Opinion
No. 111044.
March 22, 1999.
Reported below: 255 Mich. App. 526.
I concur in the denial of leave to appeal, but for the following reasons:
The present language of the Federal Railroad Safety Act (FRSA), 49 U.S.C. § 20106, reads:
Laws, regulations, and orders related to railroad safety shall be nationally uniform to the extent practicable. 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 —
(1) is necessary to eliminate or reduce an essentially local safety hazard;
(2) is not incompatible with a law, regulation, or order of the United States Government; and
(3) does not unreasonably burden interstate commerce. [ 49 U.S.C. § 20106, enacted in July 1994 as PL 103-272; 108 Stat 866.]
Recently, the United States District Court for the Southern District of West Virginia had occasion to explain the effect of the statute and the Supreme Court's decision in CSX Transportation, Inc v. Easterwood, 507 U.S. 658; 113 S.Ct. 1732; 123 L.Ed.2d 387 (1993). In Cox v. Norfolk Western R Co, 998 F. Supp. 679, 684 (SD WV, 1998), the court stated:
Accordingly, this court believes that following the Supreme Court's opinion in Easterwood, a state negligence claim involving train speed, should be analyzed under the following statement of law: (1) state claims based on excessive speed are preempted by the [federal statute]; (2) though excessive speed claims are preempted, by suits for related tort law duties, such as the duty to slow or stop a train to avoid a specific, individual hazard might not be preempted; (3) the [federal statute] permits states to 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. The state law, regulation, or order relating to railroad safety will be preempted only if federal regulations substantially subsume the subject matter of the relevant state law; and (4) even if state law is preempted, a state may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety when such is necessary to eliminate or reduce an essentially local safety hazard, not incompatible with a law, regulation, or order of the United States Government, and it does not unreasonably burden interstate commerce.
In another portion of its discussion the U.S. Supreme Court wrote in Easterwood of "the presumption against pre-emption." 507 U.S. 668.
From the materials at hand, it is evident that the track in the vicinity of Fourteen Mile Road was subject to a speed limit set by the Secretary of Transportation under 49 C.F.R. § 213.9(a). Thus, under the principles set forth above, the plaintiff's excessive-speed claim for relief under state law is preempted by federal law.
There appears to be no dispute that the speed limit was forty miles per hour, and that the train was traveling at a slower speed, perhaps thirty miles per hour. These facts, however, are not essential to a determination of preemption.
In reaching this conclusion, I am mindful of the statutory proviso that avoids preemption of state law that concerns "an essentially local safety hazard." In Easterwood, the U.S. Supreme Court elaborated:
Petitioner is prepared to concede that the pre-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. Reply Brief for Petitioner in No. 91-790, p 3. As respondent's complaint alleges only that petitioner's train was traveling too quickly given the "time and place," App. 4, this case does not present, and we do not address, the question of frsa's pre-emptive effect on such related claims. [507 U.S. 675, n. 15.]
However, that exception is not applicable in the present case. As the U.S. Supreme Court explained in the accompanying text of Easterwood:
Respondent also argues that common-law speed restrictions are preserved by the second saving clause of § 434, under which "a State may . . . continue in force an additional or more stringent law . . . relating to railroad safety when necessary to eliminate or reduce an essentially local safety hazard, and when not incompatible with any Federal law, rule, regulation, order, or standard. . . ." 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. Respondent's contrary view would completely deprive the Secretary of the power to pre-empt state common law, a power clearly conferred by § 434. At the least, this renders respondent's reliance on the common law "incompatible with" FRSA and the Secretary's regulations. We thus conclude that respondent's excessive speed claim cannot stand in light of the Secretary's adoption of the regulations in § 213.9. [507 U.S. 675.]
Likewise in this case, the plaintiff has not formulated a claim based on a state law that is aimed at an essentially local safety hazard within the meaning of the statute. Rather, she simply asserts that broad principles of tort law should lead to a recovery against the railroad.
KELLY, J.,
I join in the statement of Cavanagh, J.