the Kansas City Southern Railway Company v. Angela Horton and Kevin Houser

Dissenting Opinion Filed March 11, 2021

In the
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00856-CV

KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant
V.
ANGELA HORTON AND KEVIN HOUSER, Appellees

On Appeal from the 68th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-17-06507
DISSENTING OPINION
Before Chief Justice Burns, Justice Myers, and Justice Carlyle
Dissenting Opinion by Justice Carlyle
The majority’s express-preemption conclusion is based on an analysis that

both conflates the standards for express and implied preemption and relies on

factually distinguishable, non-binding authority. There is no express preemption

here because Texas negligence law and its remedies do not “directly attempt” to

regulate rail transportation. The majority’s focus on the effect of these particular

claims in its express-preemption analysis is inappropriate, as such focus is specific

to implied (or “as-applied”) preemption. And to the extent Texas negligence law—

as applied through the claims in this case—affects rail transportation, KCSR has not
conclusively shown this constitutes an “unreasonable burden or interference,” a

requirement for implied preemption. Thus, implied preemption is not applicable

either and I must respectfully dissent.

LEGAL PRINCIPLES

Where a state law conflicts with, or frustrates, federal law, the former must

give way. U.S. CONST. art. VI, cl. 2. “In the interest of avoiding unintended

encroachment on the authority of the States, however, a court interpreting a federal

statute pertaining to a subject traditionally governed by state law will be reluctant to

find pre-emption. Thus, pre-emption will not lie unless it is ‘the clear and manifest

purpose of Congress.’” CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 663–64

(1993).

Preemption can be express, when it is Congress’s clear and manifest purpose,

or it can be implied in certain circumstances, including when, as is alleged here,

Texas negligence law, applied to the facts, would “have the effect of unreasonably

burdening or interfering with” a railroad’s operations. Elam v. Kan. City S. Ry. Co.,

635 F.3d 796, 805 (5th Cir. 2011). The party asserting federal preemption has the

burden of persuasion. Id. at 802 (citing Silkwood v. Kerr-McGee Corp., 464 U.S.

238, 255 (1984)).

EXPRESS PREEMPTION1

1
The majority engages in a single thread of analysis, mixing components of express and implied
preemption. I have separated these branches of analysis as the federal courts do, and on the assumption that
the majority concludes both types of preemption apply.
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 I reject the majority’s conclusion that KCSR sustained its burden to

demonstrate the ICCTA expressly preempts these unfortunately typical state law

negligence claims. Even when Congress includes an express preemption clause, as

it did in the ICCTA, “the question of the substance and scope of Congress’

displacement of state law still remains.” Altria Grp., Inc. v. Good, 555 U.S. 70, 76

(2008).

First, the ICCTA’s text:

(b) The jurisdiction of the [Surface Transportation] Board 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.

49 U.S.C. § 10501(b).2

2
I note that there is a very real question whether a rail crossing even constitutes a rail facility, keeping
it outside the ICCTA in the first place. The Second Circuit has said “a rail crossing is not a rail ‘facility’
under 49 U.S.C. § 10102(9)” and astutely observed that if the definition of “rail transportation” for
preemption purposes “includes the movement of people and property across railroad tracks, then any
entity—an automobile, bicycle[,] or even a pedestrian passing over the crossing—would arguably be
beyond the reach of state regulatory authority.” Island Park, LLC v. CSX Transp., 559 F.3d 96, 103 n.9 (2d
Cir. 2009). Regardless, there is no preemption here for the other reasons in this opinion.

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 The express preemption analysis examines whether the claims “fall squarely”

under section 10501(b), meaning the state law—here, Texas negligence law—

“directly attempts” to regulate rail transportation in the “economic realm.” Elam,

635 F.3d at 806–08. Nothing in section 10501(b)’s text mentions state law

negligence claims, and state negligence law does not have a purpose to directly

regulate rail transportation. See Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l

Dev. & Research Corp., 299 S.W.3d 106, 122 (Tex. 2009) (“A negligence claim . . .

is about compensating an injured party.”). Section 10501(b) “does not expressly

preempt generally applicable laws”—like state negligence laws—“that have a mere

‘remote or incidental effect on rail transportation.’” Elam, 635 F.3d at 805; see also

id. at 805 n.5 (quoting an ICCTA House Conference report “stating that ‘exclusivity

is limited to remedies with respect to rail regulation—not State and Federal law

generally’”); Gallo v. Union Pac. R.R. Co., 372 F. Supp. 3d 470, 480 (W.D. Tex.

2019) (“Although [state common law] tort claims may still affect the management

or governance of railroads if the railroad company is the tortfeasor, these claims arise

under state common law and are not intended to regulate railroad transportation even

if they may incidentally affect it. . . . Accordingly, the ICCTA does not expressly

preempt state law negligence claims.” (citing Guild v. Kan. City S. Ry. Co., 541 F.

App’x 362, 367–68 (5th Cir. 2013))); Union Pac. R.R. Co. v. Taylor Truck Line, Inc.,

No. 15-0074, 2018 WL 1750516, at *6–7 (W.D. La. Apr. 10, 2018) (finding no

express preemption as to general state negligence law but concluding implied

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preemption applied based on facts). From the ICCTA’s text then, it appears Congress

did not contemplate preempting state law negligence claims.3

The jury here awarded damages based on one or both of two negligence

theories. The plaintiffs-appellees sought damages based first on a past failure to

adequately warn drivers approaching the crossing. The Fifth Circuit has had little

problem dispensing with express preemption as to that theory, stating,

A typical negligence claim seeking damages for a typical crossing
accident . . . does not directly attempt to manage or govern a railroad’s
decisions in the economic realm. Like state property laws and rules of
civil procedure that generally “have nothing to do with railroad
crossings,” the effects of state negligence law on rail operations are
merely incidental.

Elam, 635 F.3d at 813 (citing Franks Inv. Co. LLC v. Union Pac. R.R. Co., 593 F.3d

404, 414 (5th Cir. 2010)).

The plaintiffs’ other theory, that the crossing here is too steep, is based on

industry standards, not any state or federal regulation.4 Specifically, KCSR has cited

3
I struggle to imagine that Congress intended the five-member Surface Transportation Board to handle
every state law negligence claim for grade-crossing accidents on top of the other matters listed in 49 U.S.C.
§ 10501(b). In 2019, the most recent year for which the Federal Railroad Administration has complete data
as of this writing, there were 2,039 incidents (after excluding a portion equal to the nationwide percentage
of pedestrian-only incidents), 215 of which were from Texas, the leading state for such incidents. See
https://safetydata.fra.dot.gov. There were 1,928 vehicle–train incidents in 2015, the year the incident in this
case occurred, and 159 of those were in Texas. Even half of those incidents resulting in personal injury
litigation before the STB would create a tremendous addition to that body’s areas of jurisdiction.
4
Though the majority states that “[e]very court” addressing “preemption related to a tort or regulation
involving a humped crossing” finds ICCTA preemption, that statement inaccurately portrays the breadth
and depth of the law. See Kan. City S. Ry. Co. v. Horton, No. 05-19-00856-CV, slip op. at 12 (Tex. App.—
Dallas Mar. 11, 2021, no pet. h.). The majority cites a case, Texas Central Business Lines Corp. v. City of
Midlothian, 669 F.3d 525 (5th Cir. 2012), dealing with local regulations regarding crossings’ slope, a
different animal altogether than a routine negligence claim. And the majority cites two cases from a
Mississippi bus accident that do not bind this Court and were wrongly reasoned. See Waneck v. CSX Corp.,

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no part of Chapter 49 that regulates crossing grades, and I have found no part

governing this topic, either in the United States Code or the accompanying

regulations.5 Further, though the majority attempts to define what a “routine” or

“typical” crossing claim is in a way that excludes this very straightforward

negligence claim, the courts and the STB have come close to defining what routine

crossing claims are and these discussions do more to include the simple negligence

claims here as “routine” rather than exclude them.6

Nor does our A&W Properties case, which found preemption and which

KCSR cites, meaningfully support the majority’s conclusion here. See A&W Props.,

No. 1:17cv106-HSO-JCG, 2018 WL 1546373, at *5 (S.D. Miss. Mar. 29, 2018); Voigt v. CSX Transp., Inc.,
No. 3:17-cv-01018-N (N.D. Tex. June 19, 2017).
5
And in any event, the Fixing America’s Surface Transportation Act, Pub. L. 114-94 (eff. Dec. 4, 2015),
delegates significant duties to the states, requiring them to develop state-specific grade crossing safety
plans. The Texas Department of Transportation has complied with this requirement. As expected, railroads
engage in a cost–benefit analysis to determine whether to take action regarding crossings, and Texas
administers a partially federally funded and federally delegated Railroad Grade Separation Program, which
evaluates existing crossings like the one at issue here, and which uses a formula taking into consideration
average daily traffic, number of trains per day, total fatalities, total injuries, and total crashes, as well as
certain assumptions to support a cost–benefit index, including “cost per fatality.” See Rail-Highway
Operations Manual (eff. Aug. 3, 2015) at “10. Other Rail-Highway Programs,” submenu “2. Railroad Grade
Separation Program (RGS),” available at http://onlinemanuals.txdot.gov/txdotmanuals.
6
See, e.g., Elam, 635 F.3d at 813 (“A typical negligence claim seeking damages for a typical crossing
accident (such as the Elams’ simple negligence claim) does not directly attempt to manage or govern a
railroad’s decisions in the economic realm.” (citing Franks, 593 F.3d at 414)). Additionally, in its amicus
brief to the en banc Fifth Circuit in Franks, the STB itself said, “Crossing disputes, despite the fact that
they touch the tracks in some literal sense . . . do not fall into the category of ‘categorically preempted’ or
‘facially preempted’ state actions.” No. 08-30236, 2009 WL 6297302, Br. at 11. It then cited one of its own
decisions, stating that “‘[t]hese crossing cases are typically resolved in state courts.’ Maumee & W. R.R.
Corp. & RMW Ventures LLC—Petition for Declaratory Order, STB Finance Docket No. 34354, 2004 WL
35985, at *2 (S.T.B. Mar. 2, 2004).” Later, the STB brief stated that state-law crossing ownership claims
are not always expressly preempted, and that to so conclude would lead to absurd results, recognizing states’
“longstanding role . . . in determining the needs of the public and of landowners for safe and adequate
nonexclusive railroad/highway crossings.” 2009 WL 6297302, Br. at 12 (quoting Island Park, 559 F.3d at
103).

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Inc. v. Kan. City S. Ry. Co., 200 S.W.3d 342 (Tex. App.—Dallas 2006, pet. denied).

We focused there on preemption relating to “potential flooding” claims and

specifically distinguished precedent (more like this case) that concluded “that the

regulation of rail-highway crossings has been specifically reserved to the states.” Id.

at 348 (citing Wheeling & Lake Erie Ry. Co. v. Pa. Pub. Util. Comm’n, 778 A.2d

785, 792 (Pa. Commw. Ct. 2001)).

Second, the regulation cases the majority cites have little to do with the

ultimate conclusion as to express preemption here. While those cases’ discussion of

the legal standard for preemption may be instructive, the ultimate conclusion that

the ICCTA preempts a claim based on a regulation does not add much to our analysis

of a routine negligence claim. Unlike local regulations seeking to directly manage

rail transportation by prohibiting trains from blocking crossings for specified periods

of time7 or claims based on a railroad’s usage or non-usage of particular tracks,8

these state law negligence claims do not fit the mold for express preemption.

KCSR and the majority ignore that the case before us does not involve a state

or local law targeted at the railroads. The majority relies heavily on CSX

Transportation, Inc. v. City of Sebree, 924 F.3d 276 (6th Cir. 2019), which involved

a local ordinance purporting to control how local railroad track embankments were

7
See Elam, 635 F.3d at 808.
8
See Friberg v. Kan. City S. Ry. Co., 267 F.3d 439, 444 (5th Cir. 2001) (landscape nursery sued railroad
when it went out of business due to trains using spur track; preemption applied because claim sought to
assess liability due to railroad “economic decisions . . . pertaining to train length, speed[,] or scheduling”).

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to be constructed. Unlike in Sebree, the plaintiffs here relied on industry standards

to support a negligence theory but never proceeded on a negligence per se theory

dependent on a state, county, or city law. The Sebree ordinance required the city

council to approve the railroad’s grade change projects, and contained no “standards

cabining the city council’s discretion” and no “restrictions on how long the city

council could take to decide” whether to allow the railroad “to conduct necessary

maintenance or construction.” Id. at 284. Sebree demonstrates just how different this

routine negligence claim is from most, if not all, of the majority’s regulation-based

cases.9

Also, KCSR’s argument has no obvious limit. To extrapolate ICCTA express

preemption of state negligence law solely because a railroad might be held liable in

a crossing case is contrary to the way the Supreme Court has told the lower courts

to analyze preemption. See Easterwood, 507 U.S. at 663–64; Emerson v. Kan. City

S. Ry. Co., 503 F.3d 1126, 1132 (10th Cir. 2007).

Finally, I disagree with the conclusions reached in the Waneck and Voigt cases

the majority relies on. Notably, I am joined by the STB itself, which issued guidance

in these cases and specifically stated the Federal Railroad Safety Act, not the ICCTA,

9
The majority’s attempt to analogize Texas Central Business Lines similarly fails. There, a different
regulation required railroad embankments to adhere to certain slopes, and was stricter than industry
standards. 669 F.3d at 533. The Fifth Circuit held the regulation was preempted because applying it “would
directly affect where rail lines could be situated, as well as influence the distance between railroad tracks
and the position of track-side equipment.” Id. This meant it fell into the STB’s exclusive jurisdiction over
the “construction . . . of spur, industrial, team, switching, or side tracks, or facilities.” Id.

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applied. And we are not alone. See Minton v. Paducah & Louisville Ry. Inc., 423 F.

Supp. 3d 375, 383 (W.D. Ky. 2019) (granting motion to remand and specifically

disagreeing with conclusion in Voigt and Waneck that ICCTA completely preempts

state law negligent design claims centering on humped crossings).

The STB set forth its conclusion that ICCTA preemption did not govern the

Waneck/Voigt cases in its May 23, 2018 decision10—after the Waneck court

decision—and fortified this conclusion by its October 31, 2018 opinion on the

railroad’s motion for reconsideration.11 In these matters, the plaintiffs made “rail

safety-related claims, stemming from a train’s collision with a bus” that was high-

centered on a humped crossing. The STB specifically stated that

because the ICCTA preemption provision can be read to cover virtually
everything related to rail transportation and because rail safety-related
claims will almost always touch on rail transportation and operations,
interpreting ICCTA preemption to apply generally to safety regulations
and safety-related claims would amount to a repeal by implication of
the savings provision of FRSA.

2018 WL 5723286, at *5 (citations omitted). The STB went on: “regulation of rail

safety, which Congress explicitly permitted under FRSA, is not inconsistent with

regulation of interstate rail transportation under ICCTA” and “to give effect to both

statutes, safety regulations and related claims are generally not subject to ICCTA

preemption.” Id. at *7. The STB’s views deserve deep consideration, especially

10
Waneck et al. Petition for Declaratory Order, No. FD 36167, 2018 WL 2392567 (STB May 23, 2018).
11
Waneck et al. Petition for Declaratory Order and on Motion for Reconsideration, No. FD 36167,
2018 WL 5723286 (STB Oct. 31, 2018).
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when they involve the very cases on which the majority founds its most important

points. For all of the above reasons, I would conclude there is no express preemption

here.

IMPLIED PREEMPTION (ALSO CONFLICT OR AS-APPLIED PREEMPTION)

Because the ICCTA does not expressly preempt the plaintiffs’ simple

negligence claim, the next inquiry would be implied preemption—whether Texas

negligence law, applied to the facts, would “have the effect of unreasonably

burdening or interfering with” KCSR’s operations. See Elam, 635 F.3d at 805;

Franks, 593 F.3d at 413. This inquiry is fact-based and here KCSR, the proponent

of preemption, must show conclusive evidence of the “specific” burdens imposed.

Elam, 635 F.3d at 813. The Fifth Circuit adopted this analysis from the STB itself.

See Franks, 593 F.3d at 413 (quoting CSX Transp., Inc.–Petition for Declaratory

Order, STB Finance Docket No. 34662, 2005 WL 1024490, at *2–3 (S.T.B. May 3,

2005)). Economic regulation of railroads is the core of implied ICCTA preemption.

Elam, 635 F.3d at 806.

We begin again with the assumption that Congress did not intend to supersede

the historic police powers of the states “to protect the health and safety of their

citizens.” See Elam, 635 F.3d at 813 (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470,

475 (1996)). As the Fifth Circuit has recognized, “the care of grade crossings is

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peculiarly within the police power of the states.”12 New Orleans & Gulf Coast Ry.

Co. v. Barrois, 533 F.3d 321, 330 (5th Cir. 2008) (quoting Lehigh Valley R.R. Co. v.

Bd. of Pub. Util. Comm’rs, 278 U.S. 24, 35 (1928), for the historical understanding

of “routine crossing cases” underpinning ICCTA). And that court instructs us that

general evidence that rail crossings affect rail transportation is insufficient. Elam,

635 F.3d at 813 (citing Franks, 593 F.3d at 415, which discusses why general

evidence as to crossings like those at issue in the case would not mandate implied or

as-applied preemption of claims based on four specific crossings when the railroad

failed to present evidence specific to those crossings).

As an initial matter, for the same reasons the Fifth Circuit expressed in Elam,

the inadequate-warning negligence theory here is not impliedly preempted. See id.

(simple negligence claim based on failure to warn arising from railway crossing

accident not preempted by ICCTA).

But the plaintiffs also claimed KCSR was negligent because it failed to lower

this humped crossing by at least 32 inches, a height they arrived at based on a set of

industry standards. Even engaging KCSR’s evidence provides it no quarter. KCSR’s

evidence that it would not be feasible to remove the hump included an initially vague

12
The majority takes appellees to task for not providing the entire quotation, but the rest of the quote
only amplifies the standard for implied preemption—that crossing claims are not preempted “unless by
reason of their effect on economical management and service, their general bearing is clear.” No. 05-19-
00856-CV, slip op. at 19. The majority concludes KCSR conclusively demonstrated that the simple
negligence claim here constitutes an attempt to unreasonably burden or interfere with the railroad’s
operations. Id., slip op. at 15 n.10. I disagree with that assessment and therefore, like the appellees, present
the concise, relevant portion of the Barrois quotation.

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“several hundred thousand dollar” removal estimate and, notably, no estimates of

the length of time the crossing would be closed for repairs and no testimony

regarding the disruption, if any, to rail transportation. Cf. A&W Props., Inc., 200

S.W.3d at 344–45. KCSR’s expert later gave a potential maximum cost, $300,000,

but even with this, I would not agree KCSR presented the proper quantum of

evidence to meet its burden. The as-applied analysis courts must undertake requires

more. At that cost and without significantly more evidence to support the time and

disruption, KCSR cannot even begin to show that the traditional exercise of state

negligence law to provide a vehicle for compensating victims of its negligence

constitutes an attempt to economically regulate it. See Elam, 635 F.3d at 814

(concluding railroad’s evidence did not demonstrate an unreasonable burden on or

interference with railroad operations).

On this record, I would conclude KCSR failed to meet its implied-preemption

burden to conclusively demonstrate that Texas negligence law, applied to the facts,

would “have the effect of unreasonably burdening or interfering with” its operations.

See Elam, 635 F.3d at 805; Franks, 593 F.3d at 413. Thus, I would conclude the

ICCTA does not impliedly preempt appellees’ claims.13

13
I note also that KCSR claimed a type of impossibility defense to the humped-crossing theory by
suggesting that it did not possess the authority to remediate the road on either side of the crossing because
that was Hunt County’s responsibility. The railroad, which is asking for ICCTA preemption to apply such
that a state law will not expose it to liability, is using the other side of its mouth to claim a rural county
would stand in its way if it truly wanted to remediate a dangerously humped crossing. Because KCSR did
not designate the county as a responsible third party, this line of defensive reasoning reveals itself for what
it was: jury argument. It has little application to us in the appellate sphere. For these additional reasons, I
reject KCSR’s preemption argument.
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CONCLUSION

Having considered and rejected KCSR’s position that the ICCTA expressly

and impliedly preempts the negligence claims here, I would see no basis for Casteel

error and would affirm the verdict the jury rendered.

/Cory L. Carlyle/
CORY L. CARLYLE
JUSTICE

190856DF.P05

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