975 F. Supp. 2d 1005
E.D. Mo.2013Background
- Cowden alleges injuries from riding a BNSF locomotive while performing job duties in Golden City, Missouri, near mile posts 151.4–151.8; location subject to a slow order restricting speed to 40 mph due to track conditions.
- Plaintiff claims the track was rough and ballast issues caused the locomotive to bottom out, throwing him and causing back/neck injuries.
- The Court previously granted summary judgment for BNSF, but the Eighth Circuit reversed, ruling the FRSA preemption issue was not properly raised or viewed in the light most favorable to Plaintiff.
- On remand, Plaintiff filed a First Amended Complaint alleging FELA negligence and FRA safety-regulation violations (negligence per se).
- The current motion focuses on FRSA preemption under 49 U.S.C. § 20106(a)(2), whether FRSA regulations substantially subsume Plaintiff’s sixteen alleged conduct categories, and whether genuine disputes exist as to compliance with those regulations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| FRSA preemption of FELA claims under § 20106(a)(2) | Cowden argues FELA claims are not precluded; FRSA does not substantially subsume the claims. | BNSF contends FRSA preempts FELA where regulations cover the subject matter. | Partially: FRSA may preclude if subject matter is substantially subsumed; see analysis below. |
| Whether ballast-related and cross-tie claims are substantially subsumed by FRSA | Disputes exist as to compliance with ballast (§213.103) and cross-ties (§213.109). | Regulations substantially subsume the ballast and cross-tie topics; compliance shown by measurements. | Genuine disputes remain as to compliance; preclusion not established for these allegations. |
| Whether track classification and speed-regulation claims are precluded | Allegations of improper track classification violate FRSA standards and are not preempted. | § 213.9 and related provisions cover classification/speed; preemption applies if properly subsumed. | Genuine disputes exist; summary judgment denied on these elements. |
| Foreseeability and negligence per se under FRSA | Negligence per se based on FRSA violations negates traditional foreseeability requirement. | Foreseeability still relevant; need evidence of causation and foreseeability. | Foreseeability issues survive; Plaintiff may prove causation under negligence-per-se theory. |
Key Cases Cited
- Cowden v. BNSF Ry. Co., 690 F.3d 884 (8th Cir.2012) (FRSA preemption of FELA claims in some circumstances; precedential weight for sister circuits)
- Lane v. R.A. Sims, Jr., Inc., 241 F.3d 439 (5th Cir.2001) (FRSA preemption of FELA claims; substantial subsumption standard)
- Waymire v. Norfolk & W. Ry. Co., 218 F.3d 773 (7th Cir.2000) (Preemption considerations under FRSA §20106(a)(2))
- Nickels v. Grand Trunk W. R.R., Inc., 560 F.3d 426 (6th Cir.2009) (FRSA preemption of FELA claims when substantially subsumed)
- Zimmerman v. Norfolk S. Corp., 706 F.3d 170 (3d Cir.2013) (Regulatory preemption; can avoid preemption by proving violation of federal standard of care)
- Morant v. Long Island R.R., 66 F.3d 518 (2d Cir.1995) (Negligence per se concepts under railroad safety statutes)
- Dorsey v. U.S., - U.S. - (2012) (Implied repeal concerns; FRSA preemption does not repeal FELA where not subsumed)