RULING

ROBERT G. JAMES, District Judge.

Pending before the Court is a Motion for Partial Summary Judgment Regarding Speed [Doc. No. 191] filed by Union Pacific Railroad Co. ("Union Pacific"). Defendants Daniel Shackleford ("Shackleford"), College City Leasing, LLC ("College City"), Taylor Truck Lines, Inc. ("Taylor Truck"), Taylor Logistics, Inc. ("Taylor Logistics"), and Taylor Consolidated, Inc. (collectively, "the Taylor Entities") oppose the motion. [Doc. No. 235]. Union Pacific filed a reply. [Doc. No. 249].

For the following reasons, the Motion for Partial Summary Judgment is GRANTED.

I. FACTS AND PROCEDURAL HISTORY

On October 5, 2014, Shackleford was operating a 2013 Kenworth tractor with trailer and dolly (hereinafter "tractor-trailer") loaded with a Freuhoff Terex RT-780 crane. He was en route to deliver the crane to a construction company in Mississippi. The tractor-trailer driven by Shackleford was owned by College City, but leased to Taylor Truck. Taylor Logistics was the shipment broker.1

At approximately 1:00 p.m., Shackleford was driving the tractor-trailer south on U.S. Highway 165 in Mer Rouge, Louisiana. At the intersection of 165 and U.S. Highway 425/La. Highway 2, Shackleford stopped at the stop sign and then turned left onto U.S. Highway 425/La. Highway 2, also known as Davenport Avenue. He then proceeded to the Highway 2/Davenport Avenue highway/railway grade crossing ("the Crossing") over a Union Pacific main line railroad track (identified as DOT crossing number 441-531N at railroad milepost 473.60). The elevated Crossing has pavement markings, crossbuck signs, flashing lights, gates, and bells.

As Shackleford attempted to drive over the Crossing, the trailer became lodged, straddling the tracks. He exited the tractor to attempt to extricate the trailer, but did not notify law enforcement or Union Pacific.

There are federal speed regulations in effect with regard to the Crossing, the type of track, and the type of train operated by Union Pacific. The Crossing is located at milepost 473.6, which is part of the McGehee Subdivision. The Union Pacific North Little Rock Timetable Number 5 was in effect at that time and governed the McGehee Subdivision. The track was graded Class 4. According to federal regulations, the maximum authorized speed for freight trains was sixty miles per hour, the same speed limit under Union Pacific's Timetable No. 5. However, Union Pacific also had a Company System General Order Number 2, which provided that the speed for key trains was fifty miles per hour.

Before Shackleford could extricate the tractor-trailer, a Union Pacific train traveling north on the track began to approach the Crossing. Union Pacific engineer, Russell Rowe, was operating the lead locomotive, and Union Pacific conductor, James Kovalyshyn, was in the cab as well. The flashing lights, bell, and crossing gate were activated. When he saw the tractor-trailer, Rowe recalled that the train was traveling between forty-eight and fifty miles per hour. Kovalyshyn also testified that the train was traveling less than fifty miles per hour. When they realized that the tractor-trailer was stopped, crew members applied the emergency brakes in an effort to avoid the collision. The crew members were unsuccessful, and the train collided with the trailer and attached crane. As a result of the accident, approximately 17 or 18 railroad cars and 2 locomotives left the railroad tracks, cargo spilled, and a tank car leaked Argon onto surrounding property, including land owned by R & L Properties of Oak Grove, LLC ("Properties").

On January 14, 2015, Union Pacific brought the instant suit against the Taylor Entities seeking to recover the property damage caused by the accident and derailment.

Properties and R & L Builders Supply, Inc. ("Builders Supply") had filed a separate lawsuit against the Taylor Entities, Union Pacific, and Union Pacific's contractors, Prewett Enterprises, Inc., and Hulcher Services, Inc., seeking to recover their damages. On November 4, 2015, the Properties and Builders Supply lawsuit was consolidated with the Union Pacific lawsuit.

Although they have not made a claim against Union Pacific, as one of their defenses, the Taylor Entities contend that Union Pacific was comparatively negligent by failing "to follow applicable statutory, regulatory or legal standards" and because the train was "traveling at an excessive rate of speed." [Doc. Nos. 8, 81, 115].

After discovery was complete, Union Pacific filed the instant motion, arguing that federal preemption bars any claims or defenses that Union Pacific was negligent because of the speed of the train. The motion is fully briefed [Doc. Nos. 235 & 249], and the Court is now prepared to rule.

II. LAW AND ANALYSIS

A. Standard of Review

Under Federal Rule of Civil Procedure 56(a), "[a] party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The moving party bears the initial burden of informing the court of the basis for its motion by identifying portions of the record which highlight the absence of genuine issues of material fact. Topalian v. Ehrmann, 954 F.2d 1125, 1132 (5th Cir. 1992); see also Fed. R. Civ. P. 56(c)(1) ("A party asserting that a fact cannot be . . . disputed must support the assertion by . . . citing to particular parts of materials in the record . . .). A fact is "material" if proof of its existence or nonexistence would affect the outcome of the lawsuit under applicable law in the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is "genuine" if the evidence is such that a reasonable fact finder could render a verdict for the nonmoving party. Id.

B. Train Speed

Union Pacific asserts that it is entitled to summary judgment on any claims or defenses related to the speed of the train or the timetable speed limit because such claims or defenses are preempted by federal law and thus barred.

The Supremacy Clause to the United States Constitution provides that "the Laws of the United States . . . shall be the supreme Law of the Land." U.S. Const., ART. VI, CL.2. Congress has the power under the Supremacy Clause to preempt state law. Preemption may be express or implied.2 See Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98 (1992).

The Federal Railway Safety Act ("FRSA") was enacted to "promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." 49 U.S.C. § 20101. The FRSA contains an express preemption provision:

49 U.S.C. § 20106.

Despite the express preemption provision, the United States Court of Appeals for the Fifth Circuit has found that "FRSA preemption is even more disfavored than preemption generally." United Transp. Union v. Foster, 205 F.3d 851, 860 (5th Cir. 2000) (citing Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 515 (5th Cir. 1999)).

Id. (emphasis added).

The current preemption provision is the result of Congress's enactment of the Implementing Regulations of the 9/11 Commission Act of 2007, Pub.L. 110-53, 121 Stat. 266. Among other actions, Congress clarified "that when a party alleges that a railway failed to comply with a federal standard of care established by regulation or with its own plan, rule or standard created pursuant to a federal regulation, preemption will not apply."3 Henning v. Union Pac. R.R. Co., 530 F.3d 1206, 1215 (10th Cir. 2008); see also Grade v. BNSF Ry. Co., 676 F.3d 680, 684-85 (8th Cir. 2012); Zimmerman v. Norfolk Southern Corp., 706 F.3d 177-78 (3d Cir. 2013). Thus, even in the face of express preemption, Congress clarified that a party may assert a cause of action for negligence against a railroad (1) for its failure to comply with a federal standard of care, if § 20106(b)(1)(A) applies; or (2) for its failure to comply with its own plan, rule, or standard created pursuant to a federal regulation, if § 20106(b)(1)(B) applies. See Gauthier v. Union Pac. R.R. Co., 644 F.Supp.2d 824, 835 (E.D. Tex. 2009) (citing Van Buren v. Burlington Northern Santa Fe Ry. Co., 544 F.Supp.2d 867, 876 (D. Neb. 2008)).

The FRSA directs that the Secretary of Transportation is to "prescribe regulations and issue orders for every area of railroad safety . . . ." 49 U.S.C. § 20103. This power is exercised largely through the Federal Railroad Administration ("FRA"). See 49 U.S.C. § 103; 49 C.F.R. § 1.88. The FRA has set "maximum operating speeds" at which trains can travel on different classes of tracks. See 49 C.F.R. § 213.9. The Crossing in this case was on a section of track rated as Class 4, which has a maximum operating speed of 60 miles per hour for freight trains. 49 C.F.R. § 213.9. The Union Pacific timetable also provided that a freight train could operate at 60 miles per hour on the section where the Crossing is located.

The Supreme Court addressed train speed regulations in CSX Transp. v. Easterwood, 507 U.S. 658 (1993). Easterwood brought a wrongful death action against CSX, contending that CSX was negligent for operating the train at an excessive speed. Easterwood conceded that the train was traveling within the speed limit established by federal regulations issued pursuant to FRSA (less than 60 miles per hour), but she argued that CSX breached its duty to operate its train at a moderate and safe rate of speed. The Supreme Court held that § 213.9(a) "should be understood as covering the subject matter of train speed with respect to track conditions." Id. at 675 (citing to 49 C.F.R. § 213.9). Therefore, state negligence claims concerning train speed are preempted. Id. The Easterwood Court explained the regulations on "speed limits must be read as not only establishing a ceiling, but also precluding additional state regulation. . . ." Id.

More recently, the Fifth Circuit followed the Supreme Court and held in Hesling v. CSX Transp., Inc. 396 F.3d 632, 638 (5th Cir. 2005), that because the CSX train was traveling under the authorized track speed, state negligence claims regarding excessive speed were preempted. In Hesling, the plaintiff argued that FRSA only intended to set track speed, but left the train speed to the discretion of the railroads, relying on statements in the Federal Register.4 Id. at 637. The Fifth Circuit rejected Hesling's arguments. As Hesling pointed out, the railroad may "target what type of track designations they want to maintain," but this fact does not allow them to "ignore federal regulations in setting their own train speeds"; "rather, they have the information and ability to tailor their operations to the particular track designations they desire, and in that way they are masters of their own universe." Id. at 638. Where the "train speed" was "well within the speed ratings promulgated by the FRA," the lower court did not abuse its discretion that Hesling's excessive speed claims were preempted.

Likewise, in this case, the Union Pacific train was operating a freight train on a Class 4 track, which, by federal regulation, limited the maximum operating speed to 60 miles per hour. Union Pacific has produced undisputed summary judgment evidence that its freight train was traveling 48-50 miles per hour. At that speed, Union Pacific's train was well under the designated speed limit.

The Taylor Entities argue, however, that Union Pacific cannot rely on preemption because it failed to maintain the tracks as required by federal regulations. The Taylor Entities rely on their expert, Alan Blackwell, a former employee of the Maintenance of Ways Department of the Missouri Pacific and Union Pacific Railroads who has experience inspecting railroads. Blackwell avers that a combination of conditions present at the Crossing did not provide for safe train operations and violated 49 C.F.R. § 213.1.

However, the Court finds that Blackwell's after-the-fact assessment does not create a genuine issue of material fact on the issue of speed. There is no evidence that Union Pacific violated a specific maintenance requirement set forth in 49 C.F.R. § 213.9, et seq. Moreover, only a federal track inspector has the authority to downgrade a track to a lower classification. 49 C.F.R. § 216.15(a); see also Stevenson v. Union Pacific R.R., 110 F.Supp.2d 1086, 1092 (E.D. Ark. 2000) ("Federal law provides . . . that the decision to downgrade a track belongs to the FRA track inspector."). While Blackwell contends that a federal track inspector should have recommended remediation, it is undisputed that the track was still rated Class 4 at the time of the accident, and federal track inspector had not recommended remediation or made the decision to downgrade the track. Therefore, there is no genuine issue of material fact for trial whether Union Pacific was in compliance with the applicable federal regulation on speed.

Further, to the extent that Union Pacific's Timetable or Company System Operating rule could constitute a "plan, rule, or standard that it created pursuant to a regulation or order issued by either of the Secretaries,"5 49 U.S.C. § 20106(b)(1)(B), the undisputed evidence shows that the train was operating within the 60-mile-per-hour limit set by the Timetable and within the 50-mile-perhour limit set for key trains under company policy. Therefore, there is no genuine issue of material fact for trial whether Union Pacific was in compliance with its own rules and standards.

Finally, the Court has considered two exceptions found in Supreme Court case law and the FRSA express preemption provision, but neither applies. In Easterwood, the Supreme Court declined to consider whether the FRSA preempts the state tort law "duty to slow or stop . . . to avoid a specific, individual hazard." 507 U.S. at 675 n.15.

Hesling, 396 F.3d at 640.

In this case, the combination of conditions cited by the Taylor Entities could be present statewide and did not render this particular collision imminent.6 See, e.g., Hughs v. Union Pac. R.R. Co., No. 5:15-06079-CV-RK, 2017 WL 1380480, at *3 (W.D. Mo. Apr. 14, 2017) (sight restrictions, excessive vertical elevation, and inadequate traffic control at the crossing did not render it "extrahazardous," so as to create a specific, individual hazard); Furlough, 766 So.2d at 760 (no specific, individual hazard where a crossing had an obstructed sight line, rough crossing, parallel roadways, inadequate warning devices, and inoperative ditch lights and accident occurred during inclement weather); O'Bannon v. Union Pac. R.R. Co., 960 F.Supp. 1411, 1421 (W.D.Mo. 1997) (no specific, individual hazard where a dangerously designed crossing had inadequate warning devices, an obscured view due to the angle at which the track crossed the highway, and a steep grade); see also Kankakee, Beaverville & S. R. Co. v. McLane Co., No. 4:08-CV-00048, 2010 WL 3672228, at *4 (N.D. Ind. Sept. 10, 2010) (agreeing "with the majority of courts that have considered the meaning of `specific, individual hazard' and concluded that it refers to a unique occurrence that could cause an imminent collision."). The one condition that was specific to this collision, that did render it imminent, was the fact that Shackleford was stranded on the Crossing. See Baker v. Canadian Nat'l/Illinois Cent. Ry. Co., 397 F.Supp.2d 803, 813 (S.D. Miss. 2005) ("It has been consistently emphasized that the kinds of conditions that could constitute a `specific individual hazard' are limited to transient conditions that could lead to an imminent collision, such as a child standing on the railway or a motorist stranded on a crossing or improperly parked tank cars which obstruct the view of the train engineer."); see also Carter v. National Railroad Passenger Corp., 63 F.Supp.3d 1118, 1155 (N.D. Cal. 2014) (quoting same). However, the undisputed evidence shows that the Union Pacific crew applied the emergency brakes as soon as they realized that the tractor trailer was stopped on the tracks. Thus, the Easterwood exception does not apply.

A second exception for a local safety or security hazard is also inapplicable.7 See 49 U.S.C. § 20106(a)(2)(A); Hesling, 396 F.3d at 640; Easterwood, 507 U.S. at 675 n.15. The § 20106(a)(2) savings clause "allows states to adopt additional or more stringent state regulation[s] related to railroad safety to prevent a local hazard, but only if the state law is not incompatible with federal regulation and does not burden interstate commerce." Hesling, 396 F.3d at 640 (citing 49 U.S.C. § 20106; Easterwood, 507 U.S. at 662). The savings clause is to be "narrowly construed." Id. (citing Easterwood v. CSX Transp., Inc., 933 F.3d 1548, 1553 n.3 (11th Cir. 1991) (other citations omitted)). However, the Taylor Entities have failed to point to any state law, regulation, or order related to railroad safety or security which is applicable to their argument, but instead they rely only on the general law of negligence and comparative fault which do not appear to be encompassed by the exception. Further, the local-condition savings clause does not apply where a condition is statewide in character or is capable of being adequately addressed in the national standards created by the Secretary of Transportation.8 In this case, the speed of the train has been addressed, and conditions pointed to, such as the elevation of the Crossing and the curve in the track, are conditions that appear across the state. See United Transp. Union v. Foster, 205 F.3d 851, 861 (5th Cir. 2000) ("We agree with the district court that the `locality exception' applies only to local concerns, not state-wide hazards."). Therefore, no local safety or security hazard exception applies.

III. CONCLUSION

For the foregoing reasons, Union Pacific's Motion for Partial Summary Judgment Regarding Speed [Doc. No. 191] is GRANTED. The Taylor Entities and any other opposing parties are precluded from presenting testimony or arguing to the jury in support of a claim or defense that Union Pacific was negligent based on the speed of the train at the time of the collision at issue.