LENARD NOICE II, as Personal Representative for LENARD E. NOICE, Decedent, Plaintiff-Appellant, v. BNSF RAILWAY COMPANY, a Delaware corporation, Defendant-Appellee.
NO. 31,935
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
February 10, 2015
Opinion Number: ________________
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Sarah M. Singleton, District Judge
Mark E. Komer
Santa Fe, NM
for Appellant
Atkinson, Thal & Baker, P.C.
John S. Thal
Elizabeth Losee
Juan M. Marquez
Albuquerque, NM
for Appellee
KENNEDY, Judge.
{1} When a railroad employee‘s negligence claim against his employer railroad under the Federal Employers Liability Act (FELA) is based solely on allegations of excessive speed, we conclude that claim is not precluded under the Federal Railroad Safety Act (FRSA). A locomotive engineer disappeared from a train while the conductor was speeding up, but the train was still within the speed regulations prescribed under FRSA. He was later found dead beside the track. His representative sued his employer railroad for negligence under FELA. We are persuaded by other jurisdictions that have considеred the issue that FRSA speed regulations cannot preclude a speed-based negligence claim under FELA. We reverse the district court‘s grant of summary judgment to the railroad.
I. BACKGROUND
{2} Lenard Noice (Decedent) worked as a locomotive engineer for BNSF Railway Company (BNSF). Decedent was operating locomotives on a trip to Belen, New Mexico, along with the cоnductor, John Royal. The train was traveling between fifteen and twenty miles per hour when Decedent told Royal to take control of the train. Decedent told Royal to “start pulling on it,” and Royal began gradually increasing the train‘s speed. Decedent exited the locomotive and walked along the
{3} Decedent‘s son, Lenard Noice II, sued BNSF for negligence in violation of FELA, as well as for strict liability and spoliation of evidence. BNSF moved for partial summary judgment on the FELA negligence count, which is the basis for this appeal. BNSF argued that Noice had failed to prove a breach of duty or causation of Decedent‘s injuries and that Decedent was negligent. Noice responded. Before filing its reply brief, BNSF filed a motion in limine, asking the district court, among other matters, to prohibit Noice from asserting that the train was traveling at an excessive speed, as such an excessive speed claim was precluded by FRSA. The motion in limine was denied and, in BNSF‘s reply to its summary judgment motion, it reasserted that Noice‘s claim could not be based on the speed of the train due to preclusion by FRSA.
II. DISCUSSION
{5} “An appeal from the grant or denial of a motion for summary judgment presents a question of law. We therefore review de novo the [district] court‘s denial of summary judgment.” Bartlett v. Mirabal, 2000-NMCA-036, ¶ 4, 128 N.M. 830, 999 P.2d 1062. “Summary judgment is proper if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.” Roth v. Thompson, 1992-NMSC-011, ¶ 17, 113 N.M. 331, 825 P.2d 1241. The movant must make a prima facie showing of entitlement to summary judgment. Id. Then, the “burden shifts to the party opposing the motion to demonstrate the existence of specific evidentiary facts which would require trial on the merits.” Id. “If the facts are not in dispute, and only their legal effects remain to be determined, summary judgment is proper.” Id.
A. The Prеclusion Argument Was Briefed Before the District Court
{7} However, potential preclusion under FRSA was briefed and discussed several times in the record. Noice raised the issue of the train‘s speed in his response to BNSF‘s motion for summary judgment, although he did not then discuss FRSA. BNSF first raised potential preclusion of a clаim based on excessive speed under FRSA in September 2011. BNSF included a brief argument regarding FRSA preclusion in its reply in support of its motion for summary judgment. In its attempt to keep evidence of speed from the facts being considered for summary judgment, BNSF fully briefed the preclusion issue in its motion in limine to exclude certain evidence. Noice briefed the legal issue of speed-based claims being precluded under FRSA in his response to that motion. The facts and legal arguments regarding preclusion were therefore presented to the district court. Additionally, despite
B. FRSA Does Not Preclude Plaintiff‘s Speed-Based FELA Claim
{8} The district court granted BNSF‘s motion fоr summary judgment. The district court determined that Noice‘s negligence claim was supported by three distinct theories to support his negligence claim: (1) defective equipment threw Decedent from the train; (2) Decedent‘s coworker, Royal, should have conducted a safety briefing before Decedent left the locomotive; and (3) Royal increased the train‘s speed to fifty-five miles per hour while Decedent was walking to a different locomotive. After determining that no facts supported either of the first two theories, the district court analyzed the remaining speed-based theory of negligence and concluded that such an argument was preempted by FRSA when the train was within the speed limit. On appeal, Noice challenges the district court‘s rejection of each theory of negligence. Regarding preemption of his speed-based claim, Noice argues that his FELA claim remains viable despite FRSA because the cases relied on by the district court stretched a decision about state laws being preempted by FRSA to include FELA preclusion. We agree.
{9} “In 1908, Congress enacted . . . [FELA],
{10} “Congress passed [FRSA],
{11} The United States Supreme Court has determined that FRSA preempts state tort claims to the extent that they are based on an allegation of excessive speed. CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 676 (1993). In Easterwood, a widow sued a railroad company after one of their trains struck and killed her husband at a crossing. Id. at 661. Among other claims, she alleged that the train was operated at an excessive speed. The Supreme Court held that, because the regulations in FRSA covered the subject matter of speed fully, her state law claim was precluded. Id. 674-75. The Supreme Court concluded that the regulations do more than set maximum speed limits, rather, “in the context of the overall structure of the regulations, the speed limits must be read as not only establishing a ceiling, but also precluding additional state regulation.” Id. at 674. However, Easterwood did not answer the question of any extent to which FRSA would affect a claim under FELA.
{12} Since Easterwood, courts have considered the issue of FRSA preclusion for excessive speed claims and other regulated matters when the claim is brought under FELA, rather than state tort law. Some courts have refused to follow Easterwood‘s reasoning. Noice relies on Earwood v. Norfolk Southern Railway Co., 845 F. Supp. 880, 891 (N.D. Ga. 1993), a federal district court opinion that concluded that a FRSA regulation does not preclude а FELA claim based on unsafe speed. In Earwood, the plaintiff was a railroad employee who was injured when the train he was on collided with a truck at an intersection. Id. at 883. One of his claims for negligence under FELA was for excessive speed. Id. The Earwood court held that FRSA did not preclude FELA claims because “[t]he two statutes do not purport to cover the same areas.” Id. at 885. The court stated that, bеcause FRSA does not address the standard of care required of employer railroads, FELA claims could still be based on allegations of unsafe speed. Id. The Earwood court concluded that “[FRSA speed] regulations were not directed at the issue of employee safety.” Id. at 891. Although safety may be a consequence of the regulation, the court stated that it is not the primary objeсtive. Thus, the FELA claim is not precluded. This district court opinion has since been rejected by two circuits.
{13} The Seventh Circuit specifically rejected the district court‘s opinion in Earwood and stated that “we are instead faced with the interaction of two federal statutes.” Waymire, 218 F.3d at 775. “But, we find the opinion of the [United States] Supreme Court on the subject of the preemption of unsafe train speеd claims to be instructive and so we discuss it here.” Id. In Waymire, the Seventh Circuit held that,
{14} The Fifth Circuit, in Lane v. R.A. Sims, Jr., Inc., 241 F.3d 439 (5th Cir. 2001), found Waymire‘s application of Easterwood to be persuasive. The court in Lane emphasized that FRSA regulations should preempt excessive speed claims under FELA based on the importance of uniform liability no matter the class of the plaintiffs in a case.
[U]niformity can be achieved only if the regulations covering train speed are applied similarly to a FELA plaintiff‘s negligence claim and a non-railroad-employee plaintiff‘s state law negligence claim. Otherwise, a railroad employee could assert a FELA excessive-speed claim, but a
non-employee motorist involved in the same collision would be precluded from doing so. Dissimilar treatment of the claims would have the untenable result of making the railroad safety regulations established under . . . FRSA virtually meaningless[.]
{15} “When two federal statutes address the samе subject in different ways, the right question is whether one implicitly repeals the other [through an] irreconcilable conflict between the statutes or a clearly expressed legislative decision that one replace the other.” Randolph, 368 F.3d at 730. When two federal statutes may be interpreted harmoniously, “a court must interpret them in a manner which gives . . . operation and effect to bоth, in the absence of clear and unambiguous expression of Congressional intent to the contrary.” United States v. Kenaan, 557 F.2d 912, 917 (1st Cir. 1977). Thus, “repeal by implication is a rare bird indeed.” Randolph, 368 F.3d at 730.
{16} Here, there is no “clear and unambiguous” indication in FRSA that Congress intended it to eliminate workers’ remedies under FELA. See Grimes, 116 F. Supp. 2d at 1003 (“There is also nothing in the language or legislative history of any enactment, including FRSA, that indicates the serious purpose of undermining the basic core of FELA and its essentiаl purposes.“). The obligation of the courts is therefore to construe FRSA in such a way as to render it harmonious with FELA. The
{17} This view of the interplay between federal statutes was recently addressed by the United States Supreme Court in POM Wonderful LLC v. Coca-Cola Co., 134 S. Ct. 2228 (2014), and, in our view, resolves the FRSA/FELA preclusion question in favor of Noice. As we noted above, both FELA and FRSA can be viewed as complementary, each with its own scope and purpose. In POM Wonderful, the question was whether suit for misleading descriрtions of products by business competitors under the Lanham Act,
{18} In reversing its decision, the United States Supreme Court pointed out the lack of clear congressional intent to limit the Lanham Act by enacting the FDCA, specifically ruling that Lanham Act suits are not precluded. Id. at 2237. The United States Supreme Court determined that “Congress did not intend [the] FDA oversight to be the exclusive means of ensuring proper food and beverage labeling.” Id. at 2231 (internal quotation mаrks and citation omitted). Rather, it found the statutes to be complementary in nature and held that each imposed “different requirements and
{19} Although not directly on point, we find POM Wonderful to be instructive. As we noted, FELA was enacted as a safe workplace legislation in 1908 to protect the safety of railroad workers by allowing negligence suits against their employers. The FRSA was enacted to provide national uniformity in railroad safety regulations. Although both laws are intended to have an impact on railroad safety, FELA‘s thrust in protecting workers can easily exist apart from FRSA-enacted regulation of industry safety standards. We conclude that as Easterwood dealt only with FRSA preclusion of state law suits, POM Wonderful spеaks more clearly to whether FRSA would preclude a negligence suit under FELA by railroad employees who benefit from the provisions permitting negligent actions. Similarly, any confusion in the federal circuits spawned by Waymire, we now regard as resolved. We hold that Noice‘s FELA count is not precluded by FRSA.
C. Plaintiff‘s Other Arguments Are Not Supported
{20} Noice also argues that, because he brought his negligence claim pursuant to FELA, it should bе adjudicated pursuant to federal law. However, as Noice correctly
{21} Noice argues that his claims should have gone to the jury to consider evidence that (1) “there was excessive motion on the second locomotive“; (2) Royal “should have inquired whether he needed to conduct a safety meeting, [or] that he should have conducted a safety meeting“; and (3) Royal “should have contacted [Decedent] еarlier . . . [and] stopped the train” more quickly. Noice insists that these were factual issues, but fails to point to evidence in the record that creates an issue of disputed fact regarding excessive motion, the relevance of safety meetings, or Royal‘s behavior after Decedent left as causal factors. Where a party fails to cite any portion of thе record to support its factual allegations, the Court need not consider its argument on appeal. See Santa Fe Exploration Co. v. Oil Conservation Comm‘n, 1992-NMSC-044, ¶ 11, 114 N.M. 103, 825 P.2d 819. We agree with the district court that Noice
{22} The district court stated in its order for summary judgment that, regarding Royal‘s increase of the train‘s speed, “[w]hether [Royal] was complying with [Decedent‘s] orders or creating an unsafe working condition is a disputed issue of fact.” We do not need to consider whether the speed caused Decedent‘s fall.
{23} Noice also argues that the district court incorrectly examined each individual basis for his negligencе claim, rather than look at it as a whole. However, he fails to point to any evidence that would create a genuine issue of fact when looked at holistically. Again, the Court need not consider his argument on appeal. See Santa Fe Exploration, 1992-NMSC-044, ¶ 11. However, as his claim based on the train‘s
III. CONCLUSION
{24} In light of POM Wonderful (distinguishing between preemption and preclusion), we conclude that Noice‘s FELA suit was not precluded by FRSA and that summary judgment for BNSF should be reversed.
{25} IT IS SO ORDERED.
RODERICK T. KENNEDY, Judge
MICHAEL D. BUSTAMANTE, Judge
J. MILES HANISEE, Judge