
    DUPREY v HURON & EASTERN RAILWAY COMPANY, INC
    Docket No. 211118.
    Submitted September 15, 1999, at Detroit.
    Decided September 24, 1999, at 9:10 am.
    Leave to appeal sought.
    Elizabeth Duprey brought an action in the Tuscola Circuit Court against Huron & Eastern Railway Company, Inc., seeking damages for injuries sustained when, during the course of her employment by a third party, she climbed atop a grain car operated by the defendant to open an allegedly defective lid or hatch so that grain could be loaded. The court, Patrick R. Joslyn, J., granted the defendant’s motion for summary disposition, concluding that the plaintiffs claims under state law are preempted by the Federal Railroad Safety Act (frsa), 49 USC 20101 et seq. The plaintiff appealed.
    The Court of Appeals held:
    
    1. The defendant’s duty under state law to properly inspect and maintain the hatch or lid of the grain car is excepted from preemption by the frsa. Section 20106 of the frsa, 49 USC 20106, allows a state 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. There are no federal regulations covering duties related to grain car hatches or lids. Any state laws, regulations, or orders related to grain car hatches or lids are not preempted by the frsa.
    2. Legal duties imposed by state common law fall within the scope of § 20106. Therefore, state negligence law is counted among the laws, regulations, or orders that states may adopt or continue in force absent federal regulations covering the subject matter.
    3. The defendant, to prevail on its claim that certain federal regulations preempt the plaintiffs state claims, must establish more than that they “touch upon” or “relate to” the subject matter. Preemption will be found only if the federal regulations substantially subsume the subject matter of the state law claims. None of the regulations cited by the defendant substantially subsume the subject matter of the state law claims brought by the plaintiff.
    Reversed and remanded.
    
      Railroads — Federal Railroad Safety Act — Federal Regulations — Preemption of State Laws.
    Section 20106 of the Federal Railroad Safety Act permits a state 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; preemption will be found only if the federal regulation substantially subsumes the subject matter of the state law, not just touches upon or relates to the subject matter; because legal duties imposed by state common law fall within the scope of § 20106, state negligence law is among the laws, regulations, or orders that a state may adopt or continue in force in the absence of federal regulation (49 USC 20106).
    
      Pearlman and Pianin (by Arvin J. Pearlman and Phillip S. Serafini), for the plaintiff.
    
      Braun Kendrick Finkbeiner, PL.C. (by Scott C. Strattard), for the defendant.
    Before: Collins, P.J., and Sawyer and Cavanagh, JJ.
   Per Curiam.

Plaintiff appeals from an order of the circuit court granting summary disposition to defendant. We reverse and remand for further proceedings.

Plaintiff was injured while in the course of her employment by Cooperative Elevator Company. Specifically, she had climbed atop a grain car operated by defendant Huron & Eastern Railway Company, Inc., in order to open a lid or hatch of the car so that grain could be loaded. Plaintiff alleged that the lid was defective, causing her to expend an extraordinary amount of energy to lift it. Further, she alleged that the lid suddenly flew up and knocked her to the ground, causing her to sustain serious, disabling, and permanent injuries. Defendant denies that the hatch was defective.

The trial court granted defendant’s motion for summary disposition, concluding that plaintiff’s claims under state law are preempted by the Federal Railroad Safety Act (frsa), 49 USC 20101 et seq. We disagree.

Plaintiff first argues that defendant’s duty under state law to properly inspect and maintain the hatch or lid on top of the grain car is excepted from preemption by the FRSA. We agree.

Continued state regulation of railroads, with restrictions, is permitted under the frsa. Specifically, § 20106, 49 USC 20106, provides in part as follows:

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.

In the case at bar, both sides concede that there are no federal regulations covering duties related to grain car hatches or lids. Therefore, we conclude that, under the express terms of § 20106, any state laws, regulations, or orders related to grain car hatches or lids remain in force until and unless the federal Secretary of Transportation adopts a regulation or issues an order regarding grain car hatches or lids.

This interpretation is consistent with the United States Supreme Court’s holding in CSX Transportation, Inc v Easterwood, 507 US 658; 113 S Ct 1732; 123 L Ed 2d 387 (1993). In Easterwood, the Court clarified that legal duties imposed by state common law fall within the scope of § 20106, addressing the question whether the Secretary of Transportation had issued regulations covering the same subject matter as state negligence law. The Easterwood Court outlined a specific approach to be used in these types of cases:

To prevail on the claim that the regulations have preemptive effect, petitioner must establish more than that they “touch upon” or “relate to” that subject matter,... for “covering” is a more restrictive term which indicates that pre-emption will lie only if the federal regulations substantially subsume the subject matter of the relevant state law. [.Easterwood, supra at 664 (citation omitted).]

The Supreme Court’s limited holding in Easterwood and the statute’s emphasis on the states’ reserved power are both reflective of the general presumption in the law against federal preemption. See Rice v Santa Fe Elevator Corp, 331 US 218; 67 S Ct 1146; 91 L Ed 1447 (1947) (the historic powers of the states to regulate train safety must not be superseded unless it is the clear purpose of Congress). Federal preemption derives from the Supremacy Clause of the United States Constitution, US Const, art VI, cl 2, CSX Transportation, Inc v City of Plymouth, Michigan, 86 F3d 626 (CA 6, 1996), and occurs only under certain conditions:

“The Supremacy Clause of Art VI of the Constitution provides Congress with the power to pre-empt state law. Preemption occurs when Congress, in enacting a federal statute, expresses a clear intent to pre-empt state law, when there is outright or actual conflict between federal and state law, where compliance with both federal and state law is in effect physically impossible, where there is implicit in federal law a barrier to state regulation, where Congress has legislated comprehensively, thus occupying an entire field of regulation and leaving no room for the States to supplement federal law, or where the state law stands as an obstacle to the accomplishment and execution of the full objectives of Congress.” [Id. at 627, quoting Louisiana Public Service Comm v Federal Communications Comm, 476 US
355, 368-369; 106 S Ct 1890; 90 L Ed 2d 369 (1986) (citations omitted).]

See also Grand Trunk W R Co v Fenton, 439 Mich 240, 243-244; 482 NW2d 706 (1992).

Defendant relies on Fenton in support of its position, but that reliance is misplaced. Fenton dealt with a challenge to a local speed limit ordinance that imposed a lower limit than that of the federal regulations. Thus, Fenton did not deal with an area that was unregulated by federal rules, such as hatches on grain cars, but with an area that is extensively regulated, speed limits.

Fenton is an example of the second area of state regulation permitted under § 20106, which provides that states 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.

This is a separate provision from that referred to earlier in this opinion and does not apply to the case at bar. Indeed, the error in the trial court’s reasoning in this case is that it reviewed this matter under this second provision and not the first.

The first saving provision allows for state regulation in areas not regulated under the FRSA, while the second allows for state regulation in limited circumstances, involving local safety hazards, where the area is covered by federal regulations. That is, the first covers state regulations in the absence of federal regulations, while the second covers local regulations more stringent than existing federal regulations. Because, as the parties agree, the federal government has not regulated grain car hatches, that means that the first provision, not the second, applies. Accordingly, the trial court erred in applying the second saving provision rather than the first.

This interpretation is consistent with the Supreme Court’s holding in Easterwood, supra at 664, which clarified that “[l]egal duties imposed on railroads by the common law fall within the scope of” § 20106. In other words, state negligence law is counted among the laws, regulations, or orders that states may adopt or continue in force.

Defendant also argues that a finding of preemption is supported by the fact that the Secretary of Transportation has issued regulations covering the subject area of plaintiff’s claims. Defendant cites 49 CFR 215.1, 215.11, 215.13, and 215.101 et seq., as support for this assertion. The regulation at 49 CFR 215.1 describes the scope of part 215: “This part prescribes minimum Federal safety standards for railroad freight cars.” Section 215.11 requires the designation of and states the qualifications for railroad freight car inspectors. 49 CFR 215.11. Section 215.13 requires that freight cars be inspected before the train departs, 49 CFR 215.13(a); that the inspection be performed by a designated inspector to determine whether the car is in compliance with part 215, 49 CFR 215.13(b); and that as a minimum, where an inspector is not on duty, an inspection be made “for those conditions set forth in appendix D” to part 215. 49 CFR 215.13(c). It also notes that “[performance of the inspection prescribed by this section does not relieve a railroad of its liability under § 215.7 for failure to comply with any other provision of this part.” 49 CFR 215.13(d). Section 215.101 prohibits railroads from placing or continuing in service freight cars that have “certain defective components.” 49 CFR 215.101. The components enumerated in §§ 215.103-215.129 include: the wheel, axle, plain bearing box, plain bearing, plain bearing wedge, roller bearing, roller bearing adapter, freight car truck, car body, couplers, uncoupling device, draft arrangement, and cushioning device. 49 CFR 215.103-215.129. None of the components listed are part of a grain car or grain car hatch or lid. See 49 CFR 215.101-215.129. Therefore, we conclude that, while some of these regulations “touch upon” or “relate to” the subject of freight car inspections and safety, Easterwood, supra at 664, none of them “substantially subsume the subject matter of the” state law claims that plaintiff has brought, id., as did the speed limits that were held to be preempted in Easterwood. Furthermore, we note that 49 CFR 215.1, as quoted above, states that part 215 sets forth the minimum standards. We agree with plaintiff that this suggests that the federal regulations imply that there may be other, i.e., state, sources of applicable safety standards.

In sum, part 215 not only anticipates other safety standards, but it also does not specifically deal with grain car hatches. Accordingly, we reject defendant’s argument that those regulations preempt plaintiff’s state claims.

In sum, we agree with the Ohio Supreme Court’s decision in In re Miamisburg Train Derailment Litigation, 68 Ohio St 3d 255, 260; 626 NE2d 85 (1994), wherein the Ohio court noted that some post-Eas terwood cases had interpreted § 20106 “as a narrow exception to a broad preemption of state regulation in rail safety matters” and “almost to the point of applying a presumption in favor of preemption whenever [§ 20106] is at issue.” Miamisburg, supra at 261, rejected this

expansive interpretation of [§ 20106], at least insofar as the preemption of state common-law tort claims is at issue .... In spite of the fact that the railroad industry is heavily regulated, Easterwood underscores that the preemptive reach of [§ 20106] is not all-encompassing. Moreover, Easterwood establishes that a presumption against preemption is the appropriate point from which to begin an analysis of whether common-law tort claims are preempted: “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.” [Easterwood, swpra at 663-664.] There could be no better example of a subject which is “traditionally governed by state law” than a common-law tort claim.

For these reasons, we conclude that the trial court erred in concluding that plaintiffs state claims were preempted by federal law. Accordingly, we reverse the trial court’s grant of summary disposition in favor of defendant.

Inasmuch as we have concluded that plaintiff’s claims are not preempted by federal regulations, we need not separately address the arguments raised in plaintiff’s second issue, whether the trial court should have dismissed all plaintiff’s claims.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. Plaintiff may tax costs.  