Richard J. Wermerskirchen and Carol M. Wermerskirchen v. Canadian National Railroad, a/k/a CN, a/k/a CN Railway Chicago Central & Pacific Railroad, a/k/a CCP Illinois Central Railroad Company Tim Dorsey, and Josh Yokem

IN THE SUPREME COURT OF IOWA
No. 18–2039
Submitted December 15, 2020—Filed March 5, 2021
RICHARD J. WERMERSKIRCHEN and
CAROL M. WERMERSKIRCHEN,
Appellants,
vs.
CANADIAN NATIONAL RAILROAD,
a/k/a CN, a/k/a CN RAILWAY, CHICAGO,
CENTRAL & PACIFIC RAILROAD COMPANY,
a/k/a CCP, ILLINOIS CENTRAL RAILROAD
COMPANY, TIM DORSEY, and JOSH VOKEM,
Appellees.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Black Hawk County,
Linda M. Fangman, Judge.
A railroad seeks further review of a court of appeals decision
reversing a grant of partial summary judgment in a case arising out of a
collision. DECISION OF COURT OF APPEALS AFFIRMED IN PART AND
VACATED IN PART; DISTRICT COURT JUDGMENT AFFIRMED.
Mansfield, J., delivered the opinion of the court, in which Waterman,
McDonald, Oxley, and McDermott, JJ., joined. Appel, J., filed an opinion
concurring in part and dissenting in part. Christensen, C.J., took no part
in the consideration or decision of the case.
2
Jordan M. Talsma (argued), and John R. Walker, Jr., of Beecher,
Field, Walker, Morris, Hoffman & Johnson, P.C., Waterloo, for appellants.
R. Todd Gaffney (argued) and Kellen B. Bubach of Finley Law Firm,
P.C., Des Moines, for appellees.
3
MANSFIELD, Justice.
This case involves a collision between a freight train and a road
grader on a foggy Iowa winter morning. It is jarring to watch the
locomotive’s video of the accident. Suddenly, about six seconds before the
crash, the road grader comes into sight approaching the tracks. The
grader keeps moving forward continuously without stopping. The grader
then begins to cross the tracks. About three seconds later, the train
strikes the front of the grader and continues for another half mile or so
before coming to stop.
As a result of the collision, the driver of the grader was seriously
injured. He sued the railroad and the train crew alleging excessive speed,
failure to keep a proper lookout, failure to brake, and failure to sound the
horn properly.
The district court granted summary judgment to the defendants on
all but the horn claims. It determined that federal law preempted the
excessive speed claims since the train was in compliance with the
applicable federal speed regulation. It also reasoned that the lookout and
braking claims were either preempted as related to the excessive speed
claims, or barred by lack of causation. In the court’s view, even immediate
braking at the earliest time when the grader became visible would not have
prevented the serious collision that resulted. Two months later, a jury
returned verdicts for the defendants on the horn claims. The plaintiffs
appealed.
Following transfer, the court of appeals affirmed the defense verdict
on the horn claims but reversed the summary judgment for the defendants
on the other claims and directed a second trial. We granted further review
and now reinstate the district court’s grant of summary judgment.
4
I. Facts and Procedural History.
On the morning of January 28, 2013, in rural Black Hawk County,
freezing rain was falling, and the fog was heavy. A 113-car freight train
operated by Chicago, Central & Pacific Railroad Company (CCP) was
traveling westbound on the tracks at approximately forty-seven miles per
hour.1 Under federal regulations, the speed limit on that stretch of track
was sixty miles per hour.
Meanwhile, Richard Wermerskirchen, a county employee, was
operating a forty-foot-long John Deere 772G road grader to “scarify,” or
rough up, the gravel surfaces to improve traction for drivers. At around
9:30 a.m., Wermerskirchen’s grader was heading northbound on Nesbit
Road at about fifteen miles per hour as it approached the railroad crossing.
The crossing was visibly marked with crossbucks and a yield sign, and
there was also a yellow advance warning sign 700 feet from the
intersection. Wermerskirchen was familiar with the intersection. He had
crossed it approximately 100 times before, including two prior times that
morning.
Visibility was poor, but Wermerskirchen claims that he listened for
a horn and heard none. From prior experience, Wermerskirchen could
normally hear the horn from approximately one mile away.
Wermerskirchen elevated the plow and scarifier and proceeded
across the tracks at approximately eight to twelve miles per hour. The
video on the lead locomotive shows the grader pulling onto the tracks
directly in front of the train. On the video, the grader becomes visible
approximately six seconds before the collision and enters the crossing
1CCP is part of the Illinois Central Railroad, which in turn is a subsidiary of
Canadian National Railway. The plaintiffs sued all of these entities as well as Timothy
Dorsey and Joshua Yokem, who were respectively the engineer and the conductor on duty
that day. Hereafter we will refer to all the defendants collectively as “CCP.”
5
approximately three seconds before the collision. Engineer Timothy
Dorsey and conductor Joshua Yokem, anticipating an immediate collision,
dove to the ground without activating the emergency brake. The
locomotive struck the grader and continued another half mile before
coming to a stop.2
The crash struck the front part of the grader and ejected
Wermerskirchen out the grader’s back window. He landed on the grass
with a piece of metal lying across his legs. Dorsey and Yokem came
running back, but Yokem was unable to lift the metal bar. Eventually
emergency medical technicians were able to free Wermerskirchen. He
suffered serious injuries, including a broken pelvis, a broken left ankle,
five broken ribs, and a cracked sternum.
The event recorder on the lead locomotive showed that the bell was
operating continuously up until the collision and that the horn had been
sounded repeatedly. This was consistent with the recollection of both
Dorsey and Yokem.3
On December 18, 2014, Wermerskirchen and his spouse sued CCP
in the Black Hawk County District Court.4 As amended, their petition
alleged negligence in the following respects: (1) operating the train at an
excessive speed under the circumstances, (2) failing to maintain a proper
lookout, (3) failing to apply the brakes in a proper manner, and (4) failing
to sound an audible warning sufficiently in advance of the crossing.
On July 20, 2017, CCP moved for summary judgment on all claims.
They maintained that the train complied with the federal speed limit and
2The brake was applied approximately ten seconds after the collision.
3They had also turned on the headlight and ditch lights.
4The claim of Wermerskirchen’s spouse was for loss of consortium and was
derivative of his claim. For the sake of simplicity, we shall refer to the plaintiffs collectively
as “Wermerskirchen.”
6
that federal law preempted Wemerskirchen’s excessive speed claims. They
also urged that the lookout and braking claims were related to speed and
thus preempted or alternatively failed as a matter of law on causation.
CCP argued that even Wemerskirchen’s expert conceded that keeping a
proper lookout and initiating braking immediately on seeing the grader
would not have prevented the collision. Regarding the horn claims, CCP
maintained that there was no issue of fact that its crew sounded the horn
in accordance with federal regulations and that the horn was working
properly.
Wermerskirchen resisted CCP’s motion. Among other things, he
argued that federal law did not have preemptive force because claims
involving essentially local or individual safety hazards, such as the
weather conditions on January 28, 2013, were not preempted. He also
argued there were issues of fact as to whether the horn was operating
properly and in compliance with federal regulations.
On September 15, 2018, the district court entered a ruling granting
CCP’s motion in part and denying it in part. The court found that weather
conditions did not provide a basis for avoiding federal preemption and
therefore the excessive speed claims were expressly preempted. The court
also found that the lookout and braking claims were barred. To the extent
Wermerskirchen was arguing that the train’s speed left the crew with
insufficient time to react before striking the grader, such a claim directly
related to the speed of the train and was therefore preempted. To the
extent Wermerskirchen was arguing that the crew could have and should
have braked at the first moment when the grader would have been visible,
that claim flunked a causation test. On that point, the undisputed
evidence showed that any action would have been too late by then to
prevent a violent collision. The district court denied summary judgment
7
on the horn claims on the ground there were fact questions as to how and
when the horn was sounded.
The horn-related claims proceeded to a jury trial beginning
October 30. On November 7, the jury returned a verdict for CCP.
Wermerskirchen filed a notice to appeal on November 27. He argued
that the district court had erred in granting summary judgment on the
excessive speed, lookout, and braking claims. He also challenged certain
evidentiary rulings and the giving of certain jury instructions by the
district court. We transferred his appeal to the court of appeals.
On February 19, 2020, the court of appeals issued an opinion
affirming in part and reversing in part the judgment entered after
summary judgment and trial proceedings. That court concluded that
partial summary judgment should not have been granted. In the court of
appeals’ view, preemption did not apply and there were issues of fact on
causation. However, the court of appeals affirmed the jury verdict on the
horn claims, determining that there had been no error in the evidentiary
rulings or in the giving of jury instructions.
CCP filed an application for further review, which we granted.
II. Standard of Review.
“On further review, we have the discretion to review all or some of
the issues raised on appeal or in the application for further review.” State
v. Roby, ___ N.W.2d ___, ___ (Iowa 2020) (quoting State v. Clay,
824 N.W.2d 488, 494 (Iowa 2012)). We choose to review only the ruling
granting summary judgment on the excessive speed, lookout, and braking
claims. We let the court of appeals decision stand as our final decision on
the trial of the horn-related issues.
8
We review the grant of summary judgment for correction of errors at
law. Susie v. Fam. Health Care of Siouxland, P.L.C., 942 N.W.2d 333, 336
(Iowa 2020). As we said in Susie v. Family Health Care of Siouxland, P.L.C.,
The burden is on the moving party to demonstrate the
nonexistence of a material fact question. However, the
nonmoving party may not rely on mere allegations in the
pleadings but must set forth specific facts showing a genuine
issue for trial. If the nonmoving party cannot generate a prima
facie case in the summary judgment record, the moving party
is entitled to judgment as a matter of law.
942 N.W.2d at 336–37 (citations omitted).5
III. Legal Analysis.
A. The FRSA Preempts the Excessive Speed Claims. The Federal
Railroad Safety Act (FRSA) governs railroad safety and has an express
preemption clause. Title 49 U.S.C. § 20106, part of FRSA, provides,
(a) National uniformity of regulation.—(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
5The facts will be viewed in the light most favorable to the nonmoving party.
Fam. Health Care, 942 N.W.2d at 337. Therefore, the proof must be presented in a
manner that leaves no room for the fact finder to speculate about who the negligent
culprit is. Id. Thus, affirming that cases rooted in speculation do not constitute a genuine
issue of fact. Id.
9
(C) does not unreasonably burden interstate commerce.
(b) Clarification regarding State law causes of
action.—(1) Nothing in this section shall be construed to
preempt an action under State law seeking damages for
personal injury, death, or property damage alleging that a
party--
(A) has failed to comply with the Federal standard of
care established by a regulation or order issued by the
Secretary of Transportation (with respect to railroad safety
matters), or the Secretary of Homeland Security (with respect
to railroad security matters), covering the subject matter as
provided in subsection (a) of this section;
(B) has failed to comply with its own plan, rule, or
standard that it created pursuant to a regulation or order
issued by either of the Secretaries; or
(C) has failed to comply with a State law, regulation, or
order that is not incompatible with subsection (a)(2).
Thus, the FRSA establishes a policy of nationally uniform railroad
safety regulation and prohibits states from having different safety laws
when a federal regulation or order covers the same subject matter.
49 U.S.C. § 20106(a)(1). However, it allows states to have more stringent
legal requirements when “necessary to eliminate or reduce an essentially
local safety or security hazard,” so long as those requirements are not
incompatible with federal law and do not unreasonably burden interstate
commerce. Id. § 20106(a)(2)(A). The FRSA also preserves state causes of
action for such violations of state law. Id. § 20106(b)(1)(C).
In 1993, the United States Supreme Court addressed the scope of
FRSA preemption in a case involving a fatal truck–train collision. CSX
Transp., Inc. v. Easterwood, 507 U.S. 658, 661, 113 S. Ct. 1732, 1736
(1993). The driver’s widow argued that the railroad had been negligent
under Georgia law for failing to maintain adequate warning devices at the
crossing and for operating the train at an excessive speed. Id. at 661,
113 S. Ct. at 1736. After finding that the grade crossing claim was not
10
preempted, the Court turned to the excessive speed claim. Id. at 673,
113 S. Ct. at 1742. The Court noted, “Federal regulations issued by the
Secretary pursuant to FRSA and codified at 49 CFR § 213.9(a) (1992) set
maximum allowable operating speeds for all freight and passenger trains
for each class of track on which they travel.” Id. The Court continued,
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 respondent seeks to impose on
petitioner.
Id. at 674, 113 S. Ct. at 1742. The Court added that federal regulations,
“focus on providing appropriate warnings [at crossings] given variations in
train speed.” Id., 113 S. Ct. at 1743. The Court went on: “Read against
this background, § 213.9(a) should be understood as covering the subject
matter of train speed with respect to track conditions, including the
conditions posed by grade crossings.” Id. at 675, 113 S. Ct. at 1743.
The Court specifically rejected the widow’s argument that the
conditions at a particular crossing amounted to an “essentially local safety
hazard,” thus permitting a different state-law negligence standard for train
speed than the federal speed limit. Id.; see also 49 U.S.C. § 20106(a)(2)(A).
As the Court explained,
The state law on which respondent relies is concerned with
local hazards only in the sense that its application turns on
the facts of each case. The common law of negligence provides
a general rule to address all hazards caused by lack of due
care, not just those owing to unique local conditions.
Id. However, after suggesting that the law of negligence could never avoid
preemption in an excessive speed case, the Court dropped a footnote:
11
Petitioner is prepared to concede that the pre-emption
of respondent’s excessive speed claim does not bar suit for
breach of related tort law duties, such as the duty to slow or
stop a train to avoid a specific, individual hazard. As
respondent’s complaint alleges only that petitioner’s train was
traveling too quickly given the “time and place,” this case does
not present, and we do not address, the question of FRSA’s
pre-emptive effect on such related claims.
Id. n.15 (citations omitted).
To some extent, the jurisprudence of Easterwood has become the
jurisprudence of footnote 15. What is “a specific, individual hazard”? Can
weather conditions be considered “a specific, individual hazard”? And
even if they are, what does that mean for preemption purposes? The
Supreme Court didn’t say that claims alleging excessive speed under state
negligence law given the existence of a “specific, individual hazard”
wouldn’t be preempted, just that it wasn’t deciding the issue.
One of the more comprehensive discussions of footnote 15 appears
in Seyler v. Burlington Northern Santa Fe Corp., 102 F. Supp. 2d 1226
(D. Kan. 2000). The case was brought by a passenger injured in a train
derailment attributable to water overflowing the tracks. Id. at 1230–31.
One of the passenger’s claims was based on excessive speed. Id. at 1234.
The passenger alleged that the train should have been proceeding more
slowly given weather conditions and known flash floods in the area. Id. at
1235–36. The district court first surveyed the caselaw since Easterwood
and noted, “Generally, courts which have considered this issue have ruled
that a ‘specific individual hazard’ must be a discrete and truly local hazard
such as a child standing on the railway.” Id. at 1236. The court then
disagreed that heavy rainfall combined with a flash flood warning could be
considered “a ‘specific, individual hazard’ within the meaning of
footnote 15 of Easterwood.” Id. at 1237. Inclement weather is a common
event and typically covers a broader geographical area than a particular
12
bridge or crossing; the Secretary of Transportation can take it into account
when prescribing uniform national standards; and allowing state law to
dictate a different, indeterminate speed limit in light of inclement weather
would undermine the ability of the Secretary to prescribe uniform speed
limits. Id. at 1236–38. The court went on to conclude that even if flash
flood warnings could be considered a “specific, individual hazard” within
the meaning of the Supreme Court’s footnote 15, they would not amount
to “an essentially local safety hazard” under the FRSA’s own terminology
and would still not be preempted. Id. at 1238.
Likewise, in Cox v. Norfolk & Western Railway, 998 F. Supp. 679,
685 (S.D.W. Va. 1998), the court reasoned that “specific, individual
hazard” referred to something like a motorist stranded on the crossing,
rather than weather conditions. The court elaborated,
Furthermore, to claim that weather conditions were a
specific, individual hazard as spoken of in Easterwood, would
pave the way for infinite state negligence lawsuits involving
train accidents occurring in less than perfect weather. Such
a holding would act directly contrary to Congress’ intent that
laws, regulations and orders related to railroad safety be
nationally uniform to the extent possible. 49 U.S.C. § 20106
(1997). Such a holding would also mean that the Secretary
only took into account perfect weather conditions when the
Secretary prescribed maximum speed limits.
Id.
The United States Court of Appeals for the Eighth Circuit has also
held that weather conditions do not trump FRSA preemption. In Grade v.
BNSF Railway, an automobile collided with a flatbed railcar that had been
parked in a railroad crossing during a night when there was an ice storm
and reduced visibility. 676 F.3d 680, 682 (8th Cir. 2012). The injured
driver argued that his warning claims were not preempted, even though
the railroad had complied with federal standards, because “a local
condition existed at the B Street crossing, specifically, heavy fog and ice,
13
making it necessary for extra warnings to be in place.” Id. at 686. The
Eighth Circuit disagreed and found preemption:
In implementing the national regulations, the Secretary of
Transportation was surely aware that fog would exist along
railroad tracks on many occasions and that ice storms would
occur. These conditions are not uniquely local in character
and could be adequately addressed at the national level.
Thus, the local-condition savings clause does not apply, and
the district court was correct in determining that Grade’s
inadequacy-of-warning claims were preempted by the FRSA.
Id. at 687.
One case takes a different view. See Bakhuyzen v. Nat’l Rail
Passenger Corp., 20 F. Supp. 2d 1113 (W.D. Mich. 1996). In that truck–
train collision case, the court found that allegations the train should have
slowed due to known dangers associated with the crossing were deemed
preempted, but allegations that the train should have slowed because of
weather were not. Id. at 1118. The court noted that weather conditions
“are not static” and “are not capable of being adequately encompassed
within uniform national standards.” Id. “Maximum train speeds, like
automobile speed limits, do not remove from the driver the obligation to
exercise due care when and if the circumstances such as poor visibility
due to snow make operation at the maximum speed careless.” Id.
This reasoning, we believe, is open to question. Most courts disagree
with Bakhuyzen. See Carter v. Nat’l Ry. Passenger Corp.,
63 F. Supp. 3d 1118, 1154 (N.D. Cal. 2014) (“[C]ourts have found that in
general, adverse weather conditions do not constitute
a specific, individual hazard under Easterwood.”); Sec. First Bank v.
Burlington N. & Santa Fe Ry., 213 F. Supp. 2d 1087, 1091–92
(D. Neb. 2002) (holding that limited visibility due to snow or blowing snow
was not a specific, individual hazard and listing other district courts with
the exception of Bakhuyzen that have rejected such claims); Seronde v.
14
BNSF Ry., 2015 WL 1516534 at *2 (Ariz. Ct. App. April 2, 2015) (“Courts
generally have held that ordinary visibility restrictions and adverse
weather do not constitute ‘specific, individual hazards’ that may create an
exception to preemption.”). One can readily conceive of a national
standard regarding train speed that would require weather-based
adjustments, just as the existing standard requires track-based
adjustments. But the Secretary might have concluded that the costs of
such a standard do not justify the benefits because slowing down an entire
train is, pace Bakhuyzen, different from slowing down a single automobile.
The words “specific, individual” and “essentially local” are
ambiguous, although the layering of language suggests a narrow
interpretation. Not only must the hazard be “specific,” it must also be
“individual.” Not only must the hazard be “local,” it must also be
“essentially local.” Some courts have focused on how likely the condition
is to occur and in how many locations it is likely to occur. See Hesling v.
CSX Transp., Inc., 396 F.3d 632, 640 (5th Cir. 2005) (finding that
construction in the vicinity of a crossing does not exempt an excessive
speed claim from preemption and stating, “A condition that can be or is
present at many, or most sites cannot be a specific, individual
hazard”);Wooten v. CSX R.R., 842 N.E.2d 603, 609–10 (Ohio Ct. App. 2005)
(holding that obstructive vegetation at a crossing was not a local safety
hazard that foreclosed preemption of an excessive speed claim and stating,
“Although this particular field of corn allegedly obstructed Wooten’s view
of the railroad tracks as she approached the crossing, corn fields can and
do exist beside many crossings in Ohio”).
An especially thorough discussion appears in a decision of the
Wisconsin Supreme Court. See Partenfelder v. Rohde, 850 N.W.2d 896
(Wis. 2014). The case “stem[med] from a tragic collision between a train
15
and a minivan during a Memorial Day parade.” Id. at 899. Local police
notified the railroad in advance of potential hazards on the tracks near the
parade. Id. Nonetheless, a vehicle became stuck on the tracks and was
struck by a train. Id. In their lawsuit, the plaintiffs alleged that the
railroad should have slowed their trains in response to the parade traffic,
arguing that this was “a specific, individual hazard that removed the
claims from the ambit of preemption.” Id. at 906. After undertaking its
own legal survey, the Wisconsin Supreme Court observed that courts
“generally have interpreted the exception narrowly.” Id. The court opined
that a specific, individual hazard “(1) is a unique, particular danger rather
than a ‘generally dangerous condition’; (2) poses a danger of an imminent
collision; and (3) ‘cannot be addressed by a uniform, national standard.’ ”
Id. at 907 (footnote omitted) (quoting Anderson v. Wis. Cent. Transp. Corp.,
327 F. Supp. 2d 969, 978 (E.D. Wis. 2004)). Otherwise stated, “a specific,
individual hazard is something that is unique and could not have been
taken into account by the Secretary when promulgating uniform, national
standards.” Id.; see also Myers v. Mo. Pac. R.R., 52 P.3d 1014, 1028
(Okla. 2002) (“[A] specific, individual hazard refers to a unique occurrence
which could lead to a specific and imminent collision.”).
The court concluded that the parade was not such a specific,
individual hazard. Partenfelder, 850 N.W.2d at 911. As it put it,
For example, if the Elm Grove Police Department had
called Soo Line and said that there was a van stuck on the
tracks several miles ahead of the train, the van would have
been a specific, individual hazard that could have caused an
accident to be imminent as the train approached. The same
is not true for traffic congestion. Even as a train approaches
a crowded crossing, there is no imminent danger of a collision
if motorists and pedestrians are following the law. Thus, even
if an “event” can constitute a specific, individual hazard in
some circumstances, neither the parade in this case nor its
resultant traffic was such an event.
16
Id. at 908. The court cited to practical concerns that trains would have to
slow down to an uncertain extent due to possible state tort liability
whenever they received a warning about traffic congestion. Id. at 910–11.
We find these authorities persuasive, and in any event we are bound
by the relevant text of the FRSA and the controlling Supreme Court
decision in Easterwood. Common weather conditions like fog cannot be a
basis for setting aside the national train speed limits established by the
Secretary of Transportation. They appear too frequently and over too wide
a geographic area to be considered “essentially local” or “specific [and]
individual.” See 49 U.S.C. § 20106(a)(2)(A); Easterwood, 507 U.S. at
675 n.15, 113 S. Ct. at 1743 n.15. If weather conditions were an exception
to preemption that opened the door to each state’s tort law, the exception
would come close to swallowing the rule. Congress’s mandate that “[l]aws,
regulations, and orders related to railroad safety and laws, regulations,
and orders related to railroad security shall be nationally uniform to the
extent practicable” would be undermined. 49 U.S.C. § 20106(a)(1).
Weather conditions are the kind of thing that the Secretary could have
taken into account in the federal train speed regulations if the Secretary
wished to do so. See Grade, 676 F.3d at 687; cf. Iowa Code
§ 321.285(1) (2013) (stating that “no person shall drive any vehicle upon a
highway at a speed greater than will permit the person to bring it to a stop
within the assured clear distance ahead, such driver having the right to
assume, however, that all persons using said highway will observe the
law”). Fog is not unique, it isn’t an imminent danger, and it isn’t the kind
of thing that could not be addressed in a national standard. See
Partenfelder, 850 N.W.2d at 907.
Easterwood also emphasizes that the Secretary of Transportation
has made a policy decision to require appropriate warnings to drivers at
17
crossings rather than train speed changes. See 507 U.S. at 674, 113 S. Ct.
at 1742–43 (“Because the conduct of the automobile driver is the major
variable in grade crossing accidents, and because trains offer far fewer
opportunities for regulatory control, the safety regulations established by
the Secretary concentrate on providing clear and accurate warnings of the
approach of oncoming trains to drivers.”).
Accordingly, we find that Wermerskirchen’s excessive speed claims
are preempted by federal law, given 49 U.S.C. § 20106 and the undisputed
evidence that the train was operating in compliance with federal speed
limits.
A careful reading of the court of appeals decision indicates that the
court did not reverse the district court on Wermerskirchen’s claim that the
train was traveling at an excessive speed given the weather. The court of
appeals said, “[W]e don’t decide the dense fog, standing alone, was a
‘specific individual hazard’ as that phrase was used in Easterwood.”
Instead, the court gave the following rationale for its ruling:
The district court should have denied summary
judgment on Wermerskirchen’s claims the crew failed to
maintain a proper lookout and failed to slow or stop the train.
The question whether the grader presented an imminent risk
of collision, once the train crew was able to perceive it, is a
question of fact for a jury.
We now turn to the lookout and braking claims.
B. Summary Judgment Was Properly Granted on the Lookout
and Braking Claims Based on Lack of Causation. We agree with the
court of appeals that a vehicle visibly entering a crossing is both a “specific,
individual” hazard and an “essentially local” hazard. As that court
colorfully explained, if the rule were otherwise, “as long as the train was
traveling within applicable federal speed limits, Dorsey and Yokem could
18
have been wearing blindfolds or had their backs turned without being
responsible under a state law negligence action.”
Thus, for example, in Partenfelder v. Rohde, the Wisconsin Supreme
Court remanded for consideration of “the train crew’s response once it saw
[plaintiff’s] van.” 850 N.W.2d at 911. That claim was not preempted. Id.
Another court very recently concurred in this view: “[A] claim of failure to
slacken speed based on the unwavering approach by a vehicle at a railroad
crossing is not preempted.” Campbell v. Union Pac. Ry., ___ S.W.3d ___,
___ (Mo. Ct. App. 2020); see also Hesling, 396 F.3d at 640 (explaining that
the specific, individual hazard “relates to the avoidance of a specific
collision” (quoting Armstrong v. Atchison, Topeka & Santa Fe Ry., 844
F. Supp. 1152, 1153 (W.D. Tex. 1994)));Williams v. Norfolk S. Corp.,
322 F. Supp. 3d 896, 902 (N.D. Ind. 2018) (“[A]ny claim that the train was
traveling at an excessive speed is preempted, except Williams’ negligence
claim based on Norfolk’s duty to stop or slow the train in response to
the specific, individual hazard posed by the presence of Williams and his
friends.”); Stouffer v. Union Pac. R.R., 530 S.W.3d 782, 792 (Tex. App. 2017)
(“The classic examples of a specific, individual hazard are a child standing
on the tracks or a motorist standing on the tracks.”).
So the FRSA does not preempt Wermerskirchen’s claims that the
train crew didn’t timely spot him once he could have been seen and that
they didn’t timely brake the train. The district court, however, granted
summary judgment here based on causation. It reasoned,
By the time that Defendants could have taken any of those
actions, the train and the road grader were already in too close
of proximity to each other for those attempts to make any
difference in the result. This conclusion is reached by both
Plaintiff and Defendant experts. The train was simply moving
too fast, and the visibility was too poor.
19
We believe the summary judgment record supports that ruling.
Wermerskirchen’s expert stated in his report: “Giv[en] the speed and
limitations of visibility, even maintaining a proper lookout would not
provide the crew with sufficient time to perceive the risk, react, and initiate
braking to avoid the collision.” CCP’s expert concurred:
Even an instantaneous reaction by the crew when the grader
failed to yield as required and went past the crossbuck onto
and stopped on the crossing would have yielded no
measurable change in the train’s arrival time at the point of
impact.
The undisputed evidence showed that a full brake application at six
seconds before impact—when the grader first could have been seen—
would not have avoided the collision and would have reduced the speed of
the train from only forty-seven miles per hour to forty-six miles per hour.
Wermerskirchen advances two arguments on appeal. First, he
questions the stopping-distance calculations offered by CCP’s expert.
Second, Wermerskirchen contends that if the train crew had commenced
braking and if he had noticed that the train was slowing down, he might
have sped up and been able to get across the tracks.6 Both of these are
only arguments, however. Wermerskirchen did not offer different
calculations from his own expert or an affidavit that he might have made
a different split-second decision to try to beat the train, let alone proof that
this would have been possible. From the video, it seems highly implausible
that there could have been a different outcome once Wermerskirchen
decided to enter the crossing, given the speed with which the train was
traveling. Wermerskirchen’s hypotheses are not enough to generate a
genuine issue of material fact. See Iowa R. Civ. P. 1.981(5) (“When a
6Wermerskirchen testified that once he saw a collision was imminent, he stopped
the grader on the tracks so that the cab in which he was riding would not directly receive
the impact.
20
motion for summary judgment is made and supported as provided in this
rule, . . . the response, by affidavits or as otherwise provided in this rule,
must set forth specific facts showing that there is a genuine issue for
trial.”).
Insisting otherwise, Wermerskirchen analogizes this case to Dresser
v. Union Pacific Railroad, 809 N.W.2d 713 (Neb. 2011). The analogy does
not hold up. Dresser involved a collision at a crossing between a train and
an automobile. Id. at 715. Unlike in the present case, though, it happened
in the middle of a clear day. Id. at 716. The Nebraska Supreme Court
agreed it was undisputed that the train could not have been stopped in
time once it became clear the vehicle was pulling onto the tracks. Id. at
721. However, the court found an issue of fact as to whether slowing the
train could have given the driver of the vehicle enough time to back off the
tracks and avoid he collision. Id. at 721–22. The court specifically noted
that the record,
is silent on what effect activation of the emergency brake
would have had on the speed of the train. It is thus impossible
to conclude on this record that the train’s speed could not
have been reduced had the engineer pulled the emergency
brake immediately after the vehicle left the stop sign.
Id. at 721. No such gap exists in the present record. There is unrebutted
testimony that activating the brake would have slowed the train’s speed
by only one mile per hour.
“Tortious conduct must be a factual cause of harm for liability to be
imposed. Conduct is a factual cause of harm when the harm would not
have occurred absent the conduct.” Restatement (Third) of Torts: Phys. &
Emot. Harm § 26, at 346 (Am. L. Inst. 2010). Wermerskirchen has failed
to raise an issue of fact that a better lookout or earlier application of the
brakes would have avoided his serious injuries.
21
“Factual cause” used to be called (with no less clarity) “cause in fact.”
See, e.g., Berte v. Bode, 692 N.W.2d 368, 372 (Iowa 2005). Regardless, the
absence of such a causal connection has sustained summary judgment in
a number of train-crossing collision cases. For example, in Rasmusen v.
White, a federal district court found that a train crew breached a duty to
apply the brakes when it became apparent that the plaintiff’s car was not
going to stop before entering a crossing, but the court nonetheless granted
summary judgment to the defendants. 970 F. Supp. 2d 807, 825
(N.D. Ill. 2013). The court explained,
[T]here is simply no evidence that had the train crew
attempted to stop the train at the point when it became their
duty to do so that the collision could have been avoided. In
situations where the evidence indicates that the train crew
could not have prevented the accident after realizing that a
vehicle is not going to yield to the train, summary judgment is
warranted. Thus, based on the record before the Court, the
train crew’s breach of that duty of care cannot be the
proximate cause of the accident. Summary judgment must
thus be granted as to those negligence claims based on the
train crew’s failure to brake or to keep an appropriate lookout.
Id.
Likewise, in Pratt v. National Railroad Passenger Corp., a federal
appellate court affirmed summary judgment on a failure-to-brake claim on
causation grounds. 709 F. App’x 33, 35 (2d Cir. 2017). The court agreed
with the manner in which the district court had sifted through the record:
Absent expert testimony to the contrary, the district
court did not err in adopting the defense expert’s computation
of the effect of such braking, which indicated that three
seconds of braking would have slowed the train by two miles
per hour and would have resulted in the train reaching the
decedent’s position at the intersection mere hundredths of a
second later than it did. That sliver of time falls far short of
the one second that the decedent would have needed to escape
harm’s way, regardless of whether he was continuing at his
normal walking pace or diving out of the train’s path
immediately before impact. We find no error in the district
22
court’s conclusion that a reasonable juror could not find that
this difference would have been enough to avoid the collision.
Id.
In Illinois Central Gulf Railroad v. Travis, the Mississippi Supreme
Court held that the railroad should have been granted judgment
notwithstanding the verdict in a train-pickup collision case.
106 So. 3d 320, 323 (Miss. 2012) (en banc). On the failure-to-brake claim,
the court noted that
even if the emergency brakes had been applied at the whistle
sign, which was 960 feet from the crossing, the train would
have reached the crossing only one half second later than if
the brakes had not been applied, which certainly would not
have prevented, or even lessened, the accident.
Id. at 331 (footnote omitted).
Again, the undisputed record evidence indicates that the promptest
possible crew response could have slowed the train’s speed when it
reached the crossing by at most one mile per hour. Doing the math, this
would have delayed the train’s arrival at the crossing by no more than
about a tenth of a second.7
We reiterate that courts should decide causation as a matter of law
“only in exceptional cases.” Crow v. Simpson, 871 N.W.2d 98, 105
(Iowa 2015). This is an exceptional case. The district court properly
granted summary judgment on the lookout and braking claims based on
lack of causation.
7We will assume the grader became visible when it was 500 feet away. This is
consistent with plaintiff’s expert report as to the visibility that day. It also means the
grader would have become visible seven seconds before the collision, which the video
generally supports (although six seconds might be closer). If braking could have slowed
the train during that time from forty-seven miles per hour to forty-six miles per hour, the
difference in transit time to reach the grader would have been less than one-tenth of a
second. (At 47 miles per hour, the train would have taken 7.25 seconds to cover 500 feet.
At an average speed of 46.5 miles per hour, the train would have taken 7.33 seconds to
cover 500 feet.)
23
IV. Conclusion.
For the foregoing reasons, we affirm the decision of the court of
appeals on the trial issues, vacate the decision of the court of appeals on
the partial summary judgment ruling, and affirm the judgment of the
district court.
DECISION OF COURT OF APPEALS AFFIRMED IN PART AND
VACATED IN PART; DISTRICT COURT JUDGMENT AFFIRMED.
Waterman, McDonald, Oxley, and McDermott, JJ., join this opinion.
Appel, J., files an opinion concurring in part and dissenting in part.
Christensen, C.J., takes no part.
24
#18–2039, Wermerskirchen v. Canadian Nat’l R.R.
APPEL, Justice (concurring in part and dissenting in part).
Tragic accidents at railroad crossings have long appeared before the
courts. This case raises several interesting issues arising in light of the
passage of the Federal Railroad Safety Act of 1970 (FRSA). Pub. L. No. 91–
458, 84 Stat. 971 (1970) (originally codified at 45 U.S.C. §§ 421–441
(1976), now codified as amended in scattered sections of 49 U.S.C.
§§ 20101–21311).
For the reason expressed below, I conclude that the plaintiff’s
excessive speed claim based upon existing conditions (dense fog) is not
preempted by the FRSA. This view is powered by the FRSA’s safety
purpose and by the presumption that state law is not preempted,
particularly in areas of the historic police powers of the states. Neither of
these concepts appears in the majority’s analysis.
I concur, however, in the majority’s view that the defendant was
entitled to summary judgment on the plaintiff’s claims based upon
improper lookout and failure to brake. On the unusual record developed
in this case, plaintiff’s failed to raise a triable issue on causation on these
theories.
I. Factual and Procedural Background.
On January 28, 2013, Richard Wermerskirchen was operating a
thirty-eight-foot road grader in Black Hawk County. Wermerskirchen was
roughing up ice on county roads. He approached a railroad crossing with
his vehicle. The crossing had passive signage but no controlled gating.
Fog had settled into the area, severely limiting visibility.
According to Wermerskirchen, after looking to see if there was an
approaching train and hearing no horn or other warnings, he slowly rolled
his grader forward to cross the tracks. When the front of the grader was
25
over the first rail of the track, Wermerskirchen says a train operated by
the defendant suddenly emerged from the fog and was traveling toward
him at what Wermerskirchen called “a substantial rate of speed.”
According to Wermerskirchen, the train that was not there a second before,
appeared “out of the fog like black death.” Wermerskirchen decided to
stop the grader rather than attempt to proceed through the intersection,
fearing that if he attempted to proceeded or accelerate through the
intersection, the cab of his vehicle, and his person, would be put in the
direct path of the oncoming locomotive.
A collision occurred. Wermerskirchen was thrown from his grader
and landed on the grass with a chunk of metal on his legs. After the
accident, one of the train crew members approached him. The crew
member asked Wermerskirchen questions about the location. According
to Wermerskirchen, the crew member “wasn’t sure where we were at” and
“[h]e was confused as to our location.” Wermerskirchen suffered serious
injuries as a result of the collision.
Wermerskirchen and his spouse brought an action against the
defendants. In their petition, as amended, they alleged that the
defendants were negligent for (1) operating the train at an excessive speed
under the circumstances, (2) failing to maintain a proper lookout, (3)
failing to apply brakes in a proper manner, and (4) failing to sound an
audible warning sufficiently in advance of the crossing. After the parties
retained experts and engaged in discovery, the defendant moved for
summary judgment on all claims.
The defendant moved for summary judgment on the ground that the
plaintiffs’ claims were all preempted by regulations promulgated by the
Secretary of Transportation pursuant to the FRSA. The district court
found that the excessive speed claim was preempted. The district court
26
also granted summary judgment on plaintiff’s claims regarding failure to
maintain a proper lookout and failure to apply brakes in a timely manner,
either on preemption or on causation theories. The district court denied
summary judgment on the question of whether the horn was operating
properly or in compliance with applicable federal regulations. After trial,
a jury returned a verdict in favor of the defendants on the horn claim.
Plaintiffs appealed. The court of appeals did not directly address the
excessive speed under the conditions claim, but the court impliedly
rejected it by concluding that the plaintiffs’ claims of improper lookout and
failure to brake were not preempted. Further, the court of appeals
determined that the plaintiffs were not entitled to summary judgment on
the improper lookout and failure to brake theories based upon lack of
causation. The court of appeals rejected plaintiffs’ claim of various errors
in connection with the trial on the horn claim.
II. Legal Framework for Applying Federal Preemption of
Traditional State Tort Law.
The United States Supreme Court has recognized that under the
Supremacy Clause, state law may be preempted by federal law under three
theories. Congress may expressly preempt state law. See, e.g., English v.
Gen. Elec. Co., 496 U.S. 72, 78–79, 110 S. Ct. 2270, 2275 (1990).
Preemption may also be implied through the theories of conflict
preemption and field preemption. Conflict preemption arises when a state
law “actually conflicts” with federal law. See, e.g., id. at 79, 110 S. Ct. at
2275. Field preemption occurs where the regulation is so pervasive that
Congress must have intended to displace state law by occupying the entire
field of potential regulation. See, e.g., Cipollone v. Liggett Grp. Inc., 505
U.S. 504, 516, 112 S. Ct. 2608, 2617 (1992); Griffioen v. Cedar Rapids &
27
Iowa City Ry., 914 N.W.2d 273, 291 (Iowa 2018) (Appel, J., dissenting);
Freeman v. Grain Processing Corp., 848 N.W.2d 58, 75 (Iowa 2014).
But federal preemption of state law raises serious problems of
federalism. As a result, it has “long been settled” that a preemption
analysis begins with the presumption that federal statutes do not preempt
state law. Bond v. United States, 572 U.S. 844, 858, 134 S. Ct. 2077, 2088
(2014); State v. CSX Transp., Inc., 154 N.E.3d 327, 331 (Ohio Ct. App.
2020).
Not only is there a presumption against preemption of state law, the
standard for overcoming the presumption is quite high in some contexts.
Specifically, in Rice v. Santa Fe Elevator Corp., the Supreme Court declared
that preemption analysis begins “with the assumption that the historic
police powers of the States [are] not to be superseded by the Federal Act
unless that was the clear and manifest purpose of Congress.” 331 U.S.
218, 230, 67 S. Ct. 1146, 1152 (1947). A traditional exercise of the state’s
“police powers” is “to protect the health and safety of their citizens.”
Medtronic, Inc. v. Lohr, 518 U.S. 470, 475, 116 S. Ct. 2240, 2245 (1996).
Against this caselaw, it is not surprising that the Supreme Court has
declared that “when the text of a pre-emption clause is susceptible of more
than one plausible reading, courts ordinarily ‘accept the reading that
disfavors pre-emption.’ ” Altria Grp., Inc. v. Good, 555 U.S. 70, 77, 129
S. Ct. 538, 543 (2008) (quoting Bates v. Dow Agrosciences, LLC, 544 U.S.
431, 449, 125 S. Ct. 1788, 1801 (2005)).
In addition, the Supreme Court has emphasized the importance of
the statutory purpose in evaluating preemption claims. “[T]he purpose of
Congress is the ultimate touchstone’ in every pre-emption case.” Wyeth v.
Levine, 555 U.S. 555, 565, 129 S. Ct. 1187, 1194 (2009) (quoting
Medtronic, 518 U.S. at 485, 116 S. Ct. at 2250).
28
So the clear thrust of the United States Supreme Court preemption
cases is to disfavor preemption of historic state police power and require a
“clear and manifest” intent before preemption occurs, to construe any
ambiguities against preemption, and to consider the purpose of the statute
as a touchstone in the application of these very demanding preemption
standards.
III. The Purpose of the Federal Railroad Safety Act: “Promote
Safety in Every Area of Railroad Operations.”
The FRSA was originally enacted in 1970. Pub. L. No. 91–458, 84
Stat. 971. Congress enacted the FRSA to “promote safety in every area of
railroad operations and reduce railroad-related accidents and incidents.”
49 U.S.C. § 20101 (2018). Any interpretation of the provisions of the FRSA
must be conducted against the backdrop of the declared Congressional
purpose of promoting railroad safety “in every area” of railroad operations.
An interpretation of the FRSA that does not promote railroad safety is, at
a minimum, suspect.
In order to promote safety in every area of railroad operations, the
FRSA authorized the Secretary of Transportation to study and develop
solutions to problems posed by grade crossings. Pub. L. 91–458, § 204,
84 Stat. at 972 (originally codified at 45 U.S.C. § 433 (1976), now codified
as amended at 49 U.S.C. § 20134 (2018)). In addition, the FRSA gave the
Secretary broad powers to “prescribe, as necessary, appropriate rules,
regulations, orders, and standards for all areas of railroad safety.” Id. §
202(a), 84 Stat. at 971 (originally codified at 45 U.S.C. § 431(a) (1976), now
codified as amended at 49 U.S.C. § 20103 (2018)). The FRSA contained
express preemption and saving clauses. Id. § 205, 84 Stat. at 972
(originally codified at 45 U.S.C. § 434 (1976), now codified as amended at
49 U.S.C. § 20106 (2018)).
29
The states were permitted to maintain local law related 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.”
Id. The phrase “covering the subject matter” makes it clear that
preemption is not to be implied or to arise from field preemption.
Further, under the FRSA, states were expressly permitted to
maintain more stringent safety requirements when “necessary to eliminate
or reduce” local safety hazards if those standards were “not incompatible
with a law” and not unduly burdensome on interstate commerce. Id.
The Secretary, acting through the Federal Railroad Administration,
promulgated regulations entitled “Track Safety Standards.” 49 C.F.R.
§ 213 (2012). The Track Safety Standards regulations set “minimum
safety requirements for railroad track that is part of the general railroad
system of transportation.” Id. § 213.1(a). The Track Safety Standards
regulations caution that “[i]n general, the requirements prescribed in this
part apply to specific track conditions existing in isolation.” Id. As a
result, “a combination of track conditions, none of which individually
amounts to a deviation from the requirements in this part, may require
remedial action to provide for safe operations over that track.” Id.
The Track Safety Standards regulations includes a section entitled
“Classes of track: operating speed limits.” Id. § 213.9. This section
provides graduated speed limits based on track classification. Id. The
track classifications in turn are based on physical characteristics of the
track. See id. at §§ 213.51–.143. The Track Safety Standards regulations
provide for penalties for violations but no remedy for a person who is
injured as a result of violation of the maximum speed limits. See id. at
213.15.
30
IV. The Ambiguous Case of CSX Transportation, Inc. v.
Easterwood: To What Extent is Traditional State Power Preempted by
Trace Standard Regulation.
A. Introduction. The United States Supreme Court considered a
case involving the provisions of the FRSA in CSX Transportation, Inc. v.
Easterwood. 507 U.S. 658, 661, 113 S. Ct. 1732, 1736 (1993). In
Easterwood, a driver of a truck was killed when a train collided with his
vehicle at a railroad crossing. Id. In Easterwood, the deceased’s
representatives claimed that the railroad breached its common law duty
to operate its train at a moderate and safe rate of speed. Id. The railroad
countered that the state common law claim was preempted by the federal
speed limitations in the Track Safety Standards regulations under 49
C.F.R. section 213.9 (1992). Easterwood, 507 U.S. at 665, 673, 113 S. Ct.
at 1738, 1742.
B. Majority opinion. The Easterwood Court determined that the
question of whether federal regulations preempted state law should be
determined not by whether the regulations merely “touch upon” or “relate
to” the subject matter of state law. Id. at 664, 113 S. Ct. at 1738. Instead,
the Easterwood Court emphasized that the statutory term “ ‘covering’ is a
more restrictive term which indicates that pre-emption will lie only if the
federal regulations substantially subsume the subject matter of the
relevant state law.” Id.
In turning to the question of whether the plaintiff’s excessive speed
claim was preempted by the Track Safety Standards regulations, the
Easterwood Court recognized that “[o]n their face”, the regulations address
“only the maximum speeds at which trains are permitted to travel given
the nature of the track on which they operate.” Id. at 674, 113 S. Ct. at
1742. Further, the Easterwood Court recognized that the regulations were
adopted “only after the hazards posed by track conditions were taken into
31
account.” Id. Thus, the Easterwood Court recognized that the nature of
the Secretary’s inquiry was track conditions and that the maximum speeds
were determined based on the nature of the track.
Based on this language, one would have thought that the Track
Safety Standards regulations, which dealt only with the subject of
maximum speeds arising in the context of track conditions, would not lead
to broad preemption of state common law claims not addressing track
conditions. By analogy, a state speed limit of sixty-five miles per hour on
a highway does not mean that a motorist does not breach a common law
duty of care by driving sixty-four miles per hour on a highway when
weather conditions make traveling at that speed unreasonable.
But the Easterwood Court declared that the speed limits in the
Track Safety Standards regulations “must be read as not only establishing
a ceiling, but also precluding additional state regulation of the sort that
respondent seeks to impose.” Id.8 The Easterwood majority noted that
the Secretary had promulgated regulations related to warnings of the
approach of oncoming trains to drivers. Id. at 674, 113 S. Ct. at 1742–43.
But then, the Easterwood Court declared that the applicable regulation
should be understood as “covering the subject matter of train speed with
respect to track conditions, including the conditions posed by grade
crossings.” Id. at 675, 113 S. Ct. at 1743. This sentence appears to limit
the scope of preemption to claims arising from the nature of grade
8TheSupreme Court in Easterwood did not describe the nature of the plaintiff’s
state common law claim. The district court in the case stated that,
The plaintiff alleges that CSXT was negligent in failing to install gate arms
at the . . . crossing, in operating the train at an unsafe speed, and in
allowing vegetation to grow along the side of the track thus preventing
Easterwood from seeing the train.
Easterwood v. CSX Transp., Inc., 742 F. Supp. 676, 678 (N.D. Ga. 1990).
32
crossings, which, apparently, are “covered” by a regulation relating to
“track conditions.”
The Easterwood Court next turned to the saving clause of the
statute. Id. The Easterwood Court rejected the application of the savings
clause in the case, noting that the common law of negligence was “a
general rule [addressing] all hazards caused by lack of due care, not just
those owing to unique local conditions.” Id.
What precisely was meant by “a general rule addressing all hazards”
was not clear. And to the extent the Supreme Court was relying on
“unique” local conditions, it erred. The legislative history shows that the
railroads attempted to limit the savings clause to “uniquely” local
conditions, but Congress refused to do so, instead adopting the language
“ ‘essentially’ local safety hazard.” See Union Pac. R.R. v. Cal. Pub. Utils.
Comm’n, 346 F.3d 851, 859 (9th Cir. 2003).
Then, at the end of the opinion, the Easterwood majority drops
footnote 15. Easterwood, 507 U.S. at 675 n.15, 113 S. Ct. at 1743 n.15.
In the footnote, the Easterwood Court noted:
Petitioner is prepared to concede that the pre-emption
of respondent’s excessive speed claim does not bar suit for
breach of related tort law duties, such as the duty to slow or
stop a train to avoid a specific, individual hazard. As
respondent’s complaint alleges only that petitioner’s train was
traveling too quickly given the “time and place,” this case does
not present, and we do not address, the question of FRSA’s
pre-emptive effect on such related claims.
Id. (citations omitted). The footnote passage does not indicate whether a
claim “such as” the failure to slow or stop might not be preempted because
it was not “covered” by the Secretary’s regulations or was within the scope
of the exclusion of preemption reserved for “essentially local safety
hazards.” The Easterwood Court uses the term “such as” to describe
nonpreempted claims, thereby implying that claims other than those
33
involving “a specific, individual hazard” may be pursued, but the Court
provides no elaboration. The phrase “specific, individual hazard” in the
footnote is not found in the FRSA or in the Track Safety Standards
regulations.
The bottom line in the Easterwood majority is that the Track Safety
Standards regulations preempt “general” negligence claims “of the sort”
presented but not related tort duties “such as” the duty to slow or stop as
a result of an “individual, specific hazard.” And, it is important to point
out that the plaintiff’s claim in Easterwood did not involve limited visibility
due to dense fog or other climate conditions. Whether claims of negligence
based upon the assertion that a train was traveling too fast in light of lack
of visibility due to climate conditions is thus an open question after
Easterwood.
C. Justice Thomas’ Dissenting Opinion. Justice Thomas, joined
by Justice Souter, filed a concurrence in part and dissent in part. Id. at
676, 113 S. Ct. at 1744 (Thomas, J., concurring in part and dissenting in
part). Justice Thomas noted that the Secretary’s regulations only
addressed the nature of the track upon which the trains operated and, as
a result, the Secretary has not even considered crossing safety. Id.
According to Justice Thomas, the Secretary’s regulations should be
understood as “covering the subject matter of train speed with respect to
track conditions.” Id. at 678, 113 S. Ct. at 1745. Justice Thomas
emphasized that “[t]o read the Secretary’s existing maximum speed
regulation as encompassing safety concerns unrelated to track
characteristics, however, negates Congress’ desire that state law be
accorded ‘considerable solicitude.’ ” Id. at 679, 113 S. Ct. at 1745.
D. Tension and Uncertainty. The Easterwood majority opinion is
not a model of clarity. It uses language of limitation in places, and yet it
34
appears to extend preemption beyond the express terms of the Track
Safety Standards regulations. For instance, although the Easterwood
majority demands that in order for preemption to occur, a regulation must
be “covering” the “subject matter,” the majority provides no guidance as to
determining the level of generality in what “subject matter” of a regulation
means for preemption purposes. But preemption, apparently, clearly
extends beyond the express terms of the regulation to extinguish some,
but clearly not all, state tort law claims.
In my view, Justice Thomas has the stronger position. The subject
of speed related to track design was clearly covered by the Track Safety
Standards regulations, but it seems doubtful that the speed regulations
related to track design preempts all other speed regulations.
Nonetheless, in deciding this case, we are bound by federal law as
declared by the United States Supreme Court. We cannot decline to follow
Supreme Court precedent in the interpretation of federal law because we
think it is wrong. Yet, the United States Supreme Court in Easterwood
opened the door to the claims made by the Wermerskirchen’s in this case
through footnote 15 and other language in the opinion. The question is
whether we can, in this case, permit the plaintiff’s claims to proceed in
light of the Supreme Court’s ambiguous decision in Easterwood.
In my view, there is room to maneuver here. For instance, footnote
15 does not expressly endorse state regulation of speeds beyond that
established in the Secretary’s regulations, but it clearly provides a
limitation of the scope of the holding in Easterwood. In order to gain
perspective on the question of whether footnote 15 or any other limiting
language has any vitality and, if so, when it applies, I look to lower court
decisions since Easterwood to provide perspective and to inform my
judgment on the issues.
35
V. Lower Court Case Law Related to FRSA Preemption Coverage
and the Essentially Local Hazard Saving Clauses.
A. Introduction. There are two related but distinct lines of inquiry
in the preemption analysis under the FRSA. The first question is whether
the state common law tort claim is covered by the applicable federal
regulation. In this analysis, we should generally construe federal
preemption narrowly and strive to give recognition to the traditional state
interests behind its tort system. Rice, 331 U.S. at 230, 67 S. Ct. at 1152.
The second question is whether the state common law tort claims
falls within the exception for “essentially local hazards.” While preemption
is disfavored for traditional state law claims, there is authority for the
proposition that exceptions to preemption are to be narrowly construed.
The post-Easterwood caselaw tends to merge the two concepts
together. In the analysis that follows, I tear them apart and give them
independent consideration. See Dresser v. Union Pac. R.R., 809 N.W.2d
713, 722–23 (Neb. 2011) (distinguishing between coverage of statute and
exception to statute for “essentially local safety or security hazard”
(quoting 49 U.S.C. § 20106(a)(2))).
One further introductory point is worth making. The lower federal
courts largely ignore the safety purpose of the statute and the principles
of preemption. The cumulative effect of ignoring the congressionally
expressed safety purpose and the Supreme Court’s preemption precedents
have made the lower courts more open to finding FSLA preemption than if
they would have been attentive to purpose and preemption precedents.
B. Coverage of the Same Subject Matter Cases. There are a
couple dozen cases since Easterwood grappling with the question of to
what extent local regulation of speed might be permitted in light of the
Secretary’s regulation of speed based on track design. Many of the cases
36
involved claims that speeds of trains should have been reduced based
upon fixed design features or fixed features of the environment that are
present day after day.
In cases involving fixed features related to train crossings, federal
courts have generally found the FRSA preempts local regulation. For
example, in Herriman v. Conrail, Inc., the court found lighting conditions
at a railroad crossing to be a generalized feature that would require every
engineer to slow at the crossing rather than involving an individual hazard
requiring judgment by a specific engineer. 883 F. Supp. 303, 305, 307
(N.D. Ind. 1995). The problem in Herriman did not exist solely on the night
of the accident but was continuously present at the crossing. Id. at 307.
Similarly, in Armstrong v. Atchison, Topeka & Santa Fe Railway, the federal
district court found preemption of claims related to the grade of a “crossing
in a high vehicular traffic area which was not equipped with an automatic
gate with flashing light signals.” 844 F. Supp. 1152, 1152–53 (W.D. Tex.
1994). The alleged problems were general problems, present day in and
day out, that related to fixed conditions on the railroad’s right of way. Id.;
see also Alcorn v. Union Pac. R.R., 50 S.W.3d 226, 242 (Mo. 2001) (en banc)
(“[C]ases that involve warning devices, grade, angle, and proximity to
highways are all general conditions that are amenable to uniform, national
standards and are, therefore, preempted.”), overruled on other grounds by
Badahman v. Catering St. Louis, 395 S.W.3d 29 (Mo. 2013) (en banc). In
these cases, the Track Safety Standards regulations are stretched to
“cover” subject matter beyond the track itself and to include other physical
features associated with the track.
Query whether the extension of coverage of the Track Safety
Standards regulations to include additional physical characteristics of the
railway is correct. Is it “clear and manifest” that the Track Safety
37
Standards regulations, based solely on engineering considerations arising
from the physical features of the track itself, should be interpreted to
“cover” other “subject matter” that includes non-track physical features
like the configuration of railroad crossings? See Rice, 331 U.S. at 230, 67
S. Ct. at 1152.
But what about cases that involve fleeting or transient conditions or
causes that are not fixed and present on a daily basis? Here, there is some
variation even in the federal lower court case law. For example, a claim
arising from improperly parked tank cars has been held to not involve a
fixed feature of the track and the related right of way and therefore not
subject to federal preemption under the Track Safety Standards
regulations. See Mo. Pac. R.R. v. Lemon, 861 S.W.2d 501, 509–10, 514
(Tex. App. 1993). In my view, a fleeting or transient condition is not the
kind of condition regulated by the Track Safety Standards regulations.
Another aggressive approach to preemption under the FRSA based
on the Track Safety Standards regulations may be found in O’Bannon v.
Union Pacific Railroad. 960 F. Supp. 1411 (W.D. Mo. 1997). O’Bannon
involved a railroad crossing collision where the plaintiff claimed negligence
based upon limited signage, poor angles, excessively steep grade, and the
presence of vegetation. Id. at 1415. The O’Bannon court found that the
Track Safety Standards regulations preempted the plaintiff’s claims. Id.
at 1421–23. Among other things, the O’Bannon court suggested that
preemption would occur if the subject matter was capable of being
adequately encompassed within uniform national standards. Id. at 1422–
23.
The notion that preemption occurs because the Secretary might
have promulgated a regulation covering the subject matter is
extraordinary. The statute expressly requires that a regulation actually
38
cover the subject matter in order to preempt local law. 49 U.S.C.
§ 20106(a)(2) (“A State may adopt or continue in force a law, regulation, or
order related to railroad safety or security until the Secretary . . .
prescribes a regulation or issues an order covering the subject matter of
the State requirement.”). But under O’Bannon, there is no analysis of
whether a regulation actually “covers” the “subject matter” of state tort
law. Instead, the question under O’Bannon is whether the Secretary could
have hypothetically decided to promulgate a uniform regulation of the
subject matter. O’Bannon, 960 F. Supp. at 1423; see also Bowman v.
Norfolk S. Ry., 832 F. Supp. 1014, 1018 (D.S.C. 1993). But that
proposition is too broad. The question is not whether the Secretary could
promulgate a rule but whether the rule, which was actually promulgated,
“covers” the “subject matter” of the local law—a much narrower
proposition. I therefore do not rely on O’Bannon and its progeny in
analyzing the preemption issues in this case.
C. Essentially Local Hazard Exception Cases. A number of cases
deal with the “essentially local hazard” exception to FRSA preemption.
Some courts that apply preemption to FRSA claims emphasize that in
order to qualify for the exemption, the event or incident must be “unique.”
See, e.g., Grade v. BNSF Ry., 676 F.3d 680, 686 (8th Cir. 2012)
(“[C]onditions are not uniquely local in character . . . .”); Cox v. Norfolk &
W. Ry., 998 F. Supp. 679, 683 (S.D.W. Va. 1998) (citing need for “unique
local conditions” (quoting Easterwood, 507 U.S. at 675, 113 S. Ct. at
1743)). There is a passing reference in Easterwood to “unique local
conditions.” 507 U.S. at 675, 113 S. Ct. at 1743.
But the “unique” approach is wrong. As was noted in Union Pacific
Railroad v. California Public Utilities Commission, the railroads lobbied
Congress to limit the preemption exception to “uniquely” local hazards,
39
but Congress declined. 346 F.3d at 859. Instead, Congress enacted an
exception for what is “essentially local safety hazards.” Id. According to
the Union Pacific court, the substitution of the term “essentially” for
“uniquely” implied that the condition need not be unique in order to be
local. Id. The Union Pacific court stated that the term “essentially local
safety hazard” was one that ordinarily should be dealt with at the local
level. Id. at 860. The Union Pacific court repeated the erroneous principle
that local law might be preempted if it might have been addressed in a
nationwide regulation. Id.
VI. FRSA Preemption Cases Involving Climate Conditions.
There are only a handful of cases dealing with the question of
whether state law claims that a train’s speed was excessive due to existing
weather conditions are preempted.
A. Bakhuyzen v. National Rail Passenger Corp. Bakhuyzen v.
National Rail Passenger Corp. involved a case where a driver of a propane
truck was struck by an Amtrak train. 20 F. Supp. 2d 1113, 1115 (W.D.
Mich. 1996). The plaintiff alleged that the train was traveling too fast for
conditions. Id. The plaintiff’s expert identified as “specific, individual
conditions” including the limited visibility due to “snowy weather
conditions.” Id. at 1117.
The Bakhuyzen court held that the plaintiff’s claim was not
preempted by the FRSA. Id. at 1118. The Bakhuyzen court contrasted
the case with Herriman, which involved a claim based on the fixed feature
of lighting at a railroad crossing. Id. (citing Herriman, 883 F. Supp. at
307). In contrast to “dangerous crossing allegations” where the claim is
made that the crossing is dangerous, day in and day out, the Bakhuyzen
court noted that “weather conditions are not static” and thus the case was
distinguished from the dangerous crossing cases. Id. at 1117–18.
40
B. Cox v. Norfolk and Western Railway. In Cox, the district court
considered FRSA preemption in light of climate related claims. 998
F. Supp. at 687. Specifically, the Cox court rejected a claim that snow
covered tracks were “a specific, individual hazard.” Id. at 684–85. The
Cox court further found claims that the defendant failed to slacken speed
due to weather conditions at the time of the accident also failed. Id. at
686–88.
In Cox, it was undisputed that the train was traveling at a speed of
approximately thirty miles per hour immediately prior to the accident and
that the maximum speed authorized under the Track Safety Standards
regulations was forty miles per hour. Id. at 684. The plaintiff claimed that
he had “presented a question as to whether the speed of the train which
struck Mr. Cox was appropriate given the existing weather conditions.” Id.
In considering whether the claim was within the “specific, individual
hazard” exception to FRSA preemption, the Cox court first addressed the
plaintiff’s pleading. Id. at 685. The Cox court noted that as pled, the
plaintiff framed the issue as “whether the train’s speed was appropriate”
and not “whether the defendant was negligent in failing to slow down or
stop to avoid a specific, individual hazard.” Id. at 684–85. The Cox court
was impliedly holding that the excessive speed under the conditions claim
was “covered” by the Track Safety Standards regulations and that in order
to avoid federal preemption, the plaintiff’s claim must be within the
specific, individual hazard exception.
The Cox court then turned to the specific, individual hazard
exception. Id. at 685. Citing O’Bannon, the Cox court held that weather
conditions do not amount to a specific, individual hazard. Id. (citing
O’Bannon, 960 F. Supp. at 1420–21). The Cox court emphasized, however,
that the plaintiff admitted that it was not snowing at the time of the
41
accident and that there was good visibility. Id. Thus, the “weather [was]
not discrete and truly local to this locality of West Virginia. In fact, this
type of weather often exists during winter months all across West Virginia
and most of the country.” Id.
According to the Cox court, the “weather [was] not an aberration
which the Secretary could not have practically considered when
determining train speed limits under the FRSA, and weather conditions
such as these are capable of being adequately encompassed within
uniform, national standards.” Id.
Finally, the Cox court cited public policy concerns. Id. The Cox
court noted that if weather conditions could give rise to excessive speed
claims, it “would pave the way for infinite state negligence lawsuits
involving train accidents occurring in less than perfect weather.” Id.
The Cox analysis on the specific, individual hazard exception
question is problematic. With respect to the essentially local hazard
exception, the Cox court ignores the actual statutory language of the
exception (“essentially local hazard”) in favor of the language in
Easterwood, footnote 15 (“specific, individual hazard”). Compare 49 U.S.C
§ 20106(a)(2)(A), with Easterwood, 507 U.S. at 675 n.15, 113 S. Ct. at 1473
n.15. On its face, the statutory language “essentially local hazard” is at
least arguably more expansive than the “specific, individual hazard”
language in footnote 15. Further, the Cox court ignores the “such as”
language in footnote 15. The “such as” language in footnote 15 clearly
shows that state tort law claims related to slowing or stopping arising out
of specific, individual hazards was merely an example of a claim that would
not be preempted. The Cox court turned the example into a requirement.
See Cox, 998 F. Supp. at 685. Finally, the Cox court emphasized that the
local condition must be “unique.” Id. But as noted in Union Pacific
42
Railroad, Congress rejected the requirement that a local hazard “uniquely”
pose a safety hazard but instead declared an exception for “essentially”
local safety hazards. 346 F.3d at 859.
The Cox court also analyzed whether excessive speed claims based
on local weather conditions were “covered” by the Track Safety Standards
regulations. Cox, 998 F. Supp. at 686. The Cox court recognized that
there was authority on both sides of the issue. Id. The Cox court noted,
however, that at the time of the accident, it was not snowing, not foggy,
and there was good visibility. Id. at 687. To apply an exception where
there were no visibility issues would be a result that “would swallow the
federal regulations dealing with train speed” and be contrary to
congressional desire to have national uniform rules “to the extent
practicable.” Id.
The determination by the Cox court that the regulation preempts
claims over local weather condition because the Secretary could have
promulgated a rule on the topic is not completely contrary to the
Bakhuyzen decision. As discussed above, nothing in Bakhuyzen limits the
power of the Secretary to engage in rulemaking related to climate
condition. But silence on the issue in the Secretary’s rules is insufficient
to “cover” the “subject matter” of excessive speed based upon climate
condition. Because climate condition is a concept that is fact based, and
not rule based, it might be very difficult to fashion a sensible national rule
of uniformity about a highly variable local condition.
The Cox case further observes that because climate issues are a
frequent occurrence, a rule requiring trains to slow down based on
visibility conditions would be a burden on interstate commerce. Id. at 688.
Of course, truckers are subject to this kind of rule on Interstate highways.
43
No one thinks that requiring reasonable speeds on the Interstate highways
is too much of a burden.
Cox is not contrary to Bakhuyzen, but it is distinguished from it. In
any event, I regard Cox as flawed and unpersuasive.
C. Seyler v. Burlington Northern Santa Fe Corp. Weather was
once again considered in Seyler v. Burlington Northern Santa Fe Corp. 102
F. Supp. 2d 1226 (D. Kan. 2000). In this case, the district court ruled that
heavy rainfall producing flash flooding was not a specific, individual
hazard under Easterwood footnote 15. Id. at 1237.
The Seyler court concluded that the heavy rainfall and resulting
flash floods were preempted by the maximum speed provisions of the
Track Safety Standards regulations. Id. at 1237–38. The Seyler court
concluded that the majority of courts that have addressed the matter have
regarded excessive speed claims due to climate conditions as preempted.
Id. at 1236. The cited cases, however, rely upon the faulty assumption
that the Track Safety Standards regulations specifically covered the issue
of local weather conditions. The regulations did not. The Seyler court also
asserted that most cases determined that local climate conditions were not
specific, individual hazards under footnote 15 of Easterwood. Id. at 1236–
37. But the language of the exception is an “essentially local hazard,”
which seems like an excellent description of the dense fog that was present
at a railroad crossing in Black Hawk County on the morning of January
28, 2013.
VII. Discussion of Merits of Claims.
A. Excessive Speed In Light of Weather Conditions. The first
question on the merits is whether the defendants were entitled to summary
judgment on the first claim of excessive speed where there was intense fog
44
in the area of a railroad crossing. This matter is not free from doubt in
light of the wiggles and wobbles of Easterwood.
I begin by emphasizing the purpose of the FRSA to “promote safety
in every area of railroad operations and reduce railroad-related accidents
and incidents.” 49 U.S.C. § 20101 (2018). Astonishingly, this purpose
rarely surfaces and is never seriously discussed in the lower federal court
opinions dealing with FRSA preemption. It is generally ignored in favor of
conclusory opinions declaring FRSA preemption in ambiguous situations
where the purposes of the statute are not advanced. These cases
essentially convert the “Federal Railroad Safety Act” into simply the
“Federal Railroad Act.”
The purpose of a statute cannot override unambiguous statutory
provisions, of course, but it does play a role in powering the analysis of
difficult areas of statutory interpretation. Cipollone, 505 U.S. at 517, 112
S. Ct. at 2618 (stating that when Congress has spoken on the issue of
preemption, the analysis of structure and purpose is inappropriate); Gade
v. Nat’l Solid Waste Mgmt. Ass’n, 505 U.S. 88, 98, 112 S. Ct. 2374, 2383
(1992) (stating that regardless of the form of preemption, the “ultimate task
in any pre-emption case is to determine whether state regulation is
consistent with the structure and purpose of the statute as a whole”). So
a question to ask is whether a party’s position on preemption furthers the
statutory purpose of promoting safety and limiting accidents.
It is hard to see how preemption of excessive speed claims based
upon climate condition promotes safety. The effect of preemption of an
excessive speed claim based on the limited visibility caused by dense fog
is that railroads are not required to slow down from maximum permitted
speeds regardless of weather conditions. It’s like saying there is nothing
wrong with a trucker barreling along the interstate at seventy-five miles
45
per hour even if there is dramatically limited visibility. It is hard for me to
see how that promotes safety. As noted in Bakhuyzen, “[m]aximum train
speeds, like automobile speed limits, do not remove from the driver the
obligation to exercise due care when and if the circumstances such as poor
visibility due to snow make operation at the maximum speed careless.” 20
F. Supp. 2d at 1118.
Aside from the issue that broad preemption of state tort law by the
FRSA frustrates the safety purpose of the statute, there is the strong
historical recognition of traditional historical police powers of the states in
considering whether a federal statute preempts local law. See Rice, 331
U.S. at 230, 67 S. Ct. at 1152. Some of the lower federal court cases
dealing with FRSA preemption are downright hostile to state tort law. Prior
to the enactment of the FRSA, when there was no federal preemption,
railroads were not ground to a halt by application of state tort law that
promotes safety. Indeed, state tort law was thought to be, on its own,
insufficient to promote the level of railroad safety that Congress desired.
But to use preemption as a tool to gut state tort law that advances safety
when the purpose of the statute is to promote safety in “all areas” when
the relevant federal regulation does not address the subject is
extraordinary. In other words, it is very difficult to understand how local
state tort law related to reasonable speeds under the facts and
circumstances is “covered” by the Track Safety Standards regulations
establishing maximum speeds based on track conditions. By finding
preemption of the excessive speed claim, the majority has federalized state
tort law in a fashion that undermines the congressionally announced
safety goal of the statute.
Contrary to some of the federal caselaw, there is no reason to believe
that the Secretary considered weather conditions when it promulgated a
46
rule establishing maximum speeds based on track characteristics. None
of the cases provide any citation to anything suggesting the contrary.
And the notion that the Secretary could promulgate a rule
preempting state law related to excessive speeds under adverse climate
conditions is beside the point. The FRSA expressly says that in order for
state regulation to be preempted, the “subject matter” of the state
regulation must be “covered” by the applicable federal regulation.
I recognize, of course, that the ambiguities in Easterwood could be
(and have been) interpreted in a different fashion. But I would rather view
the ambiguities in Easterwood as an opportunity to make the law more
coherent and faithful to preemption precedents than to perpetuate and
extend what I regard as mistaken interpretations. As a result, for the
above reasons, I conclude that the excessive speed under the conditions
claimed in this case is not preempted by the maximum speeds of the Track
Safety Standards regulations promulgated by the Secretary pursuant to
the FRSA. If the Secretary wants to preempt excessive speed claims like
the one presented in this case, the Secretary may act by explicit regulation
covering the “subject matter.” But in light of the purpose of the statute
and the caution to be applied in invoking preemption, I conclude the Track
Safety Standards regulations deal with a different subject matter and
therefore do not preempt the excessive speed claim in this case.
B. Improper Lookout and Braking Claims. With respect to the
improper lookout and braking claims, I agree with the majority that
summary judgment was appropriate on the unusual record developed in
this case. Here, experts for both parties agreed that once the grader
became visible to the train operators, there was nothing the operators
could have done to avoid the accident. Of course, this conclusion, though
47
eliminating the plaintiffs’ improper lookout and braking claims, would give
support to the excessive speed claim.
VI. Conclusion.
For the above reasons, I concur with the majority that the
defendants are entitled to summary judgment on the plaintiffs’ claims
based on improper lookout and failure to brake. I dissent from the
dismissal of the plaintiffs’ claim that the defendants operated the train at
excessive speed given the local condition of reduced visibility at a railroad
crossing due to dense fog.