Richardson v BNSF Railway Company
Filing
112
ORDER AND REASONS denying 81 Motion for Summary Judgment. Signed by Judge Stanwood R. Duval, Jr on 12/17/2014. (my)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MICHAEL RICHARDSON
CIVIL ACTION
VERSUS
NO. 13-5415
BNSF RAILWAY COMPANY
SECTION “K”(2)
ORDER AND REASONS
Before the Court is BNSF Railway Company's Motion for Summary Judgment (Rec.
Doc. 81). Defendant BNSF Railway Company ("BNSF") contends that the remaining
negligence claim of plaintiff Michael Richardson is precluded as a matter of law because 49
C.F.R. §213.103 preempts FELA injury claims related to improper ballast or ballast
maintenance. Having reviewed the pleadings, memoranda, exhibits and the relevant law, the
Court finds no merit in this motion.
The facts of this case and the standard for summary judgment have been outlined in the
Court's numerous rulings entered on previously filed motions for summary judgment. These
orders are reiterated and incorporated herein by reference.
Plaintiff contends that he was injured when he fell into a "hole" along side of a track
while performing his duties as an employee of BNSF. He has brought suit under the Federal
Employers' Liability Act ("FELA"), 45 U.S.C. § 51 contending that BNSF failed to provide
plaintiff "a reasonably safe place to work; failed to provide a reasonably safe walking area; failed
to provide reasonably safe footing conditions; failed to properly inspect, maintain, and repair;
failed to follow and enforce proper safety procedures and rules; failed to warn; and failed to
follow industry standards." (Rec. Doc. 1, Complaint, ¶8).
BNSF argues that the subject of track safety is covered by 49 C.F.R. §213 and that "a
significant majority of courts addressing the issue have held that 49 C.F.R. §213.1031 preempts
FELA injury claims related to improper ballast or ballast maintenance. (Rec. Do. 81-1 at 3 of
7).2 For this proposition, BNSF relies on Nickels v. Grand Trunk Wester RR, 560 F.3d 426 (6th
Cir. 2009).
In that case, plaintiffs brought suit alleging that the type of large ballast that was used
underneath and adjacent to the tracks did not provide a safe working environment and that
plaintiffs had sustained injuries by years of walking on such oversized track ballast. Addressing
this contention, the Sixth Circuit first succinctly set out the purposes and parameters of the
FELA and the Federal Railway Safety Act ("FRSA"), 49 U.S.C. § 20101, et seq. (noting that
both statutes were designed to promote railway safety) as follows:
The FELA makes a railroad liable to its employees injured “by reason of
any defect or insufficiency, due to its negligence, in its cars, engines, appliances,
machinery, track, roadbed, works, boats, wharves, or other equipment.” 45 U.S.C.
51. The statute provides a “cause of action sounding in negligence [.] ... Absent
express language to the contrary, the elements of a FELA claim are determined by
reference to the common law. Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158,
165–66, 127 S.Ct. 799, 166 L.Ed.2d 638 (2007).
The FRSA's purpose is “to promote safety in every area of railroad
operations and reduce railroad-related accidents and incidents.” Norfolk S. Ry. Co.
v. Shanklin, 529 U.S. 344, 347, 120 S.Ct. 1467, 146 L.Ed.2d 374 (2000) (quoting
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The regulation provides:
§213.103 Ballast; general.
Unless it is otherwise structurally supported, all track shall be supported by material which will–
(a) Transmit and distribute the load of the track and railroad rolling equipment to the subgrade;
(b) Restrain the track laterally, longitudinally, and vertically under dynamic loads imposed by railroad
rolling equipment and thermal stress exerted by the rails;
(c) Provide adequate drainage for the track; and
(d) Maintain proper track crosslevel surface, and alinement.
2
Having reviewed a substantial number of cases, the Court skeptical of defendant's description that "a
significant number of courts" have found § 213.103 to preempt FELA cases is valid. Moreover, the Sixth Circuit
appears to be the only federal circuit court to have addressed the issue.
2
49 U.S.C. § 20101). The FRSA authorizes the Secretary of Transportation
(“Secretary”) to “prescribe regulations and issue orders for every area of railroad
safety.” Id. (quoting 49 U.S.C. § 20103(a)). Under the FRSA's express
preemption provision, “[l]aws, regulations, and orders related to railroad safety ...
shall be nationally uniform to the extent practicable.” 49 U.S.C. § 20106(a)(1).
“A State may adopt or continue in force a law, regulation, or order related to
railroad safety ... until the Secretary of Transportation ... prescribes a regulation or
issues an order covering the subject matter of the State requirement.” 49 U.S.C. §
20106(a)(2). A state-law negligence action is “covered” and therefore preempted
if a FRSA regulation “substantially subsume[s]” the subject matter of the suit.
CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d
387 (1993). This provision explicitly preempts only State laws, regulations, and
orders; it does not mention other federal safety standards.
Nickels, 560 F.3d at 429.
The Nickels court found that the uniformity demanded by the FRSA "'can be achieved
only if [federal rail safety regulations] are applied similarly to a FELA plaintiff's negligence
claim and a non-railroad-employee plaintiff's state law negligence claim." Id. at 430. Based on
that analysis, the court noted that "[u]nder the FRSA's preemption provision, a plaintiff can bring
an action under state law unless the Secretary has prescribed a regulation or issued an order
'covering the subject matter of the State requirement.'" 49 U.S.C. §20106. Id. The court then
found that § 213.103 determines what is a reasonable ballast composition and size for a
particular track.
The Sixth Circuit reasoned:
The gist of these claims is that the railroads used large mainline ballast in
areas where smaller yard ballast would have sufficed–such as passing sidings,
switch leads, and interior yard tracks. The regulation, however, makes no
distinction between mainline and secondary track; it provides that "all track shall
be supported by material" able to transmit and distribute track and equipment
loads, restrain the track under dynamic loads and thermal stress, provide adequate
drainage, and maintain proper track crosslevel, surface, and alinement. Id.
(emphasis added). Rather than prescribing ballast sizes for certain types of
classes of track, the regulation leaves the matter to the railroads' discretion so
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long as the ballast performs the enumerated support functions. In this way, the
regulation substantially subsumes the issue of ballast size."
Nickels, 560 F.3d at 431. Thus, the lynchpin of the preemption decision was that plaintiffs'
claims focused on the size of the ballast used which the Sixth Circuit found subsumed by the
regulation.
BNSF also relies on Norris v. Central of Georgia R.R., 635 S.E.2d 179 (Ga. App. 2006)
(claim based on allegation that railroad was negligent for not using smaller ballast rock
preempted by FRSA need for national uniformity as to design standards); Munns v. CSX Trasp.,
Inc., 2009 WL 805133 (N.D. Oh. 2009) (claim arising out of "unsuitable" ballast precluded by
FRA); Crabbe v. Consolidated Rail Corp, 2007 WL 3227584 * (E.D. Mich. Nov. 1, 2007) (claim
for work injury due to requirement that plaintiff walk on improper or oversized ballast precluded
by FRSA; however, other claims were not dismissed); Brenner v. Consolidated Rail Corp., 806
F.Supp.2d 786 (E.D.Pa. 2011) (railroad employee's claim for cumulative trauma to knees caused
by negligence of railroad regarding the nature and size of ballast used for track support, stability
and drainage were preempted). All of these decisions pivot on the issue of ballast size.
It is here that the salient distinction must be drawn. The Court finds the Nickels/Norris3
analysis unavailing in the context of this suit. There are no allegations that BNSF was negligent
because it used the particular size ballast involved; here, the negligence alleged centers on the
fact that that there allegedly was a substantial hole in which the plaintiff tripped. Thus, the Court
is persuaded by the analysis found in Dehan v. CSX Transp., Inc., 925 N.E.2d 442 (App. Indiana
3
As the Court has found the Nickels/Norris analysis as inapplicable based on the factual allegations at issue
herein, it will not rule on plaintiff's contention that FELA is neither precluded nor preempted based on an analysis of
Pom Wonderful LLC v. Coca-Cola Co., 134 S.Ct. 228 (2014).
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2010) (claim by employee against railroad for failure to remove ballast improperly left on
crossties not preempted as FRA regulation does not "cover" the subject of of the FELA claim).
In that instance the court reasoned:
Subsection 213.103 does not mention worker safety or whether ballast should be
allowed to remain on crossties; it is instead concerned with ensuring that the
railroad's track is structurally sound. In light of FELA's humanitarian purpose,
and the liberal construction given to effectuate this humanitarian purpose, we
cannot say that [plaintiff's] FELA claim that CSX was negligent by leaving ballast
on top of crossties is precluded by FRSA regulations governing ballast.
Id. at 450. See Jones v. BNSF Railway Co., 2012 WL 13692 (W.D. Wash. Jan. 4, 2012); McCain
v. CSX Transportation, Inc., 708 F.Supp. 2d 494 (E.D.Penn. April 23, 2010) (regulation does not
preclude claims for negligence where ballast size is not alleged the sole cause of injury).
Moreover, the Court is unaware of any case decided in the Fifth Circuit where the
preemptive reach of 49 C.F.R. §213.103 goes so far as to shield the railroad from failing to
provide a reasonably suitable and safe work place. Here the allegation is that there was a
substantial hole (ten inches in diameter and 2 3/4 inches in depth) which caused plaintiff to twist,
fall and injure his back; there is no allegation that BNSF used the wrong sized ballast which
caused injury to plaintiff. In addition, it is unclear to the Court precisely where this accident
occurred and whether it was in an allegedly "non-regulated walkway" or in an area which
performs a track-support function. Accordingly,
IT IS ORDERED that BNSF Railway Company's Motion for Summary Judgment (Rec.
Doc. 81) is DENIED.
New Orleans, Louisiana, this 17th day of December, 2015.
STANWOOD R. DUVAL, JR.
UNITED STATES DISTRICT COURT JUDGE s
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