BOOTH (LARRY W.) VS. CSX TRANSPORTATION, INC.
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RENDERED: JANUARY 28, 2011; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-002103-MR
LARRY W. BOOTH
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE SUSAN SCHULTZ GIBSON, JUDGE
ACTION NO. 03-CI-009616
CSX TRANSPORTATION, INC.
APPELLEE
OPINION
REVERSING AND REMANDING
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BEFORE: ACREE, JUDGE; HENRY AND ISAAC,1 SENIOR JUDGES.
ISAAC, SENIOR JUDGE: Larry W. Booth appeals from a Jefferson Circuit Court
order granting summary judgment to CSX Transportation, Inc. Booth allegedly
injured his knees while employed as a railroad carman for CSX. The Jefferson
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Senior Judge Sheila R. Isaac sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580. Senior Judge
Michael L. Henry concurred in this opinion prior to the expiration of his term of senior judge
service. Release of the opinion was delayed by administrative handling.
Circuit Court ruled that Booth’s claims for damages under the Federal Employers’
Liability Act, 45 U.S.C. § 51, et seq. (“FELA”) were preempted by regulations
promulgated under the Federal Railway Safety Act, 49 U.S.C. § 20101, et seq.
(“FRSA”). We conclude that although a regulation promulgated under the FRSA
may preclude a FELA claim, it did not do so in this case because the regulation at
issue does not cover or substantially subsume the subject matter of the suit.
Booth worked for CSX from 1973 through March 2002. From 1973
until 1986 or 1987, his work as a carman required him to walk for long distances
and for substantial periods of time on large and uneven ballast in CSX’s Louisville
rail yards. Ballast consists of stone chips which are placed under and around
railroad tracks and ties to provide structural support, drainage and erosion
protection. Booth described the ballast as twisting and rolling under his feet.
According to Booth, conditions improved in the late 1980s when CSX began to use
smaller ballast and even replaced one area of ballast with concrete. After 1986 or
1987, his job duties changed and the length and frequency of his walks in the rail
yard decreased. In 2001, he began to experience problems with his knees, and he
ultimately underwent bilateral knee replacement surgeries.
In 2003, Booth filed a FELA suit against CSX in Jefferson Circuit
Court, alleging that its negligent maintenance of the ballast in its rail yards had
caused the injuries to his knees. CSX moved for summary judgment, arguing that
Booth’s testifying physicians were unable to establish causation between the size
of the ballast in the rail yard walkways and Booth’s injuries. CSX also argued that
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Booth’s FELA claims were precluded by federal regulations promulgated under
the FRSA. The circuit court granted summary judgment to CSX solely on the
medical causation issue. On appeal, that judgment was reversed and remanded in
Booth v. CSX Transportation, Inc., 211 S.W.3d 81 (Ky.App. 2006). Upon remand,
CSX filed another motion for summary judgment which raised the preclusion
argument again. The circuit court agreed that Booth’s FELA claim was precluded
by the FRSA and entered summary judgment for CSX. This appeal followed.
The FELA was enacted by Congress in 1908 with the aim of
promoting railroad safety and “to provide a remedy to railroad employees injured
as a result of their employers’ negligence.” Waymire v. Norfolk and Western
Railway Co., 218 F.3d 773, 775 (7th Cir. 2000). The FELA “provides a uniform
method for compensating injured railroad workers and their survivors. It is
remedial legislation and is to be construed liberally in order to accomplish its
humanitarian purpose.” CSX Transportation, Inc. v. Moody, 313 S.W.3d 72, 79
(Ky. 2010) (footnotes omitted). It makes a railroad
liable in damages to any person suffering injury while he
is employed by such carrier in such commerce . . . for
such injury or death resulting in whole or in part from the
negligence of any of the officers, agents, or employees of
such carrier, or by reason of any defect or insufficiency,
due to its negligence, in its cars, engines, appliances,
machinery, track, roadbed, works, boats, wharves, or
other equipment.
45 U.S.C. § 51.
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The FELA provides the exclusive remedy for a railroad employee
injured as a result of his employer’s negligence. Lane v. R.A. Sims, Jr., Inc., 241
F.3d 439, 442 (5th Cir. 2001).
The other federal statute implicated in this case, the FRSA, was
enacted in 1970 in order “to promote safety in every area of railroad operations and
reduce railroad-related accidents and incidents.” Norfolk Southern Railway Co. v.
Shanklin, 529 U.S. 344, 347, 120 S.Ct. 1467, 1471, 146 L.Ed.2d 374 (2000)
(quoting 49 U.S.C. § 20101). Under the FRSA, the Secretary of Transportation is
authorized to “prescribe regulations and issue orders for every area of railroad
safety[.]” Id.
The FRSA contains a preemption clause in order to ensure 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 preemption
clause provides that the states may regulate railroad safety “until the Secretary of
Transportation . . . prescribes a regulation or issues an order covering the subject
matter of the State requirement.” 49 U.S.C. § 20106(a)(2). “A state-law
negligence action is ‘covered’ and therefore preempted if a FRSA regulation
‘substantially subsume[s]’ the subject matter of the suit.” Nickels v. Grand Trunk
Western R.R., Inc., 560 F.3d 426, 429 (6th Cir. 2009), citing CSX Transportation,
Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993).
Significantly for purposes of this appeal, “[t]his provision explicitly preempts only
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State laws, regulations, and orders; it does not mention other federal safety
standards.” Id. (Emphasis supplied).
In the case presently before us, the circuit court determined that a
FRSA regulation on ballast covers the subject matter of Booth’s suit and therefore
has barred his FELA claims.
In reviewing a grant of summary judgment, our inquiry focuses on
“whether the trial court correctly found that there were no genuine issues as to any
material fact and that the moving party was entitled to judgment as a matter of
law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App. 1996); Kentucky Rules of
Civil Procedure (CR) 56.03. “[T]he proper function of summary judgment is to
terminate litigation when, as a matter of law, it appears that it would be impossible
for the respondent to produce evidence at the trial warranting a judgment in his
favor.” Steelvest v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.
1991).
Booth raises the following arguments on appeal: (1) preemption under
the FRSA applies only to state laws and regulations and should not be extended to
claims under the FELA, a federal statute; and (2) even if preemption does apply,
the ballast regulation at issue does not preclude Booth’s FELA claim because it
does not substantially subsume, discuss, or even mention walkways in rail yards.
The first argument on appeal concerns whether a federal regulation
promulgated under the FRSA can preclude a FELA claim in the same manner in
which it can preempt state regulations or state common law claims. For instance,
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[i]n cases brought under state law, the Supreme Court has
found two areas, speed regulations and warning signs at
grade crossings, where federal regulations pursuant to
FRSA have “covered” the field such that any attempts at
state regulation inconsistent with the federal regulations
are preempted.
Grimes v. Norfolk Southern Ry. Co., 116 F.Supp.2d 995, 1000 (N.D.Ind. 2000),
citing Easterwood, 507 U.S. 658 and Shanklin, 529 U.S. 344. Although the United
States Supreme Court has not directly addressed whether the preemption analysis
can be extended to claims made under the FELA, several federal courts have held
that, in the interests of fairness and national uniformity, a FELA claim should be
precluded if the same claim made under common law would be preempted by the
FRSA. The Court of Appeals for the Seventh Circuit, in a case involving a FELA
plaintiff alleging injuries caused by excessive train speed, alluded to Congress’
intent that railroad safety regulations be nationally uniform and concluded that
[s]uch uniformity can be achieved only if the regulations
covering train speed are applied similarly to a FELA
plaintiff’s negligence claim and a non-railroad-employee
plaintiff’s state law negligence claim. Otherwise, a
railroad employee could assert a FELA excessive-speed
claim, but a non-employee motorist involved in the same
collision would be precluded from doing so. Dissimilar
treatment of the claims would have the untenable result
of making the railroad safety regulations established
under the FRSA virtually meaningless: The railroad
could at one time be in compliance with federal railroad
safety standards with respect to certain classes of
plaintiffs yet be found negligent under the FELA with
respect to other classes of plaintiffs for the very same
conduct.
Lane, 241 F.3d at 443 (internal citation omitted).
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Similarly, the Court of Appeals for the Sixth Circuit has stated that the
uniformity demanded by the FRSA can be achieved only if federal rail safety
regulations are applied similarly to a FELA plaintiff’s negligence claim and to a
non-railroad-employee plaintiff’s state law negligence claim and that not abiding
by the preclusive nature of the regulations would result in dissimilar treatment of
the claims and inconsistent verdicts. Nickels, 560 F.3d at 430.
We agree with the reasoning employed in these cases and conclude
that Booth’s claim is precluded if the same claim brought by a non-railroad
employee under state law would be preempted under the FRSA.
We note that the term preemption applies exclusively to the
interaction of state and federal laws; whereas the term applied to the interaction
between the FELA and the FRSA is preclusion. The circuit court in this case used
the term “preemption” in its order, but the effect is the same because the analysis
employed to determine if preclusion will occur is identical to that applied in
preemption cases. See e.g. Waymire, 218 F.3d 773 (applying the U.S. Supreme
Court’s preemption analysis in Easterwood, 507 U.S. 658 to the interaction of the
FELA and the FRSA).
Booth next argues that the regulation at issue, 49 C.F.R. § 213.103,
does not preclude his FELA claim because it sets forth solely the specifications for
creating a safe roadbed for trains and does not address what constitutes safe
walking conditions in its rail yards.
The regulation provides as follows:
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Unless it is otherwise structurally supported, all track
shall be supported by material which will –
(a) Transmit and distribute the load of the track and
railroad rolling equipment to the subgrade;
(b) Restrain the track laterally, longitudinally, and
vertically under dynamic loads imposed by railroad
rolling equipment and thermal stress exerted by the rails;
(c) Provide adequate drainage for the track; and
(d) Maintain proper track crosslevel, surface, and
alinement.
49 C.F.R. § 213.103.
In order to have a preclusive effect, this regulation must “touch, cover
or substantially subsume” the subject matter of Booth’s suit. Davis v. Union
Pacific Railroad Co., 598 F.Supp.2d 955, 959 (E.D.Ark. 2009).
CSX urges us to adopt the holding of Nickels, 560 F.3d 426, in which
the Sixth Circuit Court of Appeals held that 49 C.F.R. § 213.103 precluded the
FELA claims of railroad employees who, like Booth, alleged injuries caused by
years of walking on oversized track ballast. The Court of Appeals deemed the
issue of reasonably safe walkways for employees adjacent to the railroad tracks to
be inseparable from the issues of track stability and support governed by the
regulation. Id. at 434.
We, on the other hand, are persuaded by the well reasoned dissent in
Nickels, in part because of its close adherence to the analysis employed by the
United States Supreme Court in Easterwood, 507 U.S. 658, a case involving the
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preemption by a FRSA regulation of a state law claim. In Easterwood, the
defendant railroad argued that a federal regulation limiting train speed to 60 m.p.h.
precluded the plaintiff’s negligence claim based on excessive speed. The Nickels
dissenting opinion described the Supreme Court’s analysis as follows:
The Supreme Court did not simply say that because the
defendant's train was going under the speed limit, and
because the claim was for excessive speed, the claim was
preempted. Instead, the Court was at pains to infer that
the speed limit was not only a prohibition on going over
60 m.p.h., but also a permission to go up to 60 m.p.h.
“Understood in the context of the overall structure of the
regulations, the speed limits must be read as not only
establishing a ceiling, but also precluding additional state
regulation of the sort that respondent seeks to impose on
petitioner.”
Nickels, 560 F.3d at 434 (quoting Easterwood, 507 U.S. 658 at 674).
The dissent opinion concluded as follows:
No interrelation between physical support for trains and
the surface of walkways has been identified in the
regulatory scheme in this case. Whereas in Easterwood
the Court found in effect that the regulatory scheme
demanded that safety from crossway collisions come
primarily from signals rather than slow speed, there is no
basis for us to read that adequate physical support for
trains and safe walkways for workers are interests that
have been counterbalanced to permit the use of any grade
of surface ballast on walkways.
Id. at 435.
In another factually similar case, a railroad company contended that
the railroad employee plaintiff’s claim regarding unsafe walkways was precluded
because the company had complied with detailed regulations about track
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construction and ballasting. Grimes, 116 F.Supp.2d 995. The district court
disagreed, observing that “[e]very circuit that has considered the issue of walkways
has concluded that the FRSA is silent on the question of walkways. The
regulations are directed toward creating a safe roadbed for trains, not a safe
walkway for railroad employees who must inspect the trains.” Id. at 1002-3. Like
the Grimes court, we decline “to preclude a negligence claim under FELA for any
conduct by the railroad even remotely covered by a regulation enacted under
FRSA.” Id.
CSX has cautioned that allowing Booth to pursue his FELA claims
could result in a ruling that is inconsistent and incompatible with CSX’s obligation
under 49 C.F.R. § 213.103 to maintain the structural integrity of the railroad track.
Booth alleges that the large and uneven ballast used by CSX caused his knee
injuries; CSX argues that smaller ballast would not have been able to perform the
stabilizing and drainage functions enumerated in the regulation and could have
resulted in precisely the type of accidents the FRSA was enacted to prevent.
Nothing in our opinion, however, should be construed as saying that
a jury may require an action that violates the FRSA
regulation. If, for instance, a successful FELA claim
effectively created “a walkway requirement or other
safety regulation that hindered or prevented a railroad
from complying simultaneously with an FRA regulation
designed to enhance safety in a different area,” Missouri
Pacific Railroad Co. v. Railroad Commission of Texas,
833 F.2d 570, 574 (5th Cir. 1987), FELA relief would
clearly be precluded on that ground.
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Nickels, 560 F.3d at 435. No such showing has been made here, however, and
CSX does not dispute that it now uses smaller ballast in its rail yards.
Finally, we address the deposition testimony of Roy Dean, who
assisted in reviewing and revising the federal regulations promulgated under the
FRSA. CSX argues that his testimony supports its argument that the ballast
regulation covers walkway safety. Dean stated that the regulations did not
specifically address walking, but that “[s]afety was an integral part of everything
looked at. So I wouldn’t say they would be completely exclusive of any aspects of
walking.” Although Dean’s testimony may be useful in clarifying the regulations,
we must ultimately be bound by the plain language of the regulations. The
preemption clause of the FRSA “does not . . . call for an inquiry into the
Secretary’s [of Transportation] purposes, but instead directs the courts to determine
whether regulations have been adopted that in fact cover the subject matter of [the
plaintiff’s claim].” Easterwood, 507 U.S. 658 at 675, 113 S.Ct. at 1743. In this
case, the regulation did not.
The summary judgment of the Jefferson Circuit Court is reversed, and
this matter is remanded for further proceedings in accordance with this opinion.
ALL CONCUR.
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BRIEFS AND ORAL ARGUMENT
FOR APPELLANT:
BRIEF AND ORAL ARGUMENT
FOR APPELLEE:
Alva A. Hollon, Jr.
John O. Hollon
Jacksonville, Florida
Rod D. Payne
Thomas G. Goodwin
Louisville, Kentucky
Allen K. Gruner
Louisville, Kentucky
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