Akin v. Missouri Pacific Railroad Co.

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Akin v. Missouri Pacific Railroad Co.
1998 OK 102
977 P.2d 1040
69 OBJ 3512
Case Number: 86632
Decided: 10/13/1998
Supreme Court of Oklahoma

MARY JANE AKIN, Surviving spouse of JOHN D. AKIN, Deceased, Plaintiff-Appellant.
v.
MISSOURI PACIFIC RAILROAD CO., d/b/a UNION PACIFIC RAILROAD CO., a foreign corporation, Defendant-Appellee.

 
ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIV. IV.

¶0 Mary Jane Akin brought in the District Court, Mayes County, James D. Goodpaster, trial judge, an action to recover damages for the wrongful death of her husband, John D. Akin, who was killed when his automobile was struck by a train owned and operated by the Missouri Pacific Railroad Co. The trial court granted defendant's pre-trial motion for "partial summary judgment" as to one of plaintiff's theories of liability, and the case was tried on plaintiff's remaining theory. The jury returned a verdict in favor of the defendant. Plaintiff's combined motion for vacation of judgment and motion for new trial was denied, and plaintiff appealed. The Court of Civil Appeals, Division No. 4, affirmed. On certiorari granted upon the plaintiff's petition,

THE COURT OF CIVIL APPEALS' OPINION IS VACATED;
THE TRIAL COURT'S JUDGMENT ON JURY VERDICT IS AFFIRMED.

W.C. "Bill" Sellers, Sr., Sapulpa, Oklahoma, James W. Keeley, Tulsa, Oklahoma, and Randall A. Gill, Tulsa, Oklahoma, for Appellant.

Tom L. Armstrong and Carey Cobb Calvert, Tom L. Armstrong & Associates, Tulsa, Oklahoma, for Appellee.

OPALA, J.

¶1 The dispositive issues tendered on certiorari are (1) whether the trial court erred in granting defendant's motion for summary disposition of plaintiff's inadequate signalization theory of recovery on the grounds that it was pre-empted by federal law, and if so, (2) whether plaintiff is entitled to an opportunity to present that theory in a new trial. We answer the first question in the affirmative and the second in the negative.

I
ANATOMY OF LITIGATION

¶2 In the early morning hours of July 15, 1991, John D. Akin was traveling westbound in his pickup truck along Main Street/Highway 28 in Adair, Oklahoma. In front of him, traversing Main Street/Highway 28, was a railroad grade crossing (the "Adair crossing") owned and maintained by Missouri Pacific Railroad Co. ("Missouri Pacific" or "defendant"). At the time of Mr. Akin's accident, certain passive warning signs as well as crossbucks with flashing lights were present on both sides of the Adair crossing to warn motorists and others of the approach or presence of a train. No automatic gates were present. As Mr. Akin's vehicle was nearing the Adair crossing from the east, a train, owned and operated by Missouri Pacific, heading north, was approaching the Adair crossing from the south. The warning lights were flashing as he approached and entered the crossing, but Mr. Akin did not stop or slow down. As his vehicle crossed the tracks, it was struck by defendant's train. Mr. Akin was killed instantly.

¶3 His widow, Mary Jane Akin, brought a wrongful-death action against Missouri Pacific. Plaintiff alleged that the flashing lights at the crossing had a history of malfunctioning and that, as a result, the motoring public had ceased to view the flashing lights as a serious and reliable warning of the imminent approach of a train. Also alleged was that flashing lights were an inadequate warning device for this particular crossing, and that automatic gates were required in order to operate the crossing safely.

¶4 On the day of trial, Missouri Pacific filed a series of motions, including the "Motion for Partial Summary Judgment"

¶5 The Court of Civil Appeals, Division 4, held that the conditions set forth in Easterwood for the application of federal pre-emption of state tort law had not been met, and, therefore, the trial court had erred in granting summary relief on plaintiff's inadequate signalization theory. The appellate court nevertheless affirmed the judgment in favor of Missouri Pacific, holding that the overwhelming evidence of Mr. Akin's own negligence in failing to stop at the crossing rendered harmless the trial court's error in eliminating one theory by summary adjudication. Consequently, the Court of Civil Appeals held that it was not an abuse of discretion for the trial court to deny plaintiff's motion for a new trial.

¶6 We granted certiorari on plaintiff's petition and now affirm.

II
STANDARD OF REVIEW OF MOTION FOR SUMMARY ADJUDICATION

¶7 Summary adjudication process is a singular pretrial procedure conducted with the aid of acceptable probative substitutes. It is an inquiry into the existence of undisputed material fact issues, which may be conducted, sans forensic combat, in the course of the judicial decision-making process. Its purpose is to identify and isolate non-triable fact issues, not to defeat an opponent's right to trial by jury. Only that evidentiary material which entirely eliminates from trial some or all fact issues may afford legitimate support for nisi prius resort to summary process.

¶8 The issues on review of a motion for summary adjudication stand before this court for de novo examination

¶9 To prevail as the moving party on a motion for summary adjudication, one who defends against a claim by another must either (a) establish that there is no genuine issue of fact as to at least one essential component of the plaintiff's theory of recovery or (b) prove each essential element of an affirmative defense, showing in either case that, as a matter of law, the plaintiff has no viable cause of action.

III
PLAINTIFF'S THEORY OF LIABILITY BASED ON INADEQUATE SIGNALIZATION
IS  NOT PRE-EMPTED BY FEDERAL LAW

¶10 Pre-emption is a well-established legal principle which gives substance to the hierarchy of power established by the Supremacy Clause of the United States Constitution, subordinating the laws of the states to those of the federal government which were enacted pursuant to its constitutionally conferred authority.

¶11 Congress's intent to pre-empt may be conveyed in four ways: (1) by express statutory language; (2) by a pervasive regulatory scheme from which it can be inferred that Congress intended no state-law supplementation of federal regulations; (3) when an actual conflict between state and federal law makes it impossible to comply with both; and (4) where the objectives and purposes of Congress would be thwarted by state law.

¶12 Easterwood,

¶13 The Court began its opinion by examining the statutory language of FRSA to determine whether and to what extent Congress intended to pre-empt state law. First enacted in 1970, FRSA's purpose was "to promote safety in all areas of railroad operations and to reduce railroad-related accidents, and to reduce deaths and injuries to persons. . . ."

"§434. National uniformity of laws, rules, regulations, orders, and standards relating to railroad safety; State regulation

The Congress declares that laws, rules, regulations, orders, and standards relating to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force any law, rule, regulation, order, or standard relating to railroad safety until such time as the Secretary has adopted a rule, regulation, order, or standard covering the subject matter of such State requirement. A State may adopt or continue in force an additional or more stringent law, rule, regulation, order, or standard relating to railroad safety when necessary to eliminate or reduce an essentially local safety hazard, and when not incompatible with any Federal law, rule, regulation, order or standard, and when not creating an undue burden on interstate commerce."

Thus, FRSA's pre-emption provision contains within itself clauses which both pre-empt and save state action.

¶14 The Supreme Court then looked at three areas of regulation promulgated by the Secretary to determine whether any of them cover the same subject matter as state negligence law.

¶15 Sections 646.214 (b)(3) and (4) are related regulations setting forth conditions for the participation of federal funds in the installation of warning devices at railroad grade crossings.

¶16 Section (b)(4) comes into play when Section (b)(3) does not apply, i.e. when neither the specified track conditions exist nor a diagnostic team recommendation for automatic gates has been made. In such a case, Section (b)(4) requires the approval of the Federal Highway Administration of the type of warning device to be installed.

¶17 The Court concluded that for the federally funded projects covered by these two regulations, the Secretary has removed decision making authority from the state and the railroad and replaced it with a federal requirement that particular warning devices be used or federal approval be obtained.

¶18 Having held that pre-emption depends upon the applicability of these two regulations to the crossing in question, the Court then proceeded to look at the crossing at which Mr. Easterwood was killed to determine whether the preconditions for pre-emption had been met there. The Court found that although the Georgia Department of Transportation had decided to install an automatic gate at the crossing in question and certain preliminary work had been done, the project had never been carried out owing to the city's failure to approve construction of a necessary traffic island. The funds which had been allocated for the project were moved to another project and the decision to install a gate at the crossing in question was put on a list of projects to be considered in the future. The Court specifically noted that the only equipment which had actually been installed was motion-detection circuitry, which, the Court stated, did not meet the definition of warning devices contained in the regulations.

¶19 If Easterwood was ever deemed to have eliminated the uncertainties involved in the application of FRSA pre-emption, that notion was short-lived. On the contrary, Easterwood left unresolved many of the issues which arise in pre-emption situations.

¶20 The ambiguity left by Easterwood has been reflected in the decisions of several of the circuits, including the United States Court of Appeals for the Tenth Circuit in which Oklahoma is situated. Between 1991 and 1995, the Tenth Circuit reviewed the issue of federal pre-emption of inadequate signalization claims three times in the same case (once pre-Easterwood and twice post-Easterwood) as Hatfield v. Burlington Northern R.R. Co. proceeded through the federal court system.

¶21 The Tenth Circuit then remanded the case to the district court for a factual determination of whether the federal government had "significantly participated" in the project to improve the crossing at which Mr. Hatfield was injured and, if so, when that participation occurred. The district court found that the federal government had indeed significantly participated in the project and set the date of that participation and the pre-emption flowing from it as of the date the federal government committed up to $1,800 in assistance for preliminary engineering at the crossing.

¶22 In its third Hatfield opinion, the Tenth Circuit first reiterated its previously expressed view that "significant federal participation" could take the form of a non-cash investment of "resources" such as time and expertise, as well as the expenditure of funds,

". . . [T]he financial commitment must be such that it shows a clear federal intent to require a federally approved warning device at the crossing in question, backed up by the actual expenditure of federal resources of more than a casual or de minimis nature, and specifically directed toward the ultimate installation of the improved warning devices at that crossing."

¶23 The court then applied this interpretation of Easterwood to the following facts: (1) federal funds were committed to preliminary engineering at the crossing in question and this engineering was completed prior to the accident resulting in Hatfield's injury; (2) federal funds were not committed to actual construction of the warning devices until after the accident; and (3) the warning devices were not fully installed and operational until long after the accident took place.

¶24 Mr. Hatfield had argued that in Easterwood, pre-emption was not triggered even though the project in that case was further along than the preliminary engineering work that had been completed in his case. That being so, he argued, mere preliminary engineering work was surely not enough to trigger pre-emption.

¶25 The Tenth Circuit rejected this interpretation of Easterwood, adopting instead the view that Easterwood is a case where pre-emption was denied because no [977 P.2d 1050] expenditure at all of federal resources had ever occurred on the crossing in question,49 leaving it open to the court to decide where along the continuum the pre-emption-triggering event should be found. This the court did by holding that "FRSA pre-emption takes place when the federal government (1) commits itself, through a significant event or events, to a project to install active warning devices, and (2) expends significant federal resources on such a project."50

¶26 Decisions from other circuits, in cases containing facts similar to those in Hatfield and in the present case, have taken a decidedly different view of Easterwood's purport. In St Louis Southwestern R.R. Co. v. Malone Freight Lines, Inc.,

"Rather than looking to federal approval or fund allocation as triggering pre-emption, the Supreme Court focused on the equipment installed at the crossing. Because the only equipment installed was circuitry, which was not a passive or active warning device as defined in 23 CFR §646.204(i)-(j), the Court held the claim was not pre-empted."

¶27 Cases such as Hatfield, the court said, simply mistake Easterwood's meaning and are inconsistent with the FRSA goal of promoting railroad/highway safety. The court's reasoning is impressive and worth reciting:

"Before pre-emption, the public is protected by a railroad's state common-law duty of care. After installation of federally mandated warning devices, the public is protected by those devices. A plan to install devices and federal approval of a plan do not protect the public, however. The Railway's interpretation that federal approval triggers pre-emption would leave the public unprotected between the time of approval and the time the prescribed devices are installed and operating. This can be a substantial period of time. In this case, it was fifteen months. To encourage prompt installation of federally prescribed warning devices, a railroad's common-law duty of care must continue until those devices are installed."

¶28 In Thiele v. Norfolk & Western R.R. Co.,

"Our conclusion also conforms to common sense because otherwise the public would be unprotected by either state or federal law for the period between federal approval and actual warning device installation. Before any agreement to upgrade was concluded, [the railroad] . . . was fully subject to suit under state tort law. We see nothing anomalous in continuing to impose liability on [the railroad] . . . for the warning system [the railroad] . . . had earlier chosen until the new system actually superseded the old."

¶29 In addition to Malone and Thiele, several other cases have addressed whether pre-emption occurs where federal funds participate in a project to install warning devices, but the devices themselves have not been installed prior to an accident. These cases take the view that state tort law is not pre-empted under FRSA and Easterwood unless the warning devices have actually been installed and are operating at the time of the accident.

¶30 [977 P.2d 1052] In arriving at a decision for this case, we acknowledge that by virtue of the Supremacy Clause, we are bound by the decisions of the United States Supreme Court with respect to the federal Constitution and federal law, and we must pronounce rules of law that conform to extant Supreme Court jurisprudence.

¶31 [977 P.2d 1053] Such is the situation with which we are faced here. Our analysis of Easterwood, of FRSA, of the relevant regulations, and of the cases interpreting them leads us to hold that federal pre-emption occurs only when federally-funded warning devices, the configuration of which is determined pursuant to the criteria set forth in 23 CFR §§646.214(b)(3) or (4), are installed and become operational. The reasoning expressed by the 7

¶32 We are not unmindful that with our adoption of the 7

IV
A NEW TRIAL IS NOT WARRANTED WHERE THE EVIDENCE IS OVERWHELMING THAT THE DECEASED'S NEGLIGENCE WAS THE PROXIMATE CAUSE OF THE ACCIDENT.

¶33 Certiorari disposition of this case does not rest solely on our holding with regard to pre-emption. Because this case comes to us for corrective relief from the decision by the Court of Civil Appeals affirming the trial court's denial of plaintiff's motion for a new trial, this court must also consider the standards of certiorari review.

¶34 The statutory grounds upon which a party may seek a new trial are set forth in Title

¶35 Every trial judge's decision comes to a court of review clothed with a presumption of correctness. If supported by law and evidence, the nisi prius judgment will be affirmed even if it was based on an incorrect theory and neither party tendered below an appropriate analysis of the applicable law.

¶36 We must then consider, based on the entire record available to us in this case, whether a new trial is required so that plaintiff may present her theory that her husband's accident was the result of the defendant's breach of a duty to install automatic gates at the Adair crossing. Three evidentiary elements are essential to a prima facie case of negligence: (1) a duty owed by the defendant to protect the plaintiff from injury, (2) a failure properly to exercise or perform that duty, and (3) an injury to plaintiff proximately caused by the defendant's breach of that duty.

¶37 Generally, the proximate cause of an injury in a negligence case is for the jury to determine.

¶38 The proximate cause

¶39 Plaintiff contends the cause of Mr. Akin's accident was the absence of an automatic gate at the Adair crossing. We disagree, finding the record devoid of evidence to support the existence of an efficient causal link between the absence of an automatic gate and Mr. Akin's accident.

¶40 The duty of a motorist approaching a grade crossing is set forth in Title

(a) Whenever any person driving a vehicle approaches a railroad grade crossing under any of the circumstances stated in this section, the driver of such vehicle shall stop within fifty (50) feet but not less than fifteen (15) feet from the nearest rail of such railroad, and shall not proceed until he can do so safely. The foregoing requirements shall apply when:

(1) A clearly-visible electric or mechanical signal device gives warning of the immediate approach of a railroad train;

(2) A crossing gate is lowered or when a human flagman gives or continues to give a signal of the approach or passage of a railroad train. . . ."

We have held that the failure to conform to the requirements of this statute is negligence per se.

¶41 In Hamilton v. Allen,

¶42 In arriving at its decision in Hamilton, the court relied upon the Texas case of Snodgrass v. Ft. Worth & Denver R.R. Co.,

¶43 Our review of the record in the case before us compels us to conclude, as we did in Hamilton and as did the court in [977 P.2d 1056] Snodgrass , that Mr. Akin's failure to stop at the crossing in the presence of discernible warnings was the supervening, and therefore, proximate cause of his death. In short, even if the railroad's failure to erect at the Adair crossing an automatic gate could have been shown to be a breach of its common-law duty of care, the nisi prius exclusion of that proof from trial by the trial court's summary ruling (on pre-emption) need not be treated as more than harmless error. This is so because Mr. Akin's action in entering the crossing, as conclusively established by the record, constitutes a supervening act of negligence which insulates the railroad from the legal consequences of its own lack of due care, if any.

¶44 The evidence produced at the trial informs us that Mr. Akin was familiar with the Adair crossing. He had crossed it many times, including at least once several days earlier. Although it was not yet daybreak when the accident occurred, visibility at the time was clear and the weather was dry. The train was blowing its whistle as it approached the Adair crossing and its headlight was on. Photographs and a video admitted in evidence show nothing obstructing the view to the south of a person traveling, as Mr. Akin was, in a westerly direction. There was testimony that the flashing lights of the existing grade crossing warning device could be seen by a person approaching the crossing from the east (heading west) for five or six blocks from the crossing and that they were flashing as Mr. Akin approached the crossing. No other vehicles were approaching the crossing at the time of the accident. Mr. Akin did not alter the speed of his car as he entered the crossing. The truck's side windows were tinted, but the windshield was free of tint. Mr. Akin is believed to have had his windows rolled up and the radio playing at a moderate level.

¶45 We cannot know why Mr. Akin did not see, ignored, or otherwise failed to perceive the numerous warnings of the presence of a train that morning; nor will we, in the process of deciding if a new trial should be granted, indulge in speculating whether Mr. Akin's behavior would have been different had he been confronted by an automatic gate instead of flashing lights.

V SUMMARY

¶46 This case presents an issue of national importance. It calls upon us to perform an obligation under the United States Constitution to apply federal law according to our understanding of the United States Supreme Court jurisprudence in the face of inter-circuit conflict over the meaning and effect of the ruling precedent. We discharge this duty by holding that federal law does not pre-empt state tort law in the area of inadequate signalization at railroad grade crossings unless federally funded warning devices have been installed and are operating. Nevertheless, we decline to remand this cause for a new trial because, on the record before us, plaintiff cannot establish that the railroad's negligence was the proximate cause of Mr. Akin's death.

¶47 On certiorari granted upon the plaintiff's petition, the Court of Civil Appeals' opinion is vacated; the trial court's judgment on jury verdict is affirmed.

¶48 LAVENDER, SIMMS, HARGRAVE, OPALA, and WILSON, JJ., concur;

¶49 HODGES, J., concurs in part and dissents in part;

¶50 [977 P.2d 1057] SUMMERS, V.C.J., and WATT, J., concur in PARTS I, II, and III and dissent from PART IV;

¶51 KAUGER, C.J., recused.

FOOTNOTES

1The motion known in lawyer's parlance as one for "partial summary judgment" is misnamed. It does not result in a judgment at all. A judgment is a final determination of the rights of the parties to an action. 12 O.S. 1991, §681. It must dispose of all issues in the case. There can be no judgment when the court disposes of but a portion of a single cause of action. Despite the misnomer, the "motion for partial summary judgment," is explicitly authorized by Rule 13 of the Rules for the District Courts, 12 O.S. Supp.1997, Ch.2, App., which provides: "e. . . . If the court finds that there is no substantial controversy as to certain facts or issues, it shall make an order specifying the facts or issues which are not in controversy and direct that the action proceed for a determination of the remaining fact or issues, . . ." This rule specifically contemplates that when no material dispute is found to exist as to some fact or issue in a case, a trial can be confined to matters that remain in controversy. Reams v. Tulsa Cable Television, Inc., 1979 OK 171, ¶3, 604 P.2d 373, 374. The quest for "partial summary judgment" should be termed a "motion for summary relief" on tendered issues.

2507 U.S. 658, 113 S. Ct. 1732, 123 L. Ed. 2d 387 (1993).

3In Easterwood, the United States Supreme Court held that under certain conditions federal regulation of railroad crossing warning devices pre-empts state tort law.

4Plaintiff had also alleged that defendant was negligent in operating its train at an excessive speed. Defendant moved for summary relief on this theory as well, also on the basis of federal pre-emption. At oral argument on the motion plaintiff conceded that her excessive speed theory was pre-empted by federal law. Plaintiff has not retendered this issue on appeal.

5Russell v. Bd. of County Comm'rs, 1997 OK 80, ¶7, 952 P.2d 492, 496-497; Gray v. Holman, 1995 OK 118, ¶11, 909 P.2d 776, 781.

6Pickens v. Tulsa Metropolitan Ministry, 1997 OK 152, ¶7, 951 P.2d 1079, 1082; Brown v. Nicholson, Pate, and Spears, 1997 OK 32, ¶5, 935 P.2d 319, 321. Issues of law are reviewable by a de novo standard. An appellate court claims for itself plenary, independent and non-deferential authority to re-examine a trial court's legal rulings. Kluver v. Weatherford Hospital Authority, 1993 OK 85, ¶14, 859 P.2d 1081, 1083; See also, Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S. Ct. 1217, 1221, 113 L. Ed. 2d 190 (1991).

7Hargrave v. Canadian Valley Electric Coop., Inc., 1990 OK 43, ¶14, 792 P.2d 50, 55.

8Pickens, supra, note 5 at ¶7, at 1082.

9Id.

10See, Runyon v. Reid, 1973 OK 25, ¶12, 510 P.2d 943, 946. Accord, Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993).

11U.S. Const. Art. VI, cl. 2 provides: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Rudimentary application of pre-emption can be found in very early cases decided by the United States Supreme Court. See, e.g., Gibbons v. Ogden, 22 U.S. (9 Wheat) 1 (1824) (the commerce clause prohibits a state from granting an exclusive operating license for ship pilots); McCulloch v. Maryland, 17 U.S. (4 Wheat) 316 (1819) (a state may not tax a federal bank located within that state).

12Lewis v. Sac and Fox Tribe, 1994 OK 20, ¶16, 896 P.2d 503, 510, cert. denied, 516 U.S. 975, 116 S. Ct. 476, 133 L. Ed. 2d 405 (1995).

13Id. at ¶16, at 511. The Supreme Court has referred to congressional intent as the "ultimate touchstone" in pre-emption analysis. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S. Ct. 2240, 2250, 135 L. Ed. 2d 700 (1996) quoting Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S. Ct. 2608, 2617, 120 L. Ed. 2d 407 (1992) and Retail Clerks v. Schermerhorn, 375 U.S. 96, 103, 84 S. Ct. 219, 223, 11 L. Ed. 2d 179 (1963).

14Sac and Fox, supra, note 12 at ¶16, at 511; Louisiana Public Service Comm'n v. Federal Communications Comm'n, 476 U.S. 355, 369, 106 S. Ct. 1890, 1898-1899, 90 L. Ed. 2d 369 (1986); Fidelity Fed. S. & L. v. de la Cuesta, 458 U.S. 141, 153, 102 S. Ct. 3014, 3022, 73 L. Ed. 2d 664 (1982) ("Federal regulations have no less pre-emptive effect than federal statutes."); Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 699, 104 S. Ct. 2694, 2700, 81 L. Ed. 2d 580 (1984).

15Sac and Fox, supra, note 12 at ¶16, n.49, at 511 n. 49; English v. General Electric Co., 496 U.S. 72, 78-79, 110 S. Ct. 2270, 2275, 110 L. Ed. 2d 65 (1990).

16Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S. Ct. 1146, 91 L. Ed. 1447 (1947) ("Congress legislated here in a field which the States have traditionally occupied, (citations omitted). So we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress."(citations omitted.)). Id., at 218, 229, 67 S.Ct., at 1146, 1152. The presumption against pre-emption is employed whether pre-emption is express or implied. In the case of express pre-emption, of course, the presumption gives way in the first instance to the explicit congressional directive, but it is then applied to ascertain the scope of pre-emption. Medtronic, Inc. v. Lohr, supra, note 13 at 470, 485, 116 S.Ct., at 2250. ("Although dissenting Justices have argued that this assumption should apply only to the question whether Congress intended any pre-emption at all, as opposed to questions concerning the scope if its intended invalidation of state law, see Cipollone, 505 U.S., at 545-546, 112 S.Ct., at 2632-2633 (Scalia, j., concurring in judgment in part, and dissenting in part), we used a 'presumption against the pre-emption of state police power regulations' to support a narrow interpretation of such an express command in Cipollone. Id., at 518, 523, 112 S.Ct., at 2618, 2621.").

17Easterwood, supra, note 2 .

18The Easterwood analysis therefore goes primarily to the question of the scope of the pre-emption, rather than whether pre-emption was intended. The clearest expression of Congressional intent to pre-empt is found when Congress includes in legislation an express provision for pre-emption, and although the presence of express pre-emptive language means that the Court need not look beyond the language to determine congressional intent to pre-empt at least some state law, the Court in such a case must nonetheless identify the scope of the expressly intended pre-emption. Medtronic, Inc. v. Lohr, supra, note 13 at 470, 484,116 S.Ct., at 2250; Cipollone, supra, note 13 at 504, 517, 112 S.Ct., at 2618; See, Paul E. McGreal, Some Rice with Your Chevron?: Presumption and Deference in Regulatory Preemption, 45 case W. Res. L. rev. 823, 841 n.79 (1995).

19Easterwood v. CSX Transp. Inc., 742 F. Supp. 676 (N.D. Ga. 1990).

20FRSA's initial codification in Title 45 was repealed in 1994. The recodification took place pursuant to Pub. L. No. 103-272 , July 5, 1994, 108 Stat. 1379, and now appears beginning at 49 U.S.C. §20101. The recodification did not substantively change the sections relevant to this case. We refer to the statutes by their section numbers as they existed at the time of Mr. Akin's accident.

21Easterwood v. CSX Transp., Inc., 742 F. Supp. 676, 678 (N. D. Ga. 1990).

22Easterwood v. CSX Transp., Inc., 933 F.2d 1548, 1553-1556 (11th Cir.1991), aff'd, Easterwood,, supra, note 2.

23505 U.S. 1217, 112 S. Ct. 3024, 120 L. Ed. 2d 896 (1992).

2445 U.S.C.A. §421 (1986). The number of accidents and deaths from grade crossing accidents, which had been declining up until 1958, had markedly increased between that year and 1970, the year FRSA was adopted. See, Report of the Task Force on Railroad Safety, H.R. Rep. No. 91-1194, App. F, reprinted in 1970 U.S.C.C.A.N., v.2, 4104, 4126.

2545 U.S.C.A. §433 (1986) Under the law prior to FRSA, Federal-aid highway funds could be used to improve only those grade crossings located on the Federal-aid highway system. Little more than twenty per-cent of the total number of grade crossings in the country were located on that system. Thus, federal funds could not be used to upgrade the remaining eighty per-cent of existing railroad grade crossings, which were located on city streets or on roads and highways which were not part of the Federal-aid highway system. See, Report of the Task Force on Railroad Safety, H.R. Rep. No. 91-1194, App. F, reprinted in 1970 U.S.C.C.A.N., v.2, 4104, 4126.

2645 U.S.C.A. §431(a) (1986). The Secretary's recommendations pursuant to this section led Congress to enact the Highway Safety Act of 1973, 87 Stat. 287, 23 U.S.C.A. §§130 et seq., which made the states conditionally eligible for federal funds to upgrade grade crossings. The Secretary then issued regulations identifying the conditions for state use of federal funds. See, Robert E. McFarland, The Preemption of Tort and Other Common Causes of Action Against Air, Motor, and Rail Carriers, 24 Transp. l.j. 155, n. 129 (1997).

2745 U.S.C.A. §434 (1986)

28See, Easterwood, supra, note 2 at 658, 664, 113 S.Ct., at 1737.

29Id.; See also, Cipollone, supra, note 13 at 504, 522, 112 S.Ct., at 2620 ("Moreover, common-law damages actions of the sort raised by petitioner are premised on the existence of a legal duty, and it is difficult to say that such actions do not impose 'requirements or prohibitions.'").

30The Court stated that "cover" is a "restrictive term which indicates that pre-emption will lie only if the federal regulations substantially subsume the subject matter of the relevant state law." Easterwood, supra, note 2 at 658, 664, 113 S.Ct., at 1738.

31The Court first considered the regulations found in 23 CFR pt. 924, the Highway Safety Improvement Program, which require each state receiving federal aid to establish a "highway safety improvement program," which must identify hazardous highway locations, including dangerous railroad grade crossings, and prioritize projects for their improvement. The regulations also require evaluations of the effectiveness and costs of the implementation of the improvement projects and the filing of annual reports with the Federal Highway Administration. In rejecting these provisions as supporting pre-emption, the Court noted that they merely "establish the general terms of the bargain between the Federal and State Governments" with respect to the use by the states of federal funds in the improvement of highways. They represent an effort "to encourage the States to rationalize their decisionmaking (sic)" and have "little to say about the subject matter of negligence law. . . ." Easterwood, supra, note 2 at 658, 667, 113 S.Ct., at 1739.

The Court then turned to the regulations requiring that all warning devices used in grade crossing improvement projects comply with the Federal Highway Administration's Manual on Uniform Traffic Control Devices for Streets and Highways ("MUTCD"). 23 CFR §646.214(b)(1) and §655.603. CSX argued that language contained in the MUTCD, read in conjunction with 646.214(b)(1), places exclusive responsibility for grade crossing safety on the state governments. The Court instead found that "the MUTCD provides a description of, rather than a prescription for, the allocation of responsibility for grade crossing safety between the Federal and State Governments and between States and railroads." Easterwood, supra, note 2 at 658, 669, 113 S.Ct., at 1740. The MUTCD is not only compatible with state law, the Court held, but contains language which explicitly denies an intent to cover the subject matter of common-law negligence. Easterwood, supra, note 2. at 658, 670, 113 S.Ct., at 1740.

32Easterwood, supra, note 2 at 658, 670, 113 S.Ct., at 1740-1741.

3323 CFR §646.214(b)(3) provides:

(3)(i) Adequate warning devices under §646.214(b)(2) [railroad-highway grade crossing located within the limits of or near the terminus of a Federal-aid highway project for construction of a new highway or improvement of an existing roadway] or on any project where Federal-aid funds participate in the installation of the devices are to include automatic gates with flashing light signals when one or more of the following conditions exist:

(A) Multiple main line railroad tracks.

(B) Multiple tracks at or in the vicinity of the crossing which may be occupied by a train or locomotive so as to obscure the movement of another train approaching the crossing.

(C) High Speed train operation combined with limited sight distance at either single or multiple track crossings.

(D) A combination of high speeds and moderately high volumes of highway and railroad traffic.

(E) Either a high volume of vehicular traffic, high number of train movements, substantial numbers of schoolbuses or trucks carrying hazardous materials, unusually restricted sight distance, continuing accident occurrences, or any combination of these conditions.

(F) A diagnostic team recommends them.

(ii) In individual cases where a diagnostic team justifies that gates are not appropriate, FHWA may find that the above requirements are not applicable."

23 CFR §646,214(b)(4) provides:

"For crossings where the requirements of §646.214(b)(3) are not applicable, the type of warning device to be installed, whether the determination is made by a State regulatory agency, State highway agency, and/or the railroad, is subject to the approval of FHWA."

34Easterwood, supra, note 2 at 658, 670, 113 S.Ct., at 1741.

35Id.

36Id. at 672, 113 S. Ct. at 1741; 23 CFR §§646.204(i) and (j) provide:

(i) Passive warning devices means those types of traffic control devices, including signs, markings and other devices, located at or in advance of grade crossings to indicate the presence of a crossing but which do not change aspect upon the approach or presence of a train.

(j) Active warning devices means those traffic control devices activated by the approach or presence of a train, such as flashing light signals, automatic gates and similar devices, as well as manually operated devices and crossing watchmen, all of which display to motorists positive warning of the approach or presence of a train."

37Easterwood, supra, note 2 at 658, 672, 113 S.Ct., at 1741.

38In addition to the problem discussed in the text, remaining post-Easterwood issues include whether pre-emption requires a specific determination by the Secretary and whether subsequent events can terminate pre-existing pre-emption. See, Robert E. McFarland, The Preemption of Tort and Other Common Causes of Action Against Air, Motor, and Rail Carriers, supra, note 26 at 180 (1997).

39The Hatfield case began in 1991, before Easterwood was decided, with the case of Hatfield v. Burlington Northern R.R. Co., 757 F. Supp. 1198 (D.Kan. 1991). That case was appealed to the Tenth Circuit [958 F.2d 320 (10th Cir. 1992)], which decision was taken on certiorari by the United States Supreme Court [507 U.S. 1048, 113 S. Ct. 1940, 123 L. Ed. 2d 646 (1993)], vacating the judgment and remanding the case to the Tenth Circuit for further consideration in light of Easterwood. The Tenth Circuit [1 F.3d 1071 (10th Cir. 1993)] remanded the case to the District Court, which found that Hatfield's inadequate signalization claim was pre-empted [848 F. Supp. 158 (D.Kan. 1994)]. Hatfield then appealed again to the Tenth Circuit [64 F.3d 559 (10th Cir. 1995)].

40Hatfield v. Burlington Northern R.R. Co., 1 F.3d 1071, 1072 (10th Cir. 1993).

41Hatfield v. Burlington Northern R.R. Co., 848 F. Supp. 158, 158-159 (D. Kan. 1994).

4264 F.3d 559 (10th Cir.1995).

43Id. at 561.

44Id.

45Id., referring to its opinion in Hatfield v. Burlington Northern R.R. Co., 1 F.3d 1071, 1072 (10th Cir. 1993).

46Id. at 562.

47Id. at 561.

48Hatfield v. Burlington Northern R.R. Co., 64 F.3d 559, 562 (10th Cir. 1995) ("At that point in time - when the government committed to preliminary engineering - both the financing of the improvement project and its direction and control were removed from Burlington. The federal government had expended significant resources and control of the project had passed to state or local authorities. Therefore, this seems to be the appropriate moment to declare that railroad liability under state law for the adequacy of the traffic control devices at the crossing should be pre-empted.").

49Id.

50Id.

5139 F.3d 864 (8th Cir. 1994), cert. denied, 514 U.S. 1110, 115 S. Ct. 1963, 131 L. Ed. 2d 854 (1995).

52Id. at 867.

53Id. at 866.

54Id. at 867.

5568 F.3d 179 (7th Cir. 1995).

56Id. at 181.

57Id. at 183.

58Id.

59Id. at 184.

60See, e.g. Earwood v. Norfolk Southern R.R. Co., 845 F. Supp. 880 (N.D. Ga. 1993) ("The installation of the devices is the crucial event. . . . The Court holds that in this case federal funds had not participated 'in the installation of the devices' at the time of the accident, because the warning devices had not been installed; and therefore, state law is not pre-empted.") Id. at 887; Carpenter v. Consolidated Rail Corp., 631 N.E.2d 607 (Ohio 1994) (referring to Easterwood, the court said, "Apparently, the court concluded that planning and preparation are insufficient to evoke preemption. Before a state law governing warning devices will be deemed preempted, federal funds must actually have been committed and spent, and the 'warning devices,' as defined in Sections 646.204(i) and (j), Title 23, C.F.R., must have been installed.") Id. at 610; Southern Pacific Transp. Co. v. Builders Transp., Inc., No. CIV.A 90-3177, 1993 WL 185620, at *11-12 (E.D. La. May 25, 1993), aff'd, 48 F.3d 531 (5th Cir. 1995)("The clear effect of 23 CFR §§646.214(b)(3) and (4) and Easterwood is that state law governs the adequacy of grade crossing warning devices prior to any federally-funded installation of warning devices, and federal law governs after such installation."). Cf., Michael v. Norfolk Southern Railway Co., 74 F.3d 271 (11th Cir. 1996). In Michael, automatic gates had been installed at the crossing in question with the aid of federal funds. The plaintiff argued that the length of the gate arm was not in compliance with federal standards, and that a state tort law action for defective design of the gate was not pre-empted as a result of this non-conformity. The court agreed, holding that a state tort claim against a railroad for defective design of automatic gates installed with federal-aid funds would be pre-empted, but only if the railroad has complied with the federal regulations. Thus in Michael, the mere expenditure of federal funds on an upgrade project was not deemed sufficient to trigger pre-emption absent actual compliance with the federal standards for the configuration of the warning device.

61E.g., defendant cites Hester v. CSX Transp., Inc., 61 F.3d 382 (5th Cir. 1995), cert. denied, 516 U.S. 1093, 116 S. Ct. 815, 133 L. Ed. 2d 760 (1996). In Hester, the court first considered the Easterwood test, asking whether federal funds "participated" in the installation of "warning devices" at the crossing in question. The evidence showed that federal funds had in fact been approved and expended on installing several types of passive warning devices years before the Hesters' son's accident. Thus, Hester did not confront the issue presented in the instant case where the warning devices were not installed and operating until after the accident. The principal issue in Hester, which is not involved in the instant case, was whether, under 23 CFR §646.214(b)(4), the appropriate authority had made a determination that the warning devices which had been installed were adequate. There was no evidence that such a determination had ever been made. The court reasoned that the use of federal funds presupposes that the Secretary approved and authorized their expenditure, which in turn presupposes that the Secretary determined that the safety devices installed were adequate. Hence, state law claims based on inadequate signalization were pre-empted. In its only reference to the issue presented in the instant case, the court in dicta contained in a footnote said, "Moreover, as our discussion below makes clear, the mere fact that a railroad has participated as a member of a diagnostic team to survey, rate, and rank grade crossings for future improvements is by itself insufficient to establish that federal funds participated in the improvement of the crossing; there must be an actual, authorized expenditure of federal funds in the installation or placement of safety devices at the particular crossing to trigger preemption." The court then cited St Louis Southwestern R.R. Co. v. Malone, supra, note 51, which held that completed installation is necessary to trigger pre-emption, suggesting that the court was focusing in on the result of installation and not just the process. Defendant also cites Shots v. CSX Transp., Inc., 38 F.3d 304 (7th Cir. 1994). In Shots, the crossing in question, like the crossing in Hester, was equipped with a passive warning device, the installation of which had been completed before the accident with the assistance of federal funds. The issue presented for the court was whether federal financial assistance alone pre-empts state tort law. Like Hester, the warning devices in Shots came under the purview of §646.214(b)(4), and the court held that in the absence of an express approval of the type of device installed at a crossing, the regulation does not apply and a state claim is not pre-empted. The mere authorization of federal funds does not presuppose, contrary to what the court said in Hester, that the Secretary has determined that the devices installed were adequate to meet federal safety standards. Thus, the court in Shots did not consider the issue with which we are confronted in the present case. Defendant also cites Elrod v. Burlington Northern R.R. Co., 68 F.3d 241 (8th Cir. 1995). In Elrod, the federally-funded warning devices were installed and operational on the date of the accident. Referring to its decision in Malone, supra, note 51, holding that federal pre-emption occurs only when federally-funded warning devices are installed and operational, the court held that the facts in Elrod "are precisely the kind of facts that Malone requires for the triggering of federal preemption." Id. at 244. Thus, Elrod's holding and rationale are clearly contrary to the position put forward in this case by defendant.

62United States v. Home Fed. S. & L. Ass'n of Tulsa, 1966 OK 135, ¶18, 418 P.2d 319, 325; McLin v. Trimble, 1990 OK 74, ¶3, n. 5, 795 P.2d 1035, 1045, n. 5 (Opala, V.C.J., dissenting).

63A.L. Lockhart v. Fretwell, 506 U.S. 364, 376, 113 S. Ct. 838, 846, 122 L. Ed. 2d 180 (1993) (Thomas, J., concurring) ("The Supremacy Clause demands that state law yield to federal law, but neither federal supremacy nor any other principle of federal law requires that a state court's interpretation of federal law give way to a (lower) federal court's interpretation."). See, also, Steffel v. Thompson, 415 U.S. 452, 482, n.3, 94 S. Ct. 1209, 1227, n.3, 39 L. Ed. 2d 505 (1974) (Rehnquist, J., concurring); United States ex rel. Lawrence v. Woods, 432 F.2d 1072, 1076 (7th Cir. 1970), cert. denied, 402 U.S. 983, 91 S. Ct. 1658, 29 L. Ed. 2d 148 (1971).

64Asarco Inc. v. Kadish, 490 U.S. 605, 617, 109 S. Ct. 2037, 2045, 104 L. Ed. 2d 696 (1989) ("Indeed, inferior federal courts are not required to exist under Article III, and the Supremacy Clause explicitly states that 'the Judges in every State shall be bound' by federal law. U.S. Const., Art. VI, cl. 2.").

65Iowa Nat. Bank v. Stewart et al. and Six Other Cases, 214 Iowa 1229, 232 N.W. 445, 454 (1930), rev'd on other grounds, 284 U.S. 239, 52 S. Ct. 133, 76 L.Ed 265 (1931).

66Dority v. Green Country Casting Corp., 1986 OK 67, ¶11, n. 24, 727 P.2d 1355, 1359, n. 24; Phillips v. Williams 1980 OK 25, ¶10, 608 P.2d 1131, 1135, cert. denied, 449 U.S. 860, 101 S. Ct. 162, 662 L. Ed. 2d 76 (1980).

67McLin v. Trimble, supra, note 62 at ¶12, n.17, at 1047, n.17 (Opala, V.C.J., dissenting).

68Id.

69Cf. Medtronic, Inc. v. Lohr, supra, note 13, in which the United States Supreme Court refused to pre-empt all common-law causes of action under the Medical Device Amendments of 1976 because to do so would "have the perverse effect of granting complete immunity from design defect liability to an entire industry that, in the judgment of Congress, needed more stringent regulation in order 'to provide for the safety and effectiveness of medical devices intended for human use.'" Id. at 470, 487, 116 S.Ct., at 2251.

70Title 12 O.S. 1991 §651 provides in pertinent part:

"A new trial is a reexamination in the same court, of an issue of fact, or of law, either or both, after a verdict by a jury, the approval of the report of a referee, or a decision by the court. The former verdict, report or decision shall be vacated, and a new trial granted, on the application of the party aggrieved, for any of the following causes, affecting materially the substantial rights of such party:

. . .

Sixth. That the verdict, report or decision is not sustained by sufficient evidence, or is contrary to law. . . ."

71Woodall v. Chandler Material Co., 1986 OK 4, ¶13, 716 P.2d 652, 654.

72Byrd v. McKoy, 183 Okla. 209, 81 P.2d 315, 317.

73Montgomery v. Murray, 1970 OK 226, ¶20, 481 P.2d 755, 761 (improper questioning of plaintiff by defense counsel). See also, Badgwell v. Lair, 1958 OK 122, ¶8, 325 P.2d 968, 971 ("Probability of a change in the outcome of the lawsuit is the test of prejudice this court has long employed in alleged errors of practice and procedure.").

74Lockhart v. Loosen, 1997 OK 103, ¶3, 943 P.2d 1074, 1082 (Opala, J., dissenting). This court will affirm a correct judgment on any applicable theory. Bivins v. State ex rel. Oklahoma Memorial Hosp., 1996 OK 5, n. 40, 917 P.2d 456, 465, n. 40; Matter of Estate of Maheras, 1995 OK 40,¶7, 897 P.2d 268, 272 n.6; Wright v. Grove Sun Newspaper Corp., Inc., 1994 OK 37, ¶18, 873 P.2d 983, 992; Messenger v. Messenger, 1992 OK 27, n. 52, 827 P.2d 865, 874, n. 52; Willis v. Nowata Land and Cattle Co., 1989 OK 169, ¶13, 789 P.2d 1282, 1286-1287; Davidson v. Gregory, 1989 OK 87, n. 23, 780 P.2d 679, 685 n.23; Benham v. Keller, 1983 OK 68, ¶5, 673 P.2d 152, 154; Utica Nat'l Bank and Trust v. Associated Producers, Co., 1980 OK 172, ¶20, 622 P.2d 1061, 1066; Thompson v. Inman, 1971 OK 32, ¶38, 482 P.2d 927, 937; Holloway v. Ward, 84 Okl. 247, 203 P. 217, 219 (1921).

75Jackson v. Jones, 1995 OK 131, ¶5, 907 P.2d 1067, 1071-1072.

76McKellips v. St. Francis Hosp. Inc., 1987 OK 69, ¶9, 741 P.2d 467, 471; Prest-O-Lite Co.,

Inc., v. Howery, 169 Okla. 408, 37 P.2d 303, 305 (1934).

77Jackson, supra, note 75 at ¶8, at 1073.

78McKellips, supra, note 76 at ¶10, at 471.

79Proximate cause consists of two complimentary concepts: cause in fact and legal causation. Cause in fact refers to everything which contributed to a result, which would not have occurred without those things. Obviously, without some limiting principal, an infinite number of factual causes could be traced backwards through time for any given event. The concept of legal causation has developed as that limiting principal. Legal causation requires a judgment as to whether liability should be imposed as a matter of law where cause in fact has been established. It is a determination based on both common sense and policy arguments. See, W. Page Keeton et al., Prosser and Keeton on the Law of torts, § 41, at 263 (5th ed. 1984).

80The term "supervening" cause, as used in Oklahoma decisions, is synonymous with the term "superseding" cause, the term used in the Restatement (second) torts §§440 et seq. to mean the type of intervening event, which in a negligence case, severs the causal chain. See, Jackson, supra, note 75 at 1072, n. 16. See also, William J. McNichols, The Relevance of the Plaintiff's Misconduct in Strict Tort Products Liability, the Advent of Comparative Responsibility, and the Proposed Restatement (Third) of Torts, 47 okla. L Rev. 201, 270, n. 307 (Summer 1994).

81See, Jackson, supra, note 75 at ¶9, at 1073. A true supervening cause will operate effectively to insulate the original actor from liability. A three-prong test is applied to determine whether an intervening event is a supervening cause. It must be: (1) independent from the original negligent act, (2) adequate in itself to bring about the relevant injury, and (3) reasonably unforeseeable. Minor v. Zidell Trust, 1980 OK 144, ¶7, 618 P.2d 392, 394; Thompson v. Presbyterian Hospital, Inc., 1982 OK 87, ¶15, 652 P.2d 260, 264.

82Pepsi-Cola Bottling Co. of Tulsa, Oklahoma v. Von Brady, 1963 OK 236, ¶17, 386 P.2d 993, 996-997.

83Hamilton v. Allen, 1993 OK 46, ¶9, 852 P.2d 697, 699.

84Id.. at ¶13, at 700; Jester v. St. Louis-San Francisco R.R. Co., 1965 OK 180, ¶14, 413 P.2d 539, 542.

85Hamilton, supra, note 83.

86Id. at 700.

87441 S.W.2d 670 (Tex.Civ.App. 1969).

88Id. at 672.

89See, Minor v. Zidell Trust, supra, note 81; Thompson v. Presbyterian Hospital, Inc., supra, note 81 .

90See, McKellips, supra, note 76 at ¶11, at 471; Hardy v. Southwestern Bell Telephone Co., 1996 OK 4, ¶10, 910 P.2d 1024, 1027; Butler v. Oklahoma City Public School System, 1994 OK CIV APP 22, ¶8, 871 P.2d 444, 446. Even an automatic gate is no assurance that a motorist will stop at a railroad crossing. See, Hamilton v. Allen, supra, note 83.