Lombardy v. Norfolk Southern Railway Company
Filing
34
OPINION AND ORDER GRANTING 19 MOTION for Partial Summary Judgment by Defendant Norfolk Southern Railway Company. Plaintiff's allegations contained in the First Amended Complaint that Norfolk failed to adequately train, educate, instruct, super vise, qualify, and test the engineer operating the locomotive, and failed to adequately train, instruct, and supervise the train crew are DISMISSED WITH PREJUDICE. The remaining claims in the First Amended Complaint REMAIN PENDING. Signed by Judge Rudy Lozano on 6/3/14. (cer)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
JENNIFER LOMBARDY,
Plaintiff,
vs.
NORFOLK SOUTHERN
RAILWAY CO.,
Defendant.
)
)
)
)
)
)
)
)
)
)
CAUSE NO. 1:12-CV-210
OPINION AND ORDER
This matter is before the Court on the Norfolk Southern
Railway Company’s Motion for Partial Summary Judgment, filed by
Defendant, Norfolk Southern Railway Company, on September 4, 2013
(DE #19).
For the reasons set forth below, the motion (DE #19) is
GRANTED. Plaintiff’s allegations that Norfolk failed to adequately
train, educate, instruct, supervise, qualify, and test the engineer
operating the locomotive, and failed to adequately train, instruct,
and supervise the train crew (First Am. Compl. (DE #15), ¶ 14(d),
(k)-(m), (q)), are hereby DISMISSED WITH PREJUDICE.
The remaining
claims in the first amended complaint REMAIN PENDING.
BACKGROUND
Plaintiff, Jennifer Lombardy, who worked as a conductor for
Defendant,
Norfolk
Southern
Railway
Company
(hereinafter
“Norfolk”), claims that on December 6, 2009, she sustained injuries
during an abrupt stop while riding on the corner of a grain hopper
car.
She alleges, inter alia, that Norfolk Southern failed to
adequately train, educate, instruct, supervise, qualify, and test
the engineer operating the locomotive, and failed to adequately
train, instruct, and supervise the train crew.
(See First Am.
Compl. (DE #15), ¶ 14(d), (k)-(m), (q)).
In the instant motion for partial summary judgment, Norfolk
argues that Plaintiff’s claims for inadequate training, education,
instruction, supervision, and qualification fail as a matter of
law, as precluded by federal regulations promulgated pursuant to
the Federal Railroad Safety Act, 49 U.S.C. §§ 20101, et seq.
(“FRSA”).
In her brief in opposition, Plaintiff argues that her
FELA failure to properly train claim is not preempted by the FRSA.
(DE #22.)
Norfolk filed a reply brief on October 24, 2013 (DE
#25), as well as a supplemental designation of evidence in support
of its motion for partial summary judgment. (DE #26.) This motion
is fully briefed and ripe for adjudication.
Undisputed Facts
The undisputed facts in this case are fairly straightforward.
Plaintiff worked as a conductor for Norfolk Southern.
On December
6, 2009, she and Engineer Eric Douthitt were working at a grain
facility (Andersons) in Dunkirk, moving empty rail cars from a
2
siding
track
to
several
tracks
within
the
grain
facility.
(Lombardy Dep., pp. 54, 57.) Plaintiff was riding on the corner of
a grain hopper car during a “shove move” into Andersons.
80.)
(Id., p.
Plaintiff’s supervisor, Assistant Trainmaster Eric Goodman,
was riding on the opposite corner of the car.
(Id.)
Plaintiff alleges that the engine’s radio (which she was using
to communicate with the engineer), failed to work properly, and
when that happened, Engineer Douthitt “didn’t stop [the train] fast
enough.” (Id., pp. 101-02.) Then, when Engineer Douthitt did stop
the train, he stopped “abrupt[ly],” which Plaintiff claims caused
her to injure her knee, back, and neck.
(Id., p. 102.)
Engineer Douthitt admits he was having some difficulty hearing
Plaintiff on the radio during the shove. (Douthitt Dep., p. 29.)
Assistant Trainmaster Goodman, who was riding the shove move with
Plaintiff and listening on his radio, admits that when Plaintiff
was
trying
to
give
Engineer
“communication wasn’t clear.”
Goodman Dep., pp. 61-62.)
Douthitt
the
car
counts,
the
(Fulk Report (Ex. B), pp. 4-5;
Douthitt told Lombardy that his radio
did not work, and he could not hear her.
(Fulk Report, p. 4;
Lombardy Dep., p. 101.)
Before Lombardy’s injury, there were radio problems earlier in
the
shove.
(Fulk
Report,
pp.
6-8;
Goodman
Dep.,
p.
62.)
Plaintiff’s liability expert, Colon Fulk, opines that since the
3
locomotive radio failed once before, Goodman should not have
allowed the train to be moved until the communication issue had
been corrected.
(Fulk Report, pp. 6-9.)
Fulk opines Goodman
violated Norfolk Southern General Regulation 1(b), which requires
that “[i]n case of doubt or uncertainty, the safe course must be
taken.”
(Fulk Report, p. 7.)
Fulk opines that Douthitt and
Goodman violated several CRF rules, and ultimately, that Douthitt
acted negligently by continuing the shove move while receiving
broken
radio
transmissions,
in
violation
Operating Rule 509(c) and 49 C.F.R. 220.45.
11.)1
of
Norfolk
Southern
(Fulk Report, pp. 10-
Additionally, Fulk believes Goodman did not have proper
knowledge of the Federal Radio Regulations.
(Ex. C), p. 1.)
(Fulk Supp. Report
Goodman testified during his deposition that he
would not deem a radio defective if it worked part-time.
Dep., p. 28.)
(Goodman
It is Fulk’s opinion that Goodman’s lack of
knowledge of the regulations resulted in his inability to properly
train the employees he supervised, who then also lacked proper
knowledge of the regulations.
Plaintiff
concedes
that
(Fulk Supp. Report, pp. 1, 4.)
she
1
thought
she
received
“good
49 C.F.R. 220.49 requires that when a radio communication
is used in connection with a shove, the movement should stop in
one-half the remaining distance unless additional instructions
are received, and if the instructions are not understood, the
movement should be stopped immediately. 49 C.F.R. 220.49.
Norfolk Southern Operating Rule 509 similarly requires that if
the instructions are not understood or continuous radio contact
is not maintained, the movement should be stopped immediately.
4
training” from Norfolk when she was hired, and when she was
qualifying as a conductor.
(Lombardy Dep., pp. 62-63.)
G. Chris
Brasher, Assistant Vice President of Operating Rules of Norfolk,
filed a declaration and supplemental declaration with the Court.
(DE #20-2 and DE #25-4).
Brasher stated Norfolk filed with the
Federal Railroad Administration (“FRA”) its code of operating
rules, timetables, timetable special instructions, and amendments
within 30 days after they were issued, as required by 49 C.F.R. §
217.7, and has a written program for providing instruction to its
employees on the meaning and application of its operating rules, as
required
by
49
Additionally,
C.F.R.
Norfolk’s
§217.11.
written
(Brasher
program
Decl.,
for
¶¶
3,6.)
certifying
the
qualifications of locomotive engineers has been filed with and
approved by the FRA in accordance with 49 C.F.R. § 240.103.
(Id.
¶ 5.)
Plaintiff,
Engineer
Douthitt,
and
Assistant
Goodman
all
received training on Norfolk’s safety and operating rules, and
Engineer Douthitt was a qualified locomotive engineer.
Dec., ¶¶ 8-10.)
(Brasher
Additionally, Norfolk has a written program for
conducting
operational
employee’s
compliance
tests
with
and
rules,
inspections
and
Engineer
to
determine
Douthitt
and
Plaintiff were both tested and inspected under, and in accordance
with, Norfolk’s written policy. (Id. ¶¶ 11, 13-15, 18.) Assistant
Goodman was also a qualified railroad testing officer. (Id. ¶ 10.)
5
Additionally,
Douthitt
and
Goodman
both
received
training
on
Norfolk’s safety and operating rules, including instruction on the
proper use of radio communication.
(Brasher Supp. Dec. ¶¶ 4-5.)
Norfolk also conducted six month reviews of its program of
tests and inspections, and quarterly reviews of the results and
data.
(Id. ¶ 16.)
maintained
at
headquarters.
its
Summaries of the tests and inspections are
system
headquarters
and
each
division
(Id. ¶¶ 16-17.)
DISCUSSION
Pursuant
to
Rule
56(a)
of
the
Federal
Rules
of
Civil
Procedure, summary judgment is proper only if it is demonstrated
that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
See
Nebraska v. Wyoming, 507 U.S. 584, 590 (1993); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986).
In other words, the record
must reveal that no reasonable jury could find for the nonmovant.
Karazanos v. Navistar Int’l Transp. Corp., 948 F.2d 332, 335 (7th
Cir. 1991); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250 (1986).
In deciding a motion for summary judgment, a court
must view all facts in the light most favorable to the nonmovant.
Anderson, 477 U.S. at 255; NUCOR Corp. v. Aceros Y Maquilas de
Occidente, 28 F.3d 572, 583 (7th Cir. 1994).
6
The burden is upon the movant to identify those portions of
“the
pleadings,
depositions,
answers
to
interrogatories,
and
admissions on file, together with the affidavits,” if any, that the
movant believes “demonstrate the absence of a genuine issue of
material fact.”
Celotex, 477 U.S. at 323.
Once the movant has met
this burden, the nonmovant must support its assertion that a fact
is genuinely disputed by citing to particular parts of materials in
the record.
Fed. R. Civ. P. 56(c); Becker v. Tenenbaum-Hill
Assoc., Inc., 914 F.2d 107, 110 (7th Cir. 1990); Schroeder v.
Lufthansa German Airlines, 875 F.2d 613, 620 (7th Cir. 1989).
“Whether
a
fact
is
material
depends
on
the
substantive
law
underlying a particular claim and ‘only disputes over facts that
might affect the outcome of the suit under governing law will
properly preclude the entry of summary judgment.”
Walter v.
Fiorenzo, 840 F.2d 427, 434 (7th Cir. 1988) (emphasis in original)
(citing Anderson, 477 U.S. at 248).
“A party who bears the burden of proof on a particular issue
may not rest on its pleading, but must affirmatively demonstrate,
by specific factual allegations, that there is a genuine issue of
material fact which requires trial.”
Beard v. Whitley Country
REMC, 840 F.2d 405, 410 (7th Cir. 1988) (emphasis in original); see
also Hickey v. A.E. Staley Mfg., 955 F.2d 1385, 1391 (7th Cir.
1993).
Therefore, if a party fails to establish the existence of
an essential element on which the party bears the burden of proof
7
at trial, summary judgment will be appropriate. In this situation,
there can be “’no genuine issue as to any material fact,’ since a
complete failure of proof concerning an essential element of the
nonmoving
party’s
immaterial.”
case
necessarily
renders
all
other
facts
Celotex, 477 U.S. at 323.
Are Plaintiff’s Claims for Negligent Training, Education,
Instruction, Supervision, and Qualification Precluded?
Norfolk argues that Plaintiff’s claims for negligent training,
education,
instruction,
supervision,
and
qualification
precluded by the Federal Railroad Safety Act (“FRSA”).
are
49 U.S.C.
§§ 20101, et seq.
The Federal Employers’ Liability Act (“FELA”) is a federal
statute that gives a railroad employee the right to sue his
employer in state or federal court for “such injury . . . resulting
in whole or in part from the negligence” of the railroad or its
employees.
45 U.S.C. § 51; see Schadel v. Iowa Interstate R.R.,
381 F.3d 671, 674-75 (7th Cir. 2004).
Thus, the “FELA imposes on
railroads a general duty to provide a safe workplace.”
McGinn v.
Burlington N.R. Co., 102 F.3d 295, 300 (7th Cir. 1996).
The
standard is a relaxed one under FELA, to prove that a railroad
breached its duty, a “plaintiff must show circumstances which a
reasonable person would foresee as creating a potential for harm
8
[and]
then
show
that
this
breach
slightest, in producing the injury.”
played
any
part,
even
the
Id. at 300.
Congress passed the Federal Rail Safety Act of 1970 (“FRSA”)
to “promote safety in every area of railroad operations and reduce
railroad-related accidents and incidents.”
“The
FRSA
also
advanced
the
goal
of
49 U.S.C. § 20101.
national
uniformity
of
regulation because one of its provisions expressly preempts state
laws regulating rail safety.” Burlington Northern and Santa Fe Ry.
Co. v. Doyle, 186 F.3d 790, 795 (7th Cir. 1999); 49 U.S.C. § 20106.
The preemption clause provides that 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).
Norfolk argues that in this case, Plaintiff’s claims for
negligent
training,
education,
instruction,
qualification, are precluded by the FRSA.
supervision,
and
It points to the
regulations issued by the Secretary of Transportation, arguing it
has issued comprehensive regulations covering the subject of the
training, instruction, education, qualification, and supervision of
railroad employees.
(Def.’s Mem. In Support, DE #20, p. 6.)
For
example, the Secretary promulgated Part 240 of the Code of Federal
Regulations “to ensure that only qualified persons operate a
locomotive or train.”
49 C.F.R. § 240.1(a).
Part 240 specifies
“standards for the eligibility, training, testing, certification
9
and monitoring of all locomotive engineers.” 49 C.F.R. § 240.1(b).
The regulations detail how a railroad company must obtain FRA
approval of its engineer certification program, the criteria and
methodology to be used in selecting supervisors for persons seeking
certification, and for continuing education, testing, training, and
monitoring of performance.
49 C.F.R. §§ 240.1-240.411.
The Secretary also promulgated Part 217, requiring railroads
to file their operating rules, timetables, and timetable special
instructions and to periodically instruct its employees on the
meaning and application of the operating rules.
217.7, 217.11.
49 C.F.R. §§
Part 217 also requires railroads to periodically
conduct operational tests and inspections, in accordance with the
written program, to determine the extent of employees’ compliance
with
its
operating
instructions.
rules,
timetables,
49 C.F.R. § 217.9.
and
timetable
special
The railroads must make its
records concerning the tests and inspections available for review,
and prepare and retain copies of annual summaries of operational
tests and inspections.
Id.
The regulations afford the FRA the
authority to disapprove (and require the railroad to revise) the
program.
Id.
In its memorandum in support, Norfolk cites a slew of cases
for the principal that “courts routinely hold that these federal
regulations cover the subject of the training of train crews, and,
therefore, preempt or preclude any claim of inadequate training,
10
education, instruction, or qualification.”
(DE #20, p. 7.)
See,
e.g., Union Pacific R.R. Co. v. California Pub. Utilities Comm’n,
346 F.3d 851, 868 (9th Cir. 2003) (quotation omitted) (finding
where plaintiff argued
railroad employees needed better training,
that “federal training regulations do substantially subsume the
subject
of
employee
training,”
and
ruling
state
regulation
mandating training for railroad employees was preempted under the
FRSA); Doyle, 186 F.3d at 796-97 (finding state requirement that an
engineer be at the controls of the locomotive any time it moves
directly in conflict with a federal regulation, 49 C.F.R. § 240.7,
and thus the state requirement was “therefore preempted by the
federal regulations.”); Dowe v. Nat’l R.R. Passenger Corp., No. 01
C 5808, 2004 WL 887410, at *5 (N.D. Ill. Apr. 26, 2004) (finding
“federal law preempts state law regarding training of locomotive
engineers,” but noting the “subtle” distinction that federal law
does not preempt state law regarding the imposition of safe
operating procedures).2 Norfolk argues that Plaintiff’s claim that
it negligently supervised the crew is “indistinguishable” from the
claim alleging negligent training, education, instruction, and
qualification.
(DE #20, p. 8.)
It points to the Court in Kohn v.
Norfolk S. Corp., 3:96-CV-911, slip op. at 5 (N.D. Ind. Jan. 6,
2
Norfolk also cites to two unpublished slip opinions,
attached as exhibits. See Kirk v. Norfolk S. Ry. Co., No. 3:00CV-273, slip op. at 4-5 (N.D. Ind. Oct. 30, 2001); Travis v.
Illinois Cent. R.R. Co., No. 3:98-CV-643BN, slip op. at 17-24
(S.D. Miss. Mar. 15, 2001).
11
1998), which stated:
The defendant is completely correct that the
assertions and claims with reference to allege[d]
negligence in training, instruction and supervision
of the train crew is preempted by federal law under
the Federal Railroad Safety Act of 1970, as
repealed and transferred to 49 U.S.C. 20101, et
seq. The defendant is entitled to summary judgment
as a matter of law with reference to that issue.
Norfolk then proceeds to set forth how Norfolk Southern
complied with the allegedly preemptive regulations set forth in
Parts 217 and 240, contending Plaintiff’s claims for inadequate
training, education, instruction, supervision, and qualification
fail as a matter of law.
Basically, Norfolk shows that it filed
with the FRA its code of rules, it has a written program, they
retain copies of the written program, Plaintiff, Engineer Douthitt,
and Assistant Goodman all received training in accordance with
their written program, and it has a written program for operational
tests and inspections to determine employees’ compliance with the
rules, each were tested, and Goodman was a qualified railroad
testing officer under 49 C.F.R. § 217.9(b).
6, 8-12.)
(Brasher Dec. ¶¶ 3, 5,
Thus, Norfolk argues Plaintiff’s claims for inadequate
training, education, instruction, supervision, and qualification
fail as a matter of law.
In response, Plaintiff argues that Norfolk has failed to
demonstrate that her failure to train claim conflicts with 49
C.F.R. 217.7, 217.9, 217.11, and 49 C.F.R. 240.1.
12
(DE #22, p. 1.)
Additionally, Plaintiff argues that Norfolk also violated 49 C.F.R.
220.25, a Federal Regulation that required proper instruction
concerning railroad radio usage.
Plaintiff’s liability expert,
Colon Fulk, opines that Norfolk violated 49 C.F.R. 220.25, which
requires:
Each employee who a railroad authorizes to use a
radio in connection with a railroad operation,
shall be:
(a) Provided with a copy of the railroad’s
operating rules governing the use of radio
communication in a railroad operation;
(b) Instructed in the proper use of radio
communication as part of the program of instruction
prescribed in § 217.11 of this chapter; and
(c) Periodically tested under the operational
testing requirements in § 217.9 of this chapter.
49 C.F.R. 220.25; Fulk Report, p. 1.)
Plaintiff’s leading case citation is to Norfolk Southern
Railway Co. v. Zeagler, 748 S.E.2d 846 (Ga. 2013), decided by the
Supreme Court of Georgia, which is not binding upon this Court.
(DE #22, p. 7.) Moreover, Zeagler is distinguishable. In Zeagler,
the
Supreme
Court
of
Georgia
considered
whether
the
federal
training regulations precluded the plaintiff’s claim that the
railroad failed to train him on how to avoid or mitigate injury in
the event of a grade-crossing collision.
the
federal
training
regulations
13
In other words, whether
precluded
a
claim
that
the
railroad should have provided training on a subject that it did not
cover.
The Zeagler court found federal regulations at Parts 217
and 240 did not “require or prohibit safety training for conductors
regarding grade-crossing accidents.”
as
pointed
out
by
Norfolk,
Id. at 860.
Plaintiff
argues
However, here,
that
a
federal
regulation, 49 C.F.C. § 220.25, did require Norfolk to train and
test
its
employees
communication.
under
Part
217
on
the
use
of
radio
Yet, it is uncontested that Norfolk had operating
rules, and Douthitt and Goodman each received training in them.
(Brasher Dec., ¶¶ 9-10.) Norfolk instructs employees in the proper
use of radio communication, as required by 49 C.F.R. § 220.25, as
part of its written program under 49 C.F.R. § 217.11.
Supp. Dec. ¶ 3.)
(Brasher
Douthitt and Goodman each received training
pursuant to the written program, and as required by § 220.25, on
the proper use of radio communication.
(Brasher Supp. Dec. ¶¶ 4-
5.) Indeed, Douthitt and Goodman both testified that they received
training on radio rules.
(Goodman Dep., pp. 7; Douthitt Dep., pp.
5-8.) Plaintiff also does not dispute that Douthitt was tested and
inspected under, and in accordance with, Norfolk’s written program,
as required by 49 C.F.R. § 217.9(b), or that Goodman was a
qualified railroad testing officer under 49 C.F.C. § 217.9(b).
(Brasher Dec. ¶¶ 9-10, 14-15, 18.)
Plaintiff’s argument that Norfolk violated 20 C.F.R. 220.25,
requiring proper instruction in radio rules, is based purely on the
14
opinion of expert Fulk.
Yet, Fulk’s opinion is not based upon
Norfolk’s training and testing programs under §§ 217.9 and 217.11,
but on what he perceives as Douthitt’s and Goodman’s violation, and
lack of knowledge, of certain radio rules.
1-7.)
(Fulk Supp. Rep., pp.
Fulk does not opine that Norfolk failed to conduct the
training and testing required under Part 217 by § 220.25, and
Plaintiff has not pointed the Court to any evidence in the record
that Norfolk failed to conduct the required training and testing.
This Court concurs with Norfolk that “[w]hat Mr. Fulk perceives as
Mr. Douthitt’s and Mr. Goodman’s perceived violation (or inadequate
knowledge) of certain radio rules is not the issue before the
court. The issue is whether Norfolk Southern provided the training
and testing required under the federal regulations.”
11.)
(DE #25, p.
And here, based upon the undisputed facts, Norfolk did
provide the required federal regulations training and testing.
Plaintiff cannot challenge the sufficiency of the regulations in
Parts 217 and 240.
As the Ninth Circuit held, in addressing a very
similar argument as the one propounded by Plaintiff:
CPUC does not dispute that the federal regulations
require the Railroads to conduct some training, but
instead insists that the current training is not
adequate.
It contends that railroad employees
needed better training, “especially at rail
segments which have historically high accident
rates
or
particularly
demanding
operational
characteristics.” Because the federal regulations
do not regulate the content of the Railroads’
training program and randomly test employees, CPUC
argues that its [training] regulation has not been
15
covered by the FRA.
This argument is unpersuasive. It is clear that
the federal regulations do “substantially subsume”
the subject of employee training. See Easterwood,
507 U.S. at 664, 113 S.Ct. 1732. To “ensure” that
railroad
employees
understand
the
Railroads
operating rules, section 217.1 states, “each
railroad . . . shall periodically instruct each []
employee on the meaning and application of the
railroad’s operating rules in accordance with a
written program . . . .” Section 240.123 requires
specific training regarding continuing education
for certified locomotive engineers. While CPUC’s
regulations are more specific and stringent than
the federal government’s, they both mandate
training on the Railroads’ own internal operating
rules for the same safety concerns. We agree with
the
district
court
that
CPUC’s
[training]
regulation is preempted by the FRSA.
Union Pac. R.R. Co. v. California Pub. Utilities Comm’n, 346 F.3d
851, 868 (9th Cir. 2003).
This Court believes this case is governed by Waymire v.
Norfolk & Western Ry. Co., 218 F.3d 773 (7th Cir. 2000).
In
Waymire, plaintiff, train conductor, sued defendant, railroad
company,
under
the
FELA,
alleging
the
railroad
company
was
negligent in allowing the train to travel at an unsafe speed and
failed to install additional crossing warning devices, which caused
or
contributed
plaintiff.
to
a
train-truck
Waymire, 218 F.3d 773.
accident
that
injured
the
The Seventh Circuit held that
the railroad could not be liable in a FELA negligence action
because the complained of conduct conflicted with the FRSA and its
regulations. In reaching this result, the Seventh Circuit extended
16
the
Supreme
Court’s
holding
in
CSX
Transportation,
Inc.
v.
Easterwood, 507 U.S. 658 (1993). In Easterwood, the plaintiff sued
under state law, alleging that the railroad operated its train at
an excessive speed and failed to maintain adequate warning devices
at the crossing.
The Easterwood Court found plaintiff’s excessive
speed claim was barred by the FRSA’s preemption clause.
In
extending Easterwood as it relates to the FELA and FRSA (two
federal statutes), the Seventh Circuit reasoned in Waymire that:
We are persuaded by the Supreme Court’s reasoning
and find that in order to uphold FRSA’s goal of
uniformity we must strike the same result.
In
Easterwood, the train was operating within the FRSA
prescribed 60 miles per hour speed limit, as was
N&W’s train in this case.
It would thus seem
absurd to reach a contrary conclusion in this case
when the operation of both trains was identical and
when the Supreme Court has already found that the
conduct is not culpable negligence. . . We believe
the former result to be the correct result in light
of FRSA’s goal of uniformity and the Supreme
Court’s holding in Easterwood and thus hold that
Waymire’s negligence claim based upon the speed of
the train is superseded by FRSA and the regulations
promulgated thereunder.
Waymire,
218
F.3d
at
776
(citations
omitted).3
This
Court
recognizes that the Waymire holding that FELA negligence claims can
be precluded when a railroad is in compliance with FRSA regulations
3
Citing to an Illinois state case, Myers v. Illinois Central
R.R. Co., 753 N.E.2d 560, 565 (Ill. App. Ct. 2001), Plaintiff
contends that the Seventh Circuit “wrongly decided” Waymire. (DE
#22, p. 10.) This argument is not persuasive. The Seventh
Circuit’s decision in Waymire is binding precedent for this
Court.
17
is not universally adopted.
See Federal Preemption & Preclusion:
Why the Federal Railroad Safety Act Should Not Preclude the Federal
Employer’s Liability Act, 51 Loy. L. Rev. (Winter 2005) (discussing
cases).
Yet, most cases decided after Easterwood have held that
the preemptive and/or preclusive effect of federal railroad safety
regulations is applicable where the FRSA regulation “‘substantially
subsume[s]’ the subject matter of the suit.”
Nickles v. Grand
Trunk Western R.R., Inc., 560 F.3d 426, 429 (6th Cir. 2009) (citing
Easterwood, 507 U.S. at 664).
As Judge Miller explained in finding a plaintiff’s FELA claim
precluded by the FRSA:
Even though Waymire involved speed and warning
device claims, not crew training claims like Mr.
Kirk’s, the Seventh Circuit’s conclusion in Waymire
is applicable here: Given that the federal agency
empowered by Congress to establish uniform,
comprehensive federal safety standards . . . has
promulgated such regulations, federal common law
and statutes on these issues are necessarily
displaced.
The regulations applicable to the
training and certification of locomotive engineers
and/or conductors specifically provide that they
are intended to displace other laws and regulations
. . . . . The regulations are comprehensive and
are intended to occupy the field . . . . Assuming
that [the plaintiff’s allegations] would even
amount to a “negligent failure to train” claim, any
such claim would be preempted by FRSA and the
applicable regulations.
Kirk v. Norfolk S. Ry. Co., 3:00-CV-273, slip op. at 4-5 (N.D. Ind.
Oct. 30, 2001) (quotation omitted).
Similarly, here, Plaintiff’s claims for negligent training,
18
education,
instruction,
precluded by the FRSA.
Secretary
of
covering
the
supervision,
qualification
are
As discussed previously in this order, the
Transportation
subjects
and
of
issued
training,
comprehensive
instruction,
regulations
education,
qualification, and supervision of railroad employees (Parts 217 and
240) and it is undisputed that Norfolk complied with the federal
operating and training rules.
To the extent that Plaintiff argues the FRSA regulations do
not directly conflict with FELA, this argument fails.
The Seventh
Circuit has touched on this topic, finding the FRSA “preempts all
state regulations aimed at the same safety concerns addressed by
FRA regulations.”
Doyle, 186 F.3d at 796 (quoting Burlington
Northern R.R. v. Montana, 880 F.2d 1104, 1106 (9th Cir. 1989)).
Indeed, when the Secretary promulgates a regulation that “covers
the subject matter of some state safety requirement, the state
requirement must give way . . . even if there is no direct
conflict.”
Id. at 796-97.
“Otherwise a state law could be
preempted only if there were an identical federal regulation, and,
as we noted, Easterwood teaches that this is not so.”
Id. at 796.
And in Waymire, the Seventh Circuit makes clear that claims brought
under federal law should be treated the same as claims brought
under state law for purposes of FRSA preclusion. Waymire, 218 F.3d
773.
Finally, Plaintiff raises the 2007 clarifying amendment to 49
19
U.S.C. § 20106, arguing her negligent training claim should not be
precluded. Subsection (b) of 49 U.S.C. § 20106 states in pertinent
part, that:
(b) [C]larification regarding State law causes of action. (1) Nothing in this section shall be construed to preempt an
action under State law seeking damages for personal injury,
death, or property damage alleging that a party – (A) has failed to comply with the Federal standard of care
established by a regulation or order issued by the Secretary
of Transportation (with respect to railroad safety matters),
or the Secretary of Homeland Security (with respect to
railroad security matters), covering the subject matter as
provided in subsection (a) of this section;
(B) has failed to comply with its own plan, rule, or standard
that it created pursuant to a regulation or order issued by
either of the Secretaries; or
(C) has failed to comply with a State law, regulation, or
order that is not incompatible with subsection (a)(2).
49 U.S.C. § 20106(b).
Plaintiff contends that 20106(b)(1) and (B)
allow common law claims based on the allegation that a railroad has
failed to follow a Federal Regulation, or its own operating rules.
(DE #22, p. 10.)
law
negligence
“‘substantially
However, this section merely states that a state
action
is
subsume[s]’
preempted
the
where
subject
a
matter
FRSA
of
regulation
the
suit.”
Nickels, 560 F.3d at 429 (citing CSX Transp., 507 U.S. at 664).
Whether a claim under FELA is precluded by FRSA poses a different
question.
To the extent Plaintiff cites 49 C.F.R. §§ 220.45,
220.49, and what Plaintiff has dubbed as Norfolk’s “internal
20
operating rules that parallel 49 C.F.R. 220.45 and 220.49,” to try
to avoid preclusion under subsections (b)(A) and (b)(B), those
regulations do not concern training.
Even if Norfolk’s operating
rules regarding radio use could be construed as “created pursuant
to a regulation or order issued by either of the Secretaries,” 49
U.S.C. § 20106(b)(1)(B), these rules do not cover training, and
Plaintiff has not contended that Norfolk violated any internal
rules regarding training.
(DE #22, pp. 10-11.)
The Court notes that nothing in this Order precludes Plaintiff
from offering evidence at trial about whether Douthitt and Goodman
violated certain radio rules during the shove operation at issue.
The only claims that are barred by this decision are Plaintiff’s
claims that Norfolk failed to adequately train, educate, instruct,
supervise, qualify, and test Engineer Douthitt, and failed to
adequately train, instruct, and supervise the train crew.
CONCLUSION
For the reasons set forth below, the motion (DE #19) is
GRANTED. Plaintiff’s allegations that Norfolk failed to adequately
train, educate, instruct, supervise, qualify, and test the engineer
operating the locomotive, and failed to adequately train, instruct,
and supervise the train crew (First Am. Compl. (DE #15), ¶ 14(d),
(k)-(m), (q)), are hereby DISMISSED WITH PREJUDICE.
21
The remaining
claims in the first amended complaint REMAIN PENDING.
DATED: June 3, 2014
/s/ RUDY LOZANO, Judge
United States District
22
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