. §§ 213.51-213.143........................................ 3
49 C.F.R. § 213.57 ....................................................... 3
49 C.F.R. § 213.59 ....................................................... 3
49 C.F.R. § 213.113 ..................................................... 3
49 C.F.R. § 213.137 ..................................................... 3
49 U.S.C. § 20101 .............................................. 1, 2, 18
49 U.S.C. § 20103 ........................................................ 2
49 U.S.C. § 20106 ............................................ 2, 12, 18
49 U.S.C. § 20134 ...................................................... 17
63 Fed. Reg. 33,992 ......................................... 4, 17, 18
OPINIONS BELOW
The opinion of the Supreme Court of Connecticut
is reported at 332 Conn. 244, 210 A.3d 56. The opinion
of the Superior Court of Connecticut is reported at 64
Conn. L. Rptr. 267. Both opinions are reproduced in
the appendix to this petition. Pet. App. 1a-50a.
JURISDICTION
The Supreme Court of Connecticut entered
judgment on July 9, 2019. Pet. App. 1a. On
September 26, 2019, Justice Ginsburg extended the
time to file this petition to December 6, 2019.
This Court has jurisdiction under 28 U.S.C.
§ 1257. The decision below conclusively rejects MetroNorth’s federal preemption defense; further
proceedings below might insulate the federal question
from review in the future; reversal on this federal
issue would put an end to this litigation; and failure
to immediately review the decision below might
seriously erode the federal policy favoring uniform
standards for railroad safety. The judgment below is
therefore “final” under Cox Broadcasting Corp. v.
Cohn, 420 U.S. 469, 482-83 (1975). See, e.g., Goodyear
Atomic Corp. v. Miller, 486 U.S. 174, 178-80 (1988)
(holding that a state court ruling rejecting federal
preemption was final under Cox Broadcasting’s
“pragmatic approach” to § 1257 finality).
STATUTORY AND REGULATORY
PROVISIONS INVOLVED
The relevant provisions of the Federal Railroad
Safety Act of 1970, as amended, 49 U.S.C. § 20101 et
seq., and regulations promulgated thereunder are set
forth in the appendix. Pet. App. 51a-55a.
2
STATEMENT OF THE CASE
A.
Legal Background
1. Congress enacted the Federal Railroad Safety
Act (FRSA) “to promote safety in every area of
railroad operations and reduce railroad-related
accidents.” 49 U.S.C. § 20101. FRSA empowers the
Secretary of Transportation to “prescribe regulations
and issue orders for every area of railroad safety.” Id.
§ 20103(a). The Secretary has in turn delegated
regulatory authority to the Federal Railroad
Administrator. 49 C.F.R. § 1.89.
FRSA directs that “[l]aws, regulations, and orders
related to railroad safety … shall be nationally
uniform to the extent practicable.”
49 U.S.C.
§ 20106(a)(1). To that end, FRSA expressly preempts
state law whenever the Secretary “prescribes a
regulation or issues an order covering the subject
matter of the State requirement.” Id. § 20106(a)(2);
see also id. § 20106(b).1
2. Exercising the powers conferred by FRSA, the
Secretary has promulgated regulations sorting tracks
into numbered classes and setting maximum
operating speeds for each class. The regulations
classify tracks based on a range of attributes that the
1 The preemption provision contains an exception for certain
state laws that are “necessary to eliminate or reduce an
essentially local safety or security hazard.”
49 U.S.C.
§ 20106(a)(2). This exception is not at issue here. The
preemption provision also allows state-law claims alleging
breach of a standard of care established by or pursuant to federal
law. See id. § 20106(b). There is no such allegation in this case.
Pet. App. 11a, 28a.
3
Secretary deemed relevant to operating speed,
including gage, track alinement, track surface, and
number of crossties per segment of track. See 49
C.F.R. §§ 213.51-213.143. The maximum speeds for
trains operating on track in Classes 1 through 5 are
codified at 49 C.F.R. § 213.9.
Section 213.9 also specifies a limited number of
exceptions to its maximum operating speeds. These
exceptions apply where the track fails to meet all of
the requirements for the lowest class of track, id.
§ 213.9(b); where the track curves, id. §§ 213.57(b),
213.59(a); where the rail contains certain specified
defects, id. § 213.113; and where railroad “frogs”
(equipment used where two tracks cross) are in poor
condition, id. § 213.137(b) and (c).
Two of these exceptions to § 213.9(a)’s maximum
operating speeds prohibit train operation at any
speed. First, trains may only operate on track that
“does not at least meet the requirements for Class 1
track … for a period of not more than 30 days.” Id.
§ 213.9(b). Second, “operation over the … rail is not
permitted” if the track “contains any of the defects
listed in” § 213.113(c). Id. § 213.113(a).
Under the regulations, the class of a segment of
track does not turn on whether it runs adjacent to a
passenger platform. Nor do the regulations recognize
any exception to § 213.9’s operating speeds for track
that runs adjacent to a platform. In short, while the
Secretary deemed numerous features relevant to the
maximum operating speed consistent with railroad
safety, the proximity of the track to an area where
people might be (such as a passenger platform) is not
among them.
4
“This omission is intentional”: The “current
regulations governing train speed do not afford any
adjustment of train speeds in urban settings or at
grade crossings.” 63 Fed. Reg. 33,992, 33,999 (June
22, 1998). The decision to set maximum operating
speeds on the basis of a discrete set of considerations,
to the exclusion of other considerations, does not
merely advance efficiency and national uniformity. It
also advances the fundamental interest in railroad
safety:
FRA believes that locally established speed
limits may result in hundreds of individual
speed restrictions along a train’s route,
increasing safety hazards and causing train
delays. The safest train maintains a steady
speed. Every time a train must slow down and
then speed up, safety hazards, such as buff and
draft forces, are introduced. These kinds of
forces can enhance the chance of derailment with
its attendant risk of injury to employees, the
traveling public, and surrounding communities.
Id.
3. This Court addressed the preemptive effect of
FRSA and § 213.9 in CSX Transportation, Inc. v.
Easterwood, 507 U.S. 658 (1993).
Interpreting
FRSA’s preemption provision, the Easterwood Court
held that “pre-emption will lie only if the federal
regulations substantially subsume the subject matter
of the relevant state law.” Id. at 664. The Court then
applied that standard to an excessive speed claim
under state law. See id. at 673-75.
The decedent in Easterwood was killed when a
train hit his truck at a railroad crossing. Id. at 661.
5
The train was operating on Class 4 track, and the
plaintiff conceded that it did not exceed the maximum
operating speed for Class 4 track under § 213.9. Id. at
673. Nonetheless, the plaintiff claimed that CSX had
“breached its common-law duty to operate its train at
a moderate and safe rate of speed” at the crossing. 507
U.S. at 673. CSX responded that the claim was
preempted “because the federal speed limits are
regulations covering the subject matter of the common
law of train speed.” Id.
The Court began by acknowledging that, “[o]n
their face, the provisions of § 213.9(a) address only the
maximum speeds at which trains are permitted to
travel given the nature of the track on which they
operate.” Id. at 674. But the Court also recognized
that “related safety regulations adopted by the
Secretary reveal that the limits were adopted only
after the hazards posed by track conditions were
taken into account.” Id. “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.” Id.
Having concluded that Ҥ 213.9(a) should be
understood as covering the subject matter of train
speed with respect to track conditions, including the
conditions posed by grade crossings,” the Court held
that FRSA preempted the plaintiff’s claim that the
“train was traveling too quickly given the time and
place.” Id. at 675 & n.15 (internal quotation marks
omitted). Easterwood thus stands for the proposition
that state-law “excessive speed claim[s] cannot stand
in light of the Secretary’s adoption of the regulations
in § 213.9.” Id. at 675.
6
In a footnote that is significant here, the
Easterwood Court identified one limit to its ruling:
“[T]his case does not present, and we do not address,
the question of FRSA’s pre-emptive effect on” statelaw claims “for breach of … the duty to slow or stop a
train to avoid a specific, individual hazard.” Id. at 675
n.15. Easterwood presented an “excessive speed”
claim, not an “imminent collision” claim. See id. at
661, 673.
4. In this case, the court below has deviated from
the rules of preemption every other court has followed
since Easterwood. With the exception of the decision
now at issue, the lower courts have applied the
holding of Easterwood faithfully, frequently rejecting
excessive speed claims as precluded in light of § 213.9.
See, e.g., Macfarlane v. Canadian Pacific Railway Co.,
278 F.3d 54, 57-59 (2d Cir. 2002); Bouchard v. CSX
Transportation, Inc., 196 F. App’x 65, 72 (3d Cir.
2006); Lane v. R.A. Sims, Jr., Inc., 241 F.3d 439, 44344 (5th Cir. 2001); Ludwig v. Norfolk Southern
Railway Co., 50 F. App’x 743, 747-49 (6th Cir. 2002);
Waymire v. Norfolk & Western Railway Co., 218 F.3d
773, 775-76 (7th Cir. 2000); St. Louis Southwestern
Railway Co. v. Pierce, 68 F.3d 276, 278 (8th Cir. 1995);
Michael v. Norfolk Southern Railway Co., 74 F.3d 271,
273-74 (11th Cir. 1996); Herndon v. Nat’l Railroad
Passenger Corp., 814 A.2d 934, 936-38 (D.C. 2003);
Illinois Central Gulf Railroad Co. v. Travis, 106 So.3d
320, 332 (Miss. 2012); Hightower v. Kansas City
Southern Railway Co., 70 P.3d 835, 844-49 (Okla.
2003); Veit ex rel. Nelson v. Burlington Northern
Santa Fe Corp., 249 P.3d 607 (Wash. 2011).
7
By the same token, courts have also recognized
that state law cannot “supplement” the factors that
the federal regulations look to in determining track
class, which would permit state law to indirectly
influence the speeds at which trains may operate. See
Zimmerman v. Norfolk Southern Corp., 706 F.3d 170,
186-87 (3d Cir. 2013).
B.
Factual and Procedural Background
1. The train tracks through the Noroton Heights
station in Darien, Connecticut, are Class 4 tracks.
Pet. App. 47a. Section 213.9 sets the maximum
operating speed for passenger trains on Class 4 tracks
at 80 miles per hour. 49 C.F.R. § 213.9(a).
In March 2013, a Metro-North commuter train on
an express route to Stamford was approaching the
Noroton Heights station on the track next to the
platform. Pet. App. 2a-3a. The train, which is
referred to as a “through train” because it was not
making a stop at the station, was traveling at around
70 miles per hour. Pet. App. 3a, 47a. As the train
approached the station, the engineer saw that there
was a man on the track. Pet. App. 3a. The engineer
sounded the horn and applied the emergency brake,
but he was unable to stop the train from hitting and
killing the man. Id.
The decedent’s widow, Respondent Jamey
Murphy, filed this suit in Connecticut state court.
Pet. App. 2a. The operative complaint claims that
Metro-North breached a duty imposed by state tort
law “by moving a through train traveling in excess of
70 miles per hour on the track immediately adjacent
to the platform” rather than “an interior track away
from the platform.” Pet. App. 29a. Metro-North
8
moved for summary judgment on the basis of FRSA
preemption. Pet. App. 4a.
2. The trial court granted Metro-North’s motion,
reasoning that Respondent’s claim “is inherently an
excessive speed claim” and is thus preempted under
this Court’s decision in Easterwood. Pet. App. 47a.
The court explained that “the speed of the train is an
intrinsic part of the plaintiff’s negligence allegation.”
Id. And “the plaintiff’s railroad safety expert …
continuously references train speed and the specific
speed of the train in question in his opinion for why
the train should have been routed on an interior
track.” Id.; see also id. (noting that the expert witness
“discusses through trains versus trains making a
scheduled stop and the different speeds in which they
enter the station, to explain why faster moving and/or
through trains should be placed on tracks that are not
alongside platforms”).
The trial court recognized that what distinguishes
through trains from trains making a stop at a given
station is the speed at which they operate through
that station. Id. After all, “trains must stop alongside
a platform to discharge and pick up passengers.” Id.
And “it is the fact that a track adjacent to a platform
was used for a train traveling at a high speed that is
objected to” in Respondent’s complaint. Id.
Because “[t]he speed of the train is a necessary
corollary to the plaintiff’s claim” and the train was
undisputedly operating below the federal maximum
speed, the trial court concluded that the claim “is
expressly preempted” by FRSA. Pet. App. 47a; see
also id. (“the train was traveling between 60-73 miles
per hour, which is below the speed limit set forth for a
9
Class 4 track, which is 80 miles per hour for a
passenger train” (citing 49 C.F.R. § 213.9(a))).
3. The Supreme Court of Connecticut took the
appeal directly from the trial court and reversed. Pet.
App. 2a, 4a n.4. The court asserted that FRSA does
not preempt state law “unless the subject matter is
clearly subsumed by the regulations” such that “there
is a federal regulation that thoroughly addresses the
safety concern.” Pet. App. 22a, 28a (emphases added).
The court ruled for Respondent after concluding that
“the claim in this case is not based on an area that is
clearly covered by the federal regulations.” Pet. App.
24a (emphasis added).
In rejecting Metro-North’s argument that
Respondent’s excessive speed claim is preempted, the
court relied heavily on two “imminent collision” cases,
Dresser v. Union Pacific Railroad Co., 809 N.W.2d 713
(Neb. 2011), and Bashir v. National Railroad
Passenger Corp., 929 F. Supp. 404 (S.D. Fla. 1996),
aff’d sub nom. Bashir v. Amtrak, 119 F.3d 929 (11th
Cir. 1997). See Pet. App. 29a-32a. Dresser and Bashir
concerned state-law negligence claims alleging that
the defendants had “fail[ed] to exercise ordinary care
once it appeared that a collision would probably
occur.” Dresser, 809 N.W.2d at 723 (emphasis added).
For instance, the complaint in Dresser “alleged that
the train crew was negligent in failing to maintain a
proper lookout, failing to slow or stop the train to
avoid the collision, and failing to sound the horn.” Pet.
App. 29a (citing Dresser, 809 N.W.2d at 717).
Dresser and Bashir held that such “imminent
collision” claims are not preempted under FRSA. See
Dresser, 809 N.W.2d at 723 (“we are not presented
10
with any federal regulations that cover a railroad’s
duty to exercise ordinary care in situations where
collisions are imminent”); Bashir, 929 F. Supp. at 412
(§ 213.9 “is silent as to the instances in which a train
must stop to avoid colliding with an obstruction on the
tracks”). The court in Bashir reasoned that, if
imminent collision claims were preempted, then
“railroads would be insulated from state tort liability
regardless of whether a train attempted to stop to
avoid even the most obvious obstructions, simply
because federal law prescribes the speed at which
they may travel absent obstructions.” Id.
The court below conceded that, “[b]ecause the
plaintiff’s claim relates to the fact that the train did
not stop at the Noroton Heights station, the speed of
that train is tangentially related to the plaintiff’s
claim.” Pet. App. 31a. Analogizing to Dresser and
Bashir, however, the court concluded that § 213.9
“prescribes only the maximum speed at which trains
may operate on certain track classifications,” and thus
does not preempt state-law claims asserting that “it is
negligent to operate a through train on a track
immediately adjacent to the platform when another
track is available.” Pet. App. 32a.
11
REASONS FOR GRANTING THE PETITION
Under regulations issued by the Secretary of
Transportation, the Metro-North train in this case
was entitled to operate at up to 80 miles per hour on
the Class 4 track through the Noroton Heights
station. 49 C.F.R. § 213.9(a); see Pet. App. 47a. It is
undisputed that the train was operating consistent
with federal law, at around 70 miles per hour. See
Pet. App. 28a, 47a.
Despite forswearing any claim based on federal
law (see Pet. App. 28a), Respondent argues as a
matter of Connecticut law that the Class 4 track by
the platform should be restricted to trains coming to a
stop at the station, and thus operating well below the
federal maximum speed, and that the train in this
case was required to come to a stop or keep off of the
track entirely. Pet. App. 29a. Respondent effectively
seeks to designate tracks adjacent to passenger
platforms within the State of Connecticut as state-law
“slow lanes,” even where federal law designates them
as Class 4 tracks. But § 213.9 “cover[s]” this subject
matter within the meaning of FRSA and makes clear
that the train was entitled to operate at up to 80 miles
per hour.
Therefore, under this Court’s decision in
Easterwood—which is on all fours with this case—
Respondent’s state-law claim that the “train was
traveling too quickly given the time and place” is
preempted. 507 U.S. at 675 n.15 (internal quotation
marks omitted). In rejecting Metro-North’s assertion
of federal preemption, the court below blatantly
disregarded Easterwood.
12
This Court should grant certiorari and reverse.
Indeed, summary reversal of the decision below would
be appropriate.
I.
The decision below contravenes Easterwood
A. The court below founded its decision in this
case on manifestly erroneous statements of the
applicable rule of law. The court said that FRSA
preempts state law only when “the subject matter is
clearly subsumed by the regulations” and “there is a
federal regulation that thoroughly addresses the
safety concern” underlying the plaintiff’s claim. Pet.
App. 22a, 28a (emphases added). Purporting to apply
this standard, the court concluded that “the claim in
this case is not based on an area that is clearly covered
by the federal regulations” and held that Respondent’s
claim is not preempted by FRSA. Pet. App. 24a
(emphasis added).
The rule of law stated and applied below is directly
contrary to this Court’s decision in Easterwood. FRSA
preempts state law whenever a federal regulation
“cover[s] the subject matter of the State requirement.”
49 U.S.C. § 20106(a)(2). As this Court explained in
Easterwood, this language means that FRSA
preempts state law “if the federal regulations
substantially subsume the subject matter of the
relevant state law.” 507 U.S. at 664.
A vast gulf divides this Court’s “substantially
subsumes” standard from the “clearly subsumes”
standard applied by the court below. The state court’s
phrasing implies that it would find preemption only if
“left with the definite and firm conviction” that the
federal regulations subsumed the subject matter of
the state-law claim. Cooper v. Harris, 137 S. Ct. 1455,
13
1474 (2017) (quoting Anderson v. City of Bessemer
City, 470 U.S. 564, 573 (1985)). The state court’s
“clearly subsumes” standard plainly placed “a serious
thumb on the scale” against preemption. U.S. Bank
N.A. ex rel. CWCapital Asset Mgmt. LLC v. Village at
Lakeridge, LLC, 138 S. Ct. 960, 966 (2018). Indeed,
the court below acknowledged as much when it said
that FRSA preemption applies only when “there is a
federal regulation that thoroughly addresses the
safety concern.” Pet. App. 28a (emphasis added).
The legal standard applied below was manifestly
improper, and it will continue to work mischief in
future cases. As this Court used the term in
Easterwood, “substantially” does not mean anything
like “clearly” or even “entirely” or “mostly.” Rather, it
merely means “in substance or in the main.” Pierce v.
Underwood, 487 U.S. 552, 565 (1988) (Scalia, J.); cf.
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938) (the Administrative Procedure Act’s phrase
“substantial evidence” means “such relevant evidence
as a reasonable mind might accept as adequate to
support a conclusion”).
In this case, even if the plaintiff’s claim is not
“clearly” covered by the regulation, it is certainly
covered by it “in substance.” If the court below had
understood the proper legal standard as established
by this Court in Easterwood, then it would not have
rejected Metro-North’s preemption argument. And if
the decision below is permitted to stand, future
litigants could avoid preemption simply by recasting
their speed claims as something else, even where, as
here, the claim cannot logically be understood without
considering the speed of the train.
14
B. Relatedly, the state court also premised its
ruling on its belief that § 213.9 “prescribes only the
maximum speed at which trains may operate on
certain track classifications.” Pet. App. 32a. This was
another blatant legal error, because Easterwood
considered and rejected that precise view:
On their face, the provisions of § 213.9(a)
address only the maximum speeds at which
trains are permitted to travel given the nature of
the track on which they operate. Nevertheless,
related safety regulations adopted by the
Secretary reveal that the limits were adopted
only after the hazards posed by track conditions
were taken into account. Understood in the
context of the overall structure of the
regulations, the speed limits must be understood
as not only establishing a ceiling, but also
precluding additional state regulation ….
507 U.S. at 674. The Court concluded that Ҥ 213.9
should be understood as covering the subject matter
of train speed with respect to track conditions,
including the conditions posed by grade crossings.” Id.
at 675.
The same goes for the conditions posed by train
stations and passenger platforms. The Secretary has
made a judgment about the appropriate classification
and maximum operating speed for the track passing
through the Noroton Heights station. As Easterwood
makes clear, there is no room for a state court,
applying the state law of negligence, to second-guess
that expert judgment.
To the contrary, FRSA
preempts any claim that a train “was traveling too
15
quickly given the time and place.” Easterwood, 507
U.S. at 675 n.15.
C. The court below went astray when it based its
decision on two “imminent collision” decisions,
Dresser, 809 N.W.2d 713, and Bashir, 929 F. Supp.
404. See Pet. App. 29a-32a. The question in those
cases was whether FRSA preempts state-law claims
based on the “duty to exercise ordinary care to avoid
an accident … when it [would] appear[] to a
reasonably prudent person that to proceed would
probably result in a collision.” Dresser, 809 N.W.2d at
720 (internal quotation marks omitted). The courts
held that FRSA does not preempt state-law imminent
collision claims. See id. at 723 (“The mere fact that
the speed the train is traveling is tangentially related
to how quickly it can be stopped does not transform
the claim into an excessive speed claim.”); Bashir, 929
F. Supp. at 412 (§ 213.9 “is silent as to the instances
in which a train must stop to avoid colliding with an
obstruction on the tracks”).
Unlike the decision below, Dresser and Bashir are
not inconsistent with Easterwood. As discussed
above, Easterwood expressly reserved the question of
FRSA’s preemptive effect on the state-law “duty to
slow or stop a train to avoid a specific, individual
hazard.” 507 U.S. at 675 n.15; see also Dresser, 809
N.W.2d at 723 (observing that this “issue was not
presented [or] decided by the Court”); Bashir, 929
F. Supp. at 412 n.4 (same). But the duty to take action
in the face of an imminent collision simply is not at
issue in this case: Respondent does not allege that the
Metro-North engineer failed to act reasonably to stop
the train once he saw that there was a man on the
16
track. Rather, her claim is that the Metro-North train
should not have been “traveling in excess of seventy
miles per hour on the track immediately adjacent to
the platform,” regardless of whether there was an
obstruction on the track or not. Pet. App. 29a. This is
not an imminent collision case. Like Easterwood, it is
an excessive speed case.
The distinction between excessive speed claims
and imminent collision claims makes good sense. The
imminent collision claims in Dresser and Bashir
“relate[d] to an event which is not a fixed condition or
feature of the railroad crossing and was not capable of
being taken into account by the Secretary of
Transportation in the promulgation of uniform,
national speed regulations.” Dresser, 809 N.W.2d at
723; see also Bashir, 929 F. Supp. at 412 (“State laws
that direct a train to stop when, for instance, a child
is standing on the tracks do not conflict with federal
speed limits that prescribe the speed at which the
same train may travel in normal circumstances on the
same track.”).
By contrast, the claims in this case and
Easterwood seek to impose special speed-based duties
on trains operating in the proximity of permanent
conditions—railroad crossings in Easterwood and
passenger platforms in this case—where accidents
may be more likely to occur. But Easterwood makes
clear that the federal “limits were adopted only after
the hazards posed by track conditions were taken into
account.” 507 U.S. at 674. That is why “§ 213.9
should be understood as covering the subject matter
of train speed with respect to track conditions,
including the conditions posed by grade crossings,” id.
17
at 675—and the conditions posed by passenger
platforms. Easterwood controls this excessive speed
case, where Respondent alleges that Metro-North’s
“train was traveling too quickly given the time and
place.” 507 U.S. at 675 n.15 (internal quotation marks
omitted). Dresser and Bashir are inapposite.
II.
The decision below infringes upon the federal
interest in railroad safety
The Secretary’s failure to impose lower speed
limits for more heavily trafficked, potentially higherrisk areas was no oversight. The Federal Railroad
Administration has made this clear: “FRA’s current
regulations governing train speed do not afford any
adjustment of train speeds in urban settings or at
grade crossings. This omission is intentional.” 63
Fed. Reg. at 33,999.
“The safest train maintains a steady speed.” Id.
Thus, the most effective means of mitigating the risk
of railroad collisions is to attempt to keep people and
vehicles off of train tracks, rather than to require
trains to “slow down and then speed up” “in urban
settings or at grade crossings” in the hope of giving
the train enough time to come to a complete stop if the
engineer sees an obstruction on the track. Id. That is
why federal law heavily regulates railroad crossings
to ensure that drivers are aware of the risks and will
not pull onto the track in front of an oncoming train.
See, e.g., 49 U.S.C. § 20134; Easterwood, 507 U.S. at
674 (“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
18
accurate warnings of the approach of oncoming trains
to drivers.”); Norfolk Southern Railway Co. v.
Shanklin, 529 U.S. 344, 348-49, 352-59 (2000).
While these means of mitigating risk are not
perfect, requiring trains to slow down and then speed
up frequently would be no panacea and, according to
the Federal Railroad Administration, would
“increas[e] safety hazards.” 63 Fed. Reg. at 33,999.
“Every time a train must slow down and then speed
up, safety hazards, such as buff and draft forces, are
introduced. These kinds of forces can enhance the
chance of derailment with its attendant risk of injury
to employees, the traveling public, and surrounding
communities.” Id.
Congress intended FRSA “to promote safety in
every area of railroad operations and reduce railroadrelated accidents,” and directed that “[l]aws,
regulations, and orders related to railroad safety …
shall be nationally uniform to the extent practicable.”
49 U.S.C. §§ 20101, 20106(a)(1). By threatening to
superimpose a hodge-podge of speed restrictions
created by state-court judges and inconsistent jury
verdicts atop the federal agency’s carefully considered
national scheme, the decision below endangers both
national uniformity and railroad safety.
19
CONCLUSION
The petition for a writ of certiorari should be
granted. Because the decision below plainly conflicts
with a decision of this Court on an important question
of federal law, summary reversal would be
appropriate.
Respectfully submitted,
CHARLES A. DELUCA
CHARLES G. COLE
ROBERT O. HICKEY
ALICE E. LOUGHRAN
BECK S. FINEMAN
MARK C. SAVIGNAC
RYAN RYAN DELUCA LLP
Counsel of Record
1000 Lafayette Blvd.
STEPTOE & JOHNSON LLP
Suite 800
1330 Connecticut Ave., N.W.
Bridgeport, CT 06604
Washington, D.C. 20036
(202) 429-3000
December 6, 2019
msavignac@steptoe.com
APPENDIX
1a
Appendix OF
A THE SUPREME
APPENDIX A — OPINION
COURT OF CONNECTICUT, DATED JULY 9, 2019
SUPREME COURT OF CONNECTICUT
332 Conn. 244
JAMEY MURPHY et al.
v.
TOWN OF DARIEN et al.
(SC 19983)
Argued November 5, 2018
Officially released July 9, 2019
Synopsis
Background: Commuter’s wife brought action
against railroad company alleging negligence in track
selection arising from commuter’s slip and fall from train
station boarding platform and death on track that was
immediately adjacent to platform when he was struck by
a “through train” that was en route to another destination.
The Superior Court, Judicial District of Fairfield, Kamp,
J., 2017 WL 1656911, granted railroad company’s motion
for summary judgment. Wife appealed.
As a matter of first impression, the Supreme Court,
Mullins, J., held that Federal Railroad Safety Act did not
preempt wife’s negligence claims.
2a
Appendix A
Reversed and remanded with direction.
OPINION
MULLINS, J.
The sole issue in this appeal is whether the Federal
Railroad Safety Act of 1970 (railroad act), 49 U.S.C.
§ 20101 et seq., preempts the negligence claims brought by
the plaintiff, Jamey Murphy, individually and as executrix
of the estate of her late husband, Kevin Murphy (decedent),
against the defendant Metro-North Commuter Railroad
Company.1 We conclude that the railroad act does not
preempt the plaintiff’s negligence claims and, accordingly,
reverse the judgment of the trial court rendered in favor
of the defendant on that ground. 2
The following facts and procedural history are
relevant to this appeal. On March 4, 2013, at approximately
6:30 a.m., the decedent, was walking on the platform
adjacent to the westbound tracks at the Noroton Heights
train station in Darien. The decedent was awaiting his
commuter train to New York City. On that morning,
1. Although the plaintiff also brought claims against the town
of Darien and Wilton Enterprises, Inc., she has subsequently
withdrawn those claims. For the sake of simplicity, we refer to
Metro-North Commuter Railroad Company as the defendant.
2. During the underlying proceedings, the defendant asserted
that the Interstate Commerce Commission Termination Act, 49
U.S.C. § 10101 et seq., also preempted the plaintiff’s negligence
claims. The defendant has withdrawn that claim, and, therefore,
we do not address it in the present appeal.
3a
Appendix A
there was a patch of ice on the platform, which measured
approximately nine feet long and approximately one
foot wide. As the decedent was walking on the platform,
he encountered the ice patch, slipped and fell onto the
westbound track closest to the platform.
At that time, one of the defendant’s trains was coming
around a curve and approaching the Noroton Heights
station on the track closest to the westbound platform.
This train was scheduled to travel through the Noroton
Heights station without stopping and to do the same
through four other commuter stations before completing
its express route to Stamford. This type of train is
referred to as a “through train.”
As the train approached the Noroton Heights station,
the engineer sounded the train’s horn. He then saw an
object on the track. When the engineer realized it was
a person, he sounded the horn again and applied the
emergency brake. Nevertheless, the train struck the
decedent. As a result of the collision, the decedent suffered
severe trauma and was pronounced dead at the scene.
The plaintiff subsequently brought this action against
the defendant. See footnote 1 of this opinion. Specifically,
the operative complaint3 alleges that the decedent’s injuries
and death were proximately caused by the negligence of
the defendant when “it violated practices and customs
with respect to track selection by moving a through train
3. We note that the plaintiff amended her complaint five times.
The operative complaint was filed on March 21, 2017.
4a
Appendix A
traveling in excess of seventy miles per hour on the track
immediately adjacent to the platform when reasonable
care and general practice of [the defendant] required that
train to be on an interior track away from the platform.”
The plaintiff also alleges that the defendant’s negligence
caused her to suffer loss of spousal consortium. After
discovery, the defendant filed a motion for summary
judgment, and the plaintiff filed an objection.
In support of that motion, the defendant asserted
that the plaintiff’s negligence claims were preempted
by federal law. Specifically, the defendant asserted, in
pertinent part, that the plaintiff’s claims were barred by
the railroad act. The trial court agreed with the defendant,
concluding that, “[t]o the extent that the plaintiff’s claim
is viewed as relating to rail safety, it is preempted by the
[railroad act].” Accordingly, the trial court granted the
motion for summary judgment and rendered judgment
thereon in favor of the defendant. This appeal followed.4
On appeal, the plaintiff asserts that the trial court
incorrectly concluded that her claims were preempted
by the railroad act. Specifically, the plaintiff asserts
that the railroad act only preempts claims where a
federal regulation covers the subject matter, and no such
regulation exists for track selection. In response, the
defendant asserts that the trial court properly granted
its motion for summary judgment because the plaintiff’s
claims are preempted by the railroad act. Specifically,
4. The plaintiff appealed from the judgment of the trial court
to the Appellate Court, and we transferred the appeal to this court
pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
5a
Appendix A
the defendant asserts that the subject matter of the
plaintiff’s claim is covered by federal regulation—namely,
regulations addressing speed and track classification. We
agree with the plaintiff.
“The standard of review of a trial court’s decision
granting summary judgment is well established. Practice
Book § 17-49 provides that summary judgment shall be
rendered forthwith if the pleadings, affidavits and any
other proof submitted show that there is no genuine
issue as to any material fact and that the moving party is
entitled to judgment as a matter of law…. Our review of
the trial court’s decision to grant the defendant’s motion
for summary judgment is plenary…. On appeal, we must
determine whether the legal conclusions reached by the
trial court are legally and logically correct and whether
they find support in the facts set out in the memorandum
of decision of the trial court.” (Citation omitted; internal
quotation marks omitted.) Lucenti v. Laviero, 327 Conn.
764, 772–73, 176 A.3d 1 (2018). “[T]he use of a motion for
summary judgment to challenge the legal sufficiency of
a complaint is appropriate when the complaint fails to set
forth a cause of action and the defendant can establish that
the defect could not be cured by repleading.” (Internal
quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn.
223, 236, 116 A.3d 297 (2015).
In the present case, the trial court granted the
defendant’s motion for summary judgment on the ground
that the plaintiff’s complaint was insufficient because
the negligence claims raised therein were preempted by
the railroad act. Accordingly, resolution of this appeal
6a
Appendix A
requires us to examine the trial court’s conclusion that
the plaintiff’s negligence claims are preempted by the
railroad act.
In doing so, we note that the question of whether
the plaintiff’s negligence claims are preempted by the
railroad act is one of law, and, therefore, our review is
plenary. “Whether state causes of action are preempted
by federal statutes and regulations is a question of law
over which our review is plenary.” Byrne v. Avery Center
for Obstetrics & Gynecology, P.C., 314 Conn. 433, 447, 102
A.3d 32 (2014); see also Hackett v. J.L.G. Properties, LLC,
285 Conn. 498, 502–504, 940 A.2d 769 (2008) (whether
trial court’s conclusion that municipal zoning regulations
were preempted by federal law was a question of law over
which court exercised plenary review). “[T]here is a strong
presumption against federal preemption of state and local
legislation…. This presumption is especially strong in
areas traditionally occupied by the states ….” (Citation
omitted; internal quotation marks omitted.) Dowling v.
Slotnik, 244 Conn. 781, 794, 712 A.2d 396, cert. denied
sub nom. Slotnik v. Considine, 525 U.S. 1017, 119 S. Ct.
542, 142 L. Ed. 2d 451 (1998).
“The ways in which federal law may [preempt] state
law are well established and in the first instance turn
on congressional intent…. Congress’ intent to supplant
state authority in a particular field may be express[ed] in
the terms of the statute…. Absent explicit [preemptive]
language, Congress’ intent to supersede state law in a
given area may nonetheless be implicit if a scheme of
federal regulation is so pervasive as to make reasonable
7a
Appendix A
the inference that Congress left no room for the [s]tates
to supplement it, if the [a]ct of Congress … touch[es] a
field in which the federal interest is so dominant that the
federal system will be assumed to preclude enforcement
of state laws on the same subject, or if the goals sought to
be obtained and the obligations imposed reveal a purpose
to preclude state authority….
“The question of preemption is one of federal law,
arising under the supremacy clause of the United States
constitution…. Determining whether Congress has
exercised its power to preempt state law is a question of
legislative intent…. [A]bsent an explicit statement that
Congress intends to preempt state law, courts should infer
such intent where Congress has legislated comprehensively
to occupy an entire field of regulation, leaving no room for
the [s]tates to supplement federal law … or where the state
law at issue conflicts with federal law, either because it is
impossible to comply with both … or because the state law
stands as an obstacle to the accomplishment and execution
of congressional objectives ….” (Citation omitted; internal
quotation marks omitted.) Hackett v. J.L.G. Properties,
LLC, supra, 285 Conn. at 503–504, 940 A.2d 769.
Furthermore, the United States Supreme Court has
explained that “[w]here a state statute conflicts with, or
frustrates, federal law, the former must give way. U.S.
Const., [a]rt. VI, cl. 2; Maryland v. Louisiana, 451 U.S.
725, [746, 101 S. Ct. 2114, 68 L. Ed. 2d 576] (1981). In the
interest of avoiding unintended encroachment on the
authority of the [s]tates, however, a court interpreting
a federal statute pertaining to a subject traditionally
8a
Appendix A
governed by state law will be reluctant to find [preemption].
Thus, [preemption] will not lie unless it is ‘the clear and
manifest purpose of Congress.’ Rice v. Santa Fe Elevator
Corp., 331 U.S. 218, [230, 67 S. Ct. 1146, 91 L. Ed. 1447]
(1947). Evidence of [preemptive] purpose is sought in the
text and structure of the statute at issue. Shaw v. Delta
Air Lines, Inc., 463 U.S. 85, [95, 103 S. Ct. 2890, 77 L.
Ed. 2d 490] (1983). If the statute contains an express
[preemption] clause, the task of statutory construction
must in the first instance focus on the plain wording of
the clause, which necessarily contains the best evidence
of Congress’ [preemptive] intent.” CSX Transportation,
Inc. v. Easterwood, 507 U.S. 658, 663–64, 113 S. Ct. 1732,
123 L. Ed. 2d 387 (1993); see also Id., at 673–75, 113 S. Ct.
1732 (concluding that negligence claim relating to failure
to maintain adequate warning devices at rail crossing
was not preempted by railroad act, but negligence claim
alleging excessive speed was preempted by railroad act).
A brief review of the railroad act provides context
for our analysis. The railroad act “was enacted in 1970 to
promote safety in all areas of railroad operations and to
reduce [railroad related] accidents, and to reduce deaths
and injuries to persons …. [Under the railroad act], the
Secretary [of Transportation] is given broad powers to
prescribe, as necessary, appropriate rules, regulations,
orders, and standards for all areas of railroad safety ….”
(Citations omitted; internal quotation marks omitted.) Id.,
at 661–63, 113 S. Ct. 1732; see also 49 U.S.C. § 20101 (2012)
(statement of legislative purpose); 49 U.S.C. § 20103 (a)
(2012) (delegating regulatory authority to Secretary of
Transportation).
9a
Appendix A
The railroad act contains an express preemption
clause, codified at 49 U.S.C. § 20106, entitled “Preemption.”
That statute provides in relevant part: “(a) National
Uniformity of Regulation.—(1) Laws, regulations, and
orders related to railroad safety and laws, regulations,
and orders related to railroad security shall be nationally
uniform to the extent practicable.
“(2) A State may adopt or continue in force a law,
regulation, or order related to railroad safety or security
until the Secretary of Transportation (with respect to
railroad safety matters), or the Secretary of Homeland
Security (with respect to railroad security matters),
prescribes a regulation or issues an order covering the
subject matter of the State requirement. A State may
adopt or continue in force an additional or more stringent
law, regulation, or order related to railroad safety or
security when the law, regulation, or order—
“(A) is necessary to eliminate or reduce an essentially
local safety or security hazard;
“(B) is not incompatible with a law, regulation, or
order of the United States Government; and
“(C) does not unreasonably burden interstate
commerce.” 49 U.S.C. § 20106 (a) (2012).
In 2007, Congress amended the railroad act preemption
clause by adding subsection (b). See Implementing
Recommendations of the 9/11 Commission Act of 2007,
Pub. L. No. 110-53, § 1528, 121 Stat. 266, 453. That
10a
Appendix A
subsection, which is entitled “Clarification Regarding
State Law Causes of Action,” provides in relevant part:
“Nothing in this section shall be construed to preempt
an action under State law seeking damages for personal
injury, death, or property damage alleging that a party—
“(A) has failed to comply with the Federal standard
of care established by a regulation or order issued by the
Secretary of Transportation (with respect to railroad
safety matters), or the Secretary of Homeland Security
(with respect to railroad security matters), covering the
subject matter as provided in subsection (a) of this section;
“(B) has failed to comply with its own plan, rule, or
standard that it created pursuant to a regulation or order
issued by either of the Secretaries; or
“(C) has failed to comply with a State law, regulation,
or order that is not incompatible with subsection (a) (2).”
49 U.S.C. § 20106 (b) (1) (2012).
As a result of this amendment, federal courts have
concluded that “the preemption analysis under the
amended [railroad act] requires a two step process.
We first ask whether the defendant allegedly violated
either a federal standard of care or an internal rule
that was created pursuant to a federal regulation. If so,
the plaintiff’s claim avoids preemption. [See 49 U.S.C.
§ 20106 (b) (1) (A) and (B) (2012)]. Other wise, we
move to the second step and ask whether any federal
regulation covers the plaintiff’s claim. [See 49 U.S.C.
§ 20106 (a) (2) (2012)]. A regulation covers—and thus
11a
Appendix A
preempts—the plaintiff ’s claim if it ‘substantially
subsume[s] the subject matter’ of that claim. [CSX
Transportation, Inc. v. Easterwood, supra, 507 U.S. at
664, 113 S.Ct. 1732] (noting that the regulation must do
more than ‘touch upon or relate to [the] subject matter’).”
Zimmerman v. Norfolk Southern Corp., 706 F.3d 170, 178
(3d Cir.), cert. denied, 571 U.S. 826, 134 S. Ct. 164, 187 L.
Ed. 2d 41 (2013); see also Grade v. BNSF Railway Co., 676
F.3d 680, 686 (8th Cir. 2012); Henning v. Union Pacific
Railroad Co., 530 F.3d 1206, 1214–16 (10th Cir. 2008). 5
The parties agree that the plaintiff’s claim does not
allege that the defendant violated any regulation or order,
or failed to comply with its own plan, rule, or standard
of care that it adopted pursuant to a federal regulation.
Accordingly, the parties agree that the appropriate
preemption analysis is contained within 49 U.S.C.
§ 20106 (a) (2). This provision provides that a state
law cause of action is preempted if the Secretary of
Transportation or the Secretary of Homeland Security
has “prescribe[d] a regulation or issue[d] an order
5. To the extent that the trial court’s decision can be read
to conclude that the plaintiff’s negligence claim relating to track
selection is preempted by the railroad act solely because “there
is no federal standard of care for the defendant to have violated,”
we disagree. Instead, we conclude that, under the two part test
adopted by federal courts, if there is no express regulation governing
the subject area of the plaintiff’s complaint, the court must next
consider whether there is a federal regulation or order covering the
subject matter of state law related to the plaintiff’s claim in order
to resolve the question of preemption. Indeed, both parties agree
on the applicable test.
12a
Appendix A
covering the subject matter of the State requirement”
on which the plaintiff ’s negligence claim is based.
(Emphasis added.) 49 U.S.C. § 20106 (a) (2) (2012). Thus,
the issue before this court is whether the Secretary of
Transportation or the Secretary of Homeland Security
has promulgated regulations covering the same subject
matter as Connecticut negligence law pertaining to the
selection of an interior track for a through train.
As the United States Supreme Court has explained,
“[t]o prevail on the claim that the regulations have
[preemptive] effect, [a] petitioner must establish more
than that they ‘touch upon’ or ‘relate to’ that subject
matter … for ‘covering’ is a more restrictive term which
indicates that [preemption] will lie only if the federal
regulations substantially subsume the subject matter
of the relevant state law. [See Webster’s Third New
International Dictionary (1961) p. 524] (in the phrase
‘policy clauses covering the situation,’ cover means ‘to
comprise, include, or embrace in an effective scope of
treatment or operation’). The term ‘covering’ is in turn
employed within a provision that displays considerable
solicitude for state law in that its express [preemption]
clause is both prefaced and succeeded by express saving
clauses.” (Citation omitted.) CSX Transportation, Inc. v.
Easterwood, supra, 507 U.S. at 664–65, 113 S.Ct. 1732.
In the present case, the plaintiff’s claim alleges
that the defendant was negligent in selecting the track
immediately adjacent to the platform to run a “through
train.” As we have explained, in order to resolve the
plaintiff’s appeal, we must determine whether there is a
13a
Appendix A
federal regulation that covers, or substantially subsumes,
the plaintiff’s claim. The defendant does not point to any
federal regulation that expressly governs track selection.
Indeed, the trial court recognized that, “[a]s both parties
have conceded, there is no federal rule or regulation that
specifically governs track selection.”
Never theless, the tr ial cou r t reasoned that ,
“[al]though there is not a federal regulation that specifically
covers track selection, the federal regulations in regards
to tracks is extensive and, therefore, subsume the subject
matter of the plaintiff’s claim.” In support of its conclusion,
the trial court relied on several specific regulations
contained within part 213 of title 49 of the Code of Federal
Regulations, which is entitled “Track Safety Standards.”
See 49 C.F.R. § 213.9 (2012) (setting speed limits for
trains operating on each class of track); 49 C.F.R. § 213.53
(2012) (measuring gage of track); 49 C.F.R. § 213.57 (2012)
(establishing speed limitations based on curvature and
elevation of track); 49 C.F.R. § 213.109 (2012) (establishing
requirements for crossties); 49 C.F.R. § 213.121 (2012)
(establishing requirements for rail joints); 49 C.F.R.
§ 213.231 et seq. (2012) (establishing requirements for track
inspection). The trial court reasoned that, “[a]s part of an
overall scheme to standardize railroad transportation and
specifically as a scheme that expansively covers railroad
track safety … the subject matter of the plaintiff’s claim
is clearly ‘covered’ and ‘substantially subsumed’ by these
federal regulations.” (Citation omitted; emphasis omitted.)
We disagree.
We first turn to the regulations on which the trial
court relied, namely, part 213 of title 49 of the Code of
14a
Appendix A
Federal Regulations. The scope of these regulations is
explained as follows: “This part prescribes minimum
safety requirements for railroad track that is part of the
general railroad system of transportation. In general, the
requirements prescribed in this part apply to specific track
conditions existing in isolation. Therefore, a combination of
track conditions, none of which individually amounts to a
deviation from the requirements in this part, may require
remedial action to provide for safe operations over that
track. This part does not restrict a railroad from adopting
and enforcing additional or more stringent requirements
not inconsistent with this part.” 49 C.F.R. § 213.1 (a) (2012).
Accordingly, part 213 of title 49 of the Code of Federal
Regulations expressly states that it provides minimum
safety requirements and that conditions may be present
that require a greater standard of care.
Indeed, although the regulations cited by the trial
court touch upon tracks, nothing in those regulations
indicates that they subsume the subject matter of selecting
tracks for through trains. Those regulations set forth how
the gage of a track is to be measured and the required
size for various tracks. See 49 C.F.R. § 213.53 (2012).
Another regulation regulates the maximum elevation of
the outer rail on a curve. See 49 C.F.R. § 213.57 (2012).
Other regulations regulate the components of a rail—i.e.
crossties and rail joints. See 49 C.F.R. §§ 213.109 and
213.121 (2012). Yet another regulation delineates the speed
a train can travel on tracks of various classes. See 49
C.F.R. § 213.9 (2012). Each of these regulations covers a
different subject matter than that raised by the plaintiff’s
claim—namely, selection of an interior or exterior track
15a
Appendix A
for operation of a through train. None of the regulations
relied on by the defendant or cited by the trial court
even mentions selection of an interior or exterior track.
Accordingly, the express terms of these provisions support
a conclusion that the plaintiff’s claim is not covered by the
regulations.
Although no court has addressed a track selection
claim similar to the plaintiff’s claim in this case, a review
of the case law regarding preemption of state law claims
under the railroad act is instructive. For instance, in
CSX Transportation, Inc. v. Easterwood, supra, 507 U.S.
at 667–68, 113 S.Ct. 1732,6 the United States Supreme
Court held that the railroad act did not preempt a state
common-law negligence claim regarding the railroad’s
duty to maintain warning devices at a railroad crossing.
In doing so, the United States Supreme Court rejected the
railroad’s claim that the subject matter of the plaintiff’s
claim was covered by regulations requiring that all traffic
control devices installed comply with the Federal Highway
Administration’s manual on uniform traffic control
devices. Id., at 665–66, 113 S. Ct. 1732. Instead, the United
States Supreme Court explained that, although the states
were required to employ warning devices that conformed
to standards set forth in the regulations in order to obtain
6. We recognize that CSX Transportation, Inc. v. Easterwood,
supra, 507 U.S. at 661–65, 113 S.Ct. 1732, was decided prior to
the 2007 amendment to the preemption provision in the railroad
act. Nevertheless, it is well established that the interpretation of
the preemption provision in Easterwood remains good law for the
purpose of interpreting 49 U.S.C. § 20106 (a). See, e.g., Zimmerman
v. Norfolk Southern Corp., supra, 706 F.3d at 177–78.
16a
Appendix A
federal funding, state negligence law always played a role
in maintaining safety at railroad crossings, and “there
is no explicit indication in the regulations … that the
terms of the [f]ederal [g]overnment’s bargain with the
[s]tates require modification of this regime of separate
spheres of responsibility.” Id., at 668, 113 S. Ct. 1732.
Accordingly, the United States Supreme Court reasoned
that, “[i]n light of the relatively stringent standard set by
the language of [the railroad act’s preemption provision]
and the presumption against preemption, and given that
the regulations provide no affirmative indication of their
effect on negligence law, [the court is] not prepared to
find [preemption] solely on the strength of the general
mandates of [regulations governing warning devices at
railroad crossings].” Id.
On the other hand, in Norfolk Southern Railway Co.
v. Shanklin, 529 U.S. 344, 352–53, 120 S. Ct. 1467, 146 L.
Ed. 2d 374 (2000), the United States Supreme Court did
conclude that a state law negligence claim alleging that
there were inadequate warning signs at a railroad crossing
was preempted when the federal regulations applicable
to that railroad crossing required the installation of a
particular warning device at a particular railway crossing.
Accordingly, the United States Supreme Court concluded
that, “[b]ecause those regulations establish requirements
as to the installation of particular warning devices …
when [those regulations] are applicable, state tort law
is [preempted]…. Unlike the [regulations at issue in
Easterwood, these regulations], displace state and private
[decision-making] authority by establishing a [federal law]
requirement that certain protective devices be installed or
17a
Appendix A
federal approval obtained…. As a result, those regulations
effectively set the terms under which railroads are to
participate in the improvement of crossings.” (Citations
omitted; internal quotation marks omitted.) Id.7
The United States Court of Appeals for the Second
Circuit also has examined whether a state law claim was
preempted by the railroad act. In Island Park, LLC v.
CSX Transportation, 559 F.3d 96, 108 (2d Cir. 2009),
the Second Circuit concluded that a state agency order
to close a private rail crossing was not preempted by
the railroad act. Although it concluded that the closure
order implicated railroad safety, it concluded that it was
not preempted by the railroad act because the railroad
act “allows states to impose rail safety requirements as
long as they are not inconsistent with federal mandates.
[The plaintiff] points to no federal rail safety regulation
that covers rail crossing closures. Accordingly, the state
closure order is not [preempted] by [the railroad act].” Id.
In Strozyk v. Norfolk Southern Corp., 358 F.3d 268,
269 (3d Cir. 2004), the United States Court of Appeals
for the Third Circuit concluded that a state common-law
negligence claim against a railroad alleging poor visibility
at a railroad crossing was not preempted by the railroad
act. The railroad asserted that the plaintiff’s claim was
preempted by the regulations because the regulations
7. As noted subsequently in this opinion, a separate claim that
the railroad had failed to remove excessive vegetation from the area
surrounding the crossing was the subject of further proceedings on
remand. See Shanklin v. Norfolk Southern Railway Co., 369 F.3d
978, 987 (6th Cir. 2004).
18a
Appendix A
addressing the installation of warning devices at railroad
crossings mentioned limited visibility. Id., at 273. The
Third Circuit rejected the railroad’s claim and concluded
that a regulation’s “bare mention” of limited visibility did
“not indicate an intent to regulate” that condition. Id.
Similarly, the United States Court of Appeals for the
Sixth Circuit concluded that a state law negligence claim
alleging that vegetative growth on railroad property
obstructed the motorist’s view of an oncoming train was
not preempted. Shanklin v. Norfolk Southern Railway
Co., 369 F.3d 978, 987 (6th Cir. 2004); see also footnote 8
of this opinion. The railroad asserted that the plaintiff’s
claim was preempted by regulations under the railroad
act that addressed the installation of warning devices and
one that provided that “[v]egetation on railroad property
which is on or immediately adjacent to [the] roadbed shall
be controlled so that it does not … [o]bstruct visibility
of railroad signs and signals,” preempted the plaintiff’s
claim. (Internal quotation marks omitted.) Id. The Sixth
Circuit explained that the regulation regarding vegetation
preempts any state law claim “regarding vegetative
growth that blocks a sign immediately adjacent to a
crossing, but it does not impose a broader duty to control
vegetation so that it does not obstruct a motorist’s visibility
of oncoming trains.” (Internal quotation marks omitted.)
Id. Accordingly, the Sixth Circuit concluded that the
plaintiff’s claim was not preempted because, although
these regulations touched upon vegetation, they did not
substantially subsume the subject matter of the plaintiff’s
claim. Id., at 988; see also 49 C.F.R. § 213.37 (b) (1993).
19a
Appendix A
The Third Circuit addressed preemption under the
railroad act again in MD Mall Associates, LLC v. CSX
Transportation, Inc., 715 F.3d 479, 491 (3d Cir. 2013),
cert. denied, 571 U.S. 1126, 134 S. Ct. 905, 187 L. Ed. 2d
778 (2014). In that case, the Third Circuit concluded that
a mall owner’s state law claim against a railroad owner
alleging negligence and storm water trespass was not
preempted by the railroad act. Id., at 490–91. In doing so,
the Third Circuit rejected the railroad owner’s claim that
a regulation promulgated under the railroad act, which
requires that a railroad’s drainage facilities “under or
immediately adjacent” to the track “be maintained and
kept free of obstruction” preempted the mall owner’s state
law claims. (Internal quotation marks omitted.) Id.; see
also 49 C.F.R. § 213.33 (2010). The Third Circuit explained
that it could not “read the silence of [49 C.F.R.] § 213.33
on a railroad’s duties to its neighbors when addressing
track drainage as an express abrogation of state storm
water trespass law. Given that the [railroad act] provides
no express authorization for disposing of drainage onto
an adjoining property, the presumption must be that state
laws regulating such action survive ….” (Citation omitted.)
MD Mall Associate, LLC v. CSX Transportation, Inc.,
at 491.
Another instructive case is Haynes v. National
Railroad Passenger Corp., 423 F. Supp. 2d 1073 (C.D. Cal.
2006). In Haynes, the estate and children of a passenger
who suffered a deep vein thrombosis after traveling on
an Amtrak train from Chicago to Los Angeles brought
an action in state court alleging that Amtrak violated
common-law and statutory duties of care that common
20a
Appendix A
carriers must exercise with respect to their passengers.
Id., at 1077. Specifically, the plaintiffs alleged that
dangerous seats and seating configurations in Amtrak
trains and Amtrak’s failure to warn passengers about
deep vein thrombosis caused the decedent to suffer deep
vein thrombosis and die. Id., at 1078.
The railroad filed a motion to dismiss for failure to
state a claim on which relief can be granted. Id., at 1077.
In its motion, the railroad claimed, inter alia, that the
plaintiffs’ claims were preempted by the railroad act. Id.,
at 1081. Specifically, the railroad claimed that the federal
regulations addressing seats and their configuration
on passenger trains covered the subject matter of the
plaintiffs’ complaint, thereby rendering the plaintiff’s
claim preempted by the railroad act. Id., at 1082. The
United States District Court for the Central District of
California explained that federal regulations addressed
safe passenger seats, how seats must be fastened to the
car body, the load the seats must be able to withstand, and
the inspection process for train seats. Id., at 1082.
Nevertheless, the court explained that “[t]he
regulations relied upon by the [railroad] govern seat safety
for circumstances involving train crashes and broken
seats. There is no discussion in the regulations of leg
room, seat pitch, or ensuring that seats do not contribute
to discomfort or illnesses like [deep vein thrombosis]. The
[c]ourt finds that there are no federal safety or security
regulations that substantially subsume state tort actions
regarding potential of [deep vein thrombosis] from poorly
designed seats or seating arrangements.” Id.
21a
Appendix A
The court also concluded that there were no federal
regulations that substantially subsumed the plaintiffs’
claims based on a duty to warn passengers about deep
vein thrombosis. Id. The court reasoned that, although
there are federal regulations regarding passenger safety
on trains in an emergency situation, because deep vein
thrombosis arises in nonemergency situations, the safety
regulations did not subsume the subject matter of deep
vein thrombosis warnings. Id.
The rationale employed in Haynes is instructive in
the present case because it demonstrates that, even when
courts have found an extensive regulatory scheme in a
particular area—such as passenger seating on trains—
the breadth of regulation does not mean that the subject
matter of a complaint is substantially subsumed by the
regulations. 8
A review of the case law regarding preemption under
the railroad act demonstrates that courts have been reticent
to find that a regulatory scheme covers or substantially
8. In Haynes v. National Railroad Passenger Corp., supra,
423 F. Supp. 2d at 1073, the railroad also asserted that the plaintiffs’
claims were preempted under the commerce clause of the United
States constitution because allowing states to regulate these areas
would place an undue burden on the flow of commerce across state
borders. See U.S. Const., art. I, § 8, cl. 3. The court concluded that
the plaintiffs’ claims regarding seats and seat configuration were
preempted under a dormant commerce clause analysis but that the
plaintiffs’ claims relating to the railroad’s duty to warn passengers
were not. Haynes v. National Railroad Passenger Corp., supra, at
1083–84.
22a
Appendix A
subsumes the subject matter of a plaintiff’s claim. Indeed,
even when regulations form a broad regulatory scheme
or mention the subject of a plaintiff’s claim, courts have
not found preemption unless the subject matter is clearly
subsumed by the regulations. This construction of the
railroad act is consistent with the principle that, “[i]n
the interest of avoiding unintended encroachment on the
authority of the [s]tates … a court interpreting a federal
statute pertaining to a subject traditionally governed
by state law will be reluctant to find [preemption]. Thus,
[preemption] will not lie unless it is ‘the clear and manifest
purpose of Congress.’ ” CSX Transportation, Inc. v.
Easterwood, supra, 507 U.S. at 663–64, 113 S.Ct. 1732.
Furthermore, the limited application of preemption of the
railroad act is also consistent with the express preemption
provision contained in the railroad act, which “displays
considerable solicitude for state law ….” Id., at 665, 113
S. Ct. 1732.
In the present case, the defendant asserts that the
trial court correctly concluded that, although there is
no regulation expressly addressing the selection of an
interior or exterior track for trains, the general regulatory
scheme of track classification substantially subsumes the
subject matter of the plaintiff’s claim. We disagree.
The defendant claims, and trial court concluded, that
Zimmerman v. Norfolk Southern Corp., supra, 706 F.3d at
170, supports the defendant’s contention that the plaintiff’s
claim is preempted by the act. In Zimmerman, the
plaintiff was a motorcyclist who was partially paralyzed
in a collision with a train at a railroad crossing. Id., at 175.
23a
Appendix A
The plaintiff claimed, inter alia, that the railroad should
have been liable for misclassification of the track. Id., at
186–87. Specifically, the plaintiff claimed that the railroad
violated a federal standard of care established by part
213 of title 49 of the Code of Federal Regulations, which
contains regulations for each class of tracks. Id., at 187.
The plaintiff claimed that, under these regulations, the
railroad was obligated to classify the track as class two or
higher due to the limited sight distance on the track. Id.
The Third Circuit rejected the plaintiff’s claim that there
was a federal standard of care regarding classification of
the tracks based on sight distance. Id. Instead, the Third
Circuit concluded that no regulation established the sight
distance necessary for each class of tracks, so no relevant
federal standard of care existed. Id.
The Third Circuit further explained that, “[d]espite
the absence of a federal standard of care, [the plaintiff]
may still avoid preemption if his claim falls outside the
scope of the original [railroad act] preemption provision….
As we have previously made clear, state claims are within
the scope of this provision if federal regulations ‘cover’ or
‘substantially subsume’ the subject matter of the claims….
The regulations must do more than ‘touch upon or relate
to that subject matter.’ ” (Citations omitted.) Id. The Third
Circuit then concluded that the regulations in part 213 of
title 29 of the Code of Federal Regulations “subsume[d]
[the plaintiff’s] misclassification claim. These regulations
establish varying requirements for each class of tracks—
governing everything from gage, alinement, and elevation,
to crossties, curve speed, and rail joints.” Id.
24a
Appendix A
The trial court in this case relied on the following
language from Zimmerman: “The regulations are
part of a broad scheme to standardize railroad tracks.
Admittedly, there is no regulation that classifies tracks
based on sight distance. But the breadth of the scheme
implies a decision not to classify on that basis. At the
very least, it implies that the federal government did not
want states to decide how tracks would be classified. We
doubt that the federal government would create a detailed
system with the expectation that states would impose
extra classification requirements—especially given the
risk that the requirements would vary from state to
state. This regulatory scheme preempts [the plaintiff’s]
misclassification claim.” Id. The trial court in this case
then concluded that, “[a]s in Zimmerman, the plaintiff’s
track selection claim is subsumed by this regulatory
scheme. Although there is no regulation that classifies
tracks on the basis of track selection, such as the choice
of using an exterior or interior track, ‘the breadth of the
scheme implies a decision not to classify on that basis.’ …
As part of an overall scheme … that expansively covers
railroad track safety … the subject matter of the plaintiff’s
claim is clearly ‘covered’ and ‘substantially subsumed’ by
these federal regulations…. The plaintiff’s track selection
claim is therefore preempted by this regulatory scheme.”
(Citations omitted; emphasis in original.)
We disagree that the foregoing analysis from
Zimmerman is applicable to the plaintiff’s claim in the
present case. Unlike Zimmerman, the claim in this case is
not based on an area that is clearly covered by the federal
regulations. In Zimmerman, it was undisputed that the
25a
Appendix A
regulations dictate whether a track is classified as class one,
two or three on the basis of various factors set forth in those
regulations. Zimmerman v. Norfolk Southern Corp., supra,
706 F.3d at 179. It was also undisputed in Zimmerman that
the basis of the claim at issue was whether the defendant
properly classified the track. Id., at 187. In Zimmerman,
the plaintiff’s claim essentially sought to impose another
factor into the decision of how to classify tracks—namely,
the sight distance of a particular track. Id. In concluding
that the claim in Zimmerman was preempted, the Third
Circuit concluded that the regulations already covered and
subsumed the factors by which a track should be classified
as class one, two or three. Id.
Indeed, as the United States Court of Appeals for the
Fifth Circuit has explained, preemption under the railroad
act “is even more disfavored than preemption generally….
The restrictive terms of its preemption provision [indicate]
that [preemption] will lie only if the federal regulations
substantially subsume the subject matter of the relevant
state law…. When applying [railroad act] preemption, the
[c]ourt eschews broad categories such as railroad safety,
focusing instead on the specific subject matter contained
in the federal regulation…. In sum, when deciding
whether the [railroad act] preempts state laws designed to
improve railroad safety, we interpret the relevant federal
regulations narrowly to ensure that the careful balance
that Congress has struck between state and federal
regulatory authority is not improperly disrupted in favor
of the federal government.” (Citations omitted; emphasis
in original; footnote omitted; internal quotation marks
omitted.) United Transportation Union v. Foster, 205
F.3d 851, 860 (5th Cir. 2000).
26a
Appendix A
In the present case, the regulations do not differentiate
between interior or exterior tracks and, most certainly, do
not provide a set of factors by which interior or exterior
tracks are chosen. Accordingly, the regulations do not
cover the selection of interior or exterior tracks. Unlike
the trial court, we are not persuaded that the failure to
address the selection of interior or exterior tracks implies
a decision not to differentiate between the two. As the case
law we have discussed herein demonstrates, in light of the
limited preemption provision in the railroad act, the mere
exclusion of a topic from the federal regulations does not
imply an intent to preempt state law on that topic.
On the basis of the foregoing, although we agree with
the trial court that there are extensive federal regulations
that address various topics related to tracks, we cannot
conclude that the subject matter of the plaintiff ’s
negligence claim—namely, the selection of an exterior
track for operating a through train—is “covered by” a
federal regulation. To the contrary, the federal regulations
relating to tracks touch upon, but do not substantially
subsume, the subject matter of the plaintiff’s complaint.9
9. We also note that, in California, the California High-Speed
Train Project regulates track selection for through trains and has
done so for almost ten years. See California High-Speed Train
Project, “Technical Memorandum 2.2.4: High-Speed Train Station
Platform Geometric Design” (2010) p. 11, available at http://www.hsr.
ca.gov/docs/programs/eir_memos/Proj_Guidelines_TM2_2_4R01.
pdf (last visited July 3, 2019). This memorandum provides that,
“[w]here practical, do not locate the platform adjacent to mainline
high-speed tracks. If this is not possible, passenger access to
platforms adjacent to tracks where trains may pass through stations
27a
Appendix A
Our conclusion is further buttressed by a review of
cases in which a court has found that a federal regulation
covers, or substantially subsumes, the subject matter of
a complaint. For instance, in In re Derailment Cases,
416 F.3d 787, 794 (8th Cir. 2005), the United States
Court of Appeals for the Eighth Circuit concluded that
the plaintiff’s claim alleging negligent inspection of
freight cars was preempted by the railroad act. The
Eighth Circuit concluded that the plaintiff’s claim was
preempted under the railroad act because “[i]t is clear
that the [federal railway administration’s] regulations are
intended to prevent negligent inspection by setting forth
minimum qualifications for inspectors, specifying certain
aspects of freight cars that must be inspected, providing
agency monitoring of the inspectors, and establishing a
civil enforcement regime. These intentions are buttressed
by the [federal railway administration] inspection manual
for federal and state inspectors.” Id.; see also BNSF
Railway Co. v. Swanson, 533 F.3d 618, 619–20 (8th Cir.
2008) (concluding that state statute making it illegal to,
inter alia, “discipline, harass or intimidate [a railroad]
employee to discourage the employee from receiving
medical attention” was preempted by federal regulation
mandating that railroads adopt policy statement declaring
that “harassment or intimidation of any person that is
calculated to discourage or prevent such person from
receiving proper medical treatment or from reporting such
accident, incident, injury or illness will not be permitted
without stopping may require mitigation ….” Id. The existence of the
regulatory scheme in California further supports our conclusion
that the railroad act does not preempt state law governing track
selection.
28a
Appendix A
or tolerated” [emphasis omitted; internal quotation marks
omitted] ), citing 49 C.F.R. § 225.33 (a) (1) (2008). As these
cases demonstrate, courts have found preemption under
the railroad act only when there is a federal regulation
that thoroughly addresses the safety concern raised
in the plaintiff’s complaint, not merely mentions it or
tangentially relates to it. See CSX Transportation, Inc.
v. Easterwood, supra, 507 U.S. at 664–65, 113 S.Ct. 1732
(regulations cover subject matter of plaintiff’s complaint
when they “comprise, include, or embrace [that concern]
in an effective scope of treatment or operation” [internal
quotation marks omitted]).
The defendant further asserts that the plaintiff’s
claim is preempted because, although framed as a claim
relating to track selection, it is essentially an excessive
speed claim, which is preempted by the railroad act. We
disagree.
It is well established that there are federal regulations
that cover the subject matter of train speed with
respect to track conditions. See Id., at 675, 113 S. Ct.
1732 (“concluding that relevant regulation “should be
understood as covering the subject matter of train speed
with respect to track conditions, including the conditions
posed by grade crossings”), citing 49 C.F.R. § 213.9 (a)
(1992). To be clear, the plaintiff in this case does not
assert that the defendant violated a federal standard of
care because the train was not traveling above the speed
limit. Cf. Zimmerman v. Norfolk Southern Corp., supra,
706 F.3d at 179. Accordingly, if the plaintiff’s claim was
based on the speed of the train, it would be preempted by
29a
Appendix A
the railroad act because all parties agree that the train
was traveling within the established speed limit.10
The plaintiff claims that the defendant “violated
practices and customs with respect to track selection by
moving a through train traveling in excess of seventy
miles per hour on the track immediately adjacent to the
platform when reasonable care and general practice of [the
defendant] required that train to be on an interior track
away from the platform.” The defendant asserts that this
“can only be characterized as a speed claim.” We disagree.
We find Dresser v. Union Pacific Railroad Co., 282
Neb. 537, 809 N.W.2d 713 (2011), instructive. In Dresser,
a motor vehicle passenger who was injured in a collision
with a train brought a state law negligence action against
the railroad company. Id., at 538, 809 N.W.2d 713. The
complaint alleged that the train crew was negligent in
failing to maintain a proper lookout, failing to slow or
stop the train to avoid the collision, and failing to sound
the horn. Id., at 540, 809 N.W.2d 713. The trial court
10. The plaintiff’s initial complaint included a claim that the
defendant “failed to maintain a proper operating speed of the
train ….” The defendant subsequently filed motions in limine
seeking to preclude the plaintiff from offering any evidence,
testimony, or argument regarding a claim of negligence based on
the speed of the train and any evidence, testimony, or argument
regarding any claim preempted by the railroad act or the Interstate
Commerce Commission Termination Act. The trial court granted
the defendant’s motions. Thereafter, the plaintiff filed the operative
complaint, which does not contain any claim related to the speed of
the train. Indeed, the plaintiff concedes that “the sole remaining
theory of negligence is limited to track selection.”
30a
Appendix A
concluded that the plaintiff’s claim was preempted. Id.,
at 541, 809 N.W.2d 713. The trial court reasoned that the
engineer’s failure to exercise ordinary care to avoid the
accident by failing to slow or stop the train was essentially
an excessive speed claim, which was preempted by the
railroad act. Id., at 549, 809 N.W.2d 713.
The Supreme Court of Nebraska reversed the
judgment of the trial court. Id., at 553, 809 N.W.2d 713.
In doing so, the Supreme Court of Nebraska reasoned:
“We do not agree with the [trial] court that appellants’
state law negligence claim based on [the railroad’s] alleged
failure to exercise ordinary care once it appeared that a
collision would probably occur is speed based and thus
preempted. State tort law is not preempted ‘until’ a federal
regulation ‘cover[s]’ the same subject matter, and we are
not presented with any federal regulations that cover a
railroad’s duty to exercise ordinary care in situations where
collisions are imminent. The mere fact that the speed the
train is traveling is tangentially related to how quickly
it can be stopped does not transform the claim into an
excessive speed claim. Nebraska tort law duties to exercise
reasonable care could be violated even if the federal train
speed limits are being followed.” (Footnote omitted.) Id.
Similarly, in Bashir v. National Railroad Passenger
Corp., 929 F. Supp. 404, 412 (S.D. Fla. 1996), aff’d sub nom.
Bashir v. Amtrak, 119 F.3d 929 (11th Cir. 1997), the United
States District Court for the Southern District of Florida
concluded that a plaintiff’s state law negligence claims
based on a failure to stop was not preempted by the railroad
act. The railroad had asserted that the failure to stop
31a
Appendix A
claims were covered by the federal regulations on excessive
speed. Id. The court rejected that claim, reasoning that the
railroad was “quite correct” that the relevant regulation;
see 49 C.F.R. § 213.9 (1993); “preempts inconsistent state
laws regarding speed. As the [c]ourt understands [the]
[p]laintiff’s negligent failure to stop claims, however, they
are not necessarily inconsistent with [that regulation].
This section simply prescribes the maximum speed at
which trains may operate given certain track types and
conditions. It is silent as to the instances in which a train
must stop to avoid colliding with an obstruction on the
tracks. State laws that direct a train to stop when, for
instance, a child is standing on the tracks do not conflict
with federal speed limits that prescribe the speed at which
the same train may travel in normal circumstances on the
same track. Indeed, if [the railroad’s] position were correct,
railroads would be insulated from state tort liability
regardless of whether a train attempted to stop to avoid
even the most obvious obstructions, simply because federal
law prescribes the speed at which they may travel absent
obstructions. Easterwood does not support this result.”
Bashir v. National Railroad Passenger Corp., supra, at 412.
Like the claims in Dresser and Bashir, the speed of
the train in the present case is tangentially related to
the plaintiff’s claim. In other words, the plaintiff’s claim
alleges that the defendant was negligent in choosing to
operate a train that did not stop at the Noroton Heights
station on the track immediately adjacent to the platform.
Because the plaintiff’s claim relates to the fact that the
train did not stop at the Noroton Heights station, the speed
of that train is tangentially related to the plaintiff’s claim.
32a
Appendix A
As the courts in Dresser and Bashir explained, title 49
of the Code of Federal Regulations, § 213.9, prescribes
only the maximum speed at which trains may operate on
certain track classifications. Nothing in that regulation
covers the subject of the plaintiff’s claim—namely,
whether it is negligent to operate a through train on a
track immediately adjacent to the platform when another
track is available. Accordingly, we disagree that the
plaintiff’s claim is essentially an excessive speed claim
that is preempted by the railroad act.
In light of the presumption against preemption,
the narrow preemption provision in the railroad act,
the express acknowledgment in title 49 of the Code of
Federal Regulations, § 213.1, that the federal regulations
provide the minimum safety standards, and the lack of a
regulatory provision expressly addressing track selection,
we cannot conclude that the defendant has met its burden
of demonstrating that the plaintiff’s claim was preempted
under the railroad act. Accordingly, we conclude that the
trial court improperly granted the defendant’s motion for
summary judgment.
The judgment is reversed and the case is remanded
with direction to deny the defendant’s motion for summary
judgment and for further proceedings according to law.
In this opinion the other justices concurred.
All Citations
332 Conn. 244, 210 A.3d 56
33a
AppendixOF
B THE SUPERIOR
APPENDIX B — OPINION
COURT OF CONNECTICUT, FAIRFIELD AT
BRIDGEPORT, DATED APRIL 10, 2017
SUPERIOR COURT OF CONNECTICUT,
FAIRFIELD AT BRIDGEPORT.
JAMEY MURPHY, INDIVIDUALLY AND
EXECUTRIX OF THE ESTATE OF
KEVIN MURPHY,
v.
TOWN OF DARIEN, et al.
April 10, 2017
OPINION
KAMP, J.
Pending before the court is the defendant Metro–
North Commuter Railroad Company’s motion for
summary judgment on the ground that the plaintiff’s
sole cause of action sounding in common-law negligence
is barred because it is preempted by federal law. For the
reasons set forth below, the defendant’s motion is granted.
FACTS
On December 2, 2013, the plaintiff, Jamey Murphy,
individually and as executrix of the estate of Kevin
Murphy, commenced this wrongful death action against the
34a
Appendix B
defendants, Metro–North Commuter Railroad Company
(Metro–North), Wilton Enterprises, Inc., and Town of
Darien. On October 25, 2016, the plaintiff withdrew as
to the defendants Wilton Enterprises, Inc. and Town
of Darien. In the plaintiff’s fifth amended complaint
(docket entry no. 253), the plaintiff alleges the following
facts. On March 4, 2013, the plaintiff’s decedent, Kevin
Murphy, was struck and killed by a Metro–North train.
While walking on the southbound platform at the Noroton
Heights station, Mr. Murphy slipped on an accumulation of
ice which caused him to fall onto the tracks, where he was
then struck and killed. The train that struck Mr. Murphy
was a Metro–North train which was not scheduled to stop
at Noroton Heights and was operating on the exterior
track closest to the platform. Because the train was not
scheduled to stop at Noroton Heights it was referred to as
a “through train.” The plaintiff alleges in the first count
that Metro–North was negligent in that it operated the
through train on a track immediately adjacent to the
platform when reasonable care required Metro–North
to select an interior track away from the platform. In the
second count the plaintiff, individually, asserts a claim for
loss of spousal consortium.
On October 24, 2016, Metro–North filed two motions
in limine. The first sought an order “precluding any other
party to this action from introducing evidence, testimony
or argument in advance of any claim of negligence
based on the speed of the train which struck plaintiff’s
decedent.” (Docket entry no. 213.) The second motion in
limine sought an order “precluding any other party to this
action from introducing evidence, testimony or argument
35a
Appendix B
that ‘through trains,’ including the train that struck the
plaintiff’s decedent, should not be run on tracks adjacent
to station platforms.” (Docket entry no. 214.)
On March 4, 2017, after hearing oral argument on
the motions in limine, this court granted Metro–North’s
motion in limine with regard to the speed of the train.
Specifically, this court held that “the Federal Railroad
Safety Act (FRSA), 49 U.S.C. § 20101, specifically § 20106
and 49 C.F.R. § 213.9 preempt all state law claims.”
(Docket entry no. 213.10.) On that same date, this court
granted the defendant’s motion in limine with regard to
the choice of track selection allegations. The court held
that any such claims are preempted by the Interstate
Commerce Commission Termination Act, 49 U.S.C.
§ 10101 (ICCTA). (Docket entry no. 214.10.)
On March 23, 2017, Metro–North filed a motion for
summary judgment and accompanying memorandum
in support, along with several supporting exhibits.1 The
plaintiff filed an objection to the defendant’s motion on
March 24, 2017. 2 The parties waived oral argument on
the motion and objection thereto. 2
1. The defendant’s exhibits included (A) the M.T.A. Police
Department Incident Report; (B) excerpts from the deposition
of Peter Navarra; (C) excerpts from the deposition of George
Gavalla; and (D) the safety analysis report prepared by George
Gavalla dated July 20, 2016.
2. The plaintiff’s exhibits included (A) the affidavit of George
Gavalla and his safety analysis report dated July 20, 2016; (B)
excerpts from the deposition of James Brandt; (C) technical
memorandum California High–Speed Train Project; (C) excerpts
36a
Appendix B
DISCUSSION
I
SUMMARY JUDGMENT STANDARD
AND ARGUMENTS
“Summary judgment is a method of resolving
litigation when pleadings, affidavits, and any other proof
submitted show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law ... The motion for summary
judgment is designed to eliminate the delay and expense
of litigating an issue when there is no real issue to be tried
... However, since litigants ordinarily have a constitutional
right to have issues of fact decided by a jury ... the
moving party for summary judgment is held to a strict
standard ... of demonstrating his entitlement to summary
judgment.” (Citation omitted; footnote omitted; internal
quotation marks omitted.) Grenier v. Commissioner of
Transportation, 306 Conn. 523, 534–35, 51 A.3d 367
(2012). “[T]he use of a motion for summary judgment to
challenge the legal sufficiency of a complaint is appropriate
when the complaint fails to set forth a cause of action and
the defendant can establish that the defect could not be
cured by repleading.” (Internal quotation marks omitted.)
Ferri v. Powell–Ferri, 317 Conn. 223, 236, 116 A.3d 297
(2015).
from the deposition of George Gavalla; (D) a copy of Battley v.
Great West Casualty Ins. Co., United States District Court,
Docket No. 14–494–JJB–SCR (M.D.La. January 12, 2015); and (D)
a copy of Battley v. Great West Casualty Ins. Co., United States
District Court, Docket No. 14–494–JJB (M.D.La. March 18, 2015).
37a
Appendix B
In the present case, the defendant asserts that as
a result of the court’s ruling on the motion in limine
regarding track selection, the plaintiff no longer has
a viable claim based upon Connecticut common-law
negligence. 3 In response, the plaintiff maintains that the
court’s ruling that the track selection claim is expressly
preempted by federal law was in error. More specifically,
the plaintiff argues that unless there is a federal rule,
regulation or statute that expressly dictates or mandates
train track selection, claims based on Connecticut common
law are not preempted.4
II
INTERSTATE COMMERCE COMMISSION
TERMINATION ACT 49 U.S.C. § 10101
“In determining the nature and reach of federal
preemption, Congress’s intent is the ultimate touchstone
... Congress can indicate its preemptive intent either
expressly through a statute’s plain language, or impliedly
through a statute’s structure and purpose ... Regardless
of how Congress indicates its intent, [courts] begin with
the assumption that the historic police powers of the
States are not to be superseded by the Federal Act unless
3. The plaintiff has withdrawn its negligence claim regarding
the speed of the train that was the subject of the court’s ruling on
the defendant’s motion in limine. (Docket no. 213.10.)
4. Unlike the issue regarding the speed of the train both
the plaintiff and defendant agree that there is no federal rule,
regulation or statute that expressly governs train track selection.
38a
Appendix B
that was the clear and manifest purpose of Congress ...
[This] assumption applies with less force when Congress
legislates in a field with a history of significant federal
presence.” (Citations omitted; internal quotation marks
omitted.) Elam v. Kansas City Southern Railway Co.,
635 F.3d 796, 803–04 (5th Cir. 2011).
Congress has exercised broad regulatory authority
over rail transportation for 130 years, since the Interstate
Commerce Act (ICA) created the Interstate Commerce
Commission (ICC) in 1887. “The ICA was ‘among the
most pervasive and comprehensive of federal regulatory
schemes and has consequently presented recurring
pre-emption questions from the time of its enactment.’”
Island Park, LLC v. CSX Transportation, Inc., 559
F.3d 96, 102 (2d Cir. 2009). In 1995, Congress enacted
the Interstate Commerce Commission Termination Act
(ICCTA), 49 U.S.C. § 10101. The ICCTA abolished the
Interstate Commerce Commission and created a new
Surface Transportation Board (STB) to regulate rail
transportation. 49 U.S.C. § 10501(a)(1). The ICCTA creates
exclusive federal regulatory jurisdiction and exclusive
federal remedies. Specifically, the ICCTA provides:
The jurisdiction of the [STB] over—
(1) transportation by rail carriers, and the
remedies provided in this part with respect
to rates, classifications, rules (including car
service, interchange, and other operating
rules), practices, routes, services, and facilities
of such carriers; and
39a
Appendix B
(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,
is exclusive. Except as otherwise
provided in this part, the remedies
provided under this part with respect
to regulation of rail transportation
are exclu sive an d p reempt th e
remedies provided under Federal
or State law. (Emphasis added.) 49
U.S.C. § 10501(b).
Rail “transportation” is expansively defined to
include: (A) a locomotive, car, vehicle, vessel ... property,
facility, instrumentality, or equipment of any kind related
to the movement of passengers or property, or both, by
rail ... and (B) services related to that movement ...” 49
U.S.C. § 10102(9).
There is no reported Connecticut appellate authority
regarding federal preemption pursuant to the ICCTA.
In addition, the court was unable to find any reported
authority either in the federal court system or any state
court decisions regarding ICCTA preemption regarding a
claim involving track selection. The present case appears
to be one of first impression. Numerous courts other than
in Connecticut, however, have spoken on the question of
the scope of preemption under the ICCTA.
40a
Appendix B
“[T]he plain language of Section 10501 reflects clear
congressional intent to preempt state and local regulation
of integral rail facilities. It is difficult to imagine a
broader statement of Congress’s intent to preempt state
regulatory authority over railroad operations.” (Internal
quotation marks omitted.) Green Mountain Railroad
Corp. v. Vermont, 404 F.3d 638, 645 (2d Cir. 2005).
Accordingly, “the ICCTA completely preempts state law
tort actions that ‘fall squarely’ under § 10501(b).” Elam
v. Kansas City Southern Railway Co., supra, 635 F.3d
806. A state law will fall “squarely under” § 10501(b) if it
“may reasonably be said to have the effect of managing or
governing rail transportation ...” Island Park, LLC v. CSX
Transportation, Inc., supra, 559 F.3d 102; see also Elam
v. Kansas City Southern Railway Co., supra, 806–07
(“a state law tort remedy that would directly regulate
a railroad’s switching rates and services falls squarely
under § 10501[b]”).
In Island Park, LLC v. CSX Transportation, Inc.,
the Second Circuit concluded that New York State’s rail
crossing closure order was not preempted under the
ICCTA. Island Park, LLC v. CSX Transportation, Inc.,
supra, 559 F.3d 103–05. In that case, New York sought
to terminate the use of a private roadway that traversed
railroad tracks, which was used by Island Park to
transport farm equipment to a field on the other side of
the tracks. Id., 99. New York, however, “[did] not seek to
impose its authority over the tracks themselves or over
‘rail carriers’ that use the tracks. Rather, the result of the
state regulation at issue ... [was] the termination of Island
Park’s use of the crossing.” Id., 103. “[A]lthough ICCTA’s
41a
Appendix B
pre-emption language is unquestionably broad, it does not
categorically sweep up all state regulation that touches
upon railroads-interference with rail transportation must
always be demonstrated.” Id., 104. Closing a rail crossing
to a non-rail carrier, that did not move passengers or
property by rail; see 49 U.S.C. § 10102(9)(A); did not
interfere with or burden rail operations. Island Park,
LLC v. CSX Transportation, Inc., supra, 105. This case
was thus distinguishable from the situations in Green
Mountain Railroad Co. v. Vermont, supra, 404 F.3d 643–
45, where a permit requirement was preempted because it
interfered with rail operations, such as the construction of
facilities, and in Friberg v. Kansas City Southern Railway
Co., 267 F.3d 439 (5th Cir. 2001), where an anti-blocking
statute was preempted because of its interference with
how a railroad operated its trains. Id., 443. In that case,
the court found that Texas’s Anti–Blocking Statute, which
regulated how long a train could occupy a rail crossing,
was preempted, because “[r]egulating the time a train
can occupy a rail crossing impacts, in such areas as train
speed, length and scheduling, the way a railroad operates
its trains, with concomitant economic ramifications ...” Id.
The STB itself, in CSX Transportation, Inc.—
Petition for Declaratory Order, SBT Finance Docket
No. 34662 (March 14, 2005) (CSX I ), has discussed the
scope of ICCTA preemption and recognized that its
preemptive effect is “broad and sweeping.” CSX I, supra,
p. 7. In that decision, the STB granted CSXT’s petition
for a declaratory order that a D.C. Act, which placed
restrictions on the transportation of certain classes of
hazardous materials as well as empty hazardous materials
42a
Appendix B
rail cars, was preempted by § 10501(b). Id., pp. 2, 5.
“[S]ection 10501(b) does not leave room for state and local
regulation of activities related to rail transportation,
including routing matters. As the courts have observed,
[i]t is difficult to imagine a broader statement of Congress’
intent to preempt state regulatory authority over railroad
operations’ than that contained in section 10501(b) ...
Every court that has examined the statutory language has
concluded that the preemptive effect of section 10501(b) is
broad and sweeping, and that it blocks actions by states or
localities that would impinge on the Board’s jurisdiction
or a railroad’s ability to conduct its rail operations.”
(Citations omitted.) Id., p. 7. “By enacting section 10501(b),
Congress foreclosed state or local power to determine
how a railroad’s traffic should be routed.” Id., p. 8; see
also CSX Transportation, Inc.—Petition for Declaratory
Order, SBT Finance Docket No. 34662 (May 3, 2005) (CSX
II ) (reaffirming prior decision and denying requests for
reconsideration) (“under the plain language of the statute,
any state or local attempt to determine how a railroad’s
traffic should be routed is preempted”).
In the present case, the plaintiff argues that her
claims are not expressly preempted because there is no
direct federal regulation or statute that governs track
selection. Rather, the plaintiff argues that the defendant
must submit competent evidence to establish that track
selection issues are impliedly preempted which the
defendant has failed to do. The existence or lack thereof
of a federal regulation or statute regarding track selection
is not necessary for the plaintiff’s claims to be expressly
preempted by § 10501(b). That statute provides the STB
43a
Appendix B
with exclusive jurisdiction over the transportation of rail
carriers and the remedies provided under that part with
respect to rules, including operating rules, practices, and
routes; see 49 U.S.C. § 10501(b)(1); as well as with respect
to the operation of “spur, industrial, team, switching, or
side tracks.” See 49 U.S.C. § (b)(2). The selection of which
track to use would clearly go to the heart of a railroad’s
operation of its rails and involves consideration of such
things as routing and scheduling, operational decisions
that a state cannot interfere with. See e.g., Friberg v.
Kansas City Southern Railway Co., supra, 267 F.3d 443;
CSX I, Docket No. 34662, supra, p. 7.
The plaintiff cites to the Connecticut Superior Court
decision of Lin v. National Railroad Passenger Corp.,
Superior Court, judicial district of New Haven, Docket No.
CV–99–0431868–S (February 11, 2002, Zoarski, J.T.R.)
[31 Conn. L. Rptr. 380], as authority for her argument
that preemption should not apply. In Lin, the estate of
a pedestrian brought a wrongful death action against
the railroad arising from an accident in which the train
struck the plaintiff’s decedent while she was walking
across a railroad trestle. Lin v. National Railroad
Passenger Corp., supra. The court concluded that the
plaintiff’s claims with regards to inadequate walkways
and fencing were not preempted because there was no
clear congressional intent or mandate to preempt such
causes of action. Id. This case is inapposite because it
dealt with preemption under the Federal Railroad Safety
Act, 49 U.S.C. § 20101, rather than the ICCTA, and
involved claims not related to rail operation, or that would
only incidentally effect rail transportation. See Island
44a
Appendix B
Park, LLC v. CSX Transportation, supra, 559 F.3d 102.
Furthermore, as will be discussed below, the plaintiff’s
claim would also be preempted under the FRSA.
Because the ICCTA completely preempts state law
or actions that would attempt to manage rail operations
or determine how a railroad’s traffic should be routed,
the plaintiff’s claims with regards to track selection are
expressly preempted.
III
FEDERAL RAILROAD SAFETY ACT
49 U.S.C. § 20101
The plaintiff’s objection to the defendant’s motion for
summary judgment primarily focuses on the lack of a
federal regulation or rule with regards to track selection
and preemption under the Federal Railroad Safety Act of
1970 (FRSA), 49 U.S.C. § 20101 et seq. The plaintiff argues
that her claim does not seek to manage rail operations, but
rather, concerns rail safety, specifically with regards to
the choice to use a track adjacent to a platform for a fast
moving through train. To the extent that the plaintiff’s
claim is viewed as relating to rail safety, it is preempted
by the FRSA.
“The purpose of [the FRSA] is to promote safety in
every area of railroad operations and reduce railroadrelated accidents and incidents.” 49 U.S.C. § 20101.
The FRSA confers authority upon the Secretary of
Transportation to “prescribe regulations and issue
45a
Appendix B
orders for every area of railroad safety.” 49 U.S.C.
§ 20103(a). Preemption is specifically addressed by the
FRSA and subsection (a)(1) sets forth the scope: “Laws,
regulations, and orders related to railroad safety ... shall
be nationally uniform to the extent practicable ...” 49
U.S.C. § 20106(a)(1). Subsection (a)(2) 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. 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—
(A) is necessary to eliminate or reduce an
essentially local safety ... hazard;
(B) is not incompatible with a law, regulation,
or order of the United States Government; and
(C) does not unreasonably burden interstate
commerce. 49 U.S.C. § 20106(a) (2).
Congress amended this provision in 2007 and added
subsection (b) which provides in relevant part: (1) Nothing
in this section shall be construed to preempt an action
under State law seeking damages for personal injury,
death, or property damage alleging that a party—
(A) has failed to comply with the Federal
standard of care established by a regulation or
46a
Appendix B
order issued by the Secretary of Transportation
... covering the subject matter as provided in
subsection (a) of this section;
(B) has failed to comply with its own plan,
rule, or standard that it created pursuant to a
regulation or order issued by [the Secretary
of Transportation]; or
(C) has failed to comply with a State law,
regulation, or order that is not incompatible
with subsection (a)(2).
(Emphasis added.) 49 U.S.C. § 20106(b)(1).
Courts have concluded that “the preemption analysis
under the amended FRSA requires a two-step process.
[A court] first ask[s] whether the defendant allegedly
violated either a federal standard of care or an internal
rule that was created pursuant to a federal regulation. If
so, the plaintiff’s claim avoids preemption ... Otherwise,
[courts] move to the second step and ask whether any
federal regulation covers the plaintiff ’s claim ... A
regulation covers—and thus preempts—the plaintiff’s
claim if it ‘substantially subsume[s] the subject matter’ of
that claim.” (Citations omitted.) Zimmerman v. Norfolk
Southern Corp., 706 F.3d 170, 178 (3d Cir. 2013).
The plaintiff claims that the defendant was negligent in
using a track adjacent to the platform for a through-train
traveling in excess of 70 miles per hour. The defendant
argues that this is actually an excessive speed claim in
47a
Appendix B
disguise. The defendant’s contention that the plaintiff’s
negligent track selection claim is inherently an excessive
speed claim is persuasive. First, the speed of the train is
an intrinsic part of the plaintiff’s negligence allegation
in her fifth amended complaint. Second, the plaintiff’s
railroad safety expert, George Gavalla, continuously
references train speed and the specific speed of the train
in question in his opinion for why the train should have
been routed on an interior track. See Def.’s Mem. Summ.
J., Ex. D. Gavalla discusses through trains versus trains
making a scheduled stop and the different speeds in which
they enter the station, to explain why faster moving and/
or through trains should be placed on tracks that are not
alongside platforms. Id.
It is therefore apparent that the track choice, by itself,
is not the sole basis for negligence. Such a claim would
of course be illogical, as trains must stop alongside a
platform to discharge and pick up passengers. Rather, it
is the fact that a track adjacent to a platform was used for
a train traveling at a high speed that is objected to. The
speed of the train is a necessary corollary to the plaintiff’s
claim. Accordingly, to the extent that the plaintiff’s claim
can be characterized as an excessive speed claim, it is
expressly preempted because the train was traveling
between 69–73 miles per hour, which is below the speed
limit set forth for a Class 4 track, which is 80 miles per
hour for a passenger train. See 49 C.F.R. § 213.9(a). There
are clearly regulations that “cover the subject matter
of train speed with respect to track conditions”; CSX
Transportation, Inc. v. Easterwood, 507 U.S. 658, 675,
113 S.Ct. 1732, 123 L.Ed.2d 387 (1993); and the defendant
48a
Appendix B
did not violate a federal standard of care, because the train
was not traveling above the speed limit. See Zimmerman
v. Norfolk Southern Corp., supra, 706 F.3d 179.
To the extent, however, that the plaintiff’s claim
cannot be characterized as an excessive speed claim,
it would still be subject to express preemption under
the FRSA. As both parties have conceded, there is no
federal rule or regulation that specifically governs track
selection. Accordingly, there is no federal standard of
care for the defendant to have violated. Although the
plaintiff alleges that the defendant “violated practices and
customs” and argues in its objection to the defendant’s
motion that the defendant violated its “general practice”
to operate through trains on interior tracks that does not
equate to “an internal rule created pursuant to a federal
regulation.” See 49 U.S.C. § 20106(b)(1); see also Middle
River Tract, LLC v. Central of Georgia Railroad Co.,
339 Ga.App. 546, 549 (2016) (“[t]he flaw in this reasoning
... is that [the plaintiff’s] claims are preempted unless
Standard 425 was ‘created pursuant to a regulation or
order issued by [the Secretary of Transportation]’ ... and
the record fails to establish that it was” [citation omitted];
Zimmerman v. Norfolk Southern Corp., supra, 706
F.3d 192 n.17 (“Zimmerman also identifies a number of
internal rules that Norfolk Southern supposedly violated.
These supposed violations do not help Zimmerman avoid
preemption because he fails to show the internal rules
were ‘created pursuant to a regulation or order’ ”).
Finally, even though there is not a federal regulation
that specifically covers track selection, the federal
49a
Appendix B
regulations in regards to tracks is extensive and,
therefore, subsume the subject matter of the plaintiff’s
claim. See Zimmerman v. Norfolk Southern Corp.,
supra, 706 F. 3d 187. In the absence of a federal
standard of care, a plaintiff may still avoid preemption
if their claim falls outside the scope of the first section
of the FRSA preemption provision. See 49 U.S.C.
§ 20106(a)(2); see also Zimmerman v. Norfolk Southern
Corp., supra, 187. Claims fall within the scope of this
section “if federal regulations ‘cover’ or ‘substantially
subsume’ the subject matter of the claims.” Zimmerman
v. Norfolk Southern Corp., supra, 187. In Zimmerman,
the court found that the plaintiff’s claim that the track at
issue had been misclassified because of the limited sight
distance was preempted because although there was no
federal standard of care, the regulations of 49 C.F.R.
§ 213 et seq., subsumed his claim. Id. “The regulations
are part of a broad scheme to standardize railroad tracks.
Admittedly, there is no regulation that classifies tracks
based on sight distance. But the breadth of the scheme
implies a decision not to classify on that basis. At the very
least, it implies that the federal government did not want
states to decide how tracks would be classified.” Id.
The regulations in this part establish requirements
for each class of tracks, governing everything from speed
limits, gage, alignment, and elevation to crossties, curve
speed, and rail joints, as well as how tracks should be
inspected. See 49 C.F.R. § 213.9 (establishing operating
speed limits for each class of track); § 213.53 (explaining
proper method for measuring gage); § 213.55 (creating
alignment standards); § 213.57 (establishing maximum
50a
Appendix B
speed based on track elevation and curvature); § 213.109
(requiring more crossties for higher track classes);
§ 213.121 (noting rail joints must “be of a structurally sound
design”); § 213.231 (subpart prescribing requirements
for frequency and manner of track inspections). As in
Zimmerman, the plaintiff’s track selection claim is
subsumed by this regulatory scheme. Although there is
no regulation that classifies tracks on the basis of track
selection, such as the choice of using an exterior or interior
track, “the breadth of the scheme implies a decision not to
classify on that basis.” Zimmerman v. Norfolk Southern
Corp., supra, 706 F.3d 187. As part of an overall scheme
to standardize railroad transportation and specifically as
a scheme that expansively covers railroad track safety;
see 49 U.S.C. § 213.1 (“[t]his part prescribes minimum
safety requirements for railroad track that is part of the
general railroad system of transportation”); the subject
matter of the plaintiff’s claim is clearly “covered” and
“substantially subsumed” by these federal regulations.
See Zimmerman v. Norfolk Southern Corp., supra, 187.
The plaintiff’s track selection claim is therefore preempted
by this regulatory scheme.
CONCLUSION
For the foregoing reasons, the defendant’s motion for
summary judgment is granted.
51a
C STATUTORY
APPENDIX C —Appendix
RELEVANT
AND REGULATORY PROVISIONS
49 U.S.C. § 20101
Purpose
The purpose of this chapter is to promote safety in every
area of railroad operations and reduce railroad-related
accidents and incidents.
52a
Appendix C
49 U.S.C. § 20106
Preemption
(a) National uniformity of regulation.-(1) Laws, regulations, and orders related to railroad
safety and laws, regulations, and orders related to
railroad security shall be nationally uniform to the
extent practicable.
(2) A State may adopt or continue in force a law,
regulation, or order related to railroad safety or
security until the Secretary of Transportation
(with respect to railroad safety matters), or the
Secretary of Homeland Security (with respect to
railroad security matters), prescribes a regulation
or issues an order covering the subject matter
of the State requirement. A State may adopt or
continue in force an additional or more stringent
law, regulation, or order related to railroad safety
or security when the law, regulation, or order-(A) is necessary to eliminate or reduce an
essentially local safety or security hazard;
(B) is not incompatible with a law, regulation,
or order of the United States Government; and
(C) does not unreasonably burden interstate
commerce.
53a
Appendix C
(b) Clarification regarding State law causes of action.-(1) Nothing in this section shall be construed
to preempt an action under State law seeking
damages for personal injury, death, or property
damage alleging that a party-(A) has failed to comply with the Federal
standard of care established by a regulation or
order issued by the Secretary of Transportation
(with respect to railroad safety matters), or the
Secretary of Homeland Security (with respect
to railroad security matters), covering the
subject matter as provided in subsection (a) of
this section;
(B) has failed to comply with its own plan,
rule, or standard that it created pursuant to
a regulation or order issued by either of the
Secretaries; or
(C) has failed to comply with a State law,
regulation, or order that is not incompatible
with subsection (a)(2).
(2) This subsection shall apply to all pending
State law causes of action arising from events or
activities occurring on or after January 18, 2002.
(c) Jurisdiction.--Nothing in this section creates a
Federal cause of action on behalf of an injured party
or confers Federal question jurisdiction for such State
law causes of action.
54a
Appendix C
49 C.F.R. § 213.9
Classes of track: operating speed limits
(a) Except as provided in paragraph (b) of this section
and §§ 213.57(b), 213.59(a), 213.113(a), and 213.137(b)
and (c), the following maximum allowable operating
speeds apply—
[In miles per hour]
Over track that
The maximum
meets all of the
allowable
requirements
operating speed
prescribed in this
for freight
part for—
trains is—
Excepted track
Class 1 track
Class 2 track
Class 3 track
Class 4 track
Class 5 track
10
10
25
40
60
80
The
maximum
allowable
operating
speed for
passenger
trains is—
N/A
15
30
60
80
90
(b) If a segment of track does not meet all of the
requirements for its intended class, it is reclassified to
the next lowest class of track for which it does meet all of
the requirements of this part. However, if the segment
of track does not at least meet the requirements for
55a
Appendix C
Class 1 track, operations may continue at Class 1
speeds for a period of not more than 30 days without
bringing the track into compliance, under the authority
of a person designated under § 213.7(a), who has at
least one year of supervisory experience in railroad
track maintenance, after that person determines that
operations may safely continue and subject to any
limiting conditions specified by such person.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.