Union Pacific Railroad Co v. Taylor Truck Line Inc et al
MEMORANDUM RULING re 191 MOTION for Partial Summary Judgment Regarding Speed filed by Union Pacific Railroad Co. Signed by Judge Robert G James on 9/13/2017. (crt,Crawford, A)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
UNION PACIFIC RAILROAD COMPANY
CIVIL ACTION NO. 15-0074
JUDGE ROBERT G. JAMES
TAYLOR TRUCK LINE, INC., ET AL.
MAG. JUDGE KAREN L. HAYES
--(consolidated with)-R & L BUILDERS SUPPLY, INC., ET AL.
CIVIL ACTION NO. 15-2460
JUDGE ROBERT G. JAMES
UNION PACIFIC RAILROAD COMPANY,
MAG. JUDGE KAREN L. HAYES
Pending before the Court is a Motion for Partial Summary Judgment Regarding Speed [Doc.
No. 191] filed by Union Pacific Railroad Co. (“Union Pacific”). Defendants Daniel Shackleford
(“Shackleford”), College City Leasing, LLC (“College City”), Taylor Truck Lines, Inc. (“Taylor
Truck”), Taylor Logistics, Inc. (“Taylor Logistics”), and Taylor Consolidated, Inc. (collectively, “the
Taylor Entities”) oppose the motion. [Doc. No. 235]. Union Pacific filed a reply. [Doc. No. 249].
For the following reasons, the Motion for Partial Summary Judgment is GRANTED.
FACTS AND PROCEDURAL HISTORY
On October 5, 2014, Shackleford was operating a 2013 Kenworth tractor with trailer and
dolly (hereinafter “tractor-trailer”) loaded with a Freuhoff Terex RT-780 crane. He was en route to
deliver the crane to a construction company in Mississippi. The tractor-trailer driven by Shackleford
was owned by College City, but leased to Taylor Truck. Taylor Logistics was the shipment broker.1
At approximately 1:00 p.m., Shackleford was driving the tractor-trailer south on U.S.
Highway 165 in Mer Rouge, Louisiana. At the intersection of 165 and U.S. Highway 425/La.
Highway 2, Shackleford stopped at the stop sign and then turned left onto U.S. Highway 425/La.
Highway 2, also known as Davenport Avenue. He then proceeded to the Highway 2/Davenport
Avenue highway/railway grade crossing (“the Crossing”) over a Union Pacific main line railroad
track (identified as DOT crossing number 441-531N at railroad milepost 473.60). The elevated
Crossing has pavement markings, crossbuck signs, flashing lights, gates, and bells.
As Shackleford attempted to drive over the Crossing, the trailer became lodged, straddling
the tracks. He exited the tractor to attempt to extricate the trailer, but did not notify law enforcement
or Union Pacific.
There are federal speed regulations in effect with regard to the Crossing, the type of track,
and the type of train operated by Union Pacific. The Crossing is located at milepost 473.6, which
is part of the McGehee Subdivision. The Union Pacific North Little Rock Timetable Number 5 was
in effect at that time and governed the McGehee Subdivision. The track was graded Class 4.
According to federal regulations, the maximum authorized speed for freight trains was sixty miles
per hour, the same speed limit under Union Pacific’s Timetable No. 5. However, Union Pacific also
had a Company System General Order Number 2, which provided that the speed for key trains was
fifty miles per hour.
Before Shackleford could extricate the tractor-trailer, a Union Pacific train traveling north
Union Pacific also brought suit against Taylor Consolidated, Inc. Hereinafter the Court
will refer to these parties collectively as the Taylor Entities.
on the track began to approach the Crossing. Union Pacific engineer, Russell Rowe, was operating
the lead locomotive, and Union Pacific conductor, James Kovalyshyn, was in the cab as well. The
flashing lights, bell, and crossing gate were activated. When he saw the tractor-trailer, Rowe recalled
that the train was traveling between forty-eight and fifty miles per hour. Kovalyshyn also testified
that the train was traveling less than fifty miles per hour. When they realized that the tractor-trailer
was stopped, crew members applied the emergency brakes in an effort to avoid the collision. The
crew members were unsuccessful, and the train collided with the trailer and attached crane. As a
result of the accident, approximately 17 or 18 railroad cars and 2 locomotives left the railroad tracks,
cargo spilled, and a tank car leaked Argon onto surrounding property, including land owned by R
& L Properties of Oak Grove, LLC (“Properties”).
On January 14, 2015, Union Pacific brought the instant suit against the Taylor Entities
seeking to recover the property damage caused by the accident and derailment.
Properties and R & L Builders Supply, Inc. (“Builders Supply”) had filed a separate lawsuit
against the Taylor Entities, Union Pacific, and Union Pacific’s contractors, Prewett Enterprises, Inc.,
and Hulcher Services, Inc., seeking to recover their damages. On November 4, 2015, the Properties
and Builders Supply lawsuit was consolidated with the Union Pacific lawsuit.
Although they have not made a claim against Union Pacific, as one of their defenses, the
Taylor Entities contend that Union Pacific was comparatively negligent by failing “to follow
applicable statutory, regulatory or legal standards” and because the train was “traveling at an
excessive rate of speed.” [Doc. Nos. 8, 81, 115].
After discovery was complete, Union Pacific filed the instant motion, arguing that federal
preemption bars any claims or defenses that Union Pacific was negligent because of the speed of the
train . The motion is fully briefed [Doc. Nos. 235 & 249], and the Court is now prepared to rule.
LAW AND ANALYSIS
Standard of Review
Under Federal Rule of Civil Procedure 56(a), “[a] party may move for summary judgment,
identifying each claim or defense--or the part of each claim or defense--on which summary judgment
is sought. The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The
moving party bears the initial burden of informing the court of the basis for its motion by identifying
portions of the record which highlight the absence of genuine issues of material fact. Topalian v.
Ehrmann, 954 F.2d 1125, 1132 (5th Cir. 1992); see also Fed. R. Civ. P. 56(c)(1) (“A party asserting
that a fact cannot be . . . disputed must support the assertion by . . . citing to particular parts of
materials in the record . . . ). A fact is “material” if proof of its existence or nonexistence would
affect the outcome of the lawsuit under applicable law in the case. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A dispute about a material fact is “genuine” if the evidence is such that
a reasonable fact finder could render a verdict for the nonmoving party. Id.
Union Pacific asserts that it is entitled to summary judgment on any claims or defenses
related to the speed of the train or the timetable speed limit because such claims or defenses are
preempted by federal law and thus barred.
The Supremacy Clause to the United States Constitution provides that “the Laws of the
United States . . . shall be the supreme Law of the Land.” U.S. Const., ART. VI, CL.2. Congress has
the power under the Supremacy Clause to preempt state law. Preemption may be express or
implied.2 See Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992).
The Federal Railway Safety Act (“FRSA”) was enacted to “promote safety in every area of
railroad operations and reduce railroad-related accidents and incidents.” 49 U.S.C. § 20101. The
FRSA contains an express preemption provision:
National uniformity of regulation.--(1) Laws, regulations, and
orders related to railroad safety and laws, regulations, and
orders related to railroad security shall be nationally uniform
to the extent practicable.
A State may adopt or continue in force a law, regulation, or
order related to railroad safety or security until the Secretary
of Transportation (with respect to railroad safety matters), or
the Secretary of Homeland Security (with respect to railroad
security matters), 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–
is not incompatible with a law, regulation, or order of
the United States Government; and
is necessary to eliminate or reduce an essentially local
safety or security hazard;
does not unreasonably burden interstate commerce.
Clarification 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–
In the area of implied preemption, the Supreme Court has recognized “field preemption
where state law intrudes in an area that Congress has reserved for federal jurisdiction,” and
“conflict preemption, where enforcement of state law cannot be accomplished while
simultaneously complying with federal law.” Friberg v. Kansas City S. Ry. Co., 267 F.3d 439,
442 (5th Cir. 2001) (citing English v. General Electric Co., 496 U.S. 72 (1990)). Only express
preemption is at issue in this motion, as discussed infra.
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
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
has failed to comply with a State law, regulation, or
order that is not incompatible with subsection (a)(2).
This subsection shall apply to all pending State law causes of
action arising from events or activities occurring on or after
January 18, 2002.
Jurisdiction.--Nothing in this section creates a Federal cause of action
on behalf of an injured party or confers Federal question jurisdiction
for such State law causes of action.
49 U.S.C. § 20106.
Despite the express preemption provision, the United States Court of Appeals for the Fifth
Circuit has found that “FRSA preemption is even more disfavored than preemption generally.”
United Transp. Union v. Foster, 205 F.3d 851, 860 (5th Cir. 2000) (citing Rushing v. Kansas City
S. Ry. Co., 185 F.3d 496, 515 (5th Cir. 1999)).
The restrictive terms of its preemption provision “indicate[ ] that pre-emption will
lie only if the federal regulations substantially subsume the subject matter of the
relevant state law.” CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct.
1732, 123 L.Ed.2d 387 (1993) (emphasis added). When applying FRSA preemption,
the Court eschews broad categories such as “railroad safety,” focusing instead on the
specific subject matter contained in the federal regulation. See id. at 665-75, 113
S.Ct. 1732. In sum, when deciding whether the FRSA preempts state laws designed
to improve railroad safety, we interpret the relevant federal regulations narrowly to
ensure that the careful balance that Congress has struck between state and federal
regulatory authority is not improperly disrupted in favor of the federal government.
Id. (emphasis added).
The current preemption provision is the result of Congress’s enactment of the Implementing
Regulations of the 9/11 Commission Act of 2007, Pub.L. 110-53, 121 Stat. 266. Among other
actions, Congress clarified “that when a party alleges that a railway failed to comply with a federal
standard of care established by regulation or with its own plan, rule or standard created pursuant to
a federal regulation, preemption will not apply.”3 Henning v. Union Pac. R.R. Co., 530 F.3d 1206,
1215 (10th Cir. 2008); see also Grade v. BNSF Ry. Co., 676 F.3d 680, 684-85 (8th Cir. 2012);
Zimmerman v. Norfolk Southern Corp., 706 F.3d 177-78 (3d Cir. 2013). Thus, even in the face of
express preemption, Congress clarified that a party may assert a cause of action for negligence
against a railroad (1) for its failure to comply with a federal standard of care, if § 20106(b)(1)(A)
applies; or (2) for its failure to comply with its own plan, rule, or standard created pursuant to a
federal regulation, if § 20106(b)(1)(B) applies. See Gauthier v. Union Pac. R.R. Co., 644 F. Supp.
2d 824, 835 (E.D. Tex. 2009) (citing Van Buren v. Burlington Northern Santa Fe Ry. Co., 544
F.Supp.2d 867, 876 (D. Neb. 2008)).
The FRSA directs that the Secretary of Transportation is to “prescribe regulations and issue
orders for every area of railroad safety . . . .” 49 U.S.C. § 20103. This power is exercised largely
through the Federal Railroad Administration (“FRA”). See 49 U.S.C. § 103; 49 C.F.R. § 1.88. The
FRA has set “maximum operating speeds” at which trains can travel on different classes of tracks.
See 49 C.F.R. § 213.9. The Crossing in this case was on a section of track rated as Class 4, which
has a maximum operating speed of 60 miles per hour for freight trains. 49 C.F.R. § 213.9. The
The 2007 amendment was a clarification, not a substantive amendment, so pre-2007 case
law remains valid. See Zimmerman, 706 F.3d at 177.
Union Pacific timetable also provided that a freight train could operate at 60 miles per hour on the
section where the Crossing is located.
The Supreme Court addressed train speed regulations in CSX Transp. v. Easterwood, 507
U.S. 658 (1993). Easterwood brought a wrongful death action against CSX, contending that CSX
was negligent for operating the train at an excessive speed. Easterwood conceded that the train was
traveling within the speed limit established by federal regulations issued pursuant to FRSA (less than
60 miles per hour), but she argued that CSX breached its duty to operate its train at a moderate and
safe rate of speed. The Supreme Court held that § 213.9(a) “should be understood as covering the
subject matter of train speed with respect to track conditions.” Id. at 675 (citing to 49 C.F.R. §
213.9). Therefore, state negligence claims concerning train speed are preempted. Id. The
Easterwood Court explained the regulations on “speed limits must be read as not only establishing
a ceiling, but also precluding additional state regulation. . . .” Id.
More recently, the Fifth Circuit followed the Supreme Court and held in Hesling v. CSX
Transp., Inc. 396 F.3d 632, 638 (5th Cir. 2005), that because the CSX train was traveling under the
authorized track speed, state negligence claims regarding excessive speed were preempted. In
Hesling, the plaintiff argued that FRSA only intended to set track speed, but left the train speed to
the discretion of the railroads, relying on statements in the Federal Register.4 Id. at 637. The Fifth
Circuit rejected Hesling’s arguments. As Hesling pointed out, the railroad may “target what type of
The applicable language provided that “‘Notwithstanding some of the language in
Easterwood that a cursory reading may otherwise indicate, FRA has never assumed the task of
setting train speed. Rather, the agency holds railroads responsible for minimizing the risk of
derailment by properly maintaining track for the speed they set themselves.’” Hesling, 396 F.3d
at 637 (quoting Track Safety Standards, 63 Fed. Reg. 33,992, 33,999 (June 22, 1998) (codified at
49 C.F.R. pt. 213)).
track designations they want to maintain,” but this fact does not allow them to “ignore federal
regulations in setting their own train speeds”; “rather, they have the information and ability to tailor
their operations to the particular track designations they desire, and in that way they are masters of
their own universe.” Id. at 638. Where the “train speed” was “well within the speed ratings
promulgated by the FRA,” the lower court did not abuse its discretion that Hesling’s excessive speed
claims were preempted.
Likewise, in this case, the Union Pacific train was operating a freight train on a Class 4 track,
which, by federal regulation, limited the maximum operating speed to 60 miles per hour. Union
Pacific has produced undisputed summary judgment evidence that its freight train was traveling 4850 miles per hour. At that speed, Union Pacific’s train was well under the designated speed limit.
The Taylor Entities argue, however, that Union Pacific cannot rely on preemption because
it failed to maintain the tracks as required by federal regulations. The Taylor Entities rely on their
expert, Alan Blackwell, a former employee of the Maintenance of Ways Department of the Missouri
Pacific and Union Pacific Railroads who has experience inspecting railroads. Blackwell avers that
a combination of conditions present at the Crossing did not provide for safe train operations and
violated 49 C.F.R. § 213.1.
However, the Court finds that Blackwell’s after-the-fact assessment does not create a
genuine issue of material fact on the issue of speed. There is no evidence that Union Pacific violated
a specific maintenance requirement set forth in 49 C.F.R. § 213.9, et seq. Moreover, only a federal
track inspector has the authority to downgrade a track to a lower classification. 49 C.F.R. §
216.15(a); see also Stevenson v. Union Pacific R.R., 110 F.Supp.2d 1086, 1092 (E.D. Ark. 2000)
(“Federal law provides . . . that the decision to downgrade a track belongs to the FRA track
inspector.”). While Blackwell contends that a federal track inspector should have recommended
remediation, it is undisputed that the track was still rated Class 4 at the time of the accident, and
federal track inspector had not recommended remediation or made the decision to downgrade the
track. Therefore, there is no genuine issue of material fact for trial whether Union Pacific was in
compliance with the applicable federal regulation on speed.
Further, to the extent that Union Pacific’s Timetable or Company System Operating rule
could constitute a “plan, rule, or standard that it created pursuant to a regulation or order issued by
either of the Secretaries,”5 49 U.S.C. § 20106(b)(1)(B), the undisputed evidence shows that the train
was operating within the 60-mile-per-hour limit set by the Timetable and within the 50-mile-perhour limit set for key trains under company policy. Therefore, there is no genuine issue of material
fact for trial whether Union Pacific was in compliance with its own rules and standards.
Finally, the Court has considered two exceptions found in Supreme Court case law and the
FRSA express preemption provision, but neither applies. In Easterwood, the Supreme Court
declined to consider whether the FRSA preempts the state tort law “duty to slow or stop . . . to avoid
a specific, individual hazard.” 507 U.S. at 675 n.15.
The term specific, individual hazard means a “discrete and truly local hazard.”
Seyler v. Burlington N. Santa Fe Corp., 102 F.Supp.2d 1226, 1236 (D.Kan.2000)
(citations omitted). It “relates to the avoidance of a specific collision.” Armstrong
v. Atchison, Topeka & Santa Fe Ry. Co., 844 F.Supp. 1152, 1153 (N.D.Tex.1994).
A condition that can be or is present at many, or most sites cannot be a specific,
individual hazard. See, e.g., Earwood v. Norfolk S. Ry. Co., 845 F.Supp. 880, 888
(N.D.Ga.1993); see also Bowman v. Norfolk S. Ry. Co., 832 F.Supp. 1014
(D.S.C.1993). Most courts have rejected plaintiffs’ claims of a specific, individual
hazard, finding instead that the circumstances are preempted.
Hesling, 396 F.3d at 640.
The Court need not and does not reach this issue for purposes of summary judgment.
In this case, the combination of conditions cited by the Taylor Entities could be present statewide and did not render this particular collision imminent.6 See, e.g., Hughs v. Union Pac. R.R. Co.,
No. 5:15-06079-CV-RK, 2017 WL 1380480, at *3 (W.D. Mo. Apr. 14, 2017) (sight restrictions,
excessive vertical elevation, and inadequate traffic control at the crossing did not render it
“extrahazardous,” so as to create a specific, individual hazard); Furlough, 766 So.2d at 760 (no
specific, individual hazard where a crossing had an obstructed sight line, rough crossing, parallel
roadways, inadequate warning devices, and inoperative ditch lights and accident occurred during
inclement weather);O’Bannon v. Union Pac. R.R. Co., 960 F.Supp. 1411, 1421 (W.D.Mo. 1997) (no
specific, individual hazard where a dangerously designed crossing had inadequate warning devices,
an obscured view due to the angle at which the track crossed the highway, and a steep grade); see
also Kankakee, Beaverville & S. R. Co. v. McLane Co., No. 4:08-CV-00048, 2010 WL 3672228, at
*4 (N.D. Ind. Sept. 10, 2010) (agreeing “with the majority of courts that have considered the
meaning of ‘specific, individual hazard’ and concluded that it refers to a unique occurrence that
could cause an imminent collision.”). The one condition that was specific to this collision, that did
render it imminent, was the fact that Shackleford was stranded on the Crossing. See Baker v.
Canadian Nat’l/Illinois Cent. Ry. Co., 397 F. Supp. 2d 803, 813 (S.D. Miss. 2005) (“It has been
consistently emphasized that the kinds of conditions that could constitute a ‘specific individual
hazard’ are limited to transient conditions that could lead to an imminent collision, such as a child
standing on the railway or a motorist stranded on a crossing or improperly parked tank cars which
“A ‘specific, individual hazard’ cannot be a statewide problem. A ‘specific, individual
hazard’ may entail any object that was not contemplated by the federal regulators who
promulgated the Federal Railroad Safety Act and its regulations.” Furlough v. Union Pac. R.R.
Co., 33,658 (La. App. 2 Cir. 8/31/00), 766 So. 2d 751, 760.
obstruct the view of the train engineer.”); see also Carter v. National Railroad Passenger Corp., 63
F. Supp. 3d 1118, 1155 (N.D. Cal. 2014) (quoting same). However, the undisputed evidence shows
that the Union Pacific crew applied the emergency brakes as soon as they realized that the tractor
trailer was stopped on the tracks. Thus, the Easterwood exception does not apply.
A second exception for a local safety or security hazard is also inapplicable.7 See 49 U.S.C.
§ 20106(a)(2)(A); Hesling, 396 F.3d at 640; Easterwood, 507 U.S. at 675 n.15. The § 20106(a)(2)
savings clause “allows states to adopt additional or more stringent state regulation[s] related to
railroad safety to prevent a local hazard, but only if the state law is not incompatible with federal
The Court would note that its review of the case law indicates that the two exceptions are
sometimes conflated, but regardless of whether considered as a specific, individual hazard or as a
local hazard, the Taylor Entities have failed to show that an exception is applicable. As the
Southern District of Mississippi explained:
While some courts have regarded the “essentially local safety hazard” exception
in the savings clause of 49 U.S.C. § 20106 and the “specific individual hazard”
exception recognized by the Court in Easterwood as synonymous and have used
the terms interchangeably, see, e.g., Gunn v. Atchison, Topeka and Santa Fe Ry.
Co., 13 S.W.3d 52, 54 (Tex. Ct. App. 1999) (stating that “specific individual
hazard” wording . . . was used by the Easterwood court as a substitute for the
statutory “an excessively local safety hazard”), others have recognized these
exceptions as distinct, see, e.g., Stevenson v. Union Pacific R. Co., 110 F.Supp.2d
1086, 1088-1089 (E.D. Ark. 2000) (“A ‘specific, individual hazard’ is not to be
confused with the statutory ‘essentially local safety hazard’ set forth in 49 U.S.C.
§ 20106.”); Hightower v. Kansas City Southern Ry. Co., 70 P.3d 835, 846-47
(Okla.2003) (noting distinction). In this court’s view, the Supreme Court’s
reference to an exception for specific, individual hazards clarified that in addition
to, or as a facet of a state’s right to regulate as to essentially local safety hazards,
federal regulations do not diminish the train crew’s duty to exercise reasonable
care to slow or stop the train to avoid an imminent collision.
Baker, 397 F. Supp. 2d at 814. This Court, however, attaches significance to the plain language
of the statutory exception which requires action by the State in the form of a law or regulation,
whereas, with regard to the Easterwood exception, it may be that the law on negligence imposes
the only general duty required for application of the exception, assuming the other requirements
regulation and does not burden interstate commerce.” Hesling, 396 F.3d at 640 (citing 49 U.S.C.
§ 20106; Easterwood, 507 U.S. at 662). The savings clause is to be “narrowly construed.” Id.
(citing Easterwood v. CSX Transp., Inc., 933 F.3d 1548, 1553 n.3 (11th Cir. 1991) (other citations
omitted)). However, the Taylor Entities have failed to point to any state law, regulation, or order
related to railroad safety or security which is applicable to their argument, but instead they rely only
on the general law of negligence and comparative fault which do not appear to be encompassed by
the exception. Further, the local-condition savings clause does not apply where a condition is
statewide in character or is capable of being adequately addressed in the national standards created
by the Secretary of Transportation.8 In this case, the speed of the train has been addressed, and
conditions pointed to, such as the elevation of the Crossing and the curve in the track, are conditions
that appear across the state. See United Transp. Union v. Foster, 205 F.3d 851, 861 (5th Cir. 2000)
(“We agree with the district court that the ‘locality exception’ applies only to local concerns, not
state-wide hazards.”). Therefore, no local safety or security hazard exception applies.
For the foregoing reasons, Union Pacific’s Motion for Partial Summary Judgment Regarding
Speed [Doc. No. 191] is GRANTED. The Taylor Entities and any other opposing parties are
The House Report on the Railroad Safety Act of 1970, states in pertinent part:
The States will retain authority to regulate individual local problems or reduce
essentially local railroad safety hazards. Since these local hazards would not be
Statewide in character, there is no intent to permit a State to establish Statewide
standards superimposed on national standards covering same subject matter.
H.R.REP. NO. 1194, 91st Cong., 2d Sess., reprinted in 1970 U.S.C.C.A.N. 4104, 4117.
precluded from presenting testimony or arguing to the jury in support of a claim or defense that
Union Pacific was negligent based on the speed of the train at the time of the collision at issue.
MONROE, LOUISIANA, this 13st day of September, 2017.
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