Mark B. Harrison v. BNSF Railway Company , 2014 Tex. App. LEXIS 1086 ( 2014 )


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  •                           COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 02-12-00476-CV
    MARK B. HARRISON                                                       APPELLANT
    V.
    BNSF RAILWAY COMPANY                                                     APPELLEE
    ----------
    FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY
    ----------
    OPINION
    ----------
    I. INTRODUCTION
    We consider in this appeal whether a ballast regulation promulgated under
    the Federal Railroad Safety Act (FRSA) precludes Appellant Mark B. Harrison‘s
    ballast-related claim under the Federal Employers‘ Liability Act (FELA). We hold
    that it does and will therefore affirm the trial court‘s grant of summary judgment in
    favor of Appellee BNSF Railway Company.
    II. BACKGROUND
    BNSF hired Harrison in 1993. He worked as a brakeman for a year before
    being promoted to a locomotive engineer.
    One day in April 2008, Harrison directed a train onto a siding located in
    Becker, New Mexico (the Becker Siding). Harrison had been instructed to tie
    down the train and then catch a taxi to Belen, New Mexico. BNSF owned and
    maintained the track at the Becker Siding and used railroad ballast to support the
    track structure.1
    According to Harrison, he set the hand brakes on the engines while the
    conductor set the brakes on the cars. Harrison then disembarked one of the
    engines without any incident, but he climbed back onto the train to confirm that
    he had removed the reverser. When Harrison descended down the engine‘s
    steps a second time, a ―big piece‖ of ballast gave way under his foot, and he
    ―went down‖ on his knee. Harrison recalled that in the area where he fell, the
    ballast ranged in size from roughly 2-1/2 or 3 inches in diameter to about as large
    as a softball or a small grapefruit.
    1
    ―‗Ballast‘ is a technical term used by the railroad industry to denote, what
    would otherwise be commonly known as, crushed rock.‖ CSX Transp., Inc. v.
    Pitts, 
    61 A.3d 767
    , 770 n.1 (Md. 2013). Track, or ―mainline,‖ ballast ―is the stone
    or other material placed underneath and around the railroad tracks to provide the
    structural support, drainage, and erosion protection necessary for safe rail
    travel.‖ Nickels v. Grand Trunk W. R.R., Inc., 
    560 F.3d 426
    , 428 (6th Cir. 2009),
    cert. denied, 
    558 U.S. 1147
    (2010).
    2
    Harrison sued BNSF under the FELA, alleging that he ―suffered injuries to
    his knee and body generally as a result of slipping on oversized ballast on a
    steep incline,‖ that BNSF owed him ―a duty to provide a reasonably safe place to
    work and a duty to provide reasonably safe ballast and a reasonably safe area to
    disembark and walk so that he could safely do his job,‖ and that BNSF breached
    those duties owed to him, causing his injuries.        [Emphasis added.]     BNSF
    pleaded the affirmative defense of preemption and filed a traditional and no-
    evidence motion for summary judgment. BNSF argued in the motion that an
    FRSA ballast regulation covers the subject matter of mainline ballast
    characteristics and precludes Harrison‘s ballast-related FELA negligence claim.
    The trial court granted the motion.2 This appeal followed.
    III. STANDARD OF REVIEW
    In a summary judgment case, the issue on appeal is whether the movant
    met the summary judgment burden by establishing that no genuine issue of
    material fact exists and that the movant is entitled to judgment as a matter of law.
    Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,
    
    289 S.W.3d 844
    , 848 (Tex. 2009). We review a summary judgment de novo.
    Travelers Ins. Co. v. Joachim, 
    315 S.W.3d 860
    , 862 (Tex. 2010).
    2
    The judgment generally granted BNSF‘s motion for summary judgment; it
    did not specifically grant summary judgment on either the traditional or the no-
    evidence ground. We will review the propriety of the summary judgment on the
    traditional ground. See Murphy v. Reynolds, No. 02-10-00229-CV, 
    2011 WL 4502523
    , at *3 n.4 (Tex. App.—Fort Worth Sept. 29, 2011, no pet.) (mem. op.).
    3
    We take as true all evidence favorable to the nonmovant, and we indulge
    every reasonable inference and resolve any doubts in the nonmovant‘s favor.
    20801, Inc. v. Parker, 
    249 S.W.3d 392
    , 399 (Tex. 2008); Provident Life &
    Accident Ins. Co. v. Knott, 
    128 S.W.3d 211
    , 215 (Tex. 2003). We consider the
    evidence presented in the light most favorable to the nonmovant, crediting
    evidence favorable to the nonmovant if reasonable jurors could and disregarding
    evidence contrary to the nonmovant unless reasonable jurors could not. Mann
    
    Frankfort, 289 S.W.3d at 848
    . A defendant is entitled to summary judgment on an
    affirmative defense if the defendant conclusively proves all the elements of the
    affirmative defense. Chau v. Riddle, 
    254 S.W.3d 453
    , 455 (Tex. 2008); see Tex. R.
    Civ. P. 166a(b), (c).
    IV. FRSA PRECLUSION OF HARRISON’S FELA CLAIM
    CONCERNING MAINLINE BALLAST SIZE AND COMPOSITION
    Harrison argues in his first issue that the trial court erred by granting BNSF
    summary judgment because the FRSA does not preclude his FELA claim. In his
    second issue, Harrison argues that the trial court erred by granting BNSF summary
    judgment because even if his FELA claim is precluded, BNSF failed to establish the
    defense as a matter of law. BNSF responds that it met its burden to show that
    Harrison‘s FELA claim is precluded by the FRSA.
    A.     Preclusion Conditioned Upon Preemption
    The purpose of the FRSA is ―to promote safety in every area of railroad
    operations and reduce railroad-related accidents and incidents.‖       49 U.S.C.A.
    4
    § 20101 (West 2007).       In furtherance of this purpose, it requires that ―[l]aws,
    regulations, and orders related to railroad safety . . . shall be nationally uniform to
    the extent practicable.‖ 
    Id. § 20106(a)
    (West Supp. 2013). To maintain this goal of
    national uniformity, the FRSA requires the Secretary of Transportation to ―prescribe
    regulations . . . for every area of railroad safety.‖ 
    Id. § 20103(a)
    (West 2007). One
    such regulation promulgated under the authority of the FRSA addresses 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 (2012).        The FRSA also contains an express preemption
    clause, which states that ―[a] State may adopt or continue in force a law, regulation,
    or order related to railroad safety or security until the Secretary of Transportation . . .
    prescribes a regulation or issues an order covering the subject matter of the State
    requirement.‖ 49 U.S.C.A. § 20106(a)(2) (emphasis added).
    Federal preemption of state law is grounded in the Supremacy Clause of the
    United States Constitution, which provides that ―the Laws of the United States . . .
    shall be the supreme Law of the Land; and the Judges in every State shall be bound
    thereby, any Thing in the Constitution or Laws of any State to the Contrary
    5
    notwithstanding.‖ Delta Air Lines, Inc. v. Black, 
    116 S.W.3d 745
    , 748 (Tex. 2003),
    cert. denied, 
    540 U.S. 1181
    (2004) (quoting U.S. Const., art. VI, cl. 2). Thus, ―if a
    state law conflicts with federal law, the state law is preempted and ‗without effect.‘‖
    
    Id. The United
    States Supreme Court has explained that when an FRSA
    regulation, under § 20106(a)(2), covers the subject matter of a state law, it thereby
    preempts the state law. See CSX Transp., Inc. v. Easterwood, 
    507 U.S. 658
    , 664–
    65, 
    113 S. Ct. 1732
    , 1737–38 (1993). In Easterwood, Thomas Easterwood was
    killed when a CSX train collided with his truck at a street crossing. 
    Id. at 661,
    113
    S. Ct. at 1736. Easterwood‘s widow sued CSX for wrongful death, alleging that
    CSX was negligent under Georgia law for, among other things, operating the train at
    an excessive speed.      
    Id. CSX argued
    that the excessive-speed claim was
    preempted by the FRSA because an FRSA speed regulation set the maximum
    allowable operating speeds by which all freight and passenger trains could travel for
    each particular class of railroad track, thereby ―cover[ing] the subject matter‖ of
    Easterwood‘s widow‘s state claim, and the train involved in the collision was
    traveling at a speed less than the maximum speed permitted for the class of track
    where the collision occurred.    
    Id. at 663,
    673, 113 S. Ct. at 1737
    , 1742. The
    Supreme Court agreed with CSX on the issue, explaining that to demonstrate that
    the FRSA regulation had preemptive effect, CSX had to establish that it did more
    than simply ―touch upon‖ or ―relate to‖ the subject matter of the Georgia negligence
    law pertaining to excessive speed; the regulation had to ―substantially subsume‖ the
    6
    subject matter of the relevant state law.    
    Id. at 664,
    113 S. Ct. at 1738. The
    Supreme Court reasoned,
    On their face, the provisions of § 213.9(a) address only the
    maximum speeds at which trains are permitted to travel given the
    nature of the track on which they operate. Nevertheless, related safety
    regulations adopted by the Secretary reveal that the limits were
    adopted only after the hazards posed by track conditions were taken
    into account. Understood 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 of the sort that
    [Easterwood‘s widow] seeks to impose on [CSX].
    
    Id. at 674,
    113 S. Ct. at 1742.     Thus, as BNSF points out, the FRSA speed
    regulations substantially subsume state common-law speed restrictions.
    In this case, Harrison did not allege a state-law claim; he alleged a FELA
    claim, which provides railroad employees with a federal cause of action for injuries
    ―resulting in whole or in part from the negligence‖ of the railroad. 45 U.S.C.A. § 51
    (West 2007).     This distinction is significant because the doctrine of federal
    preemption is inapplicable to a potential conflict between two federal statutes—here,
    the FRSA and the FELA. See Tufariello v. Long Island R.R. Co., 
    458 F.3d 80
    , 86
    (2nd Cir. 2006). Nonetheless, a number of federal courts have determined that the
    FRSA‘s express preemption clause, § 20106(a)(2), considered in Easterwood, can
    be applied to preclude a federal tort claim under the FELA if a state-law claim
    implicating similar conduct would be preempted by the FRSA. See, e.g., Lane v.
    R.A. Sims, Jr. Inc., 
    241 F.3d 439
    (5th Cir. 2001); Waymire v. Norfolk & W. Ry. Co.,
    
    218 F.3d 773
    (7th Cir. 2000), cert. denied, 
    531 U.S. 1112
    (2001).
    7
    For example, in Lane, Lane asserted a FELA claim against his employer,
    CSX, for injuries that he sustained when the train on which he was working collided
    with a tractor trailer at a crossing. 
    Lane, 241 F.3d at 441
    –42. Lane alleged that the
    train was traveling at an excessive speed when the collision occurred. 
    Id. But like
    the train in Easterwood, the train on which Lane was working was traveling below
    the maximum speed limit established by the FRSA speed regulation, 49 C.F.R.
    § 213.9 (2012). 
    Id. Considering Easterwood‘s
    conclusion that the FRSA‘s speed
    regulation preempts a state law excessive-speed claim, the issue for the Fifth Circuit
    was whether the same regulation precluded a railroad employee‘s excessive-speed
    claim under the FELA. 
    Id. Referencing the
    FRSA‘s goal of national uniformity, the
    court reasoned,
    Such uniformity 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 the FRSA virtually meaningless . . . .
    
    Id. at 443;
    see 
    Waymire, 218 F.3d at 776
    (considering FRSA preclusion of FELA
    excessive-speed claim and reasoning that ―[i]t would thus seem absurd to reach a
    contrary conclusion in this case when the operation of both trains was identical and
    when the Supreme Court has already found that the conduct is not culpable
    negligence‖); but see Earwood v. Norfolk S. Ry. Co., 
    845 F. Supp. 880
    , 891 (N.D.
    Ga. 1993) (holding that the FRSA did not preclude a railroad employee‘s unsafe-
    8
    speed FELA claim because the relevant federal regulations ―were not directed at the
    issue of employee safety‖ and established minimum safety requirements).
    Although Lane‘s analysis is certainly relevant for purposes of considering
    whether the FRSA can preclude a FELA claim, our case does not involve an
    excessive-speed claim; instead, it concerns allegations of ―oversized‖ mainline
    ballast used on a ―steep incline.‖ At least one federal circuit court has specifically
    addressed whether the FRSA‘s ballast regulation—§ 213.103—can preclude a
    FELA claim premised upon the alleged negligent use of oversized mainline ballast.
    See 
    Nickels, 560 F.3d at 430
    –31.
    In Nickels, the plaintiffs sued their former railroad employers for injuries
    that were allegedly caused by years of walking on oversized ballast. 
    Id. The gist
    of the claims was that ―the railroads used large mainline ballast in areas where
    the smaller yard ballast would have sufficed.‖       
    Id. at 431.
      The district court
    granted the railroads summary judgment, concluding that the FRSA ballast
    regulation precluded the plaintiffs‘ FELA claims. 
    Id. at 428.
    The initial inquiry
    before the Sixth Circuit was ―whether a FELA claim is precluded if the same
    claim would be preempted by the FRSA if brought as a state-law negligence
    action.‖3 
    Id. at 429–30.
    The court agreed with the Lane and Waymire courts‘
    3
    The Sixth Circuit addressed the preclusion consideration before
    examining whether the ballast regulation ―covered‖ the subject matter of the
    plaintiffs‘ claims because, logically, if the FRSA could not preclude the plaintiffs‘
    FELA claims, then it would have been of no consequence whether the FRSA
    preempted a similar state-based claim.
    9
    observations about the adverse effects of treating similar state and federal claims
    dissimilarly and reasoned,
    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. The plaintiffs‘ claims are precluded by the FRSA if they
    would have been preempted if brought by a non-employee under
    state law.
    
    Id. at 430
    (citation omitted). Other courts have concluded similarly. See, e.g.,
    Lybrand v. Union Pac. R.R. Co., No. 5:10CV00045, 
    2012 WL 1436690
    , at *2
    (E.D. Ark. Apr. 25, 2012); Brenner v. Consol. Rail Corp., 
    806 F. Supp. 2d 786
    ,
    794 (E.D. Pa. 2011); Norris v. Cent. of Ga. R.R. Co., 
    635 S.E.2d 179
    , 183 (Ga.
    Ct. App. 2006, cert. denied); see also Cowden v. BNSF Ry. Co., 
    690 F.3d 884
    ,
    889–92 (8th Cir. 2012) (refusing to create a circuit split and assuming that the
    FRSA could preclude FELA for purposes of analysis).
    Harrison argues that the FRSA will preclude the FELA only when a
    ―‗positive repugnancy‘ between the two makes them irreconcilable,‖ see Conn.
    Nat’l Bank v. Germain, 
    503 U.S. 249
    , 253, 
    112 S. Ct. 1146
    , 1149 (1992), and that
    there is no irreconcilable conflict between the FRSA ballast regulation and
    Harrison‘s FELA claim.       Neither Lane nor Waymire nor Nickels applied the
    ―positive repugnancy‖ standard. We think the reason why is because, under the
    reasoning in those cases, a FELA claim is precluded by the FRSA if the same
    claim would be preempted if brought by a non-employee under state law, and a
    10
    state-law claim is preempted by the FRSA when a regulation ―covers,‖ or
    ―substantially subsume[s],‖ the subject matter of the plaintiff‘s claim. 49 U.S.C.A.
    § 20106(a)(2); Easterwood, 507 U.S. at 
    664, 113 S. Ct. at 1738
    . Thus, at least in
    this context, ―coverage,‖ not positive repugnancy, is the relevant inquiry.
    Harrison further argues that the FRSA‘s goal of uniformity should not drive
    our preclusion analysis because, unlike a railroad‘s compliance with the FRSA‘s
    speed regulations, which is readily ascertainable (the train was either traveling
    below the maximum speed limit or not), the standards for complying with the
    FRSA‘s ballast regulation are ―so vague that uniformity is impossible.‖
    Referencing the ballast regulation requirements that all track shall be supported
    by material that will ―[p]rovide adequate drainage‖ and ―[m]aintain proper track
    crosslevel, surface, and alinement,‖ Harrison contends that ―courts‘ determinations
    of compliance—and therefore preclusion—will necessarily vary from court to court
    and case to case‖ because it is ―impossible to have uniform standards as to what
    constitutes ‗adequate‘ drainage or ‗proper‘ track alinement.‖ We disagree.
    Determining whether ballast provided adequate drainage or proper track
    alignment is no less readily ascertainable than determining the speed at which a
    train was traveling when it collided with a vehicle at a crossing. As BNSF did in this
    case, a railroad is free to elicit the opinion of an individual who is qualified to opine
    about a railroad‘s compliance or noncompliance with the ballast regulation.
    Moreover, the FRSA‘s goal of uniformity is not unachievable simply because the
    ballast regulation allows for some discretion as to what constitutes adequate
    11
    drainage or proper track alignment.    Although the means by which a track owner
    may comply with the ballast regulation may vary from one geographical area to
    another—no doubt due to the diversified topography and soil composition existing in
    our environment—the standards themselves, like the speed regulations, are certain.
    See 49 C.F.R. § 213.103.       Just as the FRSA‘s goal of uniformity would be
    undermined by treating an excessive-speed FELA claim differently than an
    excessive-speed state-law claim, see 
    Lane, 241 F.3d at 443
    , uniformity would
    likewise be undermined by treating a ballast-related FELA claim differently than a
    ballast-related state-law claim. See 
    Nickels, 560 F.3d at 430
    .
    The FRSA‘s express goal of national uniformity in the laws, regulations, and
    orders related to railroad safety compels us to agree with the Lane, Waymire, and
    Nickels courts that the FRSA‘s express preemption clause can be applied under
    certain circumstances to preclude a federal tort claim under the FELA. And as the
    Nickels court observed, although a railroad is less likely to have to defend against a
    state-law claim alleging negligent ballast size and composition than it is a FELA
    claim alleging negligent ballast size and composition, those odds do not justify
    treating the two claims differently, thus ultimately undermining uniformity.
    Accordingly, aside from BNSF‘s burden to demonstrate compliance with the ballast
    regulation, which we address below, we hold that Harrison‘s FELA claim is
    precluded by the FRSA to the extent that it would have been preempted if brought
    by a non-employee as a state-negligence claim.
    12
    B.     The FRSA Ballast Regulation Substantially Subsumes the Subject
    Matter of Harrison’s Suit
    As explained, a federal regulation covers the plaintiff‘s claim if it ―substantially
    subsume[s]‖ the subject matter of that claim. Easterwood, 507 U.S. at 
    664, 113 S. Ct. at 1738
    . Harrison alleges that his injuries were caused by BNSF‘s negligent
    use of oversized ballast on a steep incline at the Becker Siding. The FRSA‘s
    ballast regulation requires that track be supported by material that will ―[t]ransmit
    and distribute the load of the track and railroad rolling equipment to the subgrade‖;
    ―[r]estrain the track laterally, longitudinally, and vertically under dynamic loads
    imposed by railroad rolling equipment and thermal stress exerted by the rails‖;
    ―[p]rovide adequate drainage for the track‖; and ―[m]aintain proper track crosslevel,
    surface, and alinement.‖ 49 C.F.R. § 213.103.
    We hold that the size and composition of track ballast is substantially
    subsumed by § 213.103‘s track-support requirements because the size and
    composition of the ballast unquestionably affect the extent to which the regulation‘s
    support, restraint, drainage, and alignment requirements are achieved at a given
    location. See Easterwood, 507 U.S. at 
    664, 113 S. Ct. at 1738
    . As the Nickels
    court explained,
    [T]he Secretary has directed railroads to install ballast sufficient to
    perform key support functions under the conditions applicable to the
    track. Although these conditions necessarily are track-specific and are
    not classified as were the grade crossings in Easterwood, they
    effectively narrow the universe of material the railroad may use in a
    given situation. The regulation thus determines what is a reasonable
    ballast composition and size for a particular track.
    13
    
    Nickels, 560 F.3d at 431
    ; see Lybrand, 
    2012 WL 1436690
    , at *3 (―[T]he Court finds
    that Plaintiff‘s claims regarding the size and slope of the ballast are precluded by
    FRSA.‖); 
    Brenner, 806 F. Supp. 2d at 796
    (―We hold that to the extent that Plaintiff‘s
    claims are predicated upon allegations of negligence regarding the nature and size
    of ballast used for track stability, support, and drainage—including mainline,
    secondary, and yard track—such claims are precluded by 49 C.F.R. § 213.103.‖);
    
    Pitts, 61 A.3d at 776
    (―We agree with CSX that 49 C.F.R. § 213.103 ‗covers‘ and
    ‗substantially subsumes‘ the use of ballast that supports the track.‖).
    Harrison argues that this case is different from Easterwood because unlike
    the speed regulations, which were ―specific‖ and ―objective,‖ the ballast regulation
    gives track owners discretion in meeting the required track-support functions. ―A
    regulatory framework need not impose bureaucratic micromanagement in order to
    substantially subsume a particular subject matter.‖ See In re Derailment Cases,
    
    416 F.3d 787
    , 794 (8th Cir. 2005).          Moreover, we have already addressed
    Harrison‘s specificity argument in the context of our preclusion analysis above.
    C.     BNSF’s Burden to Establish Regulation Compliance
    Our conclusion that the FRSA ballast regulation substantially subsumes the
    subject matter of Harrison‘s suit does not end the analysis. Harrison argues that
    even if the ballast regulation precludes FELA claims based on mainline ballast size
    and composition, as we have determined, BNSF nonetheless failed to conclusively
    establish that it complied with the ballast regulation because (1) BNSF‘s expert is
    unqualified and his opinion unreliable and (2) BNSF did not prove that ―remedying
    14
    the danger caused by the ballasts would require the railroad ‗to strengthen or
    enlarge the roadbed beyond federal requirements or in contravention of federal
    law.‘‖ See Mo. Pac. R.R. Co. v. R.R. Comm’n of Tex., 
    948 F.2d 179
    , 183 (5th Cir.
    1991), cert. denied, 
    507 U.S. 1050
    (1993) (MoPac II); Mo. Pac. R.R. Co. v. R.R.
    Comm’n of Tex., 
    833 F.2d 570
    , 572 (5th Cir. 1987) (MoPac I); Hendrix v. Port
    Terminal R.R. Ass’n, 
    196 S.W.3d 188
    , 190 (Tex. App.—Houston [1st Dist.] 2006, no
    pet.). We address the latter argument first.
    1.     Strengthening and Enlarging Roadbed
    In MoPac I, several railroads sought declaratory and injunctive relief against
    the Railroad Commission of Texas, alleging that safety regulations promulgated by
    the Commission were preempted by the 
    FRSA. 833 F.2d at 572
    . The district court
    agreed that several of the regulations were preempted and granted the railroads
    partial summary judgment.       
    Id. One of
    the regulations included a walkway
    requirement. 
    Id. The regulation
    defined a walkway as ―a pathway located alongside
    a railroad track or railroad switch for the purpose of providing an area for a railroad
    employee to perform duties associated with that track.‖ 
    Id. at 574.
    The regulation
    established ―walkway surface, slope, and width specifications and require[d]
    walkways to be constructed along both sides of all tracks within rail yards.‖ 
    Id. In considering
    whether the walkway regulation was preempted, the Fifth Circuit
    observed that federal regulations, including the ballast regulation, govern roadbed,
    track geometry, and track structure and specifically address areas adjacent to the
    roadbed, in addition to track gauge, alignment, surface, ballast, and drainage. 
    Id. 15 The
    Commission distinguished the federal regulation by arguing that the FRSA did
    not ―cover‖ the subject matter of walkways because the federal regulations do not
    mandate walkways. 
    Id. The Fifth
    Circuit reasoned,
    It likewise appears in this case that the Commission may seek to
    enforce ―different or higher standards‖ of track construction by
    superimposing the walkway requirement on federal track geometry and
    structure regulations. This would be the case if, from a practical
    standpoint, the width, surface and slope requirements of the state
    walkway regulation generally add to the FRA standards by requiring
    the railroad to strengthen or enlarge the roadbed beyond FRA
    requirements. If the walkway regulation has this effect, we hold that
    the federal regulation has ―covered the subject matter‖ of track
    composition and design and that the state regulation conflicts with
    § 434‘s purpose to foster national rail safety standards ―to the extent
    practicable.‖
    
    Id. at 575.
    The Fifth Circuit reversed in part and remanded the case to the district
    court because it was ―unable to determine from the summary judgment record
    whether such an overlap exist[ed].‖ 
    Id. On remand,
    the district court found that ―the roadbed would, in fact, have to
    be enlarged laterally and strengthened in order to support the walkway.‖ MoPac 
    II, 948 F.2d at 183
    . On appeal, the Fifth Circuit concluded that the district‘s finding
    was not clearly erroneous and that the state walkway regulation was therefore
    preempted by the FRSA. 
    Id. at 184,
    187.
    Hendrix involved a suit by Hendrix against the Port Terminal Railroad
    Association (PTRA) under the FELA for injuries that Hendrix allegedly sustained
    while working as a 
    switchman. 196 S.W.3d at 190
    . He alleged that his injuries
    resulted from walking on unsafe walkways in and around railroad tracks that
    16
    contained ―too large and mixed ballast.‖ 
    Id. at 193.
    The trial court granted the
    PTRA summary judgment on the ground that Hendrix‘s claims were ―preempted‖ by
    the FRSA‘s ballast regulation, 49 C.F.R. § 213.103. 
    Id. at 191.
    On appeal, Hendrix
    argued that his claims were not preempted because the ballast regulation, which
    expressly addresses track structure and drainage, did not apply to his claims
    concerning the nature of the ballast on walkways around the tracks. 
    Id. at 193.
    Similar to the Fifth Circuit in MoPac I, the court of appeals concluded that ―the
    record . . . [was] devoid of testimony from railroad engineers and safety inspectors
    concerning the issues that underlie[d] the preemption inquiry‖ and that the court was
    therefore ―unable to determine from the record whether the railroad would be
    required to strengthen or enlarge the roadbed beyond federal requirements or in
    contravention of federal law in order to address or remedy the complaints made by
    Hendrix related to the ballast in the rail yard.‖ 
    Id. at 201.
    The Fifth Circuit and the First Court of Appeals had to consider, respectively,
    whether constructing a walkway and using different ballast in areas located adjacent
    to the track would require the railroad to strengthen or enlarge the roadbed because
    the federal regulations do not address walkways. See Norfolk S. Ry. Co. v. Box,
    
    556 F.3d 571
    , 572–73 (7th Cir. 2009) (―The rules for roadbed construction and
    maintenance do not ‗cover‘ the subject of adjacent walkways.‖). Therefore, to the
    extent that the railroad would be required to strengthen or enlarge the roadbed
    beyond the FRSA‘s requirements, preemption would apply.
    17
    Here, BNSF was not required to show that providing Harrison with an
    appropriate surface on which to disembark the train would require the railroad ―to
    strengthen or enlarge the roadbed beyond federal requirements or in contravention
    of federal law‖ because, unlike the claims in MoPac I, MoPac II, and Hendrix,
    Harrison‘s claims do not implicate ballast conditions on walkways; his claims instead
    concern the size and composition of ballast used for mainline track support, a
    subject for which there is a specific regulation—49 C.F.R. § 213.103. We have
    already held that the ballast regulation covers the subject matter of Harrison‘s
    mainline-ballast claim. Consequently, inquiring into whether BNSF would have to
    strengthen or enlarge the roadbed—a consideration employed by the Fifth Circuit
    and the First Court of Appeals to determine whether or not preemption applied—
    would be a useless act. Accordingly, the standard utilized in MoPac I, MoPac II,
    and Hendrix is inapposite, and we disregard it.
    2.   BNSF’s Expert
    BNSF‘s summary judgment evidence included the affidavit of Dennis Mirabal.
    BNSF included Mirabal‘s affidavit to prove that it complied with the ballast
    regulation. Harrison argues that BNSF failed to prove that it complied with the
    ballast regulation because Mirabal is not a qualified expert, and his opinions are
    unreliable.4
    4
    The trial court expressly overruled Harrison‘s objections to Mirabal‘s
    affidavit, which included the arguments we address here.
    18
    To be competent summary judgment evidence, an affidavit must show
    affirmatively that the facts sought to be proven therein would be admissible in
    evidence at a conventional trial and that the affiant is competent to testify to the
    matters stated. Ryland Grp., Inc. v. Hood, 
    924 S.W.2d 120
    , 122 (Tex. 1996). If
    scientific, technical, or other specialized knowledge will assist the trier of fact to
    understand the evidence or to determine a fact in issue, a witness qualified as an
    expert by knowledge, skill, experience, training, or education may testify thereto in
    the form of an opinion or otherwise. Tex. R. Evid. 702; E.I. du Pont de Nemours &
    Co. v. Robinson, 
    923 S.W.2d 549
    , 556 (Tex. 1995). The expert‘s opinion must also
    be relevant to the issues in the case and be based on a reliable foundation.
    
    Robinson, 923 S.W.2d at 556
    ; see Exxon Pipeline Co. v. Zwahr, 
    88 S.W.3d 623
    ,
    629 (Tex. 2002) (―Rule 702‘s reliability requirement focuses on the principles,
    research, and methodology underlying an expert‘s conclusions.‖). We review a trial
    court‘s ruling sustaining or overruling objections to summary judgment evidence for
    an abuse of discretion. Paciwest, Inc. v. Warner Alan Props., LLC, 
    266 S.W.3d 559
    ,
    567 (Tex. App.—Fort Worth 2008, pet. denied).
    Mirabal‘s affidavit provides in relevant part as follows:
    2.      I have worked for BNSF Railway Company for more than
    fourteen (14) years. Beginning in November 2007, I held the position
    of Roadmaster for BNSF in Belen, New Mexico. I was Roadmaster
    when the alleged incident with Mark Harrison occurred on April 19,
    2008. In that capacity, I was responsible for the track safety in my
    territory, including the track structure and ballast of the Becker Siding. I
    was responsible for BNSF‘s compliance with the Federal Railroad
    Safety Act and FRA regulations and BNSF track and ballast standards.
    19
    3.   To perform my job duties, I was required to and did
    possess and demonstrate working knowledge of the FRSA regulations,
    Federal Railroad Administration Track Safety Standards, BNSF
    Engineering instructions, and BNSF Maintenance Of Way Operating
    Rules.
    4.     As Roadmaster for BNSF in Belen, New Mexico in April
    2008, I was responsible for the inspection and maintenance of the
    Becker Siding. In this regard, a geometric car was periodically used to
    inspect the track, put the track under load[,] and ascertain if there was
    imbalance or instability in the track. Additionally, myself and track
    inspectors were responsible for inspecting the track on a regular basis
    to inspect ballast conditions and drainage. We confirmed upon every
    inspection of the Becker Siding (both before and after the incident) that
    BNSF Engineering Guidelines, which explicitly incorporate FRSA
    ballast regulations, were fully satisfied at this location.
    5.     On April 19, 2008 and at all times relevant to this lawsuit,
    BNSF used railroad ballast to support the railroad track structures that
    BNSF owned, maintained[,] and used including the Becker Siding. The
    purpose of this ballast is to provide support, stability[,] and adequate
    drainage to the track structure.
    6.    On April 19, 2008, the Becker Siding ballast composition
    was able to transmit and distribute track and equipment loads, restrain
    the track under dynamic loads and thermal stress, provide adequate
    drainage, and maintain proper track crosslevel, surface, and alignment.
    On April 19, 2008, the Becker Siding ballast fully complied with the
    FRSA and the FRA track safety standards.
    We hold that Mirabal‘s affidavit demonstrates that he was not only qualified to
    opine about BNSF‘s compliance with the FRSA, but that his opinion was based
    upon a reliable foundation. See 
    Robinson, 923 S.W.2d at 557
    .
    Harrison additionally argues that BNSF failed to comply with rule of civil
    procedure 166a(f) because it did not attach to or serve with the motion for summary
    judgment the ―BNSF Engineering Guidelines‖ referenced in paragraph four of
    Mirabal‘s affidavit. See Tex. R. Civ. P. 166a(f). But BNSF referred to the guidelines
    20
    only to the extent that they incorporate the ballast regulation. We disagree with
    Harrison‘s implied assumption that a regulation contained in the Code of Federal
    Regulations is a ―paper‖ within the meaning of rule of civil procedure 166a(f).
    We hold that the trial court did not abuse its discretion by overruling
    Harrison‘s objections to Mirabal‘s affidavit. We further hold that BNSF established
    as a matter of law that it complied with the ballast regulation, 49 C.F.R. § 213.103.
    D.     Holding
    We hold that BNSF met its summary judgment burden to establish as a
    matter of law that Harrison‘s FELA claim is precluded by the FRSA and that the trial
    court did not err by granting BNSF summary judgment. Accordingly, we overrule
    Harrison‘s first and second issues.
    V. SUMMARY JUDGMENT ON NON-BALLAST FELA CLAIMS
    In his third issue, Harrison argues that the trial court erred by granting
    summary judgment on his ―non-ballast‖ FELA claims because BNSF did not move
    for summary judgment on those claims.
    It is well established that a summary judgment cannot be affirmed on a
    ground that is not specifically presented in the motion for summary judgment.
    Travis v. City of Mesquite, 
    830 S.W.2d 94
    , 100 (Tex. 1992).
    Harrison alleged that he ―was injured while stepping off a train‖ and that he
    ―suffered injuries to his knee and body generally as a result of slipping on oversized
    ballast on a steep incline.‖ He also alleged that BNSF owed him a duty ―to provide
    21
    reasonably safe ballast and a reasonably safe area to disembark.‖             These
    allegations clearly relate to Harrison‘s mainline ballast claim.
    The only other allegation that does not expressly relate to Harrison‘s ballast
    claim—when read in isolation—is the allegation that BNSF owed him a duty ―to
    provide a reasonably safe place to work.‖ However, just below that allegation,
    Harrison pleaded that BNSF ―knew or should have known that disembarking and
    walking on sloped ballast increased the danger of injury and/or created an unsafe
    place to work‖ and that BNSF ―knew or should have known that disembarking and
    walking on large and/or mainline ballast increased the danger of injury and/or
    created an unsafe place to work.‖ Thus, Harrison‘s safe-place-to-work allegation is
    actually an extension of his FELA ballast claim; thus, he never pleaded a non-ballast
    FELA claim, and BNSF had no reason to specially except to the pleading.
    To the extent that the concurring and dissenting opinion suggests
    otherwise, we do not by implication hold that all FELA claims relating to railway
    ballast in any way are ipso facto precluded by the FRSA. Rather, our holding is
    narrow and unambiguous: The only claim alleged by Harrison—one for injuries
    that he allegedly sustained while stepping onto mainline, or track support,
    ballast—is precluded by the FRSA. Consequently, except where noted above,
    we decline to further supplement this opinion with inapposite caselaw and
    analysis distinguishing FELA claims premised upon injuries sustained while
    walking on ballast used for a walkway or other area that does not support the
    track. See Tex. R. App. P. 47.1. We overrule Harrison‘s third issue.
    22
    VI. CONCLUSION
    Having overruled all of Harrison‘s issues, we affirm the trial court‘s judgment.
    /s/ Bill Meier
    BILL MEIER
    JUSTICE
    PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.
    GABRIEL, J. filed a concurring and dissenting opinion.
    DELIVERED: January 30, 2014
    23
    

Document Info

Docket Number: 02-12-00476-CV

Citation Numbers: 508 S.W.3d 331, 2014 Tex. App. LEXIS 1086, 2014 WL 324645

Judges: Livingston, Meier, Gabriel

Filed Date: 1/30/2014

Precedential Status: Precedential

Modified Date: 11/14/2024

Authorities (21)

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Exxon Pipeline Co. v. Zwahr , 88 S.W.3d 623 ( 2002 )

Travis v. City of Mesquite , 35 Tex. Sup. Ct. J. 756 ( 1992 )

missouri-pacific-railroad-company-plaintiffs-appelleescross-appellants-v , 948 F.2d 179 ( 1991 )

Provident Life & Accident Insurance Co. v. Knott , 47 Tex. Sup. Ct. J. 174 ( 2003 )

Earwood v. Norfolk Southern Railway Co. , 845 F. Supp. 880 ( 1993 )

Ryland Group, Inc. v. Hood , 924 S.W.2d 120 ( 1996 )

Norris v. Central of Georgia Railroad , 280 Ga. App. 792 ( 2006 )

Travelers Insurance Co. v. Joachim , 53 Tex. Sup. Ct. J. 745 ( 2010 )

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Hendrix v. Port Terminal RR Ass'n , 196 S.W.3d 188 ( 2006 )

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