Nickels v. Grand Trunk Western R.R., Inc.

560 F.3d 426

Stanley R. NICKELS, Plaintiff-Appellant, v. GRAND TRUNK WESTERN RAILROAD, INC., Defendant-Appellee.

Donald C. Cooper, Plaintiff-Appellant, v. CSX Transportation, Inc., Defendant-Appellee.

No. 07-1736.

No. 07-2437.

United States Court of Appeals, Sixth Circuit.

Argued: July 31, 2008.

Decided and Filed: March 18, 2009.

ARGUED:

Robert B. Thompson, Harrington, Thompson, Acker & Harrington, Chicago, Illinois, Kirk E. Karamanian, O'Bryan, Baun, Cohen, Kuebler & Karamanian, Birmingham, Michigan, for Appellants. Andrew E. Tauber, MAYER Brown, Washington, D.C., for Appellees.

ON BRIEF:

Robert B. Thompson, Laurence C. Acker, Harrington, Thompson, Acker & Harrington, Chicago, Illinois, Kirk E. Karamanian, O'Bryan, Baun, Cohen, Kuebler & Karamanian, Birmingham, Michigan, for Appellants. Andrew E. Tauber, Mayer Brown, Washington, D.C., Evan Mark Tager, Mayer Brown, Chicago, Illinois, Richard A. Dietz, Michael J. Liddane, Foster, Meadows & Ballard, Detroit, Michigan, James R. Carnes, Anspach Meeks Ellenberger, Toledo, Ohio, for Appellees. James L. O'Connell, Lindhorst & Dreidame Co., Cincinnati, Ohio, for Amicus Curiae.

Before: SILER, BATCHELDER, and ROGERS, Circuit Judges.

BATCHELDER, J., delivered the opinion of the court, in which SILER, J., joined. ROGERS, J. (pp. 433-36), delivered a separate dissenting opinion.

OPINION

ALICE M. BATCHELDER, Circuit Judge.

In this consolidated action, Stanley Nickels and Donald Cooper appeal entries of summary judgment on their Federal Employers' Liability Act ("FELA") claims. These former railway employees allege injuries caused by years of walking on oversized track ballast. The district courts below held that a Federal Railway Safety Act ("FRSA") regulation covers the issue of ballast size, precluding plaintiffs' negligence actions. We affirm.

I.

Nickels and Cooper both claim that their former employers failed to provide a safe working environment by using large mainline ballast—instead of smaller yard ballast—underneath and adjacent to tracks receiving heavy foot traffic. Track ballast is the stone or other material placed underneath and around railroad tracks to provide the structural support, drainage, and erosion protection necessary for safe rail travel. The two main sizes of track ballast are mainline ballast, which can be up to 2 inches in diameter, and yard ballast, which is typically 1 inch in diameter or smaller. The American Railway Engineering and Maintenance of Way Association ("AREMA")¹ recommends that railroads use yard ballast in areas where there is heavy foot traffic because walking on mainline ballast is more strenuous and provides for uneven footing.

Nickels began working for Grand Trunk in 1976. His job required him to walk on track ballast so that he could, among other things, conduct switching operations (move railcars from one track to another). Although most of this walking was done on yard ballast, a stint from 2002 to 2004 at Grand Trunk's Lansing, Michigan railyard required Nickels to walk on mainline ballast. In early 2004 Nickels began experiencing pain and discomfort in his feet, especially his big toes. Ultimately, Nickels had to have surgery on both feet—his left foot in January 2005, and his right foot in April 2005. Nickels unsuccessfully attempted to return to work and has been on permanent restriction since October 2005.

Cooper began working for CSX in 1967. His duties required him to walk on mainline ballast. In 2000, Cooper sought treatment for stiffness and pain in his right leg, from his hip down to his toes. By February 2003, Cooper was no longer able to perform his job responsibilities. He eventually was diagnosed with avascular necrosis, "a cellular death of bone components due to interruption of the blood supply ... resulting in bone destruction, pain, and loss of joint function."

Nickels and Cooper separately sued their former employers under the FELA, 45 U.S.C. § 51, et seq. The railroads moved for summary judgment, arguing that the FRSA, 49 U.S.C. § 20101, et seq., precluded the plaintiffs' FELA claims. The district courts granted the motions, concluding that allowing the plaintiffs to advance their FELA claims would undermine the FRSA's express intent to achieve national uniformity in railroad safety regulations.² Nickels and Cooper timely appealed, and we consolidated their actions to consider the preclusion issue common to both suits.

II.

We review de novo a district court's grant of summary judgment, using the same standard applied by the district court. Williams v. Mehra, 186 F.3d 685, 689 (6th Cir.1999) (en banc). Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We must review all the evidence, facts, and inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Whether a federal law preempts a state law or precludes another federal law is a question of law which we review de novo. See Nye v. CSX Transp., Inc., 437 F.3d 556, 560 (6th Cir.2006) (citing Shanklin v. Norfolk S. Ry. Co., 369 F.3d 978, 985 (6th Cir.2004) (overruled on other grounds)).

III.

This case requires us to examine the interplay of two federal statutes, both of which were designed to promote railway safety. The FELA makes a railroad liable to its employees injured "by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment." 45 U.S.C. § 51. The statute provides a "cause of action sounding in negligence[.] ... Absent express language to the contrary, the elements of a FELA claim are determined by reference to the common law." Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158, 165-66, 127 S.Ct. 799, 166 L.Ed.2d 638 (2007).

The FRSA's purpose is "to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344, 347, 120 S.Ct. 1467, 146 L.Ed.2d 374 (2000) (quoting 49 U.S.C. § 20101). The FRSA authorizes the Secretary of Transportation ("Secretary") to "prescribe regulations and issue orders for every area of railroad safety." Id. (quoting 49 U.S.C. § 20103(a)). Under the FRSA's express preemption provision, "[l]aws, regulations, and orders related to railroad safety ... shall be nationally uniform to the extent practicable." 49 U.S.C. § 20106(a)(1). "A State may adopt or continue in force a law, regulation, or order related to railroad safety ... until the Secretary of Transportation ... prescribes a regulation or issues an order covering the subject matter of the State requirement." 49 U.S.C. § 20106(a)(2). A state-law negligence action is "covered" and therefore preempted if a FRSA regulation "substantially subsume[s]" the subject matter of the suit. CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). This provision explicitly preempts only State laws, regulations, and orders; it does not mention other federal safety standards.

We must consider: (1) whether a FELA claim is precluded if the same claim would be preempted by the FRSA if brought as a state-law negligence action; and (2) if so, whether the subject of these plaintiffs' claims has been covered by a FRSA regulation. We answer both questions in the affirmative.

A.

Two of our sister circuits have held that the uniformity demanded by the FRSA "can be achieved only if [federal rail safety regulations] are applied similarly to a FELA plaintiff's negligence claim and a non-railroad-employee plaintiff's state law negligence claim."³ Lane v. R.A. Sims, Jr., Inc., 241 F.3d 439, 443 (5th Cir.2001); see also Waymire v. Norfolk & W. Ry. Co., 218 F.3d 773, 776 (7th Cir.2000).

Dissimilar treatment of the claims would have the untenable result of making the railroad safety regulations established under the FRSA virtually meaningless: "The railroad could at one time be in compliance with federal railroad safety standards with respect to certain classes of plaintiffs yet be found negligent under the FELA with respect to other classes of plaintiffs for the very same conduct."

Id. (quoting Waymire v. Norfolk & W. Ry. Co., 65 F.Supp.2d 951, 955 (S.D.Ind.1999), aff'd, 218 F.3d 773 (7th Cir.2000)).

We agree with this analysis. Although the courts in Lane and Waymire addressed FELA claims of unsafe train speed in light of FRSA speed-limit regulations, the FRSA's concern for uniformity leads us to reach the same conclusion regarding ballast regulations. And while railroads may face a lesser likelihood of state-law claims alleging negligent ballast composition, any exposure to conflicting standards undermines uniformity. See Norris v. C. of Ga. R.R. Co., 280 Ga.App. 792, 635 S.E.2d 179, 183 (2006). The plaintiffs' claims are precluded by the FRSA if they would have been preempted if brought by a non-employee under state law.

B.

Under the FRSA's preemption provision, a plaintiff can bring an action under state law unless the Secretary has prescribed a regulation or issued an order "covering the subject matter of the State requirement." 49 U.S.C. § 20106. The Secretary has promulgated a regulation on ballast:

Unless it is otherwise structurally supported, all track shall be supported by material which will—

(a) Transmit and distribute the load of the track and railroad rolling equipment to the subgrade;

(b) Restrain the track laterally, longitudinally, and vertically under dynamic loads imposed by railroad rolling equipment and thermal stress exerted by the rails;

(C) Provide adequate drainage for the track; and (d) Maintain proper track crosslevel, surface, and alinement.

49 C.F.R. § 213.103. The...