William Bennett and Sherylann Bennett v. Norfolk Southern Railway Company

WILLIAM BENNETT AND * NO. 2023-C-0202
SHERYLANN BENNETT
*
VERSUS COURT OF APPEAL
*
NORFOLK SOUTHERN FOURTH CIRCUIT
RAILWAY COMPANY *
STATE OF LOUISIANA
*******

APPLICATION FOR WRITS DIRECTED TO
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2020-00306, DIVISION “G-11”
Honorable Robin M. Giarrusso, Judge
******
Judge Rosemary Ledet
******
(Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge
Paula A. Brown)

Patrick Talley, Jr.
R. Harrison Golden
365 Canal Street, Suite 2000
New Orleans, LA 70130

COUNSEL FOR RELATOR

Gilbert V. Andry, IV
Michael J. Winsberg
829 Baronne Street
New Orleans, LA 70113

COUNSEL FOR RESPONDENTS

WRIT GRANTED, JUDGMENT REVERSED, AND
JUDGMENT RENDERED
April 28, 2023

RML This is a tort suit. The Relator—Norfolk Southern Railway Company
SCJ
PAB (“Norfolk”)—seeks review of the trial court’s February 27, 2023 judgment denying

its summary judgment motion. In accordance with the requirements of La. C.C.P.

art. 966(H),1 we ordered additional briefing by the parties and heard oral

arguments. For the reasons that follow, we grant Norfolk’s writ, reverse the trial

court’s judgment denying its summary judgment motion, and render summary

judgment dismissing all the claims filed by the Respondents—William and

Sherylann Bennett (“the Bennetts”)—against Norfolk.

1 La. C.C.P. art. 966(H) provides as follows: “[o]n review, an appellate court shall not reverse a trial

court’s denial of a motion for summary judgment and grant a summary judgment dismissing a case
or a party without assigning the case for briefing and permitting the parties an opportunity to request
oral argument.”
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PROCEDURAL AND FACTUAL HISTORY

In January 2019, the Bennets travelled under a railroad bridge on Marconi

Drive in New Orleans, Louisiana. Contemporaneously, one of Norfolk’s trains

was travelling along the railroad bridge above. While the Bennetts’ vehicle was

under the bridge, a satellite dish fell from above onto their vehicle. One year later

the Bennetts filed suit against Norfolk, claiming personal injuries and property

damages.

In their original petition, the Bennetts alleged that the satellite dish was

either cargo on the train or was affixed to the train—and that it had fallen from the

train as the Bennetts passed underneath the bridge due to Norfolk’s failure to

secure the satellite. The Bennetts later supplemented and amended their petition,

alleging that the satellite had fallen from the railroad bridge itself, rather than from

the train. In their amended petition, the Bennetts claimed Norfolk was liable for

failing to properly inspect and maintain the bridge, failing to clear debris from the

bridge, and failing to warn traffic of the debris.

Through discovery, the Bennetts developed a theory that the satellite dish

had dislodged from the roof of another vehicle passing under the railroad bridge.

According to the Bennetts, when the other vehicle struck the underside of the

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bridge, the satellite dish became wedged in the beams of the bridge’s undercarriage

until falling onto the Bennetts’ vehicle. The Bennetts supported this theory with a

private investigator’s report. The investigator’s report included photographs of

objects wedged into the underside of the bridge taken after the Bennetts’ accident

and photographs of the satellite dish that fell on the Bennetts’ vehicle. According

to the Bennetts, the photographs of the satellite dish demonstrated that it was bent

in ways that corresponded with the configuration of the beams under the bridge

and had paint scuffs matching the color of the beams under the bridge.

Nearly a year after suit was filed, Norfolk filed a summary judgment motion,

seeking dismissal of all of the Bennetts’ claims against it. Norfolk contended that

its train that was passing at the time of the accident was not carrying any satellite

dishes as cargo. Norfolk further contended that neither its train nor the railroad

bridge itself had any satellite dishes attached to it. Norfolk attached to its motion

the Bennetts’ deposition testimony. In their depositions, the Bennetts testified that

they did not observe where the satellite fell from and that they were unaware of

any witness with such knowledge. For these reasons, Norfolk submitted that the

Bennetts could not carry their burden of proof.

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Further, Norfolk—accepting as true the Bennetts’ theory that the satellite

dish was lodged in the undercarriage of the bridge by a passing vehicle colliding

with the bridge—responded that no evidence existed that Norfolk had knowledge

of either the alleged collision by another vehicle or the ensuing hazardous

condition. Absent evidence of actual or constructive notice, Norfolk argued that

the Bennetts could not meet their burden of proof under La. C.C. art. 2317.1,2 the

statute underlying their negligence claims. Norfolk supported this argument with

evidence that it had inspected the rail bridge six months before the Bennetts’

accident and found no defects or debris and it had received no reports of vehicular

impact to the bridge or hazardous debris lodged in the underside of the bridge

between its most recent inspection and the Bennetts’ accident.

Alternatively, Norfolk argued that the Federal Railroad Safety Act

(“FRSA”) regulations preempt the Bennetts’ state law negligence claims against

Norfolk. Again accepting as true the Bennetts’ theory that the satellite had been

lodged in the underside of the bridge during another vehicle collision, Norfolk

2 Article 2317.1 of the Louisiana Civil Code provides, in pertinent part:

The owner or custodian of a thing is answerable for damage occasioned by
its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of
reasonable care, should have known of the ruin, vice, or defect which caused the
damage, that the damage could have been prevented by the exercise of reasonable
care, and that he failed to exercise such reasonable care.
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contended that the federal regulations enacted pursuant to the FRSA—which

govern railroad bridge maintenance and inspection—subsume the subject matter of

the Bennetts’ state law negligence claims. Because federal regulations cover the

subject matter of the duties allegedly breached by Norfolk, Norfolk argued that the

Bennetts’ claims must be dismissed as preempted by the FRSA.

In opposing the summary judgment motion, the Bennetts maintained that

Norfolk had a duty to discover and remove the satellite dish and any other objects

lodged in the undercarriage of the railroad bridge. By failing to implement a plan

specifically addressing inspections of the underside of its railroad bridge for debris,

the Bennetts submitted, Norfolk breached this duty. Addressing FRSA

preemption, the Bennetts argued that the pertinent federal regulations, 49 C.F.R.

237.101, et seq., pertained only to the structural integrity of railroad bridges and

are silent on Norfolk’s duty to discover and remove debris from the undercarriage

of railroad bridges. The Bennetts contended that the omission of a federal

regulation on this particular subject matter placed their claims beyond the purview

of FRSA preemption.

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At the conclusion of the hearing on Norfolk’s summary judgment motion,

the trial court denied the motion, finding factual disputes precluded summary

judgment. This writ application followed.

DISCUSSION

The Parties’ Positions

In its writ application, Norfolk limits its argument in this court to the

preemption issue. Norfolk contends that preemption is a legal question warranting

summary judgment. According to Norfolk, the facts alleged by the Bennetts are

undisputed for purposes of this motion and demonstrate that the federal FRSA

regulations preempt the Bennetts’ state law negligence claims. Norfolk, thus,

contends it is entitled to summary judgment.

Opposing Norfolk’s preemption argument, the Bennetts make two counter

arguments. First, the Bennetts contend that the FRSA regulations preempt state

law only when the speed and operation of a train is at issue. Second, the Bennetts

repeat their argument that the silence of federal regulations concerning hazardous

conditions underneath railroad bridges exempts the state law duty advanced in their

negligence action from FRSA preemption.

Standard of Review and Summary Judgment Principles

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Appellate courts review a trial court’s judgment on a summary judgment

motion de novo. See Planchard v. New Hotel Monteleone, LLC, 21-0347, p. 2 (La.

12/10/21), 332 So.3d 623, 625. In so doing, appellate courts apply the same

criteria that govern the trial court’s decision as to whether a summary judgment

motion should be granted—“whether there is any genuine issue of material fact,

and whether the movant is entitled to judgment as a matter of law.” Planchard,

21-00347, pp. 2–3, 332 So.3d at 625. The statutory provision that governs a

summary judgment motion states that a summary judgment motion “shall be

granted if the motion, memorandum, and supporting documents show that there is

no genuine issue as to material fact and that the mover is entitled to judgment as a

matter of law.” La. C.C.P. art. 966(A)(3). The burden of proof on a summary

judgment motion is governed by La. C.C.P. art. 966(D)(1), which provides for a

shifting burden of proof.

An adverse party to a supported summary judgment motion may not rest on

the mere allegations or denials of that party’s pleading, but that party’s response—

either by affidavits or as otherwise provided by law—is required to set forth

specific facts showing the existence of a genuine issue of material fact for trial. If

the adverse party fails to do so, the trial court is required to render summary

judgment against that party. La. C.C.P. art. 967(B).3

3 La. C.C.P. art. 967(B) provides:

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The summary judgment procedure is favored and “designed to secure the

just, speedy, and inexpensive determination of every action.” La. C.C.P.

art. 966(A)(2). The purpose of the procedure is to pierce the pleadings and to

assess the evidence to determine if there are any genuine issues of material fact

requiring a trial. See Cutrone v. English Turn Prop. Owners Ass’n, Inc., 19-0896,

p. 7 (La. App. 4 Cir. 3/4/20), 293 So.3d 1209, 1214. As this court has observed,

“[t]he determination of whether a fact is material turns on the applicable

substantive law.” Roadrunner Transp. Sys. v. Brown, 17-0040, p. 7 (La. App. 4

Cir. 5/10/17), 219 So.3d 1265, 1270.

Pure questions of law—such as whether the undisputed material facts

demonstrate that federal law preempts state law—are appropriate for resolution by

summary judgment. See Cart v. Missouri Pac. R.R. Co., 99-1118 (La. App. 3 Cir.

12/8/99), 752 So.2d 241 (affirming grant of summary judgment finding the FRSA

preempted state law negligence claims); Hendrickson v. Guillory, 2008-0930, p. 4

(La. App. 4 Cir. 5/18/09), 15 So.3d 256, 258 (observing that “[t]he question of

whether a duty exists in a particular set of circumstances is a question of law for

When a motion for summary judgment is made and supported as provided
above, an adverse party may not rest on the mere allegations or denials of his
pleading, but his response, by affidavits or as otherwise provided above, must set
forth specific facts showing that there is a genuine issue for trial. If he does not so
respond, summary judgment, if appropriate, shall be rendered against him.

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the court to decide. Summary judgment procedure is well suited to the resolution

of questions of law.”).

Federal Preemption and the Federal Railroad Safety Act

Federal preemption derives from the Supremacy Clause of the United States

Constitution. The Constitution establishes the laws of the United States as “the

supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to

the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. Thus, any state law that

conflicts with federal laws or regulations is preempted. CSX Transp., Inc. v.

Easterwood, 507 U.S. 658, 663, 113 S.Ct. 1732, 1737, 123 L.Ed.2d 387 (1993).

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. To that

end, the FRSA grants the Secretary of Transportation broad powers to “prescribe

regulations and issue orders for every area of railroad safety.” 49 U.S.C. § 20103.

To ensure national uniformity of laws, regulations, and orders related to railroad

safety and security, Congress enacted a preemption provision within the FRSA. 49

U.S.C. § 20106 (the “Preemption Provision”). The Preemption Provision provides

as follows:

(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.

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

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

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

(C) does not unreasonably burden interstate commerce.4

49 U.S.C. § 20106.

Under the Preemption Provision, state law may regulate railroad safety, but

only “until the Secretary of Transportation . . . prescribes a regulation . . . covering

the subject matter of the State requirement.” 49 U.S.C. § 20106 (a)(2). Once the

Secretary of Transportation issues a regulation covering the subject matter of the

State requirement, the state law is preempted, unless the state law meets all

conditions of 49 U.S.C. § 20106(a)(2)(A) – (C) (the “Savings Clause”).

4 In 2007, Congress amended 49 U.S.C. § 20106 to permit an action under state law seeking

damages for personal injury, death, or property damage alleging that a party has failed to comply
with the standard of care established by a federal regulation or that a party has failed to comply
with its own plan, rule, or standard created pursuant to a federal regulation. 49 U.S.C. §
20106(b). Because the Bennetts do not allege that Norfolk failed to comply with any federal
standard of care or with its own plan, rule, or standard created pursuant to federal regulation, we
do not address this subsection.

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Under the framework set forth by the Preemption Provision, we must first

determine whether federal regulations cover the same subject matter as the

Bennetts’ claims. If so, we must examine whether the Savings Clause nevertheless

permits the Bennetts to pursue their state law negligence claims.

To prevail on its claim that federal regulations preempt the Bennetts’ claims,

Norfolk must show that a federal regulation covers the subject matter of the duties

that the Bennetts, in their state law negligence claims, allege were breached.5 To

establish that regulations cover the subject matter of the Bennetts’ claims, Norfolk

“must establish more than that they ‘touch upon’ or ‘relate to’ that subject matter,

for ‘covering’ is a more restrictive term which indicates that preemption will lie

only if the federal regulations substantially subsume the subject matter of the

relevant state law.” Easterwood, 507 U.S. at 664, 113 S.Ct. at 1738.

In Easterwood, a wrongful death action, the Supreme Court held that the

FRSA preempted state law negligence claims against a train owner and operator

for operating a train at an excessive speed because federal regulations enacted

pursuant to the FRSA covered the subject matter of train speed. 507 U.S. at 675,

5 State laws preempted by the FRSA includes positive enactments by states and localities (e.g.,

state statutes, regulations, rules, etc.) and duties—like those that the Bennetts allege Norfolk
breached in their negligence claims—arising in the context of tort actions for damages. See
Easterwood, 507 U.S. at 664, 113 S.Ct. at 1737 (“Legal duties imposed on railroads by the
common law fall within the scope of [FRSA] preemption.”).
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113 S.Ct. at 1743. In concluding that the regulations covered the subject matter of

train speed, the Supreme Court examined not only the regulations establishing

maximum train speeds but also related regulations addressing hazards posed by

track conditions. Easterwood, 507 U.S. at 674, 113 S.Ct. at 1742. Given the

overall structure of the regulations, the Supreme Court found that the speed limits

not only established a ceiling on train speed but also precluded additional state

regulation on the subject. Id.

Following the analytical course established by Easterwood, we look to the

totality of federal regulations related to the duties at issue here to determine

whether the federal regulations substantially subsume the subject matter. Railroad

bridge safety standards, including inspection and maintenance, are governed by 49

C.F.R. § 237.1, et seq. Pursuant to these regulations, railroad bridge owners must

adopt a bridge management program. Within the adopted bridge management

program, a railroad bridge owner must implement a bridge inspection program that

establishes, at minimum, safety considerations and the required detail of

inspections. See 49 C.F.R. §§ 237.31–237.33. The federal regulations further

mandate that, under the adopted bridge management program, each bridge in

service be inspected “at least once in each calendar year, with not more than 540

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days between any successive inspections,” and that a bridge be inspected more

frequently when a railroad bridge engineer determines that such increased

frequency is necessary. 49 C.F.R. § 237.101. An adopted bridge management

program must define requirements for the special inspection of a bridge when the

bridge is involved in events such as flood, fire, earthquake, derailment, or

vehicular impact. Id. The procedures and conduct of railroad bridge inspections

must be established, overseen, and conducted by railroad bridge engineers,

inspectors, and supervisors, who must possess particular qualifications and

education as mandated by the federal regulations. 49 C.F.R. §§ 237.51, 237.55,

237.103, and 237.107.

The regulatory framework of 49 C.F.R. § 271.1, et seq., is expansive,

touching on a wide range of issues concerning the inspection, maintenance, and

repair of railroad bridges. The regulations establish minimum safety requirements

while mandating additional safety measures be devised and implemented through

plans developed and overseen by qualified professionals as appropriate for the

particularities of each railroad bridge. Given the broad nature of their structure, the

regulations must be read as both establishing the minimum requirements for

inspection and maintenance of railroad bridges and precluding additional state law

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requirements of the sort the Bennetts propose. Thus, the totality of the federal

regulations on the subject matter suggest that they cover the Bennetts’ claims.

In their opposition, the Bennetts cite Easterwood in support of their

argument that the FRSA does not cover claims beyond the context of train speed

and operation. This argument ignores an abundance of caselaw to the contrary.

Although the issue of FRSA preemption in the context of railroad bridge

inspection and maintenance appears to be res nova, many courts have found FRSA

preemption in analogous contexts beyond train speed and operation. In Lundeen v.

Canadian Pacific Ry. Co., 507 F.Supp.2d 1006 (D. Minn. Feb. 2, 2007), Mehl v.

Canadian Pac. Ry., Ltd., 417 F.Supp.2d 1104 (D.N.D. 2006), and Federal Ins. Co.

v. Burlington Northern and Santa Fe Railway Co., 270 F.Supp.2d 1183 (C.D. Cal.

July 7, 2003), the courts found that the FRSA preempted claims for negligent

inspection and maintenance of railroad tracks.

Similarly, in Cart, 99-1118, 752 So.2d 241, the Louisiana appellate court

held that the FRSA preempted plaintiffs’ negligence claims for misclassification of

a railroad track. Likewise, in Furlough v. Union Pac. R.R. Co., 33,658 (La. App. 2

Cir. 8/31/00), 766 So.2d 751 and Zimmerman v. Norfolk S. Corp., 706 F.3d 170

(3d Cir. 2013), the courts held that the FRSA preempted negligence claims for

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failure to install adequate warnings at a train crossing. By analogy, we find that

the federal regulations on railroad bridge inspection and maintenance likewise

cover the Bennetts’ state law negligence claims for Norfolk’s alleged failure to

inspect and maintain the underside of its railroad bridge. Accordingly, we find the

Bennetts’ first argument in opposition unpersuasive.

The Bennetts next argue that, because the federal regulations are silent on

the duty to inspect the underside of railroad bridges for hazardous conditions, the

FRSA does not cover a state law negligence action for Norfolk’s alleged breach of

this duty. Although federal regulations do not prescribe a specific procedure or

timeline to inspect the underside of railroad bridges for debris, the omission of

standards governing this duty does not necessarily exempt it from preemption

under the FRSA. See In re Derailment Cases, 416 F.3d 787, 794 (8th Cir. 2005)

(federal regulations’ omission of prescribed manner of freight car inspection did

not prevent FRSA preemption of state claim for negligent freight car inspection).

“[A] regulatory framework need not impose bureaucratic micromanagement in

order to substantially subsume a particular subject matter.” Id. “The FRSA

preemption provision . . . authorizes the court only to determine whether the

regulation covers the subject matter, leaving it to [the federal agency] to gauge the

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efficacy of the . . . measures based on the agency’s expertise.” CSX Trans., Inc. v.

Williams, 406 F.3d 667, 672 (D.C. Cir. 2005).

Given the wide variation in railroad bridge design, construction, location,

and traffic, it would be impractical to impose inspection standards for every

particular hazard that might arise in every railroad bridge nationwide. The

omission of standards for the inspection of the underside of railroad bridges does

not necessarily mean that a claim for breach of this alleged standard is exempt

from preemption under the FRSA. Instead, the omission evinces the intent to

permit flexibility in establishing a bridge management plan tailored to the

particularities of each railroad bridge.6 We, thus, find the Bennetts’ second

argument in opposition to preemption unpersuasive.

Given the comprehensive nature of 49 C.F.R. § 237.1, et seq., governing the

inspection and maintenance of railroad bridges, we find that federal FRSA

6 The intent of the Secretary of Transportation to permit flexibility in railroad bridge

management programs is evident throughout the pertinent regulations in their mandate that
railroad bridge owners adopt their own bridge management programs and designate
responsibility for developing tailored inspection and maintenance standards to qualified railroad
bridge engineers. See, e.g., 49 C.F.R. §§ 237.31 and 237.103 (b) (mandating a railroad bridge
engineer specify inspection procedures within a bridge management program as appropriate to
the bridge configuration, prior inspection conditions, nature of traffic, and vulnerability to
damage); see also Williams, 406 F.3d at 672 (observing that the omission of particular security
requirements from federal FRSA regulations indicated that “[the Department of Transportation]
decided that security will best be achieved by adopting performance standards and giving
railroads the flexibility to adjust their security plans to their individual circumstances.”).
16

regulations substantially subsume the subject matter of the Bennetts’ negligence

claims. As such, the federal FRSA regulations preempt the Bennetts’ state law

negligence claims unless the duties arising under their claims satisfy all of the

criteria in the Savings Clause. See 49 U.S.C. § 20106.

A state law negligence claim imposing a more stringent regulation to

railroad safety may survive preemption when it:

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

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

(C) does not unreasonably burden interstate commerce.

49 U.S.C. § 20106(a)(2).

Here, the duty to inspect the underside of railroad bridges, as alleged by the

Bennetts, does not satisfy the first criteria of the Savings Clause—that it is

“necessary to eliminate or reduce an essentially local . . . hazard.” Norfolk’s

designated corporate representative testified that Norfolk owns 750 railroad

bridges in his territory alone and that Norfolk’s railroad bridges are struck by

vehicles frequently. Given the multitude of railroad bridges throughout the nation,

coupled with the frequency of vehicular collisions with railroad bridges, there is no

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evidence that debris left in the underside of railroad bridges is a hazard essentially

local to any particular state or city in the nation, much less Louisiana or New

Orleans in particular.

Because the duty raised by the Bennetts’ negligence claims is not necessary

to eliminate or reduce an essentially local hazard—a necessary criteria for

applicability of the Savings Clause—we pretermit discussion of the remaining

criteria. Moreover, given our conclusion (explained elsewhere in this opinion) that

federal regulations substantially subsume the subject matter of the Bennetts’ state

law negligence claims, we find that federal FRSA regulations preempt the

Bennetts’ state law negligence claims. Accordingly, we find Norfolk is entitled to

summary judgment dismissing the Bennetts’ claims against it.

DECREE

For the foregoing reasons, we grant the Norfolk’s writ, reverse the trial

court’s February 27, 2023 judgment denying Norfolk’s summary judgment motion,

and render summary judgment dismissing the Bennetts’ claims against Norfolk.

WRIT GRANTED, JUDGMENT REVERSED, AND
JUDGMENT RENDERED

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