Trevino v. Atchison, Topeka & Santa Fe Railway Co. , 958 S.W.2d 204 ( 1998 )

PLURALITY OPINION ON REHEARING

AMIDEI, Justice.

Appellants’ motion for rehearing is granted, the majority and dissenting opinions issued in this case on March 13, 1997 are withdrawn and the following opinion is issued in their place.

This is an appeal from an order granting summary judgment in favor of appellee, At-chison, Topeka & Santa Fe Railway Company (“Santa Fe”). In one point of error, appellants contend the summary judgment was improperly granted. We reverse and remand.

FACTS AND PROCEDURAL STATUS

On September 11,1992, Erica Trevino and her children, David Ray Trevino, Jr. and Vallerie Trevino, were killed after their car collided with a train at the 16th Street crossing in Abernathy, Texas. Anthony Trevino, also Ms. Trevino’s child, suffered severe brain damage as a result of the collision. Santa Fe owned the tracks where the incident occurred.

In February 1993, appellants¹ instituted this wrongful death action against Santa Fe under Texas law, alleging: (1) negligent failure to install adequate warning devices at the 16th Street crossing; and (2) negligent failure to warn persons that the train was approaching or passing over the crossing. Santa Fe moved for summary judgment, and the trial court granted summary judgment in its favor. This appeal follows.

STANDARD OF REVIEW

The standard we follow in reviewing a summary judgment is well established. The movant for summary judgment has the burden to show there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. In deciding whether there is a disputed material fact issue precluding summary judgment, we treat evidence favorable to the non-movant as true, and we resolve any doubts in his favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985); Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984).

Santa Fe moved for summary judgment on two grounds. First, Santa Fe claimed that federal law preempted appellants’ state tort law claims. Alternatively, Santa Fe argued that appellants’ claims were barred because it had no authority to modify or add warning devices at the 16th Street crossing. The judgment in favor of Santa Fe did not state the grounds upon which it was granted. Where, as here, a summary judgment does not specify the grounds upon which the trial court granted it, the reviewing court will affirm the judgment if any one of the theories advanced in the motion is meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989). In light of these considerations, we proceed with our review.

ANALYSIS

a. Federal Preemption

Appellants contend the trial court erred in granting Santa Fe’s motion for summary judgment because their state law claims are not preempted by federal law. Both parties agree the disposition of this ease is controlled by the Supreme Court’s decision in CSX Transp., Inc., v. Easterwood, 507 U.S. 658, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). In Easterwood, the Supreme Court considered whether a plaintiffs Georgia state law claims were preempted by the Federal Railroad Safety Act of 1970 (FRSA),² the Highway Safety Act of 1973,³ and a series of grade crossing regulations adopted by the Seere-taiy of Transportation.⁴ The FRSA contains an express preemption clause which provides, in part:

The Congress declares that laws, rules, regulations, orders and standards relating to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force any law, rule, regulation, order, or standard relating to railroad safety until such time as the Secretary has adopted a rule, regulation, order, or standard covering the subject matter of such State requirement.

45 U.S.C. § 434 (1988) (emphasis added).

After analyzing 23 C.F.R. § 646.214(b)(3) and (4) as the only potential source of preemption in that ease, the Court held, “a project for the improvement of a grade crossing must either include an automatic gate or receive FHWA approval if federal funds participate in the installation of the [warning] devices.” Easterwood, 507 U.S. at 671, 113 S.Ct. at 1741.

Appellants contend further that subsections (A), (B), and (E) of 23 C.F.R. § 646.214(b)(3)(i)⁵ required the FHWA to install at the 16th Street crossing automatic gates with flashing light signals since the crossing has multiple tracks, multiple tracks at or in the vicinity of the crossing which may be occupied by a train or locomotive so as to obscure the movement of another train approaching the crossing; buildings and structures on the railroad’s right of way such as grain elevators; which restricted a driver’s vision.

Appellants contend since there were no automatic gates with flashing light signals installed at the 16th Street crossing, the FHWA had no discretion to approve anything else and could not allow the continuation or repair of crossbuck signs which had been installed previously pursuant to state law.⁶ We agree.

Appellees failed to prove that the secretary of the FHWA approved ⁷ either automatic gates with flashing light signals, cross-buck signs or reflector tape for crossbuck signs. We cannot assume the FHWA acted legally because the automatic gates with flashing light signals were not installed and that was only device for which FHWA could approve, for expenditure of federal funds. Further there was no proof that the 16th Street crossing was specifically within a federal project. The alleged federal project included a large geographical area including the 16th Street crossing but did not specify that crossing.⁸ Even if the crossing was within the geographical area of the federal project it is immaterial since no automatic gate with flashing lights were ever installed. Missouri Pacific R. Co. v. Lemon, 861 5.W.2d 501, 513 (Tex.App.—Houston [14th Dist.] 1993, writ dism’d by agr.).

The federal regulations cited in this case do not conflict with the State law of negligence the appellants rely upon, i.e. negligent failure to install an automatic warning device and negligent failure to warn persons that the train was approaching or passing over the crossing. Neither is the inadequate maintenance of warning devices, such as replacing refleetorized tape on crossbuck signs, or the failure to warn the public of defective devices preempted by federal law. Hamlin v. Norfolk S. Ry., 686 So.2d 1115 (Ala.1996); Michael v. Norfolk S. Ry., 74 F.3d 271 (11th Cir.1996), §§ 646.214(b)(3) and (4). The trial court erred in refusing to rule on all of appellants’ inadequate warning claims.

The federal cases cited by appellee, other than the Easterwood case, are not on point as they do not include a situation where the FHWA failed to approve either automatic gates or crossbuck signs where automatic gates were required.

We conclude there was no preemption of appellants’ claims.

Appellee also claims it could have no liability for inadequate signs because it had no authority to modify or add warning signs. The 1980 Texas Manual on Uniform Traffic control Devices (“MUTCD”) is not authority to deny appellee from installing any warning device it wished. Appellee could have but chose not to install automatic gates with lights or other more effective devices at the 16th Street crossing. The cited portions of the Manual (MUTCD) merely requires that the type device chosen by the railroad be approved by the appropriate agency within a given State. See CSX Transp., Inc., 507 U.S. at 668-69, 113 S.Ct. at 1740:

It is the intent that the provisions of this manual be standards for traffic control device installation, but not a legal requirement for installation_ Rather than establishing an alternative scheme of duties incompatible with existing Georgia negligence law, the manual disavows any claim to cover the subject matter of that body of law.

MUTCD did not prohibit appellee from installing safer devices after obtaining the State agency’s approval. Lemon, 861 S.W.2d at 520.

It will be a question of fact to determine whether appellee violated its common law duty to upgrade or add safer warning devices. The appellee cannot blame the State or the Manual for its responsibilities in such regard. That is not the intent of the Manual or any law cited in this case. Appel-lee’s second reply point is overruled.

The judgment of the trial court is reversed and this cause is remanded for trial.

1 .Appellants in this case include David Ray Trevino, individually and as community survivor of, and personal representative of, the Estate of Erica A. Trevino, Michael Anthony Trevino, David Ray Trevino, Jr., and Vallerie Trevino; and George G. Flores and Silvestra "Betty” Flores, as surviving parents of Erica A. Trevino and as next friends of Nicole Gonzales, surviving child of Erica A. Trevino.

2 . 45 U.S.C. §§ 421-447 (1988 & Supp. V 1993), repealed by Public Law 103-272 § 7(b), July 6, 1994, 108 Stat. 1379, current version at 49 U.S.C.A. §§ 20101-20153 (Supp.1995).

3 . 23 U.S.C. §§ 101-160 (1988 & Supp. V 1993).

4 . 23 C.F.R. 646.214(b)(3) and (4)(1995).

5 .§ 646.214(b)(3)© Adequate warning devices, under § 646.214(b)(2) or on any project where Federal-aid funds participate in the installation of the devices are to include automatic gates with flashing light signals when one or more of the following conditions exist:

(A) Multiple main line railroad tracks.

(B) Multiple Tracks at or in the vicinity of the crossing which may be occupied by a train or locomotive so as to obscure the movement of another train approaching the crossing.

(C) High speed train operation combined with limited sight distance at either single or multiple track crossings.

(D) A combination of high speeds and moderately high volumes of highway and railroad traffic.

(E) Either a high volume of vehicular traffic, high number of train movements, substantial numbers of school buses or trucks carrying hazardous materials, unusually restricted sight distance, continuing accident occurrences, or any combination of these conditions.

(F)A diagnostic team recommends them.

6 . House Bill 2681, entitled “Enhanced Warning Sign Visibility at Railroad Crossings” was passed by the 71st Texas Legislature Regular Session. This Act was láter codified as Texas Annotated Civil Statutes Article 6370b (Vernon Supp.1990).

7 . There must be direct evidence of the Secretary's specific approval, in addition to federal financial participation. Thiele v. Norfolk Western Ry. Co., 68 F.3d 179, 183 (7th Cir.1995).

8 . There does not appear to be any statutory definition of "project” as used in this regulation. Easterwood, 507 U.S. at 673, 113 S.Ct. at 1742.