Betty Jean Hargrove v. Missouri Pacific Railroad Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-764

BETTY JEAN HARGROVE, INDIVIDUALLY
AND AS NATURAL TUTRIX OF JESSICA BANKS

VERSUS

MISSOURI PACIFIC RAILROAD COMPANY
d/b/a UNION PACIFIC RAILROAD COMPANY,
SOUTHERN PACIFIC TRANSPORTATION COMPANY,
AND TOMMY COMEAUX

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APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON DAVIS, NO. 129-97,
HONORABLE WENDELL R. MILLER, DISTRICT JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of Jimmie C. Peters, Michael G. Sullivan, and John B. Scofield,*
Judges.

AFFIRMED.

Elizabeth S. Hardy
Thomas & Hardy
2380 Lake Street
Lake Charles, Louisiana 70601
(337) 433-4903
Counsel for Plaintiff/Appellant:
Betty Jean Hargrove

*
John B. Scofield participated in this decision by appointment of the Louisiana Supreme
Court as Judge Pro Tempore.

Thomas E. Townsley
Attorney at Law
711 Pujo Street
Lake Charles, Louisiana 70601
(337) 430-0994
Counsel for Plaintiff/Appellant:
Betty Jean Hargrove

J. E. McElligott, Jr.
Heather K. Walker
Davidson, Meaux, Sonnier & McElligott
Post Office Drawer 2908
Lafayette, Louisiana 70502-2908
(337) 237-1660
Counsel for Defendants/Appellees:
Southern Pacific Transportation Company
Tommy Comeaux
Union Pacific Railroad Company
Missouri Pacific Railroad Co.

SULLIVAN, Judge.

Plaintiffs appeal the trial court’s ruling on summary judgment that their state

law claims of negligence based upon excessive train speed are preempted by federal

law. For the following reasons, we affirm.

Factual Background

On September 26, 1996, a vehicle operated by Richard Haley collided with a

Union Pacific Railroad Company (Union Pacific) train at the Cary Avenue crossing

in Jennings, Louisiana. Betty Jean Hargrove, a passenger in the Haley vehicle, filed

this suit individually and on behalf of her daughter, Jessica Banks, also a passenger,

naming as Defendants, Missouri Pacific Railroad Company d/b/a Union Pacific;

Southern Pacific Transportation Company (Southern Pacific); Mr. Haley; and Tommy

Comeaux, the train’s operating engineer.1 Among the allegations in Plaintiffs’

petition was that the Union Pacific train was traveling at a speed that was excessive

for unsafe conditions or local hazards existing at the Cary Avenue crossing.2

Defendants, Union Pacific and Mr. Comeaux, filed a motion for summary

judgment, arguing that Plaintiffs’ claims of negligence based upon the speed of the

train are preempted by the Federal Railroad Safety Act (FRSA), 25 U.S.C. §§ 421-

447, because the train was traveling at a speed within the guidelines set forth in 49

C.F.R. § 213.9(a). Plaintiffs responded that their claims are not preempted because

many documents indicated that the railroad had lowered the speed limit for that

section of track and that the train was traveling in excess of that slower speed.

1
At the time of the accident, Southern Pacific owned the track on which the train was
traveling. After the accident, Union Pacific acquired Southern Pacific, then sold that area of track
to the Burlington Northern Santa Fe Railroad (BNSF).
2
Another of Plaintiffs’ allegations was that the warning devices at the crossing were
inadequate, a claim that we previously determined was not preempted by federal law. See Hargrove
v. Missouri Pac. R.R. Co., 03-818 (La.App. 3 Cir. 12/17/03), 861 So.2d 903, writ denied, 04-187
(La. 3/26/04), 871 So.2d 349.

Plaintiffs also argued that they were entitled to an adverse inference on the issue of

train speed because Union Pacific failed to preserve certain items of evidence after

a timely request to do so. After a hearing, the trial court ruled in favor of Defendants,

finding there existed no genuine issue of material fact that the train was traveling

within the federal guidelines.

Summary Judgment

Appellate courts review summary judgments de novo, applying the same

criteria as the district courts in determining the appropriateness of summary judgment.

Richard v. Hall, 03-1488 (La. 4/23/04), 874 So.2d 131. The appellate court must

determine whether “the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine

issue as to material fact, and that mover is entitled to judgment as a matter of law.”

La.Code Civ.P. art. 966(B). Despite the legislative mandate favoring summary

judgments found at La.Code Civ.P. art. 966(A)(2), “factual inferences reasonably

drawn from the evidence must be construed in favor of the party opposing the motion,

and all doubt must be resolved in the opponent’s favor.” Willis v. Medders, 00-2507,

p. 2 (La.12/8/00), 775 So.2d 1049, 1050. Additionally, “[b]ecause preemption is an

affirmative defense, the defendant bears the burden of proof on the issue.” Anderson

v. Wisconsin Cent. Transp. Co., 327 F.Supp.2d 969, 973 (E.D. Wisconsin 2004).

Preemption

In CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 661-62, 113 S.Ct.

1732, 1736 (1993), the United States Supreme Court stated:

FRSA was enacted in 1970 to “promote safety to all areas of railroad
operations and to reduce railroad-related accidents, and to reduce deaths
and injuries to persons . . . .” 45 U.S.C. § 421. To aid in the
achievement of these goals, the Act specifically directs the Secretary of

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Transportation to study and develop solutions to safety problems posed
by grade crossings. § 433. In addition, the Secretary is given broad
powers to “prescribe, as necessary, appropriate rules, regulations, orders,
and standards for all areas of railroad safety . . . .” § 431(a). The pre-
emptive effect of these regulations is governed by § 434, which contains
express saving and pre-emption clauses.

As the Supreme Court pointed out in Easterwood, the Secretary promulgated

regulations at 49 C.F.R. § 213.9 that set maximum train speeds for different classes

of track, with the classes of track being defined by gage, alignment, curvature, surface

uniformity and number of crossties per length of track. The Supreme Court

concluded that 49 C.F.R. § 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.” Easterwood, 507 U.S. at 675, 113 S.Ct. at 1743. Accordingly,

the Supreme Court interpreted those regulations as not only establishing a ceiling as

to train speed, but also as precluding additional state regulation, such as state law

negligence claims based on excessive train speed. Thus, the Supreme Court held in

Easterwood that the plaintiff’s claim that the railroad breached a common-law duty

to operate its train at a moderate and safe speed was preempted, where it was

undisputed that the train was traveling within the speed limit of 49 C.F.R. § 213.9(a).

As a result of the Easterwood decision, a state law claim based on excessive

train speed is preempted “if a train is involved in an accident while traveling under

the maximum speed prescribed by § 213.9(a).” Anderson, 327 F.Supp.2d at 975.

Similarly, as this court recognized in Western Co. of North America v. Dynasty

Transportation, Inc., 96-877, p. 3 (La.App. 3 Cir. 5/7/97), 696 So.2d 1, 2, “there is

a large body of appellate and trial court decisions finding that state law excessive

train speed claims are preempted when there is no evidence providing that the train’s

speed was in excess of federal regulations.”

3

Since the Easterwood decision, however, the Federal Railroad Administration

(FRA) has clarified, through publication in the Federal Register, that it only has an

indirect role in determining railroad speed limits. As the FRA explained in 62

Fed.Reg. at 36143 (July 3, 1997): “Railroads set train speed in their timetables and

train orders. Once a railroad sets a train speed, it must then maintain the track

according to FRA standards for the class of track that corresponds to that train

speed.” The FRA further stated: “Notwithstanding some of the language in

Easterwood . . . FRA has never assumed the task of setting train speed. Rather, the

agency holds railroads responsible for minimizing the risk of derailment by properly

maintaining track for the speed they set themselves.” Id. at 36143-44. Since this

clarification, at least one federal district court has considered, for preemption

purposes, “the speed that defendant permitted its trains to operate at over such track

as set forth in its timetables, general orders and speed restrictions.” Anderson, 327

F.Supp.2d at 976. In Anderson, the court found that the railroad was not entitled to

summary judgment on preemption because the record was unclear as to whether any

speed restrictions were in effect at the time of the accident. Specifically, the court

found that discrepancies between the depositions and affidavits of railroad employees

created a factual issue, where the employees stated in their affidavits that no speed

restrictions or slow orders were in place within two miles of the crossing, but testified

in their depositions that they did not know whether any speed restrictions were in

place.

In Cart v. Missouri Pacific Railroad Co., 99-1118 (La.App. 3 Cir. 12/8/99),

752 So.2d 241, writ denied, 00-247 (La. 4/7/00), 759 So.2d 767, we recognized that

the plaintiffs could not maintain a claim that a train was traveling too fast for the

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actual condition of the track, where the track was officially classified at a higher

level. Similarly, in Anderson, 327 F.Supp.2d at 976, n.6, the court recognized that

“federal preemption is not lost unless the FRA track inspector downgrades a track.”

Thus, Plaintiffs’ claims will be preempted unless the record demonstrates a genuine

issue of material fact as to either the classification of the track or the speed limit in

effect at the time of the accident.

In the present case, Union Pacific argues that there is no genuine issue of

material of fact that the train was traveling within the maximum speed limit of

49 C.F.R. § 213.9(a) and, if relevant for preemption purposes, within any other speed

restrictions or slow orders in effect that day. It is undisputed that the railroad

timetable of April 14, 1996, classified the track at the Cary Avenue crossing as Class

IV, for which the maximum allowable speed was 60 miles per hour under 49 C.F.R.

§ 213.9(a). Because this train was carrying a wide, expensive load on the date of the

accident, September 26, 1996, the railroad had imposed a speed restriction of 45

miles per hour for the entire trip. The train’s event recorder indicated that, at the

point of impact, the train was traveling between 41 miles per hour and 44 miles per

hour. Other documents indicated that, shortly after the accident, the train’s operating

engineer stated that the train was traveling at 45 miles per hour. Additionally, several

railroad employees, including the operating engineer, the maintenance of way

foreman, and the road master, testified that no slow orders were in effect on the date

of the accident. The operating engineer further testified that orders for a new speed

limit of 40 miles per hour were issued sometime after this accident, once that area of

track had been sold to BNSF. Defendants also produced numerous slow order lists

dated before and after the accident that did not cover the Cary Avenue crossing.

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Plaintiffs respond that numerous other documents create a genuine issue of

material fact as to whether the speed limit was lower than 45 miles per hour on the

date of the accident.3 They point to a list of 1996 track orders showing that a speed

restriction of 40 miles per hour was placed on June 7, 1996, as well as to a track

speed comparison table indicating that the maximum allowable speed for this area of

track was 25 miles per hour in 1995 and 40 miles per hour in 1996. They also rely

heavily on a report prepared for unrelated litigation in October of 1996—the “Ahlf

report”—that purported to list a “current” speed restriction of 25 miles per hour for

the track at the Cary Avenue crossing.4 Plaintiffs also introduced expert testimony

that the track’s crossties had deteriorated by 1996 to a condition consistent with the

25-miles-per hour speed restriction listed in the Ahlf report. Finally, Plaintiffs allege

that Defendants failed to preserve evidence that would have indicated whether a slow

order had been issued on the date of the accident, including the dispatcher’s audio

tapes for that day, the conductor’s book of unforeseen restrictions, and documents

missing from track inspections.

After carefully reviewing the documents submitted by both parties, we find that

Defendants have met their burden of showing that no genuine issue of material fact

3
Defendants argue that many documents cited by Plaintiffs are not properly in the record
because they were not introduced at the hearing on the motion for summary judgment, although, as
Plaintiffs point out, they had been Bates-stamped and filed in the record. In Boland v. West
Feliciana Parish Police Jury, 03-1297, p. 7 (La.App. 1 Cir. 6/25/04), 878 So.2d 808, 814, the court
concluded that “as long as affidavits and depositions are filed in the record in connection with a
motion for summary judgment, they may be considered by the district court and this court, whether
filed with the motion or a memorandum.” As to documents other than affidavits or depositions, the
court found that documents that were submitted by both parties or that were offered as attachments
to affidavits or depositions were also admissible. Many of the documents to which Defendants’
object are admissible on this basis.
4
Robert Ahlf, a railroad industry consultant, inspected approximately 190 miles of track that
included the accident site in October of 1996, after BNSF alleged that Union Pacific had
misrepresented the class of this track in a pending sale between those parties. In his report, Mr. Ahlf
concluded that “this 190.6 mile line of railroad is far below a sustainable Class IV condition.”

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exists as to the speed limit and train’s speed on the date of the accident. The

documents relied upon by Plaintiffs do not indicate that a speed restriction or slow

order lower than 45 miles per hour was in place on the date of the accident. As

explained by Mr. Ahlf in his deposition, a slow order is usually a temporary measure

designed to manage an emergency situation that will be fixed. This is illustrated in

part by the list of track orders that the Plaintiffs cite. Although the document contains

an obvious error, in that it lists a speed restriction placed on “06-7-96” that was to be

removed on “05-29-96”, it is clear that it does not refer to a permanent restriction.

Similarly, the track speed comparison table also cited by the Plaintiffs is not dated,

and thus, it is unclear when the 40-mile-per-hour speed limit listed in that document

was in effect. Railroad employees, however, testified that the speed limit was

changed to 40 miles per hour after the accident, when that area of track was sold to

BNSF. Defendants also produced numerous slow order reports dated both before and

after the accident that do not list an order applicable to the Cary Avenue crossing.

Concerning the Ahlf report prepared in October of 1996, Mr. Ahlf explained

in his deposition that the purpose of his report was not to investigate an accident or

to determine the speed limit of a particular area of track; rather, his intention was to

determine whether the track structure as a whole was compliant with Class IV

standards. He explained that he was concerned only with the general condition of the

track, and he acknowledged that the list of slow orders and speed restrictions could

have been out of date. Despite his use of the term “current” in his report, he testified

that he would not have picked up on whether any order in his list had expired because

that was not necessary for his report. In particular, he believed the 25-mile-per-hour

order listed in that report came from an outdated map from 1995. He further testified

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that he had no knowledge of whether a certain order was still in effect on the date of

the accident; he only had evidence that at some point one did exist.

Plaintiffs also contend that they are entitled to an adverse inference as to the

train speed limit because of Defendants’ failure to preserve the audio tapes, the book

of unforeseen track restrictions, and other items that would have indicated whether

a verbal slow order was issued the day of the accident sometime after the train left its

origination point. Defendants, however, have introduced the testimony of those

employees who would have issued or received such an order, had one existed.

Plaintiffs’ expert also acknowledged that he found no evidence of a slow order in the

track bulletins and warrants for that day. Considering the entirety of the record, we

find Plaintiffs’ reliance on the possibility of a verbal slow order to be speculative at

best.

Decree

For the above reasons, the judgment of the trial court is affirmed. Cost of this

appeal are assessed to Plaintiffs-Appellants.

AFFIRMED.

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