Rubietta v. National Railroad Passenger Corporation et al

Filing 145

Memorandum Opinion and Order signed by the Honorable Robert W. Gettleman on 1/30/2012: Mailed notice (gds)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GLORIA RUBIETTA,
Plaintiff,
v.
NATIONAL RAILROAD PASSENGER
CORPORATION, a foreign corporation d/b/a
AMTRAK, and BNSF RAILWAY COMPANY,
Defendants.

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No. 08 C 7117
Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER
Plaintiff Gloria Rubietta has brought a four count third amended complaint against
defendants National Railroad Passenger Corporation (“Amtrak”) and BNSF Railway Company
(‘BNSF”), seeking damages for personal injuries she sustained while a passenger on an Amtrak
train chartered by 20th Century Railroad Club, a railroad club that offers organized passenger
rail trips to its members over tracks owned by BNSF. Although set out in four counts, the third
amended complaint actually asserts five distinct claims against defendants. Count I is brought
against Amtrak and alleges both negligence and spoliation of evidence. Count II alleges
negligence against BNSF. Counts III and IV are res ipsa loquitur claims against Amtrak and
BNSF respectively. Defendants have moved to dismiss the entire third amended complaint
under Fed. R. Civ. P. 12(b)(6), arguing that the negligence claims in Counts I and II are
preempted by federal law, that the spoliation claim in Count I is either preempted or fails to state
a claim, and that Counts III and IV fail to state a claim. For the reasons described below,
defendants’ motion is granted in part and denied in part.

FACTS1
In October 2007 20th Century chartered an Amtrak train for use by its club members and
guests for a round trip passage between Chicago and Galena, Illinois. Plaintiff purchased a
ticket from either 20th Century or Amtrak and was assigned a seat in a “handicapped” railcar
that had a large open area and accessible restrooms. The open area was not equipped with
handrails. Plaintiff was walking through the open area returning to her seat after using the
restroom when the train accelerated and violently shook. Plaintiff was thrown against the wall,
resulting in her injuries. The train was equipped with an on-board event recording system that
was able to capture the speed of the train and other data, but defendants no longer have the
device.
DISCUSSION
Defendants have moved to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a
claim upon which relief can be granted. The purpose of such a motion is to test the sufficiency
of the complaint, not to rule on its merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th
Cir. 1990). When considering the motion, the court accepts as true all well-pleaded factual
allegations and draws all reasonable inferences in plaintiff’s favor. McMillan, 455 F.3d at 758.
The complaint must plead sufficient facts to plausibly suggest that plaintiff has a right to relief
and raise that possibility above the speculative level. Bell Atlantic Co. v. Twombly, 550 U.S.
554, 555 (2007).

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The facts are taken from plaintiff’s third amended complaint and are accepted as true for
purposes of the instant motion. McMillian v. Collection Prof’s, Inc., 455 F.3d 754, 758 (7th Cir.
2006).
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Counts I and II
Defendants have moved to dismiss Counts I and II, arguing that the negligence claims
asserted in those counts are preempted by federal law. Specifically, defendants argue that: the
claims alleging negligent operation of the train and negligent maintenance of the track are
preempted by the Federal Railway Safety Act of 1970, 49 U.S.C. § 2101 et seq. (“FRSA”); and
the claims alleging negligent railcar design are preempted by the Americans with Disabilities
Act of 1990 (“ADA”) 42 U.S.C. § 12101 et seq. and/or the preemption provisions of the Amtrak
Act, 49 U.S.C. § 24301(g).
State laws that interfere with or are contrary to the laws of Congress, enacted pursuant to
the Constitution are invalid. U.S. Const. Art. VI, Cl. 2; Gibbons v. Ogden, 22 U.S. 1 (1824).
Whether a federal statute preempts state law is a question of congressional intent. Shaw v. Dow
Brands, Inc., 994 F.2d 364, 369 (7th Cir. 1993). That intent may be expressed in the statute
itself, or may be implied by its structure or purpose. Jones v. Rath Packing Co., 430 U.S. 519,
525 (1977). Not withstanding the supremacy of federal law, there is a presumption against
preemption. See Cipollone v. Liggett Group, 505 U.S. 504, 518 (1992). This presumption
requires courts to construe even express preemption clauses narrowly. Id.
As an initial matter, plaintiff argues that federal preemption is an affirmative defense that
defendants have waived by not raising in response to her earlier complaints. Each new
complaint supercedes all previous complaints, however, and an “amended complaint opens the
door for defendants to raise new and previously unmentioned affirmative defenses.” Massey v.
Helman, 196 F.3d 727, 735 (7th Cir. 1997). Thus, plaintiff is incorrect, and defendants have not
waived the defense. Because preemption is an affirmative defense, however, plaintiff is correct

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that she is not required to plead around it. See Fifth Third Bank v. CSX Corp., 415 F.3d 741,
745 (7th Cir. 2005). Nonetheless, the Seventh Circuit has held that where a defect is apparent on
the face of the complaint (as defendants assert), an affirmative defense may be raised in a Rule
12(b)(6) motion to dismiss. Butcher v. United Elec. Coal Co., 174 F.2d 1003, 1006 (7th Cir.
1949). Therefore, the court concludes that the defense has been properly raised.
The FRSA preemption provision (49 U.S.C. § 20106) provides that:
(2) a state may adopt or continue in force a law, regulation, or order related to
railroad safety or security until the Secretary of Transportation . . ., prescribes a
regulation or issues an order covering the subject matter of the State requirement.
A State may adopt or continue in force an additional or more stringent law,
regulation, or order related to railroad safety or security when the law, regulation,
or order-(A) is necessary to eliminate or reduce an essentially local safety
or security hazard;
(B) is not incompatible with a law, regulation or order of the United States
government; and
(C) does not unreasonably burden interstate commerce.
In 2007, the FRSA was amended to clarify that nothing in the statute was to be construed
to preempt an action under state law seeking damages for personal injury, death, or property
damage alleging that the railroad: (a) failed to comply with the federal standard of care
established by a regulation or order issued by the Secretary of Transportation covering the
subject matter; (b) has failed to comply with its own rule or standard that it created pursuant to a
regulation or order issued by the Secretary of Transportation; or (c) failed to comply with a state
law, regulation or order that is not incompatible with the section. 49 U.S.C. § 20106(b)(1).
It is undisputed that the Secretary of Transportation, acting through the Federal Railroad
Administration (“FRA”), has issued regulations codified at 49 C.F.R. § 213.9(c) that prescribe
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the minimum operating speeds for train travel over a specified class of track, including the track
at issue. Claims alleging that a train operated at excessive speeds are preempted when the train
is operating within the speeds specified for the track classification in 49 C.F.R. § 212.9. See
CSX Transp. Inc. v. Easterwood, 507 U.S. 658 (1993). This is true even if the speed exceeded
the railroad’s internal policy. See Hesling v. CSX Transp., Inc., 396 F.3d 632, 658 (5th Cir.
2005).
Plaintiff does not dispute that to state claim for negligence based on excessive speed she
must allege that the train was traveling in excess of the speed restriction established by the
federal regulations. Instead, she argues that she has so alleged. Paragraph 19 of the third
amended complaint alleges that “the AMTRAK passenger train traveling on BNSF track was
moving at an unreasonable speed and/or a speed that violated the speed restrictions of the Aurora
subdivision between Galena and Aurora, Illinois.” In paragraph 28, plaintiff alleges that Amtrak
“operated the train in excess of the speed restrictions established by the rail owner and consistent
with the class of track.”
Neither of these two allegations specifically alleges that the train was traveling at a speed
in excess of the federal regulation. As noted above, however, plaintiff does not have to plead
around an affirmative defense, and the allegation that the train was traveling in excess of the
speed restriction consistent with the class of track could be construed to allege a speed in excess
of the federal regulation. In any event, because plaintiff agrees that she must prove that fact to
prevail, even if the claims lack the necessary specificity, the court grants plaintiff leave to
replead the allegations consistent with her admissions in her brief, and admonishes plaintiff to

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plead sufficient facts, consistent with her obligations under Fed. R. Civ. P. 11, to support her
claim that the speed of the train exceeded that allowed by federal regulation..
Next, defendant argues that the allegations relating to tack maintenance are preempted by
the express provisions of the FRSA. Again, plaintiff acknowledges that the Secretary, through
the FRA, has issued regulations and set standards governing track inspection and maintenance.
49 C.F.R. § 213. Again, plaintiff’s brief attempts to clarify that she is alleging that defendants’
maintenance and repair programs are inconsistent with federal law. Again, plaintiff’s third
amended complaint contains no such specific allegation and technically fails to state a claim.
Accordingly, the court grants plaintiff leave to amend her complaint to so specifically allege.
Defendants next argue that plaintiff’s claims that the railcar was negligently designed are
preempted by the ADA or the Amtrak Act. Plaintiff alleges that she was walking through the
large open area of the accessible railcar when she was injured. The ADA requires that each
Amtrak train have “at least one passenger car per train that is readily accessible to and usable by
individuals with disabilities, including individuals who use wheelchairs, in accordance with
regulations issued under § 12164 of this Title . . ..” 42 U.S.C. § 12162(a)(1).
The Department of Transportation (“DOT”) has issued detailed regulations regarding the
accessible railcars. 49 C.F.R. Part 37, subpart D. These regulations require sufficient spaces to
park wheelchairs and spaces to fold and store wheelchairs. The regulations detailing
requirements for Amtrak’s intercity railcars require an unobstructed passageway at least 32
inches wide, 49 C.F.R. § 38.113(b), and spaces for persons who wish to remain in their
wheelchairs or mobility aides with a minimum clear floor space 48 inches by 30 inches. 49
C.F.R. § 38.125(d)(2). The regulations further require handrails only “at entrances equipped

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with steps.” 49 C.F.R. § 38.115(c). With respect to the open accessible area, the regulations
provide (49 C.F.R. § 38.115(a)):
Where provided, handrails or stanchions within the passenger compartment shall
be placed to permit sufficient turning and maneuvering space for wheelchairs and
other mobility aides to reach a seating location.
Because, unlike the FRSA, the ADA does not contain an express preemption provision,
defendants argue that plaintiff’s negligent design claims are preempted under the doctrines of
field and/or conflict Preemption. Even when there is no express provision for preemption, state
law must yield to a congressional Act when Congress has intended federal law to “occupy the
field.” “And even if Congress has not occupied the field, state law is naturally preempted to the
extent of any conflict with a federal statute.” Crosby v. National Foreign Trade Council, 530
U.S. 363, 372 (2000). Preemption will be found where it is impossible for a private party to
comply with both state and federal law and where, under the circumstances of a particular case,
the state law stands as an obstacle to the accomplishment and execution of the full purposes and
objectives of Congress. Id.
In the instant case, neither field nor conflict preemption applies. Obviously, the ADA
has not occupied the field of railcar safety for all passengers. Nor does it require or prohibit
handrails in accessible cars. Indeed, it recognizes the potential need for and contemplates the
inclusion of handrails, and requires only that where provided, the handrails must not interfere
with wheelchair accessibility. 49 C.F.R. § 38.115(a). Nothing in the requirements of the ADA
would prevent defendants from insuring the safety of all passengers who use the accessible cars.
Thus, the claims of negligent design in Counts in I and II are not preempted by the ADA.

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The Amtrak Act has an express preemption clause which provides that: “[a] State or
other law related to rates, routes, or service does not apply to Amtrak in connection with rail
passenger transportation.” 49 U.S.C. § 24301(g). The term service “include[s] items such as
ticketing, boarding procedures, provision of food and drink, baggage handling, in addition to the
transportation itself . . .. Thus, intentional tort claims that expressly refer to ticketing and the
transportation itself are claims that fall under the services umbrella” and are preempted. Jenkins
v. National Railroad Passenger Corp., 2008 WL 68685, *12 (N.D. Ill. 2008) (citations omitted).
Thus, plaintiff’s claims alleging negligent seat assignment are preempted.
Finally, Count I alleges negligent spoliation of the event recorder data by Amtrak. A
claim of negligent spoliation requires plaintiff to plead “the existence of a duty owed by the
defendant to the plaintiff, a breach of that duty, and injury proximately caused by the breach, and
damages.” Cosgrove v. Commonwealth Edison Co., 734 N.E.2d 155, 161 (Ill. App. 2000).
Plaintiff alleges that Amtrak had a duty to preserve the data under 49 C.F.R. § 229.135(e), which
requires the railroad to preserve the recorder when the train is involved in an accident that must
be reported to the FRA. This preservation requirement expires one year after the date of the
accident unless the FRA or the National Transportation Safety Board has requested that the data
be preserved longer. Because plaintiff has not alleged such a request she has not alleged that
Amtrak has breached its duty of preservation under the Act. Any claim that Amtrak breached a
common law duty of care to preserve evidence is preempted by 49 C.F.R. § 229.135(e). See
Easterwood, 507 U.S. at 664. Accordingly, plaintiff’s claim for spoliation of evidence is
dismissed.

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Counts III and IV
Counts III and IV simply re-allege the negligence claims alleged in Counts I and II and
then allege that plaintiff would not have been thrown across the railcar in the absence of
negligence. The counts thus assert res ipsa loquitur claims against defendants. Although res
ipsa loquitur is a principle of evidence and not a cause of action, there is nothing improper about
pleading one’s intent to rely on it. Bielskis v. Louisville Ladders, Inc., 2007 WL 2088583, * 2
(N.D. Ill. 2007). Indeed, Illinois requires a plaintiff to plead and prove the elements of res ipsa
loquitur. Heastie v. Robert, 226 Ill.2d 515, 532 (2007). Accordingly, Counts III and IV state
claims to the extent that they re-allege negligence claims in Counts I and II that are not
preempted.
CONCLUSION
For the reasons set forth above, defendants’ motion to dismiss is granted in part and
denied in part. Plaintiff is directed to file a fourth and final amended complaint consistent with
this opinion on or before February 14, 2012. Defendants are directed to answer the fourth
amended complaint on or before March 6, 2012. This matter is set for a report on status on
March 13, 2012, at 9:00 a.m.

ENTER:

January 30, 2012

__________________________________________
Robert W. Gettleman
United States District Judge

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