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Court of Appeal, Second District, Division 2, California.

Jose CARRILLO, Plaintiff and Respondent, v. ACF INDUSTRIES, INC., Defendant and Appellant.

No. B102937.

Decided: June 11, 1998

Horvitz & Levy, Barry R. Levy, Andrea M. Gauthier, Encino, Dwyer, Daly, Brotzen & Bruno, Ronald A. Dwyer, Toni Rae Bruno, Los Angeles, and Douglas W. Schroeder, Santa Ana, for Defendant and Appellant. Fogel, Feldman, Ostrov, Ringler & Klevens, Jerome L. Ringler, Lester G. Ostrov and Toni Martinson, Santa Monica, for Plaintiff and Respondent.

Defendant ACF Industries, Inc. (ACF), appeals from an order denying motion for judgment notwithstanding the verdict, and from a judgment on special verdict, awarding plaintiff Jose Carrillo $1,429,274 for personal injuries he sustained when he fell from the top of a railroad hopper car manufactured by defendant.   The jury found defendant liable under product liability theories of design defect and failure to warn.   Defendant contends it is entitled to reversal and a judgment in its favor, first because the subject matter of plaintiff's claims is preempted by federal law, and second, because plaintiff failed as a matter of California law to establish design defect, failure to warn, or causation.   Alternatively, defendant seeks reversal and a new trial on grounds of instructional error.   We affirm.


The accident from which this action arose occurred on June 30, 1992.   Plaintiff, a truck driver employed by Amoco Chemical Company, was engaged in delivering polystyrene pellets to a hopper car operated by Wincup Holdings, Inc.1  Delivery involved transferring the pellets from plaintiff's truck, via a heavy steel hose, through hatches on top of the car, which was 15 1/212 feet high.   On the day before and the morning of the accident, the actual loading was conducted by Wincup's employees, who took the hose from plaintiff and inserted it into one of the hatches, securing it with a rope plaintiff furnished.   Plaintiff would then turn on the truck's pump.

After plaintiff started the pump for the second delivery of June 30, the Wincup employees told him they were going to lunch and would return in about 30 minutes.   They did not return then, and plaintiff noticed that the pellets were overflowing out of the top of the car.   He shut off the pump and waited about 20 minutes more, but the employees still did not return.   Believing that the product had been filling unevenly and that the hose had to be repositioned, plaintiff decided to attempt to do that himself.

Plaintiff ascended the car and untied the rope from the hatch.   Using the rope, he began to pull the heavy hose up.   The rope came free of the hose, and plaintiff was spun backwards and off the top of the car.   He struck the nearby facility wall with both hands, and then fell to the ground.   Plaintiff suffered multiple fractures of his left wrist, left leg, and right heel, necessitating extensive surgeries including bone and skin grafts.

Plaintiff sued Wincup, for negligence, and defendant, for negligence, breach of warranty, and product liability.   Wincup settled the case.   During trial, plaintiff dismissed all causes of action except those based on product liability.   Plaintiff's claim of defective design was that the top of the hopper car should have been equipped either with a 42-inch guard rail, retractable or stationary, or with a lower railing to which a lanyard and safety harness could be attached, permitting a worker to work harnessed.   Plaintiff also claimed failure to warn, in that the design for harnessing should have been accompanied by an illustrated sign, warning workers not to work on top without such “fall protection.” 2

Defendant moved for nonsuit and later for directed verdict, on grounds plaintiff's claims of product defect were preempted by federal laws regulating railroad safety, and also that plaintiff's proof of his claims was insufficient as a matter of law.   The trial court denied the motions.   By special verdict, the jury found that there had been both a design defect and a failure to warn, that both had contributed to plaintiff's injuries, and that plaintiff's economic and noneconomic damages amounted to $1,279,000 and $1,920,000 respectively.   The jury further found comparative fault of 36 percent to defendant, 35 percent to Wincup, 23 percent to plaintiff's employer, and 6 percent to plaintiff himself.

After downward adjustments of the economic damages for plaintiff's fault, a proportion of Wincup's settlement, and workers' compensation benefits received, and with inclusion of defendant's comparative share of the noneconomic damages, the judgment against defendant totalled $1,429,274.13.   Defendant's motions for new trial and judgment notwithstanding the verdict were denied.


1. Preemption.

 Defendant's primary contention is that plaintiff's claims of defectiveness of the hopper car were barred because preempted by federal legislation.   Operative by reason of the supremacy clause (U.S. Const., art.   VI, cl.2), preemption occurs when state law impermissibly conflicts with federal law.   Such conflict may arise when federal legislation expressly provides that certain state regulation is prohibited (express preemption);  when circumstantial proof of such congressional intent to “occupy the field” appears, from such factors as the nature, subject matter, and pervasiveness of the federal enactment (implied or field preemption);  or when there is a direct conflict between state and federal law, such as where compliance with both is impossible (conflict preemption).  (English v. General Electric Co. (1990) 496 U.S. 72, 78-79, 110 S.Ct. 2270, 2275, 110 L.Ed.2d 65;  Louisiana Public Service Comm'n v. FCC (1986) 476 U.S. 355, 368-369, 106 S.Ct. 1890, 1898-1899, 90 L.Ed.2d 369;  Smiley v. Citibank (1995) 11 Cal.4th 138, 147, 44 Cal.Rptr.2d 441, 900 P.2d 690.)   Preemption may displace not only regulatory statutes and regulations but also common law claims and remedies.   However, in areas such as health and safety, in which the states have traditionally exercised authority, there is a presumption against such preemption, absent a clear manifestation of congressional purpose.  (Medtronic, Inc. v. Lohr (1996) 518 U.S. 470, 485 [116 S.Ct. 2240, 2250];  Smiley, supra, 11 Cal.4th at p. 148, 44 Cal.Rptr.2d 441, 900 P.2d 690.)

Defendant's preemption claim is based on two correlative sets of federal laws relating to railroad safety.   The first is the Safety Appliance Acts (SAA), originally enacted between 1893 and 1910, and presently codified at 49 United States Code sections 20301-20306.3  The second is the Federal Railroad Safety Act (49 U.S.C. § 20101 et seq.;   FRSA), a more comprehensive statute enacted in 1970.   The FRSA contains an express preemption provision, and therefore the issue of preemption by the FRSA involves applying that provision.   The SAA contains no such express preemption language;  defendant's claim under it is essentially one of implied preemption.   We begin with the SAA.

 The SAA requires that railroad cars generally be equipped with certain specific safety devices, namely automatic couplers, sill steps, hand brakes, ladders and running boards (when administratively required), roof handholds or grab irons at the top of ladders, and side and end handholds or grab irons for security in coupling.  (§ 20302(a)(1), (2).)   Historically, the details of these items were specified by the Interstate Commerce Commission (ICC);  currently the Secretary of Transportation performs that function.   On its face, this statutory scheme does not evince an intent to occupy the field of safety equipment or measures for railroad cars;  it could well be read only to prescribe certain minimum national standards.   Defendant cites no contemporaneous legislative history to the contrary.

 Defendant contends, however, that SAA has indeed preempted the field, so that any further “safety appliance” equipment or measures-a term not defined in the statute, except by implication from its specifics-may not be state-mandated, or its absence made a basis for liability.   For this proposition, defendant relies on several United States Supreme Court decisions concerning the SAA, rendered in the first third of this century.   But these cases do not bear such sweeping significance.   Although the opinions contain language regarding preemption by the SAA, the holdings of the cases establish no more than preemption with respect to the specific types of appliances required and regulated under it.   In context, the language on which defendant relies either relates to that subject matter, or is dictum, or both.

In the earliest case, on which defendant places heavy reliance, the Supreme Court held that a state could not superimpose its own requirement of grab irons and handholds, equipment already required by the SAA. (Southern Ry. Co. v. R.R. Comm., Indiana (1915) 236 U.S. 439, 35 S.Ct. 304, 59 L.Ed. 661 (Southern ).) 4  Thereafter in Texas & Pacific Ry. Co. v. Rigsby (1916) 241 U.S. 33, 36 S.Ct. 482, 60 L.Ed. 874 (Rigsby ), the court held that a worker injured because of a defective handhold or grab iron had a strict right of recovery therefor by reason of the SAA, which could not be limited by state law doctrines such as negligence.  Penna. R.R. Co. v. Pub. Service Comm. (1919) 250 U.S. 566, 40 S.Ct. 36, 63 L.Ed. 1142 (Penna.) held that a state could not penalize, under its own standards, the absence of a rear platform, rails, and steps on a mail car, because the ICC's regulations, promulgated under the SAA, both regulated those cars and permitted them without such equipment.   Finally, in Gilvary v. Cuyahoga Valley Ry. (1934) 292 U.S. 57, 54 S.Ct. 573, 78 L.Ed. 1123 (Gilvary ), a case involving injury by reason of the absence of automatic couplers specifically required by the SAA, the court held that although a right of recovery existed under Rigsby, supra, 241 U.S. 33, 36 S.Ct. 482, the SAA did not preempt operation of or resort to state workers' compensation remedies for the injury.

The preemption recognized and applied in the two regulatory cases (Southern, supra, 236 U.S. 439, 35 S.Ct. 304, and Penna., supra, 250 U.S. 566, 40 S.Ct. 36), thus concerned specific requirements of the SAA or of the regulations implementing it.   In the other two cases, the court in one instance declared a right of relief for violation of the specific requirements of the SAA (Rigsby, supra, 241 U.S. 33, 36 S.Ct. 482), but in the other it held that “[t]hese Acts do not create, prescribe the measure, or govern the enforcement of, the liability arising from the breach.”  (Gilvary, supra, 292 U.S. at pp. 61-62, 54 S.Ct. at p. 575.)   In short, these decisions recognized preemption of state regulation of the SAA's specific regulatory subject matter.   They did not establish that Congress had preempted some broad and undefined subject of “safety appliances,” extending beyond those covered by the SAA, nor did they deny states common law authority to apply tort remedies for railcars defective because lacking safety measures not addressed by the SAA.   The opinions' preemption language must be read in this context and light.   To the extent that it could be more broadly construed, it is necessarily dictum.

The high court has recognized the specific reach and consequently limited preemption of the SAA in other cases.   In Atlantic Coast Line v. Georgia (1914) 234 U.S. 280, 34 S.Ct. 829, 58 L.Ed. 1312 (Atlantic ), the court affirmed, against constitutional challenge, a conviction for violating a state law requiring headlights on locomotives.   Considering the scope of existing federal railroad safety regulation, the court enumerated, inter alia, the specific requirements of the SAA, as well as the ICC's regulations thereunder.   It then stated, “But it is manifest that none of these acts provides regulations for locomotive headlights․  As to these, the situation has not been altered by any exertion of Federal power․  Congress has not yet decided to establish regulations, either directly or through its subordinate body, as to the appliance in question.   The intent to supersede the exercise of the State's police power with respect to this subject cannot be inferred from the restricted action which thus far has been taken.”  (Atlantic, supra, at pp. 293-294, 34 S.Ct. at pp. 832-833.) 5

Napier v. Atlantic Coast Line (1926) 272 U.S. 605, 47 S.Ct. 207, 71 L.Ed. 432 (per Brandeis, J.) (Napier ) is particularly informative.  Napier involved the validity of state laws requiring firebox doors and cab curtains on locomotives.   The court again enumerated the requirements of the SAA, as well as the provisions of the separate federal Boiler Inspection Act (BIA;  presently § 20701 et seq.), and noted that neither specifically dealt with these appliances.   Turning to the preemption question, the court stated, “The intention of Congress to exclude States from exerting their police power must be clearly manifested.  [Citations.]  Does the legislation of Congress manifest the intention to occupy the entire field of regulating locomotive equipment?   Obviously it did not do so by the Safety Appliance Act, since its requirements are specific.   It did not do so by the original Boiler Inspection Act, since its provisions were limited to the boiler.   [Citation].”  (Napier, supra, at p. 611, 47 S.Ct. at p. 209, italics added.)

However, the court explained that as recently amended, the BIA “extends to the design, the construction, and the material of every part of the locomotive and tender and of all appurtenances.”  (Napier, supra, 272 U.S. at p. 611, 47 S.Ct. at p. 209.)   The state requirements at issue therefore fell within the ICC's delegated regulatory authority under the BIA.   Thus, the broad BIA, but not the specific SAA, had occupied a general field which included these locomotive health and safety appliances.  (Napier, supra, at p. 613, 47 S.Ct. at p. 210.)

Finally, in the more recent case of Terminal Assn. v. Trainmen (1943) 318 U.S. 1, 63 S.Ct. 420, 87 L.Ed. 571, the court ruled that neither the SAA nor the BIA preempted a state requirement for cabooses, absent ICC regulations on the subject matter.   Stating that such regulations would be controlling if enacted, the court explained that “This and no more is the effect of [Penna., supra, 250 U.S. 566, 40 S.Ct. 36].”  (Terminal Assn. v. Trainmen, supra, at pp. 4-5, 63 S.Ct. at p. 422.)   The Supreme Court and lower courts have also limited the SAA's strict liability to the specific devices required by the statute.   (E.g., A.T. & S.F. Ry. v. Scarlett (1937) 300 U.S. 471, 57 S.Ct. 541, 81 L.Ed. 748;  Jordan v. Southern Ry. Co. (4th Cir.1992) 970 F.2d 1350.) 6

In support of its claim of broader preemption, defendant cites Law v. General Motors Corp. (9th Cir.1997) 114 F.3d 908, a recent decision under the BIA which held that that statute preempted the general field of “locomotive equipment and safety” (id. at p. 910) and barred state tort claims for injuries allegedly suffered from locomotive manufacturing defects.   The case does not aid defendant.   It involved the effect of the BIA, not the SAA, and indeed the court's holding was directly drawn from Napier, supra, 272 U.S. 605, 47 S.Ct. 207, which defined the broad preemption of the BIA and contrasted it with the restricted reach and effect of the SAA. (Cf. Viad Corp. v. Superior Court (1997) 55 Cal.App.4th 330, 64 Cal.Rptr.2d 136 [reaching a different conclusion regarding BIA preemption in light of more recent U.S. Supreme Court decisions].)

In light of the foregoing authorities, we conclude that defendant has failed to sustain its burden of showing that the SAA preempts a field of “safety appliances,” beyond those that it requires, and that it therefore bars common law relief on account of the defects advanced by plaintiff.   That the thrust of federal preemption in this area is specific is confirmed when one assesses the other federal statute on which defendant relies, the FRSA.

 The FRSA was enacted in 1970 to expand federal protection of railroad safety.   It granted authority to promulgate regulations to the Secretary of Transportation (secretary), who earlier had succeeded the ICC as the regulatory authority under the SAA.  (See § 20103.)   As previously noted, the FRSA contains an express preemption provision, section 20106, which generally calls for national uniformity in regulating railroad safety, but allows states to regulate pending the secretary's prescription of regulations “covering the subject matter” (and to some extent thereafter).7  Construing the quoted language, and reiterating the presumption against preemption of subjects traditionally governed by state law, the Supreme Court has held that under section 20106 “pre-emption will lie only if the federal regulations substantially subsume the subject matter of the relevant state law.”  (CSX Transp., Inc. v. Easterwood (1993) 507 U.S. 658, 664, 113 S.Ct. 1732, 1738, 123 L.Ed.2d 387.)

Defendant contends that preemption under section 20106 has been accomplished because the secretary has promulgated “safety appliance” regulations applicable to hopper cars.  (49 C.F.R. § 231.28, referencing 49 C.F.R. §§ 231.1 and 231.27.) 8  These regulations, however, essentially fix the numbers, types and specifications of the appliances required by the SAA, such as hand brakes, handholds, ladders, and running boards.   None of these items duplicates the types of measures on which plaintiff's claim was founded, and it cannot be said that the regulations necessarily cover or subsume those requirements.   Defendant's argument that they do so is once again based on the premise that anything that may be termed a “safety appliance” is so covered.   But that argument continues to beg the question.   Section 20106 carefully hinges ouster of state regulation on the promulgation of regulations covering the subject matter of the state regulation.   Defendant has not shown that the instant regulations cover and subsume equipment or precautions distinct from those they prescribe.

Defendant further urges that preemption is demonstrated by the regulations' coverage of safety railings with respect to another variety of railroad cars, tank cars.  (49 C.F.R. §§ 231.7(f), 231.8(h).)   Defendant would infer that a prescription for such railings for tank cars, as opposed to hopper cars, signifies that any state requirement of such a device has been ruled out for hopper cars.   Not only is this inference speculative as a matter of intent, it does not satisfy to the preemptive trigger of section 20106, that there have been issued a regulation “covering the subject matter of the State requirement.”   A tank car regulation prescribing safety railings does not cover the subject matter of railings and other fall protection measures for the roofs of hopper cars.

Defendant's reliance on two district court decisions concerning tank cars (Ouellette v. Union Tank Car (D.Mass.1995) 902 F.Supp. 5 and Roland v. Olin Corp. (Oct. 23, 1996) Fed.Dist.Ct., E.D.Mich., 95-CV-70615) is therefore unavailing.   In Ouellette, a worker who had fallen after losing her grip on a tank car's side handhold contended that it was improperly placed and that a railing would have been preferable.   The court held this claim preempted under the FRSA, because the tank car regulations had “specifically addressed the safe design and placement of handholds on tank cars.”   (Ouellette, supra, at p. 10.)   The present case, however, does not concern the subject or safety of handholds, which, although addressed by the SAA and the regulations, serve a different function than the devices plaintiff asserted should have been present.   In Roland, a worker who had fallen through an opening in the safety railing prescribed by the tank car regulations asserted that the railing should have been surrounded by a chain.   The court concluded that this claim directly conflicted with the secretary's regulatory determination about the structure of tank car railings.   Once more, there is no such regulatory coverage or conflict here.

Recognition that the safety appliance regulations neither cover nor engender preemption of plaintiff's claims in this case does not retrench on the SAA's historic preemption, as defendant contends.   Nor does it contradict the legislative history of the FRSA, to the effect that the SAA was to be preserved, and that, at that time, “․ where the Federal Government has authority, with respect to rail safety, it preempts the field.”  (H.R.Rep. No. 91-1194 (1971), 1970 U.S.Code Cong. & Admin. News, p. 4108.)   It is undisputed that both the SAA and the FRSA have certain preemptive effects.   But, as discussed, neither of them covers either the subjects of plaintiff's claims nor the broad and undefined field for which defendant contends.   We conclude that plaintiff's claims were not preempted by either the SAA or the FRSA.



The judgment and the order denying judgment notwithstanding the verdict are affirmed.


1.   A hopper car is a type of boxcar that contains one or more storage bins from which cargo consisting of small pieces of matter may be unloaded at the bottom, through precipitation.

2.   The harness itself would be provided by the owner or operator of the car.

3.   Undesignated section references hereafter are to Title 49 of the United States Code.   We refer to the SAA in the singular case.

4.   Southern contains the most extensive and strongest preemption language, which we quote at length.  “But Congress could pass the Safety Appliance Act only because of the fact that the equipment of cars moving on interstate roads was a regulation of interstate commerce.   Under the Constitution the nature of that power is such that when exercised, it is exclusive, and ipso facto, supersedes existing state legislation on the same subject.   Congress of course could have ‘circumscribed its regulations' so as to occupy a limited field.  [Citation.]  But so far as it did legislate, the exclusive effect of the Safety Appliance Act did not relate merely to details of the statute and the penalties it imposed, but extended to the whole subject of equipping cars with appliances intended for the protection of employes.   The States thereafter could not legislate so as to require greater or less or different equipment;  nor could they punish by imposing greater or less or different penalties․ [¶] ․ [I]t is sufficient here to say that Congress has so far occupied the field of legislation relating to the equipment of freight cars with safety appliances as to supersede existing and prevent further legislation on that subject.”  (Southern, supra, at pp. 446-447, 35 S.Ct. at p. 305, italics added.)   This passage could as least as well be read as referring to the “safety appliances” specified by the SAA-the subject of the case-as it could (as dictum) be seen to refer to some general, undefined class of appliances, not all of them covered by the statute.   Moreover, the italicized portion of the quotation reflects a theory of ipso facto preemption that the court has long since abandoned.  (See Tribe, American Constitutional Law (2d ed.1988), § 6-26, p. 491.)

5.   Atlantic 's analysis of the SAA with respect to appliances not covered by it carries significance beyond that case.   In Southern, supra, 236 U.S. at p. 447, 35 S.Ct. at p. 305 (ante, fn. 4), the court cited this very portion of Atlantic for the proposition that Congress could act to preempt a limited field.   This too indicates that Southern 's language regarding the preemptive effect of the SAA was addressed to the SAA's prescribed “appliances,” rather than some broader, undefined field.

6.   As noted in Jordan, “ ‘Safety appliance’ is a popular name given to the statute and the equipment it treats;  however, the statute nowhere defines a generic class of ‘safety appliances.’   Instead, the statute contains a strikingly specific laundry list of equipment a railroad must have on each type of car:  ladders, brakes, automatic couplers, hand holds, running boards, etc.”  (Id. at p. 1352.)

7.   Section 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.”

8.   The cited regulations concern “box and other house cars.”   Another regulation, not cited by defendant, specifically addresses hopper cars.  (49 C.F.R. § 231.2.)   It essentially incorporates the requirements of section 231.1.

FOOTNOTE.   See footnote *, ante.

FUKUTO, Associate Justice.

BOREN, P.J., and ZEBROWSKI, J., concur.

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