                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-12-00476-CV


MARK B. HARRISON                                                      APPELLANT

                                          V.

BNSF RAILWAY COMPANY                                                    APPELLEE


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            FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY

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                 CONCURRING AND DISSENTING OPINION

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       I agree with the majority that FRSA precludes Harrison’s FELA claim to the

extent he asserts BNSF was negligent in choosing the ballast that caused his

injuries.    I separately concur to clarify what I believe to be the limits of this

holding.     Further, because I disagree with the majority that FRSA precludes

Harrison’s FELA claim to the extent it is based on BNSF’s failure to provide a

safe workplace, I dissent to that portion of the majority’s opinion and judgment.
      Harrison’s claim is factually narrow. In his state petition, he averred that

he was ―injured while stepping off a train . . . as a result of slipping on oversized

ballast on a steep incline.‖ He raised negligence claims under FELA for BNSF’s

failure to provide ―a reasonably safe place to work,‖ ―reasonably safe ballast,‖

and ―a reasonably safe area to disembark and walk.‖ In his summary-judgment

response, Harrison characterized his FELA claim as one ―based on BNSF’s

failure to provide him with a reasonably safe workplace.‖         During discovery,

Harrison stated at his deposition that there was no walkway at the site where he

fell on the oversized ballast. Apparently, the site previously had a walkway, but

the walkway was demolished during BNSF’s work on the track area and was

never replaced.

      I believe it to be important to clarify that all FELA claims relating to railway

ballast are not ipso facto precluded by FRSA.          In other words, an FRSA-

preclusion analysis must go beyond a claimant’s inclusion of the word ―ballast‖ in

his FELA claim. For example, negligence claims brought under FELA regarding

injuries received while walking on ballast included as part of a walkway or other

area that does not support a track or track bed are not, as a matter of law,

precluded by FRSA. E.g., Allenbaugh v. BNSF Ry. Co., 832 F. Supp. 2d 1260,

1266–67 (E.D. Wash. 2011); Davis v. Union Pac. R.R. Co., 598 F. Supp. 2d 955,

959–60 (E.D. Ark. 2009); Grimes v. Norfolk S. Ry. Co., 116 F. Supp. 2d 995,

1002–03 (N.D. Ind. 2000); Hendrix v. Port Terminal R.R. Ass’n, 196 S.W.3d 188,

193, 200–01 (Tex. App.—Houston [1st Dist.] 2006, no pet.); cf. Nickels v. Grand

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Trunk W. R.R., Inc., 560 F.3d 426, 432–33 (6th Cir. 2009) (holding FRSA

precluded FELA claim based on ballast size because no allegation by plaintiff

―that the ballast in those areas was not being used for stability‖), cert. denied,

558 U.S. 1147 (2010); Cowden v. BNSF Ry. Co., No. 4:08CV01534 ERW, 2013

WL 5442954, at *6 (E.D. Mo. Sept. 30, 2013) (holding FELA claim regarding

track-supporting ballast precluded by FRSA but recognizing claims regarding

ballast in walkway areas not precluded); Brenner v. Consol. Rail Corp., 806 F.

Supp. 2d 786, 793–96 (E.D. Penn. 2011) (holding claims ―regarding the nature

and size of ballast used for track stability, support, and drainage‖ are precluded

by FRSA but recognizing nonpreclusion of claims regarding ballast in areas not

being used for stability).   Therefore, the operative question in this case to

determine preclusion is whether Harrison’s FELA claim relates to the size and

condition of ballast used for track stability or relates to the size and condition of

ballast used in areas not related to track stability, such as walkways.

      Here, Harrison’s FELA claim based on the size and condition of ballast in a

track-stability area does not relate to a walkway or other area unrelated to track

stability. Because it is undisputed that Harrison was not on a walkway when he

fell, cases finding no FRSA preclusion for FELA claims arising from injuries

caused by ballast in walkways are inapposite. See, e.g., Brenner, 806 F. Supp.

2d at 796; Hendrix, 196 S.W.3d at 200–01. The amicus asserts in its brief that

the location where Harrison fell necessarily was not part of track-stability ballast

because the mandated width of the track-support area, the lengths of the cross

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ties, and the overhang of the locomotive would make it impossible for Harrison to

step on track-stability ballast. However, there is no summary-judgment evidence

to support these facts or the amicus’s urged conclusion that ―no railroad . . .

want[s] employees stepping down onto the support ballast because it could

redistribute the ballast and affect the stability of the track.‖ Indeed, the amicus

characterizes its argument as one of ―factual recognition.‖ We are bound by the

summary-judgment evidence and arguments proffered by the parties to the trial

court in our scope of review. Farlow v. Harris Methodist Fort Worth Hosp., 284

S.W.3d 903, 918–19 (Tex. App.—Fort Worth 2009, pet. denied); Brookshire v.

Longhorn Chevrolet Co., 788 S.W.2d 209, 213 (Tex. App.—Fort Worth 1990, no

writ). Accordingly, I concur with the majority opinion that Harrison’s FELA claim

based on the condition and size of the ballast he stepped on, which was located

in a track-support area, is precluded by FRSA. See Cowden, 2013 WL 5442954,

at *6.

         But I respectfully dissent to the majority opinion’s conclusion that

Harrison’s FELA claim based on BNSF’s failure to provide a walkway, which

resulted in his injuries, is precluded by FRSA. As indicated above, FRSA does

not address walkways, and FRSA regulations ―are directed toward creating a

safe roadbed for trains, not a safe walkway for railroad employees who must

inspect the trains.‖ Grimes, 116 F. Supp. 2d at 1002–03. Because FRSA’s

ballast regulations do not subsume a FELA claim raising an unsafe workplace for

failure to provide a walkway, I agree with those cases concluding that FRSA

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does not, as a matter of law, preclude a railway worker’s FELA claim that the

area where he fell was unsafe for workers. See Allenbaugh, 832 F. Supp. 2d at

1267–68; Abromeit v. Mont. Rail Link, No. CR 09-93-M-DWM, 2010 WL

3724425, at *5 (D. Mont. Sept. 15, 2010); Davis, 598 F. Supp. 2d at 959–60;

Grimes, 116 F. Supp. 2d at 1002–03.

      Allenbaugh is particularly instructive.   Allenbaugh worked for BNSF for

―many years‖ and suffered ―cumulative hip trauma‖ caused by working ―on

surfaces which were uneven, without uniform ballast, a mixture of dirt, rock and

vegetation covered with debris, sloped, without dedicated walkways, and with

other defective conditions which stressed his hip.‖ Allenbaugh, 832 F. Supp. 2d

at 1262, 1266. He brought a FELA claim against BNSF and argued that BNSF

was negligent for failing to provide him a reasonably safe place to work. Id. at

1262. BNSF moved for summary judgment. In denying the motion, the federal

district court concluded that Allenbaugh’s FELA claim based on a failure to

provide a reasonably safe workplace was not precluded by FRSA. Id. at 1267–

68. The court was careful to parse Allenbaugh’s FELA claims to delineate that

ballast-related claims are not precluded by FRSA if the claims relate to ballast

being used in areas completely separate from track support and stabilization. Id.

at 1266–68. Although Allenbaugh raised insufficient ballast as a basis for his

FELA claims, his unsafe-workplace claim was unrelated to ballast used for track

support, stability, and drainage but related to ―safe and suitable walkways in the

railroad yards in which he worked.‖ Id. at 1267. Therefore, Allenbaugh’s FELA

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claim based on an unsafe workplace was not subsumed by FRSA regulations

dictating the requirements for track-supporting ballast. Id. at 1267–68. Likewise,

Harrison has raised a claim that BNSF failed to provide a safe workplace based

on the lack of an adequate walkway where he fell.

      Because BNSF moved for summary judgment solely on the basis of

preclusion and because I believe that Harrison’s FELA claim regarding the size

and condition of ballast is precluded and that Harrison’s FELA claim based on

BNSF’s failure to provide a safe walkway is not precluded, the trial court erred by

granting a final and complete summary judgment in favor of BNSF. Therefore, I

must concur and dissent to the majority opinion to the extent it holds otherwise.


                                                    /s/ Lee Gabriel

                                                    LEE GABRIEL
                                                    JUSTICE

DELIVERED: January 30, 2014




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