Opinion
FBTCV136039787
04-10-2017
Jamey Murphy, Individually and Executrix of the Estate of Kevin Murphy v. Town of Darien et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
Michael P. Kamp, J.
Pending before the court is the defendant Metro-North Commuter Railroad Company's motion for summary judgment on the ground that the plaintiff's sole cause of action sounding in common-law negligence is barred because it is preempted by federal law. For the reasons set forth below, the defendant's motion is granted.
FACTS
On December 2, 2013, the plaintiff, Jamey Murphy, individually and as executrix of the estate of Kevin Murphy, commenced this wrongful death action against the defendants, Metro-North Commuter Railroad Company (Metro-North), Wilton Enterprises, Inc., and Town of Darien. On October 25, 2016, the plaintiff withdrew as to the defendants Wilton Enterprises, Inc. and Town of Darien. In the plaintiff's fifth amended complaint (docket entry no. 253), the plaintiff alleges the following facts. On March 4, 2013, the plaintiff's decedent, Kevin Murphy, was struck and killed by a Metro-North train. While walking on the southbound platform at the Noroton Heights station, Mr. Murphy slipped on an accumulation of ice which caused him to fall onto the tracks, where he was then struck and killed. The train that struck Mr. Murphy was a Metro-North train which was not scheduled to stop at Noroton Heights and was operating on the exterior track closest to the platform. Because the train was not scheduled to stop at Noroton Heights it was referred to as a " through train." The plaintiff alleges in the first count that Metro-North was negligent in that it operated the through train on a track immediately adjacent to the platform when reasonable care required Metro-North to select an interior track away from the platform. In the second count the plaintiff, individually, asserts a claim for loss of spousal consortium.
On October 24, 2016, Metro-North filed two motions in limine. The first sought an order " precluding any other party to this action from introducing evidence, testimony or argument in advance of any claim of negligence based on the speed of the train which struck plaintiff's decedent." (Docket entry no. 213.) The second motion in limine sought an order " precluding any other party to this action from introducing evidence, testimony or argument that 'through trains, ' including the train that struck the plaintiff's decedent, should not be run on tracks adjacent to station platforms." (Docket entry no. 214.)
On March 4, 2017, after hearing oral argument on the motions in limine, this court granted Metro-North's motion in limine with regard to the speed of the train. Specifically, this court held that " the Federal Railroad Safety Act (FRSA), 49 U.S.C. § 20101, specifically § 20106 and 49 C.F.R. § 213.9 preempt all state law claims." (Docket entry no. 213.10.) On that same date, this court granted the defendant's motion in limine with regard to the choice of track selection allegations. The court held that any such claims are preempted by the Interstate Commerce Commission Termination Act, 49 U.S.C. § 10101 (ICCTA). (Docket entry no. 214.10.)
On March 23, 2017, Metro-North filed a motion for summary judgment and accompanying memorandum in support, along with several supporting exhibits. The plaintiff filed an objection to the defendant's motion on March 24, 2017. The parties waived oral argument on the motion and objection thereto.
The defendant's exhibits included (A) the M.T.A. Police Department Incident Report; (B) excerpts from the deposition of Peter Navarra; (C) excerpts from the deposition of George Gavalla; and (D) the safety analysis report prepared by George Gavalla dated July 20, 2016.
The plaintiff's exhibits included (A) the affidavit of George Gavalla and his safety analysis report dated July 20, 2016; (B) excerpts from the deposition of James Brandt; (C) technical memorandum California High-Speed Train Project; (C) excerpts from the deposition of George Gavalla; (D) a copy of Battley v. Great West Casualty Ins. Co., United States District Court, Docket No. 14-494-JJB-SCR, (M.D.La. January 12, 2015); and (D) a copy of Battley v. Great West Casualty Ins. Co., United States District Court, Docket No. 14-494-JJB, (M.D.La. March 18, 2015).
DISCUSSION
I
SUMMARY JUDGMENT STANDARD AND ARGUMENTS
" Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried . . . However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012). " [T]he use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 236, 116 A.3d 297 (2015).
In the present case, the defendant asserts that as a result of the court's ruling on the motion in limine regarding track selection, the plaintiff no longer has a viable claim based upon Connecticut common-law negligence. In response, the plaintiff maintains that the court's ruling that the track selection claim is expressly preempted by federal law was in error. More specifically, the plaintiff argues that unless there is a federal rule, regulation or statute that expressly dictates or mandates train track selection, claims based on Connecticut common law are not preempted.
The plaintiff has withdrawn its negligence claim regarding the speed of the train that was the subject of the court's ruling on the defendant's motion in limine. (Docket no. 213.10.)
Unlike the issue regarding the speed of the train both the plaintiff and defendant agree that there is no federal rule, regulation or statute that expressly governs train track selection.
II
INTERSTATE COMMERCE COMMISSION TERMINATION ACT 49 U.S.C. § 10101
" In determining the nature and reach of federal preemption, Congress's intent is the ultimate touchstone . . . Congress can indicate its preemptive intent either expressly through a statute's plain language, or impliedly through a statute's structure and purpose . . . Regardless of how Congress indicates its intent, [courts] begin 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 . . . [This] assumption applies with less force when Congress legislates in a field with a history of significant federal presence." (Citations omitted; internal quotation marks omitted.) Elam v. Kansas City Southern Railway Co., 635 F.3d 796, 803-04 (5th Cir. 2011).
Congress has exercised broad regulatory authority over rail transportation for 130 years, since the Interstate Commerce Act (ICA) created the Interstate Commerce Commission (ICC) in 1887. " The ICA was 'among the most pervasive and comprehensive of federal regulatory schemes and has consequently presented recurring pre-emption questions from the time of its enactment.' " Island Park, LLC v. CSX Transportation, Inc., 559 F.3d 96, 102 (2d Cir. 2009). In 1995, Congress enacted the Interstate Commerce Commission Termination Act (ICCTA), 49 U.S.C. § 10101. The ICCTA abolished the Interstate Commerce Commission and created a new Surface Transportation Board (STB) to regulate rail transportation. 49 U.S.C. § 10501(a)(1). The ICCTA creates exclusive federal regulatory jurisdiction and exclusive federal remedies. Specifically, the ICCTA provides:
The jurisdiction of the [STB] over--
(1) transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and
(2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State,
is exclusive . Except as otherwise provided in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law . (Emphasis added.) 49 U.S.C. § 10501(b).
Rail " transportation" is expansively defined to include: (A) a locomotive, car, vehicle, vessel . . . property, facility, instrumentality, or equipment of any kind related to the movement of passengers or property, or both, by rail . . . and (B) services related to that movement . . ." 49 U.S.C. § 10102(9).
There is no reported Connecticut appellate authority regarding federal preemption pursuant to the ICCTA. In addition, the court was unable to find any reported authority either in the federal court system or any state court decisions regarding ICCTA preemption regarding a claim involving track selection. The present case appears to be one of first impression. Numerous courts other than in Connecticut, however, have spoken on the question of the scope of preemption under the ICCTA.
" [T]he plain language of Section 10501 reflects clear congressional intent to preempt state and local regulation of integral rail facilities. It is difficult to imagine a broader statement of Congress's intent to preempt state regulatory authority over railroad operations." (Internal quotation marks omitted.) Green Mountain Railroad Corp. v. Vermont, 404 F.3d 638, 645 (2d Cir. 2005). Accordingly, " the ICCTA completely preempts state law tort actions that 'fall squarely' under § 10501(b)." Elam v. Kansas City Southern Railway Co., supra, 635 F.3d 806. A state law will fall " squarely under" § 10501(b) if it " may reasonably be said to have the effect of managing or governing rail transportation . . ." Island Park, LLC v. CSX Transportation, Inc., supra, 559 F.3d 102; see also Elam v. Kansas City Southern Railway Co., supra, 806-07 (" a state law tort remedy that would directly regulate a railroad's switching rates and services falls squarely under § 10501[b]").
In Island Park, LLC v. CSX Transportation, Inc., the Second Circuit concluded that New York State's rail crossing closure order was not preempted under the ICCTA. Island Park, LLC v. CSX Transportation, Inc., supra, 559 F.3d 103-05. In that case, New York sought to terminate the use of a private roadway that traversed railroad tracks, which was used by Island Park to transport farm equipment to a field on the other side of the tracks. Id., 99. New York, however, " [did] not seek to impose its authority over the tracks themselves or over 'rail carriers' that use the tracks. Rather, the result of the state regulation at issue . . . [was] the termination of Island Park's use of the crossing." Id., 103. " [A]lthough ICCTA's pre-emption language is unquestionably broad, it does not categorically sweep up all state regulation that touches upon railroads-interference with rail transportation must always be demonstrated." Id., 104. Closing a rail crossing to a non-rail carrier, that did not move passengers or property by rail; see 49 U.S.C. § 10102(9)(A); did not interfere with or burden rail operations. Island Park, LLC v. CSX Transportation, Inc., supra, 105. This case was thus distinguishable from the situations in Green Mountain Railroad Co. v. Vermont, supra, 404 F.3d 643-45, where a permit requirement was preempted because it interfered with rail operations, such as the construction of facilities, and in Friberg v. Kansas City Southern Railway Co., 267 F.3d 439 (5th Cir. 2001), where an anti-blocking statute was preempted because of its interference with how a railroad operated its trains. Id., 443. In that case, the court found that Texas's Anti-Blocking Statute, which regulated how long a train could occupy a rail crossing, was preempted, because " [r]egulating the time a train can occupy a rail crossing impacts, in such areas as train speed, length and scheduling, the way a railroad operates its trains, with concomitant economic ramifications . . ." Id.
The STB itself, in CSX Transportation, Inc. --Petition for Declaratory Order, SBT Finance Docket No. 34662 (March 14, 2005) (CSX I ), has discussed the scope of ICCTA preemption and recognized that its preemptive effect is " broad and sweeping." CSX I, supra, p. 7. In that decision, the STB granted CSXT's petition for a declaratory order that a D.C. Act, which placed restrictions on the transportation of certain classes of hazardous materials as well as empty hazardous materials rail cars, was preempted by § 10501(b). Id., pp. 2, 5. " [S]ection 10501(b) does not leave room for state and local regulation of activities related to rail transportation, including routing matters. As the courts have observed, [i]t is difficult to imagine a broader statement of Congress' intent to preempt state regulatory authority over railroad operations' than that contained in section 10501(b) . . . Every court that has examined the statutory language has concluded that the preemptive effect of section 10501(b) is broad and sweeping, and that it blocks actions by states or localities that would impinge on the Board's jurisdiction or a railroad's ability to conduct its rail operations." (Citations omitted.) Id., p. 7. " By enacting section 10501(b), Congress foreclosed state or local power to determine how a railroad's traffic should be routed." Id., p. 8; see also CSX Transportation, Inc.--Petition for Declaratory Order, SBT Finance Docket No. 34662 (May 3, 2005) (CSX II ) (reaffirming prior decision and denying requests for reconsideration) (" under the plain language of the statute, any state or local attempt to determine how a railroad's traffic should be routed is preempted").
In the present case, the plaintiff argues that her claims are not expressly preempted because there is no direct federal regulation or statute that governs track selection. Rather, the plaintiff argues that the defendant must submit competent evidence to establish that track selection issues are impliedly preempted which the defendant has failed to do. The existence or lack thereof of a federal regulation or statute regarding track selection is not necessary for the plaintiff's claims to be expressly preempted by § 10501(b). That statute provides the STB with exclusive jurisdiction over the transportation of rail carriers and the remedies provided under that part with respect to rules, including operating rules, practices, and routes; see 49 U.S.C. § 10501(b)(1); as well as with respect to the operation of " spur, industrial, team, switching, or side tracks." See 49 U.S.C. § 10501(b)(2). The selection of which track to use would clearly go to the heart of a railroad's operation of its rails and involves consideration of such things as routing and scheduling, operational decisions that a state cannot interfere with. See e.g., Friberg v. Kansas City Southern Railway Co., supra, 267 F.3d 443; CSX I, Docket No. 34662, supra, p. 7.
The plaintiff cites to the Connecticut Superior Court decision of Lin v. National Railroad Passenger Corp., Superior Court, judicial district of New Haven, Docket No. CV-99-0431868-S (February 11, 2002, Zoarski, J.T.R.) [31 Conn.L.Rptr. 380, ], as authority for her argument that preemption should not apply. In Lin, the estate of a pedestrian brought a wrongful death action against the railroad arising from an accident in which the train struck the plaintiff's decedent while she was walking across a railroad trestle. Lin v. National Railroad Passenger Corp., supra . The court concluded that the plaintiff's claims with regards to inadequate walkways and fencing were not preempted because there was no clear congressional intent or mandate to preempt such causes of action. Id. This case is inapposite because it dealt with preemption under the Federal Railroad Safety Act, 49 U.S.C. § 20101, rather than the ICCTA, and involved claims not related to rail operation, or that would only incidentally effect rail transportation. See Island Park, LLC v. CSX Transportation, supra, 559 F.3d 102. Furthermore, as will be discussed below, the plaintiff's claim would also be preempted under the FRSA.
Because the ICCTA completely preempts state law or actions that would attempt to manage rail operations or determine how a railroad's traffic should be routed, the plaintiff's claims with regards to track selection are expressly preempted.
III
FEDERAL RAILROAD SAFETY ACT 49 U.S.C. § 20101
The plaintiff's objection to the defendant's motion for summary judgment primarily focuses on the lack of a federal regulation or rule with regards to track selection and preemption under the Federal Railroad Safety Act of 1970 (FRSA), 49 U.S.C. § 20101 et seq. The plaintiff argues that her claim does not seek to manage rail operations, but rather, concerns rail safety, specifically with regards to the choice to use a track adjacent to a platform for a fast moving through train. To the extent that the plaintiff's claim is viewed as relating to rail safety, it is preempted by the FRSA.
" The purpose of [the FRSA] is to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." 49 U.S.C. § 20101. The FRSA confers authority upon the Secretary of Transportation to " prescribe regulations and issue orders for every area of railroad safety." 49 U.S.C. § 20103(a). Preemption is specifically addressed by the FRSA and subsection (a)(1) sets forth the scope: " Laws, regulations, and orders related to railroad safety . . . shall be nationally uniform to the extent practicable . . ." 49 U.S.C. § 20106(a)(1). Subsection (a)(2) provides in relevant part that: " A State may adopt or continue in force a law, regulation, or order related to railroad safety . . . until the Secretary of Transportation . . . 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 . . . when the law, regulation, or order
(A) is necessary to eliminate or reduce an essentially local safety . . . 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).
Congress amended this provision in 2007 and added subsection (b) which provides in relevant part: (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 . . . 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 [the Secretary of Transportation]; or
(C) has failed to comply with a State law, regulation, or order that is not incompatible with subsection (a)(2).(Emphasis added.) 49 U.S.C. § 20106(b)(1).
Courts have concluded that " the preemption analysis under the amended FRSA requires a two-step process. [A court] first ask[s] whether the defendant allegedly violated either a federal standard of care or an internal rule that was created pursuant to a federal regulation. If so, the plaintiff's claim avoids preemption . . . Otherwise, [courts] move to the second step and ask whether any federal regulation covers the plaintiff's claim . . . A regulation covers--and thus preempts--the plaintiff's claim if it 'substantially subsume[s] the subject matter' of that claim." (Citations omitted.) Zimmerman v. Norfolk Southern Corp., 706 F.3d 170, 178 (3d Cir. 2013).
The plaintiff claims that the defendant was negligent in using a track adjacent to the platform for a through-train traveling in excess of 70 miles per hour. The defendant argues that this is actually an excessive speed claim in disguise. The defendant's contention that the plaintiff's negligent track selection claim is inherently an excessive speed claim is persuasive. First, the speed of the train is an intrinsic part of the plaintiff's negligence allegation in her fifth amended complaint. Second, the plaintiff's railroad safety expert, George Gavalla, continuously references train speed and the specific speed of the train in question in his opinion for why the train should have been routed on an interior track. See Def.'s Mem. Summ. J., Ex. D. Gavalla discusses through trains versus trains making a scheduled stop and the different speeds in which they enter the station, to explain why faster moving and/or through trains should be placed on tracks that are not alongside platforms. Id.
It is therefore apparent that the track choice, by itself, is not the sole basis for negligence. Such a claim would of course be illogical, as trains must stop alongside a platform to discharge and pick up passengers. Rather, it is the fact that a track adjacent to a platform was used for a train traveling at a high speed that is objected to. The speed of the train is a necessary corollary to the plaintiff's claim. Accordingly, to the extent that the plaintiff's claim can be characterized as an excessive speed claim, it is expressly preempted because the train was traveling between 69-73 miles per hour, which is below the speed limit set forth for a Class 4 track, which is 80 miles per hour for a passenger train. See 49 C.F.R. § 213.9(a). There are clearly regulations that " cover the subject matter of train speed with respect to track conditions"; CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 675, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993); and the defendant did not violate a federal standard of care, because the train was not traveling above the speed limit. See Zimmerman v. Norfolk Southern Corp., supra, 706 F.3d 179.
To the extent, however, that the plaintiff's claim cannot be characterized as an excessive speed claim, it would still be subject to express preemption under the FRSA. As both parties have conceded, there is no federal rule or regulation that specifically governs track selection. Accordingly, there is no federal standard of care for the defendant to have violated. Although the plaintiff alleges that the defendant " violated practices and customs" and argues in its objection to the defendant's motion that the defendant violated its " general practice" to operate through trains on interior tracks that does not equate to " an internal rule created pursuant to a federal regulation." See 49 U.S.C. § 20106(b)(1); see also Middle River Tract, LLC v. Central of Georgia Railroad Co., 339 Ga.App. 546, 549, 794 S.E.2d 192 (2016) (" [t]he flaw in this reasoning . . . is that [the plaintiff's] claims are preempted unless Standard 425 was 'created pursuant to a regulation or order issued by [the Secretary of Transportation]' . . . and the record fails to establish that it was" [citation omitted]; Zimmerman v. Norfolk Southern Corp., supra, 706 F.3d 192 n.17 (" Zimmerman also identifies a number of internal rules that Norfolk Southern supposedly violated. These supposed violations do not help Zimmerman avoid preemption because he fails to show the internal rules were 'created pursuant to a regulation or order' ").
Finally, even though there is not a federal regulation that specifically covers track selection, the federal regulations in regards to tracks is extensive and, therefore, subsume the subject matter of the plaintiff's claim. See Zimmerman v. Norfolk Southern Corp., supra, 706 F.3d 187. In the absence of a federal standard of care, a plaintiff may still avoid preemption if their claim falls outside the scope of the first section of the FRSA preemption provision. See 49 U.S.C. § 20106(a)(2); see also Zimmerman v. Norfolk Southern Corp., supra, 187. Claims fall within the scope of this section " if federal regulations 'cover' or 'substantially subsume' the subject matter of the claims." Zimmerman v. Norfolk Southern Corp., supra, 187. In Zimmerman, the court found that the plaintiff's claim that the track at issue had been misclassified because of the limited sight distance was preempted because although there was no federal standard of care, the regulations of 49 C.F.R. § 213.1 et seq., subsumed his claim. Id. " The regulations are part of a broad scheme to standardize railroad tracks. Admittedly, there is no regulation that classifies tracks based on sight distance. But the breadth of the scheme implies a decision not to classify on that basis. At the very least, it implies that the federal government did not want states to decide how tracks would be classified." Id.
The regulations in this part establish requirements for each class of tracks, governing everything from speed limits, gage, alignment, and elevation to crossties, curve speed, and rail joints, as well as how tracks should be inspected. See 49 C.F.R. § 213.9 (establishing operating speed limits for each class of track); § 213.53 (explaining proper method for measuring gage); § 213.55 (creating alignment standards); § 213.57 (establishing maximum speed based on track elevation and curvature); § 213.109 (requiring more crossties for higher track classes); § 213.121 (noting rail joints must " be of a structurally sound design"); § 213.231 (subpart prescribing requirements for frequency and manner of track inspections). As in Zimmerman, the plaintiff's track selection claim is subsumed by this regulatory scheme. Although there is no regulation that classifies tracks on the basis of track selection, such as the choice of using an exterior or interior track, " the breadth of the scheme implies a decision not to classify on that basis." Zimmerman v. Norfolk Southern Corp., supra, 706 F.3d 187. As part of an overall scheme to standardize railroad transportation and specifically as a scheme that expansively covers railroad track safety; see 49 C.F.R. § 213.1 (" [t]his part prescribes minimum safety requirements for railroad track that is part of the general railroad system of transportation"); the subject matter of the plaintiff's claim is clearly " covered" and " substantially subsumed" by these federal regulations. See Zimmerman v. Norfolk Southern Corp., supra, 187. The plaintiff's track selection claim is therefore preempted by this regulatory scheme.
CONCLUSION
For the foregoing reasons, the defendant's motion for summary judgment is granted.