Berry v. Wis. Cent.

MICHAEL BERRY, Plaintiff, v. WISCONSIN CENTRAL LTD. d/b/a Canadian National Railway Co. or Canadian National, Defendant.

No. 21-cv-220-wmc

United States District Court, W.D. Wisconsin

May 9, 2022

OPINION AND ORDER

WILLIAMM.CONLEY DISTRICT JUDGE

Plaintiff Michael Berry asserts claims against his employer Wisconsin Central Ltd. (“WCL”), under the Federal Employers' Liability Act (“FELA”), 45 U.S.C § 51 et seq., for injuries that he sustained after falling in a railroad yard on October 29, 2019, while working as a railway conductor. Before the court is defendant WCL's motion seeking partial summary judgment on certain of plaintiff's claims (or at least theories of liability) as precluded by the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20109. WCL also argues that other claims fail as a matter of law. (Dkt. #22.) For the reasons that follow, the court rejects defendant's arguments and will deny its motion.

UNDISPUTED FACTS^[1]

During all times relevant to Michael Berry's claims, he was working as a conductor for WCL, a railroad company. On October 29, 2019, Berry and engineer Kevin Van Riper were tasked with operating a train from Blair to Wisconsin Rapids Wisconsin. After arriving in Wisconsin Rapids after nightfall, they were then to set out the cars from Blair on a side track, pick new cars up, and transport the reconfigured train back to Blair. To accomplish this, they “shoved” the train upon arrival, using what is known as a “reverse train move” into the so-called “Tork” track at the Wisconsin Rapids railroad yard where the Blair cars would be set out. As conductor, Berry “protected the point” of the shove by riding the last railcar on the train, then counting down the cars as Van Riper reversed the train into the Tork track.

However, once this maneuver was completed, Berry then began walking on the west side of the track back toward the engine. Holding his lantern in his hand, Berry pointed it in the direction he was walking, but unfortunately lost his footing and slipped beside the train. At his deposition, Berry testified that he fell because of a combination of it being dark, “the angle of the ground, the tie butts, the large ballast, the leaves, [and] the mud that was under the ballast.” (Pl.'s Resp. to Def.'s PFOFs (dkt. #35) 4 (quoting Berry Dep. (dkt. #36) 134-135).)^[2] Worse, in landing, Berry describes striking his lower back and hip on a tree stump, which was located approximately four to six feet from the nearest rail.

At some point, train engineer Van Riper realized that Berry was taking longer to return to the engine than typical and left the engine to check on him. Van Riper found Berry and called for assistance. Zachary Dean, the trainmaster on duty in the yard at that time, next responded to the scene, where he found Berry sitting beside the train. An ambulance was then called, and Berry was transported to the hospital.^[3]

OPINION

In its motion for summary judgment, defendant asserts that a number of plaintiff's claims (or parts of them) are precluded by the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20109. In addition to this principal argument, defendant also seeks summary judgment on the basis that: (1) a stump was present fails as a matter of law because it did not interfere with any of Berry's trackside duties and, therefore, WCL cannot be held liable under 49 C.F.R. § 213.37 as a matter of law; and (2) defendant cannot be liable for any fall caused by wet leaves because FELA does not support a claim based on the “vagaries of weather or climatic conditions.” (Def.'s Opening Br. (dkt. #23) 11-14.) The court addresses each of these argument in turn below.

I. Federal Preclusion

Enacted in 1970, the FRSA contains the following preemption provision:

(1) Laws, regulations, and orders related to railroad safety and laws, regulations, and orders related to railroad security shall be nationally uniform to the extent practicable.

(2) A State may adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), prescribes a regulation or issues an order covering the subject matter of the State requirement. A State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety or security when the law, regulation, or order--

(A) is necessary to eliminate or reduce an essentially local safety or security hazard;

(B) is not incompatible with a law, regulation, or order of the United States Government; and

(C) does not unreasonably burden interstate commerce.

49 U.S.C.A. § 20106. While this provision preempts state law, including state tort law, except under the normal exception set forth in (2) above, defendant acknowledges that the provision does not preempt -- and, indeed, a federal statute cannot preempt -- another federal statute. Thus, defendant's “preemption” argument as to plaintiff's federal claims turns entirely on whether FRSA precludes application of or supersedes FELA where the claims at issue implicate Federal Railroad Administration (“FRA”) regulations.

Specifically, defendant contends that any claims or theories of liability premised on the frequency of visual inspections or failure to perform them properly, the training and experience of the inspector, ballast size or slope are precluded because they implicate FRA regulations. As support, defendant points to the Seventh Circuit's conclusion in Waymire v. Western Railway Company, 218 F.3d 773 (7th Cir. 2000), that an employee's FELA claims against a railway for an accident involving one of its trains were superseded by the FRSA because the train's speed and warning devices complied with both FRSA and FRA regulations. In so holding, the court explained that unlike the “vast majority of courts examining lawsuits arising out of automobile/train collisions do so under state law, ” the case before it concerned the “interaction of two federal statutes.” Id. at 775. Finding “the opinion of the Supreme Court [in CSX Transportation, Inc. v. Easterwood, 507 U.S. 658 (1993)] on the subject of preemption of unsafe train speed claims” and other, similar preemption cases issued by lower courts “instructive, ” the Seventh Circuit was persuaded that FELA had to be superseded to “uphold FRSA's goal of uniformity.” Id. at 776.

In response, however, plaintiff directs this court to a later United States Supreme Court decision in POM Wonderful LLC v. Coca-Cola Company, 573 U.S. 102 (2014), which considered the interplay between two federal statutes, albeit not the ones at issue in this case, and also addressed whether the one statute that creates a federal regulatory scheme and expressly preempts state law necessarily precludes claims under (or otherwise supersedes) another federal statute. However, in that case, the Supreme Court held that the Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. §§ 331, 343, does not preclude a private party from bringing a claim challenging the mislabeling of food products under the Lanham Act, 15 U.S.C. § 1125. POM Wonderful, 573 U.S. at 106. In so holding, the Supreme Court initially explained that because the preemption provision in the FDCA -like that in the FRSA -- only preempts state law, the question before it was not one of preemption, but rather of preclusion. Still, the Court noted that preemption “principles are instructive insofar as they are designed to assess the interaction of laws that bear on the same subject, ” although obviously no “state-federal” balancing would be necessary. Id. at 111-12. Even acknowledging this was at bottom a “statutory interpretation case, ” however, failed to answer fully whether the Court should “reconcile or harmonize the statutes” as Coca-Cola urged in arguing for preclusion, contends, or “enforce both statutes in full unless there is a genuinely irreconcilable conflict” as POM Wonderful urged. Id. at 112-13.

Instead, in finding no preclusion, the Court was persuaded by the fact that: (1) the FDCA does not expressly forbid or limit Lanham Act claims; and (2) the two statutes have largely coexisted since the passage of the Lanham Act in 1946 without any action by Congress to limit the Act's reach out of concern that it interfered with the goals of the FDCA. Further, the Court concluded that “[b]y taking care to mandate express preemption of some state laws, Congress if anything [was] indicat[ing] it did not intend the FDCA to preclude requirements arising from other sources.” Id. at 114. Moreover, the Court found each statute “has its own scope and purpose, ” with (1) the Lanham Act protecting “commercial interests” and (2) the FDCA protecting “public health and safety, ” and thus, finding either statute precluded the other “would show disregard for the congressional design.” Id. at 115. Finally, while the Court found Congress intended national uniformity in passing the FDCA, it also held that “[t]he centralization of FDCA enforcement authority in the Federal Government does not indicate that Congress intended to foreclose private enforcement of other federal statutes.” Id. at 117. As a result, the Court held that allowing Lanham Act claims concerning food labeling to survive “is quite different from [allowing] the disuniformity that would arise from the multitude of state laws, state regulations, state administrative agency rulings, and state-court decisions that are partially forbidden by the FDCA's preemption provision.” Id.

Still the Seventh Circuit has not revisited its decision in Waymire since the United States Supreme Court's 2014 POM Wonderful decision. Nor have the parties directed the court...