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Stouffer v. Union Pacific Railroad Co.

Court of Appeals of Texas, Eleventh District

August 31, 2017


         On Appeal from the 441st District Court Midland County, Texas Trial Court Cause No. CV50285

          Panel consists of: Wright, C.J., Willson, J., and Bailey, J.



         This 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[1] 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.

         The 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.

         Background Facts

         On 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 Street.

         Michael 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 tractor-trailer.

         When 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.


         Warning-Time Claims

         We 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).

         Union 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 "designed-warning-time" and "frequency-overlap" claims.[2]

         The 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. §§ 20103(a), 20106(a)(1)).

         As 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.

         Union 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 ...

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