508 S.W.3d 331
Tex. App.2014Background
- Harrison, a BNSF employee, suffered knee injuries when ballast on Becker Siding allegedly gave way while disembarking from a locomotive.
- Harrison sued under FELA alleging negligence in providing safe ballast, a safe work area, and a safe disembarkment area.
- BNSF moved for summary judgment, arguing FRSA ballast regulation preempts Harrison’s ballast-based FELA claim.
- The trial court granted summary judgment in favor of BNSF based on FRSA preemption analysis.
- The court addressed whether FRSA ballast regulation § 213.103 substantially subsumes the ballast claim and whether BNSF proved compliance with the regulation.
- A concurring opinion (and a dissent) focused on the narrow scope of preclusion, distinguishing ballast-used-for-walkways from ballast used for track support.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FRSA preempts Harrison's ballast-based FELA claim | Harrison asserts no preemption for mainline ballast size. | BNSF contends FRSA regulation preempts the FELA claim. | FRSA preempts to the extent the claim would be preempted as a state law claim. |
| Whether FRSA ballast regulation substantially subsumes the ballast claim | Regulation is too vague to subsume ballast issues. | Regulation substantively governs ballast size and composition for track stability. | Yes; ballast regulation substantially subsumes the claim. |
| Whether BNSF produced competent evidence of ballast-regulation compliance | Mirabal is not a qualified expert; evidence is unreliable. | Mirabal is qualified and his affidavit establishes compliance. | BNSF met its burden to show compliance with § 213.103. |
| Whether FRSA precludes Harrison's non-ballast FELA claims | All ballast-related and non-ballast-related FELA claims may be precluded. | Only ballast-related claims fall within the FRSA preemption scope; non-ballast claims depend on pleaded theories. | Preclusion confined to ballast-based track-support claims; walkway/workplace claims not inherently precluded. |
| Whether the trial court erred in granting summary judgment on non-ballast FELA claims | There were non-ballast theories argued in the pleadings. | Summary judgment applies only to the grounds raised in the motion. | The court declined to affirm on non-ballast grounds not raised in the motion. |
Key Cases Cited
- Lane v. R.A. Sims, Jr., Inc., 241 F.3d 439 (5th Cir. 2001) (FRSA preemption of FELA excessive-speed claims to preserve uniformity)
- Waymire v. Norfolk & Western Ry. Co., 218 F.3d 773 (7th Cir. 2000) (uniform treatment of ballast-related claims across claims)
- Nickels v. Grand Trunk Western R.R., Inc., 560 F.3d 426 (6th Cir. 2009) (FRSA ballast regulation 'covers' and 'substantially subsumes' ballast claims)
- Easterwood v. CSX Transp., Inc., 507 U.S. 658 (U.S. 1993) (FRSA preemption when regulation substantially subsumes state-law topic)
- MoPac I v. Railroad Comm'n of Texas, 833 F.2d 572 (5th Cir. 1987) (preemption when state roadbed/ walkway rules would enlarge FRSA-regulated track)
- MoPac II v. Railroad Comm'n of Texas, 948 F.2d 179 (5th Cir. 1991) (overlap analysis of roadbed alterations to address walkways under FRSA preemption)
- Hendrix v. Port Terminal R.R. Ass’n, 196 S.W.3d 188 (Tex. App.—Houston [1st Dist.] 2006) (walkway ballast-related claims and FRSA preemption considerations)