Appeal from the 441st District Court Midland County, Texas
Trial Court Cause No. CV50285
consists of: Wright, C.J., Willson, J., and Bailey, J.
M. BAILEY JUSTICE.
appeal arises from a tragic accident where four veterans
riding on a flatbed tractor-trailer during the "Show of
Support - Hero Parade 2012" in Midland were killed when
a Union Pacific train collided with their parade float.
Appellants sued Union Pacific for wrongful death and
personal injuries, alleging violations of various federal
regulations pertaining to railroad crossings. The trial court
resolved many of the claims asserted by Appellants by
granting partial summary judgment in favor of Union Pacific
prior to trial.
case proceeded to trial on Appellants' remaining claim
alleging negligence on the part of the train crew. As the
trial progressed, the trial court made an evidentiary ruling
concerning expert testimony that Appellants' counsel
deemed to be the equivalent of a directed verdict for Union
Pacific. The trial court subsequently granted summary
judgment on this matter, which resulted in a final judgment
in favor of Union Pacific on all claims asserted by
Appellants. On appeal, Appellants assert that the trial court
erred by (1) granting summary judgment against their
warning-time claims based on federal preemption grounds, (2)
granting summary judgment against their train-crew negligence
claim based on federal preemption grounds, and (3) granting
summary judgment on their gross negligence claims. We affirm.
November 15, 2012, during the "Show of Support - Hero
Parade 2012" in Midland, two tractor-trucks pulling
flatbed trailers served as floats in the parade. Each
tractor-trailer carried twelve veterans and their wives
sitting in folding chairs on top of the trailers. The
tractor-trailers traveled southbound on South Garfield
Sayre Morris, one of the veterans riding on the first
trailer, testified that, as the first tractor-trailer was
crossing the Union Pacific railroad tracks located south of
West Front Avenue, he heard the railroad crossing bell and
saw the Union Pacific train on the tracks. The warning lights
at the Garfield crossing activated as the first
tractor-trailer was moving off the tracks. At first, Morris
thought the train was stopped, but once he was past the
tracks, he could tell it was moving fast. Morris saw the gate
arm coming down behind the cab of the second tractor-trailer.
He then realized the train was going to hit the second
the eastbound Union Pacific train was approximately 2, 500
feet away from the Garfield railroad crossing, the engineer
aboard the train spotted the first tractor-trailer proceeding
through the crossing and said to the conductor, "Look at
that idiot. Can you believe this?" But neither the
engineer nor the conductor slowed the train. Shortly
thereafter, when the train was approximately 1, 200 feet
away, the second tractor-trailer proceeded through the
Garfield railroad crossing. The train crew sounded the
train's horn when the train was about 799 feet from the
crossing. The train crew applied the emergency brake when the
train was about 462 feet from the crossing, but the brakes
did not engage until the train was about 46 feet from
colliding with the tractor-trailer. The train, traveling at
approximately 62 miles per hour, crashed into the last 39
inches of the second tractor-trailer. Four of the veterans
riding on the second tractor-trailer were killed in the
collision, and several other riders were injured. Appellants
are survivors of three of those veterans.
review a summary judgment de novo. Travelers Ins. Co. v.
Joachim, 315 S.W.3d 860, 862 (Tex. 2010). Appellants
assert in their first issue that the trial court erred in
granting Union Pacific's motion for partial summary
judgment on their warning-time claims on the basis of federal
preemption. Union Pacific presented its federal preemption
contention as a traditional ground for summary judgment. A
party moving for traditional summary judgment bears the
burden of proving there is no genuine issue of material fact
as to at least one essential element of the cause of action
being asserted and that it is entitled to judgment as a
matter of law. Tex.R.Civ.P. 166a(c); Nassar v. Liberty
Mut. Fire Ins. Co., 508 S.W.3d 254, 257 (Tex. 2017).
When reviewing a traditional motion for summary judgment, we
review the evidence in the light most favorable to the
nonmovant, indulge every reasonable inference in favor of the
nonmovant, and resolve any doubts against the motion.
City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex.
2005). A defendant who conclusively negates a single
essential element of a cause of action or conclusively
establishes an affirmative defense is entitled to summary
judgment on that claim. Frost Nat'l Bank v.
Fernandez, 315 S.W.3d 494, 509 (Tex. 2010).
Pacific asserted that Appellants' warning-time claim was
preempted because federal regulations cover the timing
operation of a railroad's warning systems. Appellants
contend that their warning-time claim is exempt from
preemption because Union Pacific violated federal regulations
that establish a federal standard of care. Specifically,
Appellants assert that Union Pacific failed to comply with
federal regulations pertaining to
parties do not dispute that state tort law actions
challenging the adequacy of railroad crossing warnings are
preempted whenever federal regulations address the applicable
warning devices. See Mo. Pac. R.R.. Co. v. Limmer,
299 S.W.3d 78 (Tex. 2009) (addressing federal preemption
under federal law and regulations for the selection of the
types of warning devices used at a railroad crossing).
Congress enacted the Federal Railroad Safety Act of 1970
(FRSA) "to promote safety in all areas of railroad
operations and to reduce railroad-related accidents and
injuries to persons." Id. at 82 (quoting Pub.
L. No. 91-458 § 101, 84 Stat. 971 (1970), codified as
amended at 49 U.S.C. § 20101). The FRSA calls for
"[l]aws, regulations, and orders related to railroad
safety [to] be nationally uniform to the extent practicable,
" and to that end, the FRSA authorizes the Secretary of
Transportation to "prescribe regulations and issue
orders for every area of railroad safety." Id.
(alterations in original) (quoting 49 U.S.C. §§
noted by the court in Limmer, under Section 20106,
federal regulations "covering the subject matter"
of a railroad safety requirement preempt state law, including
common law tort liability. Id. (citing Norfolk
S. Ry. Co. v. Shanklin, 529 U.S. 344, 357-58 (2000);
CSX Transp., Inc. v. Easterwood, 507 U.S. 658,
670-71 (1993)). However, when a party alleges that a railway
failed to comply with a federal standard of care established
by a federal regulation, preemption does not apply. 49 U.S.C.
§ 20106(b)(1)(A); see Nunez v. BNSF Ry. Co.,
730 F.3d 681, 682 (7th Cir. 2013) ("A state may provide
a remedy for negligence resulting from violation of federal
railroad safety regulations."); see also Henning v.
Union Pac. R.R. Co., 530 F.3d 1206, 1214-216 (10th Cir.
2008), cited in Limmer, 299 S.W.3d at 80 n.3.
Pacific asserts it is entitled to summary judgment on federal
preemption grounds because it established as a matter of law
that it did not violate the applicable federal regulation
concerning warning time. See Gauthier v. Union Pac. R.R.
Co., 644 F.Supp.2d 824, 838 (E.D. Tex. 2009) (Federal
preemption precludes claim when railroad establishes as a
matter of law that it did not violate relevant federal
regulation.). The warning time regulation that is relevant to
this case is 49 C.F.R. § 234.225, entitled
"Activation of warning system." This regulation
provides as follows:
A highway-rail grade crossing warning system shall be
maintained to activate in accordance with the design of the
warning system, but in no event shall it provide less than 20
seconds warning time for the normal operation of through