GOMES, J. —
Plaintiff Delton R. Fair was working on the railroad. After he injured his back and knee while trying to throw a switch, he brought this
BNSF's primary argument on appeal is that the Federal Railroad Safety Act of 1970 (FRSA) (49 U.S.C. § 20101 et seq.), and the regulations promulgated thereunder, preclude Fair's FELA claim in its entirety. In support of its argument, BNSF relies on the authority of several federal appellate courts. Guided by recent court decisions that have reanalyzed the preclusion issue in light of the United States Supreme Court's recent decision in POM Wonderful v. Coca-Cola Co. (2014) 573 U.S. ___ [189 L.Ed.2d 141, 134 S.Ct. 2228] (POM Wonderful), we reject BNSF's argument, and instead conclude that FRSA and its regulations do not preclude federal claims under FELA. We reject BNSF's other contentions in the unpublished portion of the opinion.
In the early hours of January 27, 2011, 46-year-old Fair was working as a "herder" in BNSF's Fresno railroad yard, attaching together a group of locomotives. About 1:30 a.m., he injured his back when he tried to throw the 5176 switch;
In December 2011, Fair brought this action for damages against BNSF under FELA. The case was tried to a jury in September 2013. The jury returned a special verdict finding BNSF negligently caused Fair's injuries and awarded the following: (1) $236,000 for past economic loss; (2) $1.5 million for future economic loss; (3) $300,000 for future medical expenses; (4) $380,000 for past noneconomic loss; and (5) $800,000 for future noneconomic loss.
BNSF moved for a new trial, asserting, among other arguments, the same arguments it pursues in this appeal. The trial court denied the motion, and BNSF filed this timely appeal.
As necessary, other relevant facts are included in the discussion that follows.
The standard under FELA is a relaxed one; to prove that a railroad breached its duty, a "plaintiff must show circumstances which a reasonable person would foresee as creating a potential for harm [and] then show that this breach played any part, even the slightest, in producing the injury." (McGinn v. Burlington Northern Railroad Co. (7th Cir. 1996) 102 F.3d 295, 300, citation omitted.) "It is well established that the quantum of evidence required to establish liability in an FELA case is much less than in an ordinary negligence action." (Harbin v. Burlington Northern Railroad Co. (7th
BNSF first contends Fair's FELA claim is precluded completely by FRSA and its regulations. Before trial, BNSF moved in limine to preclude Fair from establishing his FELA claim based on conduct that complies with regulations promulgated pursuant to FRSA. BNSF argued that in light of the preclusive effect of FRSA, the regulation that addresses switch inspections, 49 Code of Federal Regulations section 213.235 (2014), effectively set the standard of care in this case. BNSF thus contended that Fair should be precluded from offering any evidence that the relevant standard of care required more frequent inspections than that set forth in the regulation or that inspections be conducted in a particular manner. In opposing BNSF's motion, Fair argued that while FRSA preempts state law claims covered by its regulations, it does not preclude federal claims under FELA. Fair also argued his negligence claim encompassed conduct that was not covered by the switch inspection regulation.
The trial court denied BNSF's motion based on the reasoning in an unpublished decision from the Eastern District of California, Powell v. Union Pacific Railroad Co. (E.D.Cal., May 2, 2013, No. CIV. 2:09-01857 WBS CKD) 2013 WL 1857893, in which that court determined the same FRSA switch inspection regulation did not preclude the plaintiff's FELA claim based on the railroad's failure to inspect a switch more frequently than once a month.
At trial, Fair presented evidence on, and argued, several theories of negligence. Specifically, Fair argued BNSF was liable for his injuries if the jury found either (1) BNSF did not uphold its duties to properly inspect and maintain the switch, or (2) an employee damaged the switch by running through it, thereby bending the connecting rod, but failed to report it.
On appeal BNSF contends the trial court erred in finding preclusion did not apply. The parties agree that whether FRSA precludes Fair's FELA claim presents a question of law governed by the de novo standard of review.
In Easterwood, the widow of a truck driver killed in a railroad crossing collision brought a state law wrongful-death claim against the railroad. The United States Supreme Court held that FRSA's preemption clause barred the lawsuit to the extent it was based on an allegation that the railroad's train was traveling at an excessive speed. (Easterwood, supra, 507 U.S. at p. 661.) The Supreme Court determined the widow could not maintain her excessive speed claim because the Secretary of Transportation had promulgated regulations under FRSA setting maximum train speeds for certain classes of railroad track, thereby covering the subject matter of train speed with respect to track conditions, and the train was traveling within that speed limit. (Easterwood, supra, 507 U.S. at pp. 673-675.)
BNSF asserts that these regulations, taken together, evidence FRA's intent to substantially subsume any negligent switch inspection claim. In support, BNSF cites a case which found FRSA preempted state law claims of negligent inspection of freight cars, In re Derailment Cases (8th Cir. 2005) 416 F.3d 787, 793-794, and another which found that the FRSA regulation at issue here precluded a railroad employee's FELA claim that inspections should have occurred more than once per month, but did not preclude a claim that the inspections were subpar, Ferren v. National R.R. Passenger Corp. (N.D.Ill., Dec. 12, 2001, No. 00 C 2262) 2001 WL 1607586, pages *4-*5. BNSF argues that because Fair's negligence claim was rooted in BNSF's failure to inspect the switch more frequently than FRSA regulations require, it falls within the scope of the regulations and is therefore precluded.
Courts have reached different conclusions regarding the preclusive effect of FRSA on FELA claims. The Seventh Circuit Court of Appeals has held that FRSA superseded a railroad conductor's FELA claim that he suffered post-traumatic stress disorder after the train collided with a truck stopped on the railroad tracks; the lawsuit alleged the railroad was negligent for allowing the train to travel at an unsafe speed and failing to install additional warning devices at the crossing. (Waymire, supra, 218 F.3d at pp. 774, 777.) Although the Waymire court recognized Easterwood involved a preemption, not a preclusion, analysis, it found the case instructive. (Waymire, supra, 218 F.3d at p. 776.) The court determined that, in order to be consistent with Easterwood and "to uphold FRSA's goal of uniformity," it must reach the same result as Easterwood, since it would "seem absurd to reach a contrary conclusion in this case" when trains in both cases were operated identically and the Supreme Court already found the conduct was not culpable negligence. (Waymire, supra, 218 F.3d at p. 776.) The Waymire court further explained:
The Fifth and Sixth Circuit Courts of Appeals have embraced the reasoning of Waymire. (Lane v. R.A. Sims, Jr., Inc. (5th Cir. 2001) 241 F.3d 439, 443 (Lane); Nickels v. Grand Trunk Western Railroad Inc. (6th Cir. 2009) 560 F.3d 426, 430 (Nickels).)
In the only published California state court case to address this issue, Southern California Regional Rail Authority v. Superior Court (2008) 163 Cal.App.4th 712, 739 [77 Cal.Rptr.3d 765] (Southern California), the Second District Court of Appeal followed Waymire in concluding that since FRSA regulations relating to operation of a train in "push mode" preempted state law wrongful death and personal injury claims of passengers and their survivors, it also precluded FELA claims by the railroad workers. The court explained: "[T]he principles that support preemption as to the passenger plaintiffs apply with the same force to the claims of the railroad worker plaintiffs. [Citation.] Consequently, the railroad worker plaintiffs push mode claims brought under the FELA are indistinguishable from those of the
Although the Ninth Circuit Court of Appeals has not addressed this issue, some federal district courts within the circuit have applied the reasoning in Nickels and Easterwood when determining whether FRSA precludes a FELA claim. (Allenbaugh v. BNSF Railway Co. (E.D.Wash. 2011) 832 F.Supp.2d 1260, 1266 ["If a cause of action would be preempted by the FRSA if brought under state law, the cause is likewise precluded by the FRSA if it is brought under the FELA."]; Abromeit v. Montana Rail Link, Inc. (D.Mont., Sept. 15, 2010, No. CR 09-93-M-DWM) 2010 WL 3724425, p. *4 & fn. 2 [noting that while preemption analysis only applies to conflicts between state and federal law, courts have concluded FELA claims may be precluded under a similar analysis based on FRSA's policy of ensuring uniformity in railway safety]; see Parise v. Union Pacific R.R. (E.D.Cal., May 14, 2014, No. 2:14-cv-0022 KJN PS) 2014 WL 2002281, p. *7 [holding that analogous federal Locomotive Inspection Act (Feb. 17, 1911, ch. 103, 36 Stat. 913) precluded FELA claim].)
Other courts, however, have declined to apply Easterwood's reasoning to preclusion claims. In Earwood v. Norfolk Southern Railway Co. (N.D.Ga. 1993) 845 F.Supp. 880 (Earwood), the district court concluded that FRSA did not preclude a railroad employee's excessive speed claim under FELA because "[t]he two statutes do not purport to cover the same areas" and FRSA does not purport to define the standard of care with which railroads must act with regard to employees. (845 F.Supp. at p. 885.) Noting that unless there is "an intolerable or irreconcilable conflict between two statutes, a court need not decide whether one controls over the other," the district court found there was no "`intolerable conflict'" between FRSA and FELA. (845 F.Supp. at p. 885.) Since under a preclusion analysis a court must examine the purpose underlying the regulation, the district court concluded it was not contrary to the evident statutory purpose of FRSA regulations to allow a FELA claim based on unsafe speed, since the regulations were not directed at the issue of employee safety. (845 F.Supp. at p. 891.)
In the case the trial court relied on in denying BNSF's in limine motion, Powell, supra, 2013 WL 1857893, the district court found that FRSA did not preclude the plaintiff's FELA claim based on the railroad's failure to inspect its railroad switches in general, or the particular switch at issue in the case. The district court declined to follow Waymire, noting that Easterwood did not address whether (1) the preemptive effect of FRSA would apply to claims of negligence under FELA, or (2) the switch inspection regulations substantially
In Cowden v. BNSF Railway Co. (8th Cir. 2012) 690 F.3d 884, 892 (Cowden), the Eighth Circuit Court of Appeals criticized the reasoning of Waymire and its progeny. The court, however, declined to create a circuit split, as the issue was not properly raised in the district court and even if FRSA's express preemption clause could be applied to preclude federal laws, it was not properly applied in that case. (Cowden, supra, 690 F.3d at p. 892.)
More recently, federal and state courts have declined to follow Waymire, Lane and Nickels, and instead have held that FRSA and its regulations do not preclude FELA claims, relying, in part, on the United States Supreme Court's June 2014 decision in POM Wonderful, supra, 573 U.S. ___ [134 S.Ct. 2228]. (See Henderson v. National Railroad Passenger Corp. (S.D.N.Y., Feb. 19, 2015, No. 1:13-cv-6792-GHW) ___ F.Supp.3d ___, 2015 WL 728094, pp. *3-*8 (Henderson); Hananburgh v. Metro-North Commuter Railroad (S.D.N.Y., Mar. 18, 2015, No. 13-CV-2799 (JMF)) 2015 WL 1267145, pp. *2-*4; Bratton v. Kansas City Southern Railway Co. (W.D.La., Feb. 24, 2015, No. 13-3016) 2015 WL 789127; Noice v. BNSF Railway Co. (2015) 2015-NMCA-054 [348 P.3d 1043, 1046-1049], cert. granted May 11, 2015 (Noice).)
Based on the reasoning in these recent decisions, we respectfully disagree with the decisions in Waymire, Lane, and Nickels, as we find the reasoning in Henderson and the more recent decisions more persuasive. Accordingly, we conclude that FRSA does not preclude Fair's FELA claim.
Moreover, while the Waymire line of cases was concerned with uniformity, FRSA's "vague directive" that "`[l]aws, regulations, and orders related to railroad safety ... shall be nationally uniform to the extent practicable,'" must be read in the context of the section in which it appears, which exclusively addresses the preemption of state law. (Henderson, supra, 2015 WL 728094 at p. *6.) In contrast, FELA imposes a nationally uniform standard for determining whether a railroad should be held liable for injuries sustained by its employees. (Ibid.; see Urie v. Thompson (1949) 337 U.S. 163, 174 [93 L.Ed. 1282, 69 S.Ct. 1018] (Urie) ["[w]hat constitutes negligence for [FELA's] purposes is a federal question, not varying in accordance with the differing conceptions of negligence applicable under state and local laws for other purposes."].)
The Henderson and Noice courts found instructive the United States Supreme Court's decision in POM Wonderful, supra, 573 U.S.___ [134 S.Ct. 2228], which addressed the interplay between federal statutes. (Henderson, supra, 2015 WL 728094 at p. *9; Noice, supra, 348 P.3d at p. 1048.) In POM Wonderful, the question was whether a suit under the Lanham Act (15 U.S.C. § 1125) alleging that Coca-Cola, the plaintiff's business competitor, used a deceptive and misleading label on Coca-Cola's product, was precluded by the Federal Food, Drug, and Cosmetic Act (FDCA) (21 U.S.C. §§ 331, 343), that forbids the misbranding of food, including by false and misleading labeling, and places enforcement of misbranding of food and drink in the hands of the Food and Drug Administration (FDA). (POM Wonderful, supra, 573 U.S. at p.___ [134 S.Ct. at p. 2233].) The Ninth Circuit Court of Appeals held the FDCA precluded the Lanham Act claim, reasoning that Congress decided to entrust matters of juice beverage labeling to the FDA, which promulgated comprehensive labeling regulations that did not impose the requirements the plaintiff sought to impose on Coca-Cola. (POM Wonderful, supra, 573 U.S. at p.___ [134 S.Ct. at p. 2236].) The Ninth Circuit did not believe it should act where the FDA had not, as to do so would risk undercutting the FDA's expert judgment and authority. (Ibid.)
The Supreme Court reversed, finding preclusion did not apply, as (1) there was no statutory text or established interpretive principle to support preclusion, (2) nothing relating to either statute showed a congressional purpose or design to forbid such suits, and (3) to the contrary, the statutes complemented each other in the federal regulation of misleading food and beverage labels. (POM Wonderful, supra, 573 U.S. at p.___ [134 S.Ct. at p. 2233].)
The court first explained that neither statute contained a provision that disclosed a purpose to bar unfair competition claims like that asserted by the plaintiff. (POM Wonderful, supra, 573 U.S. at p.___ [134 S.Ct. at p. 2237].) The court found this absence of "special significance" because the two statutes had coexisted for 70 years, and if Congress had concluded that Lanham Act suits could interfere with the FDCA, it might have enacted a provision addressing the issue. (573 U.S. at p.___ [134 S.Ct. at p. 2237]) The court noted that while Congress had enacted amendments to the FDCA and
In reaching these conclusions, the court rejected Coca-Cola's argument that preclusion applied because Congress intended national uniformity in food and beverage labeling: "Although the application of a federal statute such as the Lanham Act by judges and juries in courts throughout the country may give rise to some variation in outcome, this is the means Congress chose to enforce a national policy to ensure fair competition. It is quite different from the disuniformity that would arise from the multitude of state laws, state regulations, state administrative agency rulings, and state court decisions that are partially forbidden by the FDCA's pre-emption provision. Congress not infrequently permits a certain amount of variability by authorizing a federal cause of action even in areas of law where national uniformity is important." (POM Wonderful, supra, 573 U.S. at p.___ [134 S.Ct. at pp. 2239-2240].)
BNSF argues we should not follow these recent decisions because they do not give due deference to the Waymire line of cases, as they do not explain how POM Wonderful changed the preclusion analysis or why Waymire should not be afforded any deference in light of these changes. But the cases do explain why Waymire should not be followed — because to do so would be to rewrite FRSA's express statutory language by inferring that its regulations preclude covered FELA claims as well as covered state law claims (Henderson, supra, 2015 WL 728094 at p. *5; Noice, supra, 348 P.3d at p. 1048.)
The 2007 amendment added subdivision (b) to section 20106, to clarify that nothing in FRSA "shall be construed to preempt an action under State law seeking damages for personal injury, death or property damage," where certain enumerated allegations are made. (Grade v. BNSF Railway Co. (8th Cir. 2012) 676 F.3d 680, 684-685 (Grade); § 20106(b).) The subdivision was added in response to a group of cases arising out of a 2006 train derailment in North Dakota which released hundreds of gallons of toxic gas into the air, injuring many people, in which federal courts found FRSA completely preempted the plaintiffs' state causes of action. (Grade, supra, 676 F.3d at pp. 684-685.) As the court in Grade explained, the legislative history of the 2007 amendment indicates it was intended to clarify the preemptive effect of FRSA, not to change it. (Grade, supra, 676 F.3d at pp. 685-686.)
When Congress enacted FRSA in 1970, FELA had been in existence for more than 60 years. (See FRSA, Pub.L. No. 91-458 (Oct. 16, 1970) 84 Stat. 971; FELA, 60 Cong., ch. 149 (Apr. 22, 1908) 35 Stat. 65.) Given that history, the absence of any provision in FRSA addressing its effect on FELA is significant. If Congress had concluded that FELA suits would interfere with the operation of FRSA, it could have enacted a provision addressing the issue during these statutes' 45 years of co-existence. (POM Wonderful, supra, 573 U.S. at p.___ [134 S.Ct. at p. 2237].) In light of FRSA's failure to mention its effect on FELA, Congress could not have intended preclusion of FELA claims when that would harm FELA's purpose of promoting the safety of railroad workers by (1) leaving injured workers with no recourse against their employer when their claim is based on conduct they allege was negligent but which complies with FRSA and its regulations, and (2) insulating broad categories of potentially negligent conduct from any accountability.
The judgment is affirmed. Costs on appeal are awarded to respondent.
Hill, P.J., and Levy, J., concurred.
(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." (Some capitalization omitted.)
Subsequent references to section 20106 shall be to 49 United States Code section 20106.
