                                                  I attest to the accuracy and
                                                   integrity of this document
                                                     New Mexico Compilation
                                                   Commission, Santa Fe, NM
                                                  '00'05- 11:37:10 2016.11.22

         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2016-NMSC-032

Filing Date: August 18, 2016

Docket No. S-1-SC-35198

LENARD NOICE, II
as Personal Representative for LENARD E. NOICE,

       Plaintiff-Respondent,

v.

BNSF RAILWAY COMPANY,

       Defendant-Petitioner.

ORIGINAL PROCEEDING ON CERTIORARI
Sarah Singleton, District Judge


Atkinson, Baker & Rodriguez, P.C.
Clifford K. Atkinson
Justin Duke Rodriguez
John S. Thal
Ryan T. Jerman
Albuquerque, NM

for Petitioner

Long, Komer & Associates, P.A.
Mark E. Komer
Santa Fe, NM

for Respondent

Modrall Sperling
John R. Cooney
Sarah M. Stevenson
Albuquerque, NM



                                     1
Association of American Railroads
Daniel Saphire
Washington, DC

for Amicus Curiae Association of American Railroads

                                         OPINION

NAKAMURA, Justice.

{1}     Lenard E. Noice (Noice) worked as a conductor for Petitioner BNSF Railway
Company (BNSF). He fell from a BNSF train that was moving at speed and perished. The
Respondent, Lenard Noice II, acting as personal representative for Noice (the Estate), filed
a wrongful death action against BNSF under the Federal Employee’s Liability Act (FELA),
45 U.S.C. §§ 51-60 (2012), asserting, among other claims, that BNSF negligently permitted
the train from which Noice fell to operate at an excessive speed. The undisputed facts
established that the train from which Noice fell never exceeded the speed limit for the class
of track upon which it was operating. BNSF moved for summary judgment arguing that the
Estate’s FELA excessive-speed claim was precluded by the Federal Railroad Safety Act
(FRSA), 49 U.S.C. §§ 20101-20168 (2012), and the track-speed regulations promulgated
under FRSA and codified at 49 C.F.R. § 213.9(a) (1992). The district court accepted this
argument and dismissed the Estate’s FELA claim. The Court of Appeals reversed,
concluding that FRSA does not preclude a FELA excessive-speed claim. Noice v. BNSF Ry.
Co., 2015-NMCA-054, ¶ 24, 348 P.3d 1043, cert. granted, 2015-NMCERT-005 (No. 35,198,
May 11, 2015). Because FRSA contains no provision expressly precluding the Estate’s
FELA excessive-speed claim and because permitting the Estate’s FELA claim to proceed
furthers the purposes of both statutes, we affirm the Court of Appeals.

I.     BACKGROUND

{2}    In January of 2009, Noice was conducting a BNSF train traveling from Clovis to
Belen. The train was pulled by four locomotives. At some point around 6:00 p.m., Noice
ceded operation of the train to his assistant, John Royal. Noice exited the lead locomotive
and proceeded rearwards. Before leaving the lead locomotive, however, Noice instructed
Royal to “start pulling on the train.” Royal understood this as an instruction to accelerate.

{3}     At the time Noice left the lead locomotive, the train was traveling at approximately
11 mph, or, as Royal put it, “very slowly.” After Noice departed, Royal set the throttle to the
maximum position. The train approached 55 mph—the speed limit assigned to the class of
track upon which the train was traveling—but never exceeded this speed.

{4}    How, exactly, Noice fell from the train is unclear. Royal observed Noice proceeding
rearwards toward the second locomotive and saw him enter its cabin. The train neared a


                                              2
crossing that required Royal to blow the train’s horn. Royal looked back again to ensure that
Noice was not returning to the lead locomotive and, thus, near the horn, but Royal could not
see Noice. Royal attempted to signal Noice by use of an attendant bell. Noice did not
respond and Royal brought the train to a stop. Royal searched the three trailing locomotives,
could not locate Noice, and reported to dispatch that Noice was missing. Noice’s body was
discovered a short time later near the tracks in the direction from which Noice and Royal had
traveled.

{5}     The Estate’s complaint for wrongful death asserts five counts. We are concerned here
only with count one, the Estate’s FELA negligence claim. The district court construed count
one as claiming three types of possible negligence: “(1) defective equipment, (2) failure by
Noice’s co-employee Royal to engage in a job briefing, and (3) Royal’s increase of speed to
55 [mph] while Noice was walking on the exterior of the locomotive on a catwalk.” The
court concluded that there were insufficient facts to support theories one and two. As to the
third theory, the court understood the Estate to be claiming that the increase in speed created
rough riding conditions on locomotive two and subjected Noice to 55 mph winds while
outside the train. A video in evidence, the court noted, shows Noice walking on the second
locomotive and experiencing the rough ride.

{6}      Although the court found no “direct evidence that the speed of the train caused Noice
to fall from” it, the court nevertheless determined that, because juries are permitted wider
latitude to draw inferences under FELA, the Estate’s excessive-speed claim created a triable
issue of fact. “[I]t is logical,” the court found, “that a bucking locomotive combined with
a heading wind of 55 [mph] caused by an increase in speed could cause a person to fall . . . .”

{7}      Yet, the court concluded that the Estate’s excessive-speed claim could not proceed.
The court determined that an excessive-speed claim under FELA is “pre-empted so long as
the train is within the regulated speed limit,” and the parties agreed that the train from which
Noice fell never exceeded the permissible track speed. Accordingly, the court granted
summary judgment to BNSF on the Estate’s FELA claim, and subsequently dismissed the
Estate’s complaint in its entirety.

{8}     The Estate appealed the court’s dismissal of its FELA negligence claim and
challenged the court’s “rejection of each theory of negligence.” Noice, 2015-NMCA-054,
¶ 8. The Court of Appeals concluded that the district court properly rejected the Estate’s
non-speed-based theories. Id. ¶¶ 20-23. As to the excessive-speed claim, however, the Court
determined that the district court erred in concluding that FRSA “pre-empted” the claim. Id.
¶¶ 1, 13, 24. The Court determined that the doctrine of pre-emption was inapplicable. Id.
¶ 13. Rather, the issue presented was whether one federal statute, FRSA, precluded an action
under another federal statute, FELA. Id. ¶ 8. The Court held that FRSA did not preclude the
Estate’s FELA excessive-speed claim. Id. ¶ 24.

{9}    BNSF filed a petition for a writ of certiorari with this Court. We granted the petition,


                                               3
exercising our jurisdiction under Article VI, Section 3 of the New Mexico Constitution and
NMSA 1978, Section 34-5-14(B) (1972), to consider whether FRSA precludes the Estate’s
FELA excessive-speed claim.

II.    DISCUSSION

A.     Standard of Review

{10} We review de novo the district court’s decision on a motion for summary judgment.
Smith v. Durden, 2012-NMSC-010, ¶ 5, 276 P.3d 943. “Summary judgment is appropriate
when ‘there is no genuine issue as to any material fact and . . . the moving party is entitled
to a judgment as a matter of law.’” Id. (omission in original) (quoting Rule 1-056 NMRA).
Whether FRSA precludes the Estate’s FELA excessive-speed claim is a pure question of law
that we review de novo. See POM Wonderful LLC v. Coca-Cola Co., ___ U.S. ____, ____,
134 S. Ct. 2228, 2236 (2014) (observing that preclusion analysis is driven by the established
principles of statutory interpretation); Bd. of Comm’rs of Rio Arriba Cnty. v. Greacen,
2000-NMSC-016, ¶ 4, 129 N.M. 177, 3 P.3d 672 (holding that issues of statutory
construction are pure questions of law subject to de novo review).

B.     Preclusion Analysis

{11} We begin by noting that this is not a pre-emption case. “In pre-emption cases, the
question is whether state law is pre-empted by a federal statute, or in some instances, a
federal agency action.” POM Wonderful, ___ U.S. at ____, 134 S. Ct. at 2236. The pre-
emption doctrine “flows from the Constitution’s Supremacy Clause, U.S. Const., Art. VI, cl.
2, which invalidates state laws that interfere with, or are contrary to, federal law. The
doctrine is inapplicable to a potential conflict between two federal statutes.” Tufariello v.
Long Island R.R. Co., 458 F.3d 80, 86 (2d Cir. 2006) (internal quotation marks and citation
omitted). This is because “the state-federal balance does not frame the inquiry.” POM
Wonderful, ___ U.S. at ____, 134 S. Ct. at 2236.

{12} Rather, because this case concerns two federal acts, it presents an issue of preclusion,
not pre-emption. The principles that govern in the preclusion context are well established.
“When there are two acts upon the same subject, the rule is to give effect to both if possible.”
 United States v. Borden Co., 308 U.S. 188, 198 (1939). “[C]ourts are not at liberty to pick
and choose among congressional enactments, and when two statutes are capable of co-
existence, it is the duty of the courts, absent a clearly expressed congressional intention to
the contrary, to regard each as effective.” Morton v. Mancari, 417 U.S. 535, 551 (1974).
This is so even where redundancies across statutes manifest, events that are hardly unusual.
Conn. Nat. Bank v. Germain, 503 U.S. 249, 253 (1992).

{13} A later-enacted statute can operate to repeal an earlier statutory provision, but “[i]n
the absence of some affirmative showing of an intention to repeal, the only permissible


                                               4
justification for a repeal by implication is when the earlier and later statutes are
irreconcilable.” Morton, 417 U.S. at 550. Repeals by implication are rare, J.E.M. Ag Supply,
Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124, 142 (2001), and should be found only if
necessary to make the later-enacted law work, and even then only to the minimum extent
necessary. Radzanower v. Touche Ross & Co., 426 U.S. 148, 155 (1976).

{14} In Pom Wonderful, a recent preclusion case, the United States Supreme Court
clarified that these well-established principles necessitate a two-part inquiry. First, a court
must look to the express language of the statutory provisions and determine whether
Congress expressly intended preclusion. Pom Wonderful, ___ U.S. at ____, 134 S. Ct. at
2237. If no express provision is found, courts must then examine the structure and purposes
of the two statutes to determine whether they are complementary or irreconcilable. Id. at
____, 134 S. Ct. at 2238-39. “When two statutes complement each other, it would show
disregard for the congressional design to hold that Congress nonetheless intended one federal
statute to preclude the operation of the other.” Id. at ____, 134 S. Ct. at 2238. We begin our
analysis by examining the two statutes at issue in this case, FELA and FRSA. See id. at
____, 134 S. Ct. at 2233 (instructing that a proper beginning point for preclusion analysis “is
a description of the statutes”).

C.     FELA and FRSA

{15} Enacted in 1908, FELA provides the exclusive remedy for railroad employees injured
as a result of their employers’ negligence. Wabash R.R. Co. v. Hayes, 234 U.S. 86, 89
(1914); Janelle v. Seaboard Coast Line R.R. Co., 524 F.2d 1259, 1261 (5th Cir. 1975)
(“[D]amages for the death or injury of a railroad employee engaged in interstate commerce,
allegedly caused by the negligence of the railroad, are recoverable exclusively from the
railroad under FELA, and may not be recovered under state law.”). FELA provides railroad
employees with a federal cause of action for injuries “resulting in whole or in part from the
negligence” of the railroad. 45 U.S.C. § 51. This private right of action created by FELA
marked a crucial turning point in congressional oversight of the railroad industry. See
generally Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 542 (1994) (“[W]hen Congress
enacted FELA in 1908, its attention was focused primarily upon injuries and death resulting
from accidents on interstate railroads.” (internal quotation marks and citation omitted)).

{16} “[I]t is clear that the general congressional intent [behind FELA] was to provide
liberal recovery for injured workers . . . .” Kernan v. Am. Dredging Co., 355 U.S. 426, 432
(1958). “The railroad business was exceptionally hazardous at the dawn of the twentieth
century.” CSX Transp., Inc. v. McBride, 564 U.S. 685, 691 (2011). “Cognizant of the
physical dangers of railroading that resulted in the death or maiming of thousands of workers
every year, Congress crafted a federal remedy that shifted part of the human overhead of
doing business from employees to their employers.” Gottshall, 512 U.S. at 542 (internal
quotation marks and citation omitted).



                                              5
{17} “[I]t is also clear that Congress intended the creation of no static remedy, but one
which would be developed and enlarged to meet changing conditions and changing concepts
of [the railroad] industry’s duty toward its workers.” Kernan, 355 U.S. at 432. As such,
courts must liberally construe FELA “to further Congress’ remedial goal.” Gottshall, 512
U.S. at 543. For example, courts have held that FELA creates a relaxed standard of
causation. McBride, 564 U.S. at 692.

{18} Congress intended FELA to be applied uniformly throughout the nation. Dice v.
Akron, C. & Y. R. Co., 342 U.S. 359, 361 (1952). “What constitutes negligence for the
[FELA] statute’s purposes is a federal question, not varying in accordance with the differing
conceptions of negligence applicable under state and local laws for other purposes. Federal
decisional law formulating and applying the concept governs.” Urie v. Thompson, 337 U.S.
163, 174 (1949). State courts have concurrent jurisdiction over FELA actions, 45 U.S.C. §
56, and railroad defendants may not “defeat a FELA plaintiff’s choice of a state forum by
removing the action to federal court.” LaDuke v. Burlington N. R.R. Co., 879 F.2d 1556,
1561 (7th Cir. 1989).

{19} FRSA was enacted in 1970 to “promote safety in every area of railroad operations
and reduce railroad-related accidents and incidents.” 49 U.S.C. § 20101. FRSA grants the
Secretary of Transportation (the Secretary) authority to “prescribe regulations and issue
orders for every area of railroad safety . . . .” 49 U.S.C. § 20103(a). The Secretary has
delegated to the Federal Railroad Administration (FRA) regulatory authority over railroad
safety. Union Pac. R.R. Co. v. Cal. Pub. Utilities Comm’n, 346 F.3d 851, 858 n.8 (9th Cir.
2003); see also Mich. S. R.R. Co. v. City of Kendallville, 251 F.3d 1152, 1154 (7th Cir. 2001)
(“In the FRSA, the Secretary . . . was given the authority to proscribe regulations and issue
orders for every area of railroad safety. Regulations are promulgated and enforced by the
[FRA].” (internal quotation marks and citations omitted)). “Federal regulations issued by
the Secretary pursuant to FRSA and codified at 49 CFR § 213.9(a) (1992) set maximum
allowable operating speeds for all freight and passenger trains for each class of track on
which they travel.” CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 673 (1993). “The
different classes of track are in turn defined by, inter alia, their gage, alignment, curvature,
surface uniformity, and the number of crossties per length of track.” Id.

{20} FRSA includes a pre-emption provision which states that the “[l]aws, regulations, and
orders related to railroad safety . . . shall be nationally uniform to the extent practicable.” 49
U.S.C. § 20106(a)(1). FRSA further provides that a state “may adopt or continue in force
a law, regulation, or order related to railroad safety . . . until the Secretary . . . prescribes a
regulation or issues an order covering the subject matter of the State requirement.” 49 U.S.C.
§ 20106(a)(2). The Supreme Court has construed these provisions as pre-empting state law
claims, statutes, and regulations to the extent they intrude into a subject matter covered by
federal railroad-safety regulations. See Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344, 352
(2000) (citing Easterwood, 507 U.S. at 664).



                                                6
{21} FRSA does not create a private right of action. “[E]nforcement powers under the
[FRSA] are vested solely with the Secretary . . . and, under certain conditions, the States or
the Attorney General.” Henderson v. Nat’l R.R. Passenger Corp., 87 F. Supp. 3d 610, 613
(S.D.N.Y. 2015); see also Abate v. S. Pac. Transp. Co., 928 F.2d 167, 169-70 (5th Cir.1991).

D.     FRSA Does Not Expressly Preclude the Estate’s FELA Excessive-Speed Claim

{22} FRSA does not expressly preclude FELA excessive-speed claims. In fact, FRSA
does not mention FELA. The absence of any express statement in FRSA barring FELA
claims is significant. FELA was enacted almost 60 years before FRSA, and if Congress
intended FRSA to preclude FELA claims, Congress presumably would have said so. See
Henderson, 87 F. Supp. 3d. at 617 (“If Congress had intended that the FRSA both preclude
covered FELA claims and preempt covered state law claims, it would have said so.”); see
also POM Wonderful, ___ U.S. at ____, 134 S.Ct. at 2237 (concluding that, where one
federal statute predated another by many years, the absence of an express statement in the
later-enacted statute that claims brought under the earlier-enacted statute are precluded is
strong evidence that Congress did not intend preclusion); cf. Goodyear Atomic Corp. v.
Miller, 486 U.S. 174, 184-85 (1988) (“We generally presume that Congress is knowledgeable
about existing law pertinent to the legislation it enacts.”). Moreover, because Congress
included in FRSA an express provision pre-empting only state law and state-law claims, we
infer that Congress did not intend FRSA to preclude FELA claims or other federal causes of
action. See POM Wonderful, ___ U.S. at ____, 134 S. Ct. at 2238 (concluding that
Congress’s decision to include in a federal statute a state law pre-emption provision suggests
that Congress did not intend that statute to preclude a cause of action under another federal
statute).

{23} Because we find no express provision within FRSA precluding a FELA claim for
excessive speed, we turn to the structure and purposes of the two statutes to determine
whether, as BNSF contends in its Brief in Chief, permitting the Estate’s FELA excessive-
speed claim would “upend” FRSA and “eviscerate the uniformity and regulatory certainty
that Congress intended in enacting FRSA.”

E.     Allowing FELA Excessive-Speed Claims Does Not Create an Irreconcilable
       Conflict with FRSA

{24} BNSF contends that, at its core, FRSA is concerned with national uniformity in
railroad safety standards. The track-speed regulations promulgated by the FRA under the
authority granted to it by FRSA are, BNSF claims, intended to be nationally uniform
standards. BNSF argues that permitting the Estate’s FELA excessive-speed claim to proceed
would undermine the uniformity of these standards and derail FRSA’s core purpose.
Accordingly, BNSF insists that the Estate’s FELA claim must be precluded. BNSF relies on
several United States Courts of Appeals decisions that have already embraced this reasoning
and conclusion and asks us to follow suit. E.g., Lane v. R.A. Sims, Jr., Inc., 241 F.3d 439,


                                              7
442-44 (5th Cir. 2001); Waymire v. Norfolk & W. Ry. Co., 218 F.3d 773, 775-76 (7th Cir.
2000). For the reasons that follow, we decline to follow Waymire and its progeny. These
federal appellate decisions are founded on Easterwood, a seminal United States Supreme
Court decision interpreting the pre-emptive (not preclusive) effect of FRSA and the FRA
track-speed regulations. And, thus, it is with Easterwood that our analysis must begin.

{25} Thomas Easterwood was killed when a CSX train collided with the truck he was
driving. Easterwood, 507 U.S. at 661. His widow asserted a negligence claim against CSX
under state law alleging, among other things, that the train that struck and killed Mr.
Easterwood was traveling at an excessive speed. Id. The Supreme Court observed that,
under FRSA’s express pre-emption provision, federal regulations may pre-empt any state
“law, rule, regulation, order, or standard relating to railroad safety,” including any duty
imposed on railroads by state common law, so long as the federal regulations cover the field,
i.e., “substantially subsume the subject matter of the relevant state law.” Id. at 664. The
Court determined that the FRA regulations setting maximum train speeds for different
classes of track codified at 49 C.F.R. § 213.9(a) cover the subject matter of train speed with
respect to track conditions. Easterwood, 507 U.S. at 675. The Court explained that,

       [o]n their face, the provisions of § 213.9(a) address only the maximum speeds
       at which trains are permitted to travel given the nature of the track on which
       they operate. Nevertheless, related safety regulations adopted by the
       Secretary reveal that the limits were adopted only after the hazards posed by
       track conditions were taken into account. Understood in the context of the
       overall structure of the regulations, the speed limits must be read as not only
       establishing a ceiling, but also precluding additional state regulation of the
       sort that [Mr. Easterwood’s widow] seeks to impose on [CSX].

Id. at 674. Accordingly, the Supreme Court held that the state-tort excessive-speed claim
was pre-empted. Id. at 676. Significantly, we note that the Supreme Court expressly
clarified that it did not address the question of FRSA’s pre-emptive effect on suits for breach
of other tort duties—such as the duty to slow or stop a train to avoid a “specific, individual
hazard.” Id. at 675 n.15.

{26} Like Easterwood, Waymire also involved a collision between a train and motor
vehicle. Waymire, 218 F.3d at 774. The railroad worker conducting the train was injured
and sued his railroad employer under FELA, claiming that his employer was negligent for
permitting the train to travel at an unsafe speed. Id. And as in Easterwood, the train never
exceeded the maximum permissible track speed established by the FRA regulations.
Waymire, 218 F.3d at 774.

{27} The Waymire court recognized that Easterwood did not control the issue before it and
that pre-emption analysis was inapplicable. Waymire, 218 F.3d at 775-76. The issue before
the court concerned the interaction of two federal statutes, not the interplay of state and


                                              8
federal law. Id. at 775. Nevertheless, the Waymire court determined that Easterwood’s
reasoning provided the foundation for resolution of the case. Waymire, 218 F.3d at 775. The
Waymire court emphasized both Easterwood’s conclusion that the FRA regulations cover
the subject matter of train speed, Waymire, 218 F.3d at 775-76, and Easterwood’s
determination that the federal track-speed regulations serve not only as ceilings on the
maximum legally permissible train speed, but also prohibit the imposition of liability under
state law even where conditions would reasonably call for lower speeds. Waymire, 218 F.3d
at 776. The Waymire court concluded that “in order to uphold FRSA’s goal of uniformity
we must strike the same result.” Id. The court explained that,

        [i]n Easterwood, the train was operating within the FRSA prescribed 60
        miles per hour speed limit, as was [the] train in this case. It would thus seem
        absurd to reach a contrary conclusion in this case when the operation of both
        trains was identical and when the Supreme Court has already found that the
        conduct is not culpable negligence.

Waymire, 218 F.3d at 776. The court added that “[t]o treat cases brought under federal law
differently from cases brought under state law would defeat FRSA’s goal of uniformity[,]”
Id. at 777, and illustrated this point with a hypothetical. Imagining a collision between a
motorist and train where both driver and conductor are injured, the court could see no
defensible justification for barring the motorist’s state-tort negligence suit on pre-emption
grounds while simultaneously permitting the conductor to proceed with his FELA negligence
action. Id. “We do not believe,” the court stated, that this result is “envisioned by the statute
or by the Supreme Court’s decisions.” Id. Accordingly, the Waymire court held that the
railroad worker’s FELA excessive-speed claim was precluded by FRSA. Id. at 777. See
also Lane, 241 F.3d at 442-44 (reaching the same holding for the same reasons under nearly
identical facts); cf. Nickels v. Grand Trunk W. R.R., Inc., 560 F.3d 426 (6th Cir. 2009)
(concluding that FRSA, and regulations promulgated under FRSA regarding track ballast,
precluded two railroad workers from asserting FELA negligence claims for injuries sustained
as a result of having to walk continuously on oversized track ballast). Waymire and its
progeny are unpersuasive for a number of reasons, and BNSF’s reliance on these cases is
misplaced.

{28} First, the United States Supreme Court has routinely rejected attempts to curtail
FELA by inference. See Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 558-
67 (1987) (agreeing that the Railway Labor Act (RLA), 45 U.S.C. §§ 151-165 (2012),
provides a comprehensive framework for resolution of labor disputes in the railroad industry,
but nevertheless concluding that FELA was enacted “to serve as the statutory basis for the
award of damages to employees injured through an employer’s or co-worker’s negligence,”
and concluding that, “absent an intolerable conflict between the two statutes,” the RLA shall
not be interpreted “as repealing any part of the FELA”); Urie, 337 U.S. at 165-95 (reversing
the Missouri Supreme Court’s decision that injuries arising from an alleged violation of the
Boiler Inspection Act (BIA), Act of Feb. 17, 1911, ch. 103, § 2, 36 Stat. 913-14, (repealed


                                               9
1994) (current version at 49 U.S.C. §§ 20701-20703 (2012)), were not compensable under
FELA because the BIA is supplemental to FELA and was intended to facilitate, not restrict,
recovery under FELA, and further concluding that any reading of the interplay of these
statutes that would restrict FELA by inference would be error). BNSF fails to acknowledge
this point, and Waymire and its progeny diverge from this tradition.

{29} Second, BNSF’s contention that Waymire and its progeny control the issue presented
in this case overlooks that, in Easterwood, the Supreme Court expressly declined to address
or decide whether FRSA pre-empts a state-law claim for breach of the duty to slow or stop
a train to “avoid a specific, individual hazard.” Easterwood, 507 U.S. at 675 n.15. To be
sure, this is not a pre-emption case, and the Estate’s sole remedy is FELA. Nevertheless,
footnote 15 in Easterwood is significant in light of the Seventh Circuit’s reasoning in
Waymire: because FRSA pre-empts state-law excessive-speed claims, FRSA must also
preclude FELA excessive-speed claims. This logic must fail if the underlying FELA claim
is premised on the assertion that a specific, individual hazard warranted reduced speed. The
claim would not be subject to pre-emption and, thus, not precluded.

{30} Lower federal and state courts “have not been uniform in fleshing out the content of
the specific, individual hazard concept.” Myers v. Missouri Pac. R.R. Co., 2002 OK 60, ¶
27, 52 P.3d 1014.

       Generally, courts considering this issue have ruled that a “specific individual
       hazard” must be a discrete and truly local hazard, such as a child standing on
       the railway. They must be aberrations which the Secretary could not have
       practically considered when determining train speed limits under the FRSA.
       More precisely phrased, the “local hazard” cannot be statewide in character
       and cannot be capable of being adequately encompassed within uniform,
       national standards.

O’Bannon v. Union Pac. R.R. Co., 960 F. Supp. 1411, 1420-21 (W.D. Mo. 1997) (footnote
and citations omitted). Compare Anderson v. Wis. Cent. Transp. Co., 327 F. Supp. 2d 969,
978 (E.D. Wis. 2004) (“A specific individual hazard is a unique occurrence which could
cause an accident to be imminent rather than a generally dangerous condition.”) with Hesling
v. CSX Transp., Inc., 396 F.3d 632, 640 (5th Cir. 2005) (“A condition that can be or is
present at many, or most sites cannot be a specific, individual hazard.”). In Bakhuyzen v.
Nat’l Rail Passenger Corp., 20 F. Supp. 2d 1113, 1118 (W.D. Mich. 1996), a case we find
instructive, the court held that poor visibility due to snowy weather conditions posed a
specific, individual hazard imputing to the train conductor a duty, not pre-empted by FRSA,
to operate the train at a speed no greater than would be prudent given the conditions. In
reaching this conclusion, the court observed that “[m]aximum train speeds, like automobile
speed limits, do not remove from the driver the obligation to exercise due care when and if
the circumstances . . . make operation at the maximum speed careless.” Id. This reasoning
is sound.


                                             10
{31} In the present case, the district court understood the Estate’s FELA excessive-speed
claim as asserting that BNSF was negligent in permitting Noice’s train to travel at or near
55 mph because, at the time the train was permitted to travel at this speed, Noice was outside
the lead locomotive cabin, navigating the catwalk of a bucking locomotive, and exposed to
high winds and other external forces. In other words, Noice’s precarious circumstances
constituted a specific, individual hazard that imputed to BNSF a duty to ensure the train
traveled at a rate of speed no faster than would be prudent to ensure Noice’s safety. The
Estate’s claim would not be pre-empted if brought as a state-tort action; thus, there is no
reason to accept Waymire’s conclusion that Easterwood leads inevitably to the conclusion
that excessive-speed claims like the Estate’s must be precluded.

{32} Third, Waymire and its progeny improperly inject concerns about the supremacy
clause, which underlies the federal pre-emption doctrine, into the preclusion context.
Waymire does so by giving undue weight to Easterwood’s conclusion that the FRA
regulations cover the field of track speed. But this determination in Easterwood merely
resolved that a particular kind of state-law excessive-speed claim could not exist in the
covered field; the determination is inapposite as to whether FELA can co-exist alongside
FRSA. There is no meaningful consideration in Waymire and its progeny given to this
question, i.e., whether the two statutes may work together to further railroad safety. Rather,
both cases conclude that the Supreme Court’s pre-emption holding in Easterwood leads
inescapably to the conclusion that FRSA precludes FELA excessive-speed claims. But this
does not follow; Waymire and its progeny conflate separate legal doctrines. See POM
Wonderful, ___ U.S. at ____, 134 S. Ct. at 2238 (“Pre-emption of some state requirements
does not suggest an intent to preclude federal claims.”).

{33} Fourth, it is an established axiom in the preclusion context that courts are not free to
pick and choose among federal enactments. See Morton, 417 U.S. at 551. Yet Waymire and
its progeny do just this. These decisions unnecessarily overemphasize the purposes of FRSA
at the expense of the equally valid purposes of FELA, and they ignore the distinct remedial
purposes of FELA. Indeed, the “absurdity” Waymire perceives arising from the hypothetical
scenario where a vehicle and train collide, where both driver and conductor are injured, but
where the driver is pre-empted from filing a state-law negligence action based on excessive
speed whereas the conductor can proceed on exactly those grounds under FELA, see
Waymire, 218 F.3d at 777, ignores the possibility that this result is precisely what Congress
intended. See Henderson, 87 F. Supp. 3d at 617 (“[H]olding railroads to a standard of care
with respect to their employees that is higher than the state law standards applicable to the
general public is precisely the purpose of the FELA.” (citing Brotherhood of R.R. Trainmen
v. Va. ex rel. Va. State Bar, 377 U.S. 1, 3 (1964) (stating that the FELA was enacted “to
provide for recovery of damages for injured railroad workers and their families by doing
away with harsh and technical common-law rules which sometimes made recovery difficult
or even impossible”))); cf. Crane v. Cedar Rapids & I. C. Ry. Co., 395 U.S. 164, 167 (1969)
(recognizing the “injustice” of permitting a railroad employee to recover through FELA in
circumstances where a non-railroad employee ineligible to sue under FELA could not, but


                                             11
noting that this is the design Congress enacted and courts are not at liberty to rewrite FELA).

{34} Fifth, Waymire offers a distorted account of FRSA’s purpose. The purpose of FRSA
is to enhance railroad safety and reduce accidents. 49 U.S.C. § 20101. Waymire narrowly
emphasizes the purpose of FRSA’s pre-emption provision: to ensure national uniformity of
the laws and regulations related to railroad safety. 49 U.S.C. § 20106(a)(1). Unlike the
Waymire court, and contrary to BNSF’s arguments, we do not read FRSA’s provision pre-
empting state law as expressing FRSA’s central purpose. Accord Henderson, 87 F. Supp.
3d at 617 (observing that “the principal purpose of the FRSA is to promote railroad safety,
not to achieve nationally uniform railroad safety laws”); cf. Food & Drug Admin. v. Brown
& Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (“It is a fundamental canon of
statutory construction that the words of a statute must be read in their context and with a
view to their place in the overall statutory scheme.” (internal quotation marks and citation
omitted)).

{35} Nor do we agree that allowing FELA excessive-speed claims will undermine FRSA’s
ancillary purpose of securing national uniformity. “FRSA—and in particular, its speed
regulations—were adopted to address the patchwork effect of each state applying its own set
of regulations.” Cowden v. BNSF Ry. Co., 690 F.3d 884, 891 (8th Cir. 2012). As BNSF
acknowledges, FELA is a federal statute and is to be applied uniformly throughout the
country. Urie, 337 U.S. at 174. Therefore, “it is not clear how negligence claims brought
under the federal common law threaten the uniformity sought by the FRSA.” Cowden, 690
F.3d at 891. And even if permitting FELA excessive-speed claims to proceed leads to some
variability given the possibility of disparate jury verdicts, see Lane, 241 F.3d at 443-44, we
do not foresee the type of disuniformity that would arise from application of the multitude
of state laws, state regulations, state administrative agency rulings, and state court decisions
that are expressly forbidden by FRSA’s express pre-emption provision. And the variability
that FELA actions would potentially produce is tolerable. See POM Wonderful, ___ U.S.
at ____, 134 S. Ct. at 2240 (“Congress not infrequently permits a certain amount of
variability by authorizing a federal cause of action even in areas of law where national
uniformity is important.”).

{36} Sixth and lastly, we do not accept BNSF’s contention that permitting FELA
excessive-speed claims to proceed render the FRA track regulations meaningless. “FRSA’s
regulations are simply to be treated like any other regulation in that complying with them
may provide non-dispositive evidence of due care, while violating them requires a finding
of negligence per se.” Henderson, 87 F. Supp. 3d at 617 (internal quotation marks and
citations omitted). And, contrary to the arguments advanced by BNSF, we do not agree that
the FRA regulations exhaust or define a railroad’s duty of care towards its employees. See
Earwood v. Norfolk S. Ry. Co., 845 F. Supp. 880, 885 (N.D. Ga. 1993) (observing that the
regulations regarding track speed propounded by the Secretary are merely minimum safety
requirements for railroad track, and that neither the regulations nor FRSA “purport to define
the standard of care with which railroads must act with regard to employees”). “Compliance


                                              12
with a legislative enactment or an administrative regulation does not prevent a finding of
negligence where a reasonable man would take additional precautions.” Restatement
(Second) of Torts § 288C (1965). This well-settled principle of tort law is particularly salient
here as the United States Supreme Court has previously recognized that

        the theory of the FELA is that where the employer’s conduct falls short of the
        high standard required of him by this Act, and his fault, in whole or in part,
        causes injury, liability ensues. And this result follows whether the fault is a
        violation of a statutory duty or the more general duty of acting with care, for
        the employer owes the employee, as much as the duty of acting with care, the
        duty of complying with his statutory obligations.


Kernan, 355 U.S. at 438-39 (emphasis added).

F.      FELA and FRSA Are Complementary and Permitting the Estate’s Excessive-
        Speed Claim to Proceed Furthers the Purposes of Both Statutes

{37} Rather than being in irreconcilable conflict, we conclude that FRSA and FELA are
complementary in purpose and effect. Both statutes further railroad safety in meaningfully
distinct ways. See Henderson, 87 F. Supp. 3d at 621 (“[T]he FELA and the FRSA
complement each other in significant respects, in that each statute is designed to accomplish
the same goal of enhancing railroad safety through different means.”). FRSA seeks to
enhance safety in every area of railroad operation, and to protect the public as well as railroad
workers. See 49 U.S.C. § 20101. It does so with national, comprehensive regulatory
standards which are enforced by government entities. FELA, by comparison, focuses solely
on the safety of railroad workers, and does so by providing railroad employees a private right
of action. Cf. Pom Wonderful, ___ U.S. at ____, 134 S. Ct. at 2236-38 (concluding that
specific regulations regarding juice labeling promulgated under the Federal Food, Drug, and
Cosmetic Act did not preclude the plaintiff’s Lanham Act claim which asserted that the
plaintiff’s market competitor mislabeled its juice product and emphasizing the two statutes
different enforcement mechanisms as one of the grounds for denying preclusion).

{38} Permitting FELA claims like the Estate’s to proceed is likely to enhance the overall
safety of railroad operation. Fair v. BNSF Ry. Co., 189 Cal. Rptr. 3d 150, 160-61 (2015),
cert. denied, 136 S. Ct. 1378 (2016) (“Allowing safety-related suits under FELA will
enhance FRSA’s stated purpose of promoting railroad safety and reducing accidents.”). In
addition, FELA claims may shed light upon potentially dangerous circumstances that
regulators might otherwise not identify or that are less amenable to uniform, regulatory
solutions. See Jerry J. Phillips, An Evaluation of the Federal Employers’ Liability Act, 25
San Diego L. Rev. 49, 54 (1988) (“The fault-based FELA system, with its compensation
exceeding the typical workers’ compensation award (particularly for the more serious
injuries), is designed to serve as a real and present safety incentive.”). In sum, we conclude


                                               13
that what the Supreme Court said in POM Wonderful is directly applicable here: allowing
FELA suits like the Estate’s to proceed “takes advantage of synergies among multiple
methods of regulation” and is “consistent with the congressional design to enact two different
statutes, each with its own mechanisms to enhance” railroad safety. ___ U.S. at ____, 134
S. Ct. at 2239.

III.   CONCLUSION

{39} FRSA does not preclude the Estate’s FELA excessive-speed claim. Accordingly, we
affirm the Court of Appeals and remand this case to the district court for further proceedings
consistent with this opinion.

{40}   IT IS SO ORDERED.

                                              ____________________________________
                                              JUDITH K. NAKAMURA, Justice

WE CONCUR:

____________________________________
CHARLES W. DANIELS, Chief Justice

____________________________________
PETRA JIMENEZ MAES, Justice

____________________________________
EDWARD L. CHÁVEZ, Justice

____________________________________
BARBARA J. VIGIL, Justice




                                             14
