Murphy v. Darien , 332 Conn. 244 ( 2019 )

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JAMEY MURPHY ET AL. v. TOWN OF DARIEN ET AL.
(SC 19983)
Robinson, C. J., and Palmer, D’Auria, Mullins and Kahn, Js.
Syllabus
Pursuant to the Federal Railroad Safety Act of 1970 (49 U.S.C. § 20106 [a]
[2]) and United States Supreme Court precedent, CSX Transportation,
Inc. v. Easterwood (507 U.S. 664), interpreting that act, a state law
negligence claim relating to the operation of a railroad may be preempted
when ‘‘federal regulations’’ prescribed by the Secretary of Transportation
or the Secretary of Homeland Security ‘‘substantially subsume the sub-
ject matter of the relevant state law’’ on which the negligence claim
is based.
The plaintiff, individually and on behalf of the estate of her late husband,
K, sought damages from the defendant railroad company, M Co., alleging,
inter alia, that M Co. had negligently caused K’s death. K had slipped
on a train station boarding platform and had fallen onto the track immedi-
ately adjacent to the platform. Shortly thereafter, a train that M Co. was
operating on that track and that was passing through the station on its
way to another destination struck K, even though, the plaintiff alleged,
M Co. could have operated that train on another track. M Co. filed a
motion for summary judgment in the trial court, claiming that the plain-
tiff’s negligence claim was preempted under the act. The trial court
granted that motion, concluding that, notwithstanding the absence of
a federal regulation specifically covering the question of track selection,
extensive federal regulations relating to railroad track safety substan-
tially subsumed the subject matter of the plaintiff’s claim. The trial court
rendered judgment for M Co., and the plaintiff appealed, claiming that
the trial court incorrectly had concluded that her claim was preempted
by the act. Held that the trial court improperly granted M Co.’s motion
for summary judgment, M Co. having failed to meet its burden of demon-
strating that the plaintiff’s claim of negligent track selection was pre-
empted under the act, and, accordingly, the judgment was reversed and
the case was remanded for further proceedings: a review of case law
from other jurisdictions indicated that a state law negligence claim is
preempted under the act only when there is a federal regulation that
thoroughly addresses the safety concern raised in the plaintiff’s com-
plaint, rather than one that merely mentions or tangentially relates to
that concern, the federal regulations (49 C.F.R. §§ 213.53, 213.57, 213.109
and 213.121 [2012]) on which the trial court relied in concluding that
the plaintiff’s claim was preempted address topics such as the measure-
ment of gage size, the elevation of outer rails on a curve, and the
components of a rail, including crossties and rail joints, but do not
address the subject matter of the plaintiff’s operative complaint, namely,
a railroad company’s selection of an interior versus an exterior track
for a train passing through a station, and, therefore, this court could
not conclude that the regulatory scheme substantially subsumed the
subject matter of the plaintiff’s negligence claim; moreover, although
the plaintiff’s claim tangentially related to the speed of the train passing
through the station, the federal regulation (49 C.F.R. § 213.9 [2012])
prescribing the maximum speed at which trains may operate on certain
classes of track did not require preemption of the plaintiff’s claim, as
nothing in that regulation addressed the question of track selection.
Argued November 5, 2018—officially released July 9, 2019
Procedural History
Action to recover damages for, inter alia, the alleged
wrongful death of the named plaintiff’s husband, and
for other relief, brought to the Superior Court in the
judicial district of Fairfield, where the court, Kamp, J.,
granted the motion for summary judgment filed by the
defendant Metro-North Commuter Railroad Company
and rendered judgment thereon, from which the plain-
tiffs appealed. Reversed; further proceedings.
James J. Healy, with whom were Joel T. Faxon and,
on the brief, John P. D’Ambrosio, for the appellants
(plaintiffs).
Robert O. Hickey, with whom, on the brief, were Beck
S. Fineman and Kerianne E. Kane, for the appellee
(defendant Metro-North Commuter Railroad Company).
Opinion
MULLINS, J. The sole issue in this appeal is whether
the Federal Railroad Safety Act of 1970 (railroad act), 49
U.S.C. § 20101 et seq., preempts the negligence claims
brought by the plaintiff, Jamey Murphy, individually
and as executrix of the estate of her late husband, Kevin
Murphy (decedent), against the defendant Metro-North
Commuter Railroad Company.1 We conclude that the
railroad act does not preempt the plaintiff’s negligence
claims and, accordingly, reverse the judgment of the
trial court rendered in favor of the defendant on that
ground.2
The following facts and procedural history are rele-
vant to this appeal. On March 4, 2013, at approximately
6:30 a.m., the decedent, was walking on the platform
adjacent to the westbound tracks at the Noroton
Heights train station in Darien. The decedent was
awaiting his commuter train to New York City. On that
morning, there was a patch of ice on the platform, which
measured approximately nine feet long and approxi-
mately one foot wide. As the decedent was walking on
the platform, he encountered the ice patch, slipped and
fell onto the westbound track closest to the platform.
At that time, one of the defendant’s trains was coming
around a curve and approaching the Noroton Heights
station on the track closest to the westbound platform.
This train was scheduled to travel through the Noroton
Heights station without stopping and to do the same
through four other commuter stations before complet-
ing its express route to Stamford. This type of train is
referred to as a ‘‘through train.’’
As the train approached the Noroton Heights station,
the engineer sounded the train’s horn. He then saw an
object on the track. When the engineer realized it was
a person, he sounded the horn again and applied the
emergency brake. Nevertheless, the train struck the
decedent. As a result of the collision, the decedent
suffered severe trauma and was pronounced dead at
the scene.
The plaintiff subsequently brought this action against
the defendant. See footnote 1 of this opinion. Specifi-
cally, the operative complaint3 alleges that the dece-
dent’s injuries and death were proximately caused by
the negligence of the defendant when ‘‘it violated prac-
tices and customs with respect to track selection by
moving a through train traveling in excess of seventy
miles per hour on the track immediately adjacent to
the platform when reasonable care and general practice
of [the defendant] required that train to be on an interior
track away from the platform.’’ The plaintiff also alleges
that the defendant’s negligence caused her to suffer
loss of spousal consortium. After discovery, the defen-
dant filed a motion for summary judgment, and the
plaintiff filed an objection.
In support of that motion, the defendant asserted
that the plaintiff’s negligence claims were preempted
by federal law. Specifically, the defendant asserted, in
pertinent part, that the plaintiff’s claims were barred
by the railroad act. The trial court agreed with the
defendant, concluding that, ‘‘[t]o the extent that the
plaintiff’s claim is viewed as relating to rail safety, it is
preempted by the [railroad act].’’ Accordingly, the trial
court granted the motion for summary judgment and
rendered judgment thereon in favor of the defendant.
This appeal followed.4
On appeal, the plaintiff asserts that the trial court
incorrectly concluded that her claims were preempted
by the railroad act. Specifically, the plaintiff asserts that
the railroad act only preempts claims where a federal
regulation covers the subject matter, and no such regu-
lation exists for track selection. In response, the defen-
dant asserts that the trial court properly granted its
motion for summary judgment because the plaintiff’s
claims are preempted by the railroad act. Specifically,
the defendant asserts that the subject matter of the
plaintiff’s claim is covered by federal regulation—
namely, regulations addressing speed and track classifi-
cation. We agree with the plaintiff.
‘‘The standard of review of a trial court’s decision
granting summary judgment is well established. Prac-
tice Book § 17-49 provides that summary judgment shall
be rendered forthwith if the pleadings, affidavits and
any other proof submitted show that there is no genuine
issue as to any material fact and that the moving party
is entitled to judgment as a matter of law. . . . Our
review of the trial court’s decision to grant the defen-
dant’s motion for summary judgment is plenary. . . .
On appeal, we must determine whether the legal conclu-
sions reached by the trial court are legally and logically
correct and whether they find support in the facts set
out in the memorandum of decision of the trial court.’’
(Citation omitted; internal quotation marks omitted.)
Lucenti v. Laviero, 327 Conn. 764, 772–73, 176 A.3d 1
(2018). ‘‘[T]he use of a motion for summary judgment
to challenge the legal sufficiency of a complaint is
appropriate when the complaint fails to set forth a cause
of action and the defendant can establish that the defect
could not be cured by repleading.’’ (Internal quotation
marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223,
236, 116 A.3d 297 (2015).
In the present case, the trial court granted the defen-
dant’s motion for summary judgment on the ground
that the plaintiff’s complaint was insufficient because
the negligence claims raised therein were preempted by
the railroad act. Accordingly, resolution of this appeal
requires us to examine the trial court’s conclusion that
the plaintiff’s negligence claims are preempted by the
railroad act.
In doing so, we note that the question of whether
the plaintiff’s negligence claims are preempted by the
railroad act is one of law, and, therefore, our review is
plenary. ‘‘Whether state causes of action are preempted
by federal statutes and regulations is a question of law
over which our review is plenary.’’ Byrne v. Avery Cen-
ter for Obstetrics & Gynecology, P.C., 314 Conn. 433,
447, 102 A.3d 32 (2014); see also Hackett v. J.L.G. Prop-
erties, LLC, 285 Conn. 498, 502–504, 940 A.2d 769 (2008)
(whether trial court’s conclusion that municipal zoning
regulations were preempted by federal law was a ques-
tion of law over which court exercised plenary review).
‘‘[T]here is a strong presumption against federal pre-
emption of state and local legislation. . . . This pre-
sumption is especially strong in areas traditionally
occupied by the states . . . .’’ (Citation omitted; inter-
nal quotation marks omitted.) Dowling v. Slotnik, 244
Conn. 781, 794, 712 A.2d 396, cert. denied sub nom.
Slotnik v. Considine, 525 U.S. 1017, 119 S. Ct. 542, 142
L. Ed. 2d 451 (1998).
‘‘The ways in which federal law may [preempt] state
law are well established and in the first instance turn
on congressional intent. . . . Congress’ intent to sup-
plant state authority in a particular field may be
express[ed] in the terms of the statute. . . . Absent
explicit [preemptive] language, Congress’ intent to
supersede state law in a given area may nonetheless
be implicit if a scheme of federal regulation is so perva-
sive as to make reasonable the inference that Congress
left no room for the [s]tates to supplement it, if the
[a]ct of Congress . . . touch[es] a field in which the
federal interest is so dominant that the federal system
will be assumed to preclude enforcement of state laws
on the same subject, or if the goals sought to be obtained
and the obligations imposed reveal a purpose to pre-
clude state authority. . . .
‘‘The question of preemption is one of federal law,
arising under the supremacy clause of the United States
constitution. . . . Determining whether Congress has
exercised its power to preempt state law is a question
of legislative intent. . . . [A]bsent an explicit state-
ment that Congress intends to preempt state law, courts
should infer such intent where Congress has legislated
comprehensively to occupy an entire field of regulation,
leaving no room for the [s]tates to supplement federal
law . . . or where the state law at issue conflicts with
federal law, either because it is impossible to comply
with both . . . or because the state law stands as an
obstacle to the accomplishment and execution of con-
gressional objectives . . . .’’ (Citation omitted; internal
quotation marks omitted.) Hackett v. J.L.G. Properties,
LLC, supra, 285 Conn. 503–504.
Furthermore, the United States Supreme Court has
explained that ‘‘[w]here a state statute conflicts with,
or frustrates, federal law, the former must give way.
U.S. Const., [a]rt. VI, cl. 2; Maryland v. Louisiana, 451
U.S. 725, [746, 101 S. Ct. 2114, 68 L. Ed. 2d 576] (1981).
In the interest of avoiding unintended encroachment
on the authority of the [s]tates, however, a court inter-
preting a federal statute pertaining to a subject tradi-
tionally governed by state law will be reluctant to find
[preemption]. Thus, [preemption] will not lie unless it
is ‘the clear and manifest purpose of Congress.’ Rice v.
Santa Fe Elevator Corp., 331 U.S. 218, [230, 67 S. Ct.
1146, 91 L. Ed. 1447] (1947). Evidence of [preemptive]
purpose is sought in the text and structure of the statute
at issue. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, [95,
103 S. Ct. 2890, 77 L. Ed. 2d 490] (1983). If the statute
contains an express [preemption] clause, the task of
statutory construction must in the first instance focus
on the plain wording of the clause, which necessarily
contains the best evidence of Congress’ [preemptive]
intent.’’ CSX Transportation, Inc. v. Easterwood, 507
U.S. 658, 663–64, 113 S. Ct. 1732, 123 L. Ed. 2d 387
(1993); see also id., 673–75 (concluding that negligence
claim relating to failure to maintain adequate warning
devices at rail crossing was not preempted by railroad
act, but negligence claim alleging excessive speed was
preempted by railroad act).
A brief review of the railroad act provides context
for our analysis. The railroad act ‘‘was enacted in 1970
to promote safety in all areas of railroad operations
and to reduce [railroad related] accidents, and to reduce
deaths and injuries to persons . . . . [Under the rail-
road act], the Secretary [of Transportation] is given
broad powers to prescribe, as necessary, appropriate
rules, regulations, orders, and standards for all areas
of railroad safety . . . .’’ (Citations omitted; internal
quotation marks omitted.) Id., 661–63; see also 49 U.S.C.
§ 20101 (2012) (statement of legislative purpose); 49
U.S.C. § 20103 (a) (2012) (delegating regulatory author-
ity to Secretary of Transportation).
The railroad act contains an express preemption
clause, codified at 49 U.S.C. § 20106, entitled ‘‘Preemp-
tion.’’ That statute provides in relevant part: ‘‘(a)
National Uniformity of Regulation.—(1) Laws, regula-
tions, and orders related to railroad safety and laws,
regulations, and orders related to railroad security shall
be nationally uniform to the extent practicable.
‘‘(2) A State may adopt or continue in force a law,
regulation, or order related to railroad safety or security
until the Secretary of Transportation (with respect to
railroad safety matters), or the Secretary of Homeland
Security (with respect to railroad security matters), pre-
scribes 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 strin-
gent law, regulation, or order related to railroad safety
or security when the law, regulation, or order—
‘‘(A) is necessary to eliminate or reduce an essentially
local safety or security hazard;
‘‘(B) is not incompatible with a law, regulation, or
order of the United States Government; and
‘‘(C) does not unreasonably burden interstate com-
merce.’’ 49 U.S.C. § 20106 (a) (2012).
In 2007, Congress amended the railroad act preemp-
tion clause by adding subsection (b). See Implementing
Recommendations of the 9/11 Commission Act of 2007,
Pub. L. No. 110-53, § 1528, 121 Stat. 266, 453. That sub-
section, which is entitled ‘‘Clarification Regarding State
Law Causes of Action,’’ provides in relevant part: ‘‘Noth-
ing in this section shall be construed to preempt an
action under State law seeking damages for personal
injury, death, or property damage alleging that a party—
‘‘(A) has failed to comply with the Federal standard
of care established by a regulation or order issued by the
Secretary of Transportation (with respect to railroad
safety matters), or the Secretary of Homeland Security
(with respect to railroad security matters), covering the
subject matter as provided in subsection (a) of this
section;
‘‘(B) has failed to comply with its own plan, rule, or
standard that it created pursuant to a regulation or
order issued by either of the Secretaries; or
‘‘(C) has failed to comply with a State law, regulation,
or order that is not incompatible with subsection (a)
(2).’’ 49 U.S.C. § 20106 (b) (1) (2012).
As a result of this amendment, federal courts have
concluded that ‘‘the preemption analysis under the
amended [railroad act] requires a two step process. We
first ask whether the defendant allegedly violated either
a federal standard of care or an internal rule that was
created pursuant to a federal regulation. If so, the plain-
tiff’s claim avoids preemption. [See 49 U.S.C. § 20106
(b) (1) (A) and (B) (2012)]. Otherwise, we move to the
second step and ask whether any federal regulation
covers the plaintiff’s claim. [See 49 U.S.C. § 20106 (a)
(2) (2012)]. A regulation covers—and thus preempts—
the plaintiff’s claim if it ‘substantially subsume[s] the
subject matter’ of that claim. [CSX Transportation, Inc.
v. Easterwood, supra, 507 U.S. 664] (noting that the
regulation must do more than ‘touch upon or relate to
[the] subject matter’).’’ Zimmerman v. Norfolk South-
ern Corp., 706 F.3d 170, 178 (3d Cir.), cert. denied, 571
U.S. 826, 134 S. Ct. 164, 187 L. Ed. 2d 41 (2013); see
also Grade v. BNSF Railway Co., 676 F.3d 680, 686 (8th
Cir. 2012); Henning v. Union Pacific Railroad Co., 530
F.3d 1206, 1214–16 (10th Cir. 2008).5
The parties agree that the plaintiff’s claim does not
allege that the defendant violated any regulation or
order, or failed to comply with its own plan, rule, or
standard of care that it adopted pursuant to a federal
regulation. Accordingly, the parties agree that the
appropriate preemption analysis is contained within 49
U.S.C. § 20106 (a) (2). This provision provides that a
state law cause of action is preempted if the Secretary
of Transportation or the Secretary of Homeland Secu-
rity has ‘‘prescribe[d] a regulation or issue[d] an order
covering the subject matter of the State requirement’’
on which the plaintiff’s negligence claim is based.
(Emphasis added.) 49 U.S.C. § 20106 (a) (2) (2012).
Thus, the issue before this court is whether the Secre-
tary of Transportation or the Secretary of Homeland
Security has promulgated regulations covering the same
subject matter as Connecticut negligence law pertaining
to the selection of an interior track for a through train.
As the United States Supreme Court has explained,
‘‘[t]o prevail on the claim that the regulations have [pre-
emptive] effect, [a] petitioner must establish more than
that they ‘touch upon’ or ‘relate to’ that subject matter
. . . for ‘covering’ is a more restrictive term which indi-
cates that [preemption] will lie only if the federal regula-
tions substantially subsume the subject matter of the
relevant state law. [See Webster’s Third New Interna-
tional Dictionary (1961) p. 524] (in the phrase ‘policy
clauses covering the situation,’ cover means ‘to com-
prise, include, or embrace in an effective scope of treat-
ment or operation’). The term ‘covering’ is in turn
employed within a provision that displays considerable
solicitude for state law in that its express [preemption]
clause is both prefaced and succeeded by express sav-
ing clauses.’’ (Citation omitted.) CSX Transportation,
Inc. v. Easterwood, supra, 507 U.S. 664–65.
In the present case, the plaintiff’s claim alleges that
the defendant was negligent in selecting the track imme-
diately adjacent to the platform to run a ‘‘through train.’’
As we have explained, in order to resolve the plaintiff’s
appeal, we must determine whether there is a federal
regulation that covers, or substantially subsumes, the
plaintiff’s claim. The defendant does not point to any
federal regulation that expressly governs track selec-
tion. Indeed, the trial court recognized that, ‘‘[a]s both
parties have conceded, there is no federal rule or regula-
tion that specifically governs track selection.’’
Nevertheless, the trial court reasoned that, ‘‘[al]though
there is not a federal regulation that specifically covers
track selection, the federal regulations in regards to
tracks is extensive and, therefore, subsume the subject
matter of the plaintiff’s claim.’’ In support of its conclu-
sion, the trial court relied on several specific regulations
contained within part 213 of title 49 of the Code of
Federal Regulations, which is entitled ‘‘Track Safety
Standards.’’ See 49 C.F.R. § 213.9 (2012) (setting speed
limits for trains operating on each class of track); 49
C.F.R. § 213.53 (2012) (measuring gage of track); 49
C.F.R. § 213.57 (2012) (establishing speed limitations
based on curvature and elevation of track); 49 C.F.R.
§ 213.109 (2012) (establishing requirements for cross-
ties); 49 C.F.R. § 213.121 (2012) (establishing require-
ments for rail joints); 49 C.F.R. § 213.231 et seq. (2012)
(establishing requirements for track inspection). The
trial court reasoned that, ‘‘[a]s part of an overall scheme
to standardize railroad transportation and specifically
as a scheme that expansively covers railroad track
safety . . . the subject matter of the plaintiff’s claim is
clearly ‘covered’ and ‘substantially subsumed’ by these
federal regulations.’’ (Citation omitted; emphasis omit-
ted.) We disagree.
We first turn to the regulations on which the trial
court relied, namely, part 213 of title 49 of the Code of
Federal Regulations. The scope of these regulations is
explained as follows: ‘‘This part prescribes minimum
safety requirements for railroad track that is part of the
general railroad system of transportation. In general,
the requirements prescribed in this part apply to spe-
cific track conditions existing in isolation. Therefore,
a combination of track conditions, none of which indi-
vidually amounts to a deviation from the requirements
in this part, may require remedial action to provide
for safe operations over that track. This part does not
restrict a railroad from adopting and enforcing addi-
tional or more stringent requirements not inconsistent
with this part.’’ 49 C.F.R. § 213.1 (a) (2012). Accordingly,
part 213 of title 49 of the Code of Federal Regulations
expressly states that it provides minimum safety
requirements and that conditions may be present that
require a greater standard of care.
Indeed, although the regulations cited by the trial
court touch upon tracks, nothing in those regulations
indicates that they subsume the subject matter of select-
ing tracks for through trains. Those regulations set forth
how the gage of a track is to be measured and the
required size for various tracks. See 49 C.F.R. § 213.53
(2012). Another regulation regulates the maximum ele-
vation of the outer rail on a curve. See 49 C.F.R. § 213.57
(2012). Other regulations regulate the components of
a rail—i.e. crossties and rail joints. See 49 C.F.R.
§§ 213.109 and 213.121 (2012). Yet another regulation
delineates the speed a train can travel on tracks of
various classes. See 49 C.F.R. § 213.9 (2012). Each of
these regulations covers a different subject matter than
that raised by the plaintiff’s claim—namely, selection
of an interior or exterior track for operation of a through
train. None of the regulations relied on by the defendant
or cited by the trial court even mentions selection of
an interior or exterior track. Accordingly, the express
terms of these provisions support a conclusion that the
plaintiff’s claim is not covered by the regulations.
Although no court has addressed a track selection
claim similar to the plaintiff’s claim in this case, a review
of the case law regarding preemption of state law claims
under the railroad act is instructive. For instance, in
CSX Transportation, Inc. v. Easterwood, supra, 507
U.S. 667–68,6 the United States Supreme Court held that
the railroad act did not preempt a state common-law
negligence claim regarding the railroad’s duty to main-
tain warning devices at a railroad crossing. In doing so,
the United States Supreme Court rejected the railroad’s
claim that the subject matter of the plaintiff’s claim was
covered by regulations requiring that all traffic control
devices installed comply with the Federal Highway
Administration’s manual on uniform traffic control
devices. Id., 665–66. Instead, the United States Supreme
Court explained that, although the states were required
to employ warning devices that conformed to standards
set forth in the regulations in order to obtain federal
funding, state negligence law always played a role in
maintaining safety at railroad crossings, and ‘‘there is
no explicit indication in the regulations . . . that the
terms of the [f]ederal [g]overnment’s bargain with the
[s]tates require modification of this regime of separate
spheres of responsibility.’’ Id., 668. Accordingly, the
United States Supreme Court reasoned that, ‘‘[i]n light
of the relatively stringent standard set by the language
of [the railroad act’s preemption provision] and the
presumption against preemption, and given that the
regulations provide no affirmative indication of their
effect on negligence law, [the court is] not prepared to
find [preemption] solely on the strength of the general
mandates of [regulations governing warning devices at
railroad crossings].’’ Id.
On the other hand, in Norfolk Southern Railway Co.
v. Shanklin, 529 U.S. 344, 352–53, 120 S. Ct. 1467, 146
L. Ed. 2d 374 (2000), the United States Supreme Court
did conclude that a state law negligence claim alleging
that there were inadequate warning signs at a railroad
crossing was preempted when the federal regulations
applicable to that railroad crossing required the installa-
tion of a particular warning device at a particular rail-
way crossing. Accordingly, the United States Supreme
Court concluded that, ‘‘[b]ecause those regulations
establish requirements as to the installation of particu-
lar warning devices . . . when [those regulations] are
applicable, state tort law is [preempted]. . . . Unlike
the [regulations at issue in Easterwood, these regula-
tions], displace state and private [decision-making]
authority by establishing a [federal law] requirement
that certain protective devices be installed or federal
approval obtained. . . . As a result, those regulations
effectively set the terms under which railroads are to
participate in the improvement of crossings.’’ (Citations
omitted; internal quotation marks omitted.) Id.7
The United States Court of Appeals for the Second
Circuit also has examined whether a state law claim
was preempted by the railroad act. In Island Park, LLC
v. CSX Transportation, 559 F.3d 96, 108 (2d Cir. 2009),
the Second Circuit concluded that a state agency order
to close a private rail crossing was not preempted by
the railroad act. Although it concluded that the closure
order implicated railroad safety, it concluded that it
was not preempted by the railroad act because the
railroad act ‘‘allows states to impose rail safety require-
ments as long as they are not inconsistent with federal
mandates. [The plaintiff] points to no federal rail safety
regulation that covers rail crossing closures. Accord-
ingly, the state closure order is not [preempted] by [the
railroad act].’’ Id.
In Strozyk v. Norfolk Southern Corp., 358 F.3d 268,
269 (3d Cir. 2004), the United States Court of Appeals
for the Third Circuit concluded that a state common-
law negligence claim against a railroad alleging poor
visibility at a railroad crossing was not preempted by
the railroad act. The railroad asserted that the plaintiff’s
claim was preempted by the regulations because the
regulations addressing the installation of warning
devices at railroad crossings mentioned limited visibil-
ity. Id., 273. The Third Circuit rejected the railroad’s
claim and concluded that a regulation’s ‘‘bare mention’’
of limited visibility did ‘‘not indicate an intent to regu-
late’’ that condition. Id.
Similarly, the United States Court of Appeals for the
Sixth Circuit concluded that a state law negligence
claim alleging that vegetative growth on railroad prop-
erty obstructed the motorist’s view of an oncoming
train was not preempted. Shanklin v. Norfolk Southern
Railway Co., 369 F.3d 978, 987 (6th Cir. 2004); see also
footnote 8 of this opinion. The railroad asserted that
the plaintiff’s claim was preempted by regulations under
the railroad act that addressed the installation of warn-
ing devices and one that provided that ‘‘[v]egetation on
railroad property which is on or immediately adjacent
to [the] roadbed shall be controlled so that it does not
. . . [o]bstruct visibility of railroad signs and signals,’’
preempted the plaintiff’s claim. (Internal quotation
marks omitted.) Id. The Sixth Circuit explained that the
regulation regarding vegetation preempts any state law
claim ‘‘regarding vegetative growth that blocks a sign
immediately adjacent to a crossing, but it does not
impose a broader duty to control vegetation so that it
does not obstruct a motorist’s visibility of oncoming
trains.’’ (Internal quotation marks omitted.) Id. Accord-
ingly, the Sixth Circuit concluded that the plaintiff’s
claim was not preempted because, although these regu-
lations touched upon vegetation, they did not substan-
tially subsume the subject matter of the plaintiff’s claim.
Id., 988; see also 49 C.F.R. § 213.37 (b) (1993).
The Third Circuit addressed preemption under the
railroad act again in MD Mall Associates, LLC v. CSX
Transportation, Inc., 715 F.3d 479, 491 (3d Cir. 2013),
cert. denied, 571 U.S. 1126, 134 S. Ct. 905, 187 L. Ed.
2d 778 (2014). In that case, the Third Circuit concluded
that a mall owner’s state law claim against a railroad
owner alleging negligence and storm water trespass
was not preempted by the railroad act. Id., 490–91. In
doing so, the Third Circuit rejected the railroad owner’s
claim that a regulation promulgated under the railroad
act, which requires that a railroad’s drainage facilities
‘‘under or immediately adjacent’’ to the track ‘‘be main-
tained and kept free of obstruction’’ preempted the
mall owner’s state law claims. (Internal quotation marks
omitted.) Id.; see also 49 C.F.R. § 213.33 (2010). The
Third Circuit explained that it could not ‘‘read the
silence of [49 C.F.R.] § 213.33 on a railroad’s duties to
its neighbors when addressing track drainage as an
express abrogation of state storm water trespass law.
Given that the [railroad act] provides no express autho-
rization for disposing of drainage onto an adjoining
property, the presumption must be that state laws regu-
lating such action survive . . . .’’ (Citation omitted.)
MD Mall Associate, LLC v. CSX Transportation,
Inc., 491.
Another instructive case is Haynes v. National Rail-
road Passenger Corp., 423 F. Supp. 2d 1073 (C.D. Cal.
2006). In Haynes, the estate and children of a passenger
who suffered a deep vein thrombosis after traveling on
an Amtrak train from Chicago to Los Angeles brought
an action in state court alleging that Amtrak violated
common-law and statutory duties of care that common
carriers must exercise with respect to their passengers.
Id., 1077. Specifically, the plaintiffs alleged that danger-
ous seats and seating configurations in Amtrak trains
and Amtrak’s failure to warn passengers about deep
vein thrombosis caused the decedent to suffer deep
vein thrombosis and die. Id., 1078.
The railroad filed a motion to dismiss for failure to
state a claim on which relief can be granted. Id., 1077.
In its motion, the railroad claimed, inter alia, that the
plaintiffs’ claims were preempted by the railroad act.
Id., 1081. Specifically, the railroad claimed that the fed-
eral regulations addressing seats and their configura-
tion on passenger trains covered the subject matter of
the plaintiffs’ complaint, thereby rendering the plain-
tiff’s claim preempted by the railroad act. Id., 1082. The
United States District Court for the Central District of
California explained that federal regulations addressed
safe passenger seats, how seats must be fastened to
the car body, the load the seats must be able to with-
stand, and the inspection process for train seats. Id.,
1082.
Nevertheless, the court explained that ‘‘[t]he regula-
tions relied upon by the [railroad] govern seat safety
for circumstances involving train crashes and broken
seats. There is no discussion in the regulations of leg
room, seat pitch, or ensuring that seats do not contrib-
ute to discomfort or illnesses like [deep vein thrombo-
sis]. The [c]ourt finds that there are no federal safety
or security regulations that substantially subsume state
tort actions regarding potential of [deep vein thrombo-
sis] from poorly designed seats or seating arrange-
ments.’’ Id.
The court also concluded that there were no federal
regulations that substantially subsumed the plaintiffs’
claims based on a duty to warn passengers about deep
vein thrombosis. Id. The court reasoned that, although
there are federal regulations regarding passenger safety
on trains in an emergency situation, because deep vein
thrombosis arises in nonemergency situations, the
safety regulations did not subsume the subject matter
of deep vein thrombosis warnings. Id.
The rationale employed in Haynes is instructive in
the present case because it demonstrates that, even
when courts have found an extensive regulatory scheme
in a particular area—such as passenger seating on
trains—the breadth of regulation does not mean that
the subject matter of a complaint is substantially sub-
sumed by the regulations.8
A review of the case law regarding preemption under
the railroad act demonstrates that courts have been
reticent to find that a regulatory scheme covers or sub-
stantially subsumes the subject matter of a plaintiff’s
claim. Indeed, even when regulations form a broad regu-
latory scheme or mention the subject of a plaintiff’s
claim, courts have not found preemption unless the
subject matter is clearly subsumed by the regulations.
This construction of the railroad act is consistent with
the principle that, ‘‘[i]n the interest of avoiding unin-
tended encroachment on the authority of the [s]tates
. . . a court interpreting a federal statute pertaining to
a subject traditionally governed by state law will be
reluctant to find [preemption]. Thus, [preemption] will
not lie unless it is ‘the clear and manifest purpose of
Congress.’ ’’ CSX Transportation, Inc. v. Easterwood,
supra, 507 U.S. 663–64. Furthermore, the limited appli-
cation of preemption of the railroad act is also consis-
tent with the express preemption provision contained in
the railroad act, which ‘‘displays considerable solicitude
for state law . . . .’’ Id., 665.
In the present case, the defendant asserts that the
trial court correctly concluded that, although there is
no regulation expressly addressing the selection of an
interior or exterior track for trains, the general regula-
tory scheme of track classification substantially sub-
sumes the subject matter of the plaintiff’s claim. We
disagree.
The defendant claims, and trial court concluded, that
Zimmerman v. Norfolk Southern Corp., supra, 706 F.3d
170, supports the defendant’s contention that the plain-
tiff’s claim is preempted by the act. In Zimmerman,
the plaintiff was a motorcyclist who was partially para-
lyzed in a collision with a train at a railroad crossing.
Id., 175. The plaintiff claimed, inter alia, that the railroad
should have been liable for misclassification of the
track. Id., 186–87. Specifically, the plaintiff claimed that
the railroad violated a federal standard of care estab-
lished by part 213 of title 49 of the Code of Federal
Regulations, which contains regulations for each class
of tracks. Id., 187. The plaintiff claimed that, under these
regulations, the railroad was obligated to classify the
track as class two or higher due to the limited sight
distance on the track. Id. The Third Circuit rejected the
plaintiff’s claim that there was a federal standard of
care regarding classification of the tracks based on sight
distance. Id. Instead, the Third Circuit concluded that
no regulation established the sight distance necessary
for each class of tracks, so no relevant federal standard
of care existed. Id.
The Third Circuit further explained that, ‘‘[d]espite
the absence of a federal standard of care, [the plaintiff]
may still avoid preemption if his claim falls outside the
scope of the original [railroad act] preemption provi-
sion. . . . As we have previously made clear, state
claims are within the scope of this provision if federal
regulations ‘cover’ or ‘substantially subsume’ the sub-
ject matter of the claims. . . . The regulations must
do more than ‘touch upon or relate to that subject
matter.’ ’’ (Citations omitted.) Id. The Third Circuit then
concluded that the regulations in part 213 of title 29
of the Code of Federal Regulations ‘‘subsume[d] [the
plaintiff’s] misclassification claim. These regulations
establish varying requirements for each class of
tracks—governing everything from gage, alinement,
and elevation, to crossties, curve speed, and rail
joints.’’ Id.
The trial court in this case relied on the following
language from Zimmerman: ‘‘The regulations are part
of a broad scheme to standardize railroad tracks. Admit-
tedly, there is no regulation that classifies tracks based
on sight distance. But the breadth of the scheme implies
a decision not to classify on that basis. At the very least,
it implies that the federal government did not want
states to decide how tracks would be classified. We
doubt that the federal government would create a
detailed system with the expectation that states would
impose extra classification requirements—especially
given the risk that the requirements would vary from
state to state. This regulatory scheme preempts [the
plaintiff’s] misclassification claim.’’ Id. The trial court
in this case then concluded that, ‘‘[a]s in Zimmerman,
the plaintiff’s track selection claim is subsumed by this
regulatory scheme. Although there is no regulation that
classifies tracks on the basis of track selection, such
as the choice of using an exterior or interior track, ‘the
breadth of the scheme implies a decision not to classify
on that basis.’ . . . As part of an overall scheme . . .
that expansively covers railroad track safety . . . the
subject matter of the plaintiff’s claim is clearly ‘covered’
and ‘substantially subsumed’ by these federal regula-
tions. . . . The plaintiff’s track selection claim is there-
fore preempted by this regulatory scheme.’’ (Citations
omitted; emphasis in original.)
We disagree that the foregoing analysis from Zim-
merman is applicable to the plaintiff’s claim in the
present case. Unlike Zimmerman, the claim in this case
is not based on an area that is clearly covered by the
federal regulations. In Zimmerman, it was undisputed
that the regulations dictate whether a track is classified
as class one, two or three on the basis of various factors
set forth in those regulations. Zimmerman v. Norfolk
Southern Corp., supra, 706 F.3d 179. It was also undis-
puted in Zimmerman that the basis of the claim at
issue was whether the defendant properly classified
the track. Id., 187. In Zimmerman, the plaintiff’s claim
essentially sought to impose another factor into the
decision of how to classify tracks—namely, the sight
distance of a particular track. Id. In concluding that the
claim in Zimmerman was preempted, the Third Circuit
concluded that the regulations already covered and sub-
sumed the factors by which a track should be classified
as class one, two or three. Id.
Indeed, as the United States Court of Appeals for
the Fifth Circuit has explained, preemption under the
railroad act ‘‘is even more disfavored than preemption
generally. . . . The restrictive terms of its preemption
provision [indicate] that [preemption] will lie only if the
federal regulations substantially subsume the subject
matter of the relevant state law. . . . When applying
[railroad act] preemption, the [c]ourt eschews broad
categories such as railroad safety, focusing instead on
the specific subject matter contained in the federal regu-
lation. . . . In sum, when deciding whether the [rail-
road act] preempts state laws designed to improve
railroad safety, we interpret the relevant federal regula-
tions narrowly to ensure that the careful balance that
Congress has struck between state and federal regula-
tory authority is not improperly disrupted in favor of
the federal government.’’ (Citations omitted; emphasis
in original; footnote omitted; internal quotation marks
omitted.) United Transportation Union v. Foster, 205
F.3d 851, 860 (5th Cir. 2000).
In the present case, the regulations do not differenti-
ate between interior or exterior tracks and, most cer-
tainly, do not provide a set of factors by which interior
or exterior tracks are chosen. Accordingly, the regula-
tions do not cover the selection of interior or exterior
tracks. Unlike the trial court, we are not persuaded that
the failure to address the selection of interior or exterior
tracks implies a decision not to differentiate between
the two. As the case law we have discussed herein
demonstrates, in light of the limited preemption provi-
sion in the railroad act, the mere exclusion of a topic
from the federal regulations does not imply an intent
to preempt state law on that topic.
On the basis of the foregoing, although we agree
with the trial court that there are extensive federal
regulations that address various topics related to tracks,
we cannot conclude that the subject matter of the plain-
tiff’s negligence claim—namely, the selection of an
exterior track for operating a through train—is ‘‘cov-
ered by’’ a federal regulation. To the contrary, the fed-
eral regulations relating to tracks touch upon, but do
not substantially subsume, the subject matter of the
plaintiff’s complaint.9
Our conclusion is further buttressed by a review of
cases in which a court has found that a federal regula-
tion covers, or substantially subsumes, the subject mat-
ter of a complaint. For instance, in In re Derailment
Cases, 416 F.3d 787, 794 (8th Cir. 2005), the United
States Court of Appeals for the Eighth Circuit concluded
that the plaintiff’s claim alleging negligent inspection
of freight cars was preempted by the railroad act. The
Eighth Circuit concluded that the plaintiff’s claim was
preempted under the railroad act because ‘‘[i]t is clear
that the [federal railway administration’s] regulations
are intended to prevent negligent inspection by setting
forth minimum qualifications for inspectors, specifying
certain aspects of freight cars that must be inspected,
providing agency monitoring of the inspectors, and
establishing a civil enforcement regime. These inten-
tions are buttressed by the [federal railway admin-
istration] inspection manual for federal and state
inspectors.’’ Id.; see also BNSF Railway Co. v. Swan-
son, 533 F.3d 618, 619–20 (8th Cir. 2008) (conclud-
ing that state statute making it illegal to, inter alia,
‘‘discipline, harass or intimidate [a railroad] employee
to discourage the employee from receiving medical
attention’’ was preempted by federal regulation mandat-
ing that railroads adopt policy statement declaring that
‘‘harassment or intimidation of any person that is calcu-
lated to discourage or prevent such person from receiv-
ing proper medical treatment or from reporting such
accident, incident, injury or illness will not be permitted
or tolerated’’ [emphasis omitted; internal quotation
marks omitted]), citing 49 C.F.R. § 225.33 (a) (1) (2008).
As these cases demonstrate, courts have found preemp-
tion under the railroad act only when there is a federal
regulation that thoroughly addresses the safety concern
raised in the plaintiff’s complaint, not merely mentions
it or tangentially relates to it. See CSX Transportation,
Inc. v. Easterwood, supra, 507 U.S. 664–65 (regulations
cover subject matter of plaintiff’s complaint when they
‘‘comprise, include, or embrace [that concern] in an
effective scope of treatment or operation’’ [internal quo-
tation marks omitted]).
The defendant further asserts that the plaintiff’s claim
is preempted because, although framed as a claim relat-
ing to track selection, it is essentially an excessive speed
claim, which is preempted by the railroad act. We
disagree.
It is well established that there are federal regulations
that cover the subject matter of train speed with respect
to track conditions. See id., 675 (‘‘concluding that rele-
vant regulation ‘‘should be understood as covering the
subject matter of train speed with respect to track con-
ditions, including the conditions posed by grade cross-
ings’’), citing 49 C.F.R. § 213.9 (a) (1992). To be clear, the
plaintiff in this case does not assert that the defendant
violated a federal standard of care because the train was
not traveling above the speed limit. Cf. Zimmerman v.
Norfolk Southern Corp., supra, 706 F.3d 179. Accord-
ingly, if the plaintiff’s claim was based on the speed of
the train, it would be preempted by the railroad act
because all parties agree that the train was traveling
within the established speed limit.10
The plaintiff claims that the defendant ‘‘violated prac-
tices and customs with respect to track selection by
moving a through train traveling in excess of seventy
miles per hour on the track immediately adjacent to
the platform when reasonable care and general practice
of [the defendant] required that train to be on an interior
track away from the platform.’’ The defendant asserts
that this ‘‘can only be characterized as a speed claim.’’
We disagree.
We find Dresser v. Union Pacific Railroad Co., 282
Neb. 537, 809 N.W.2d 713 (2011), instructive. In Dresser,
a motor vehicle passenger who was injured in a collision
with a train brought a state law negligence action
against the railroad company. Id., 538. The complaint
alleged that the train crew was negligent in failing to
maintain a proper lookout, failing to slow or stop the
train to avoid the collision, and failing to sound the
horn. Id., 540. The trial court concluded that the plain-
tiff’s claim was preempted. Id., 541. The trial court rea-
soned that the engineer’s failure to exercise ordinary
care to avoid the accident by failing to slow or stop the
train was essentially an excessive speed claim, which
was preempted by the railroad act. Id., 549.
The Supreme Court of Nebraska reversed the judg-
ment of the trial court. Id., 553. In doing so, the Supreme
Court of Nebraska reasoned: ‘‘We do not agree with
the [trial] court that appellants’ state law negligence
claim based on [the railroad’s] alleged failure to exer-
cise ordinary care once it appeared that a collision
would probably occur is speed based and thus pre-
empted. State tort law is not preempted ‘until’ a federal
regulation ‘cover[s]’ the same subject matter, and we
are not presented with any federal regulations that
cover a railroad’s duty to exercise ordinary care in
situations where collisions are imminent. The mere fact
that the speed the train is traveling is tangentially
related to how quickly it can be stopped does not trans-
form the claim into an excessive speed claim. Nebraska
tort law duties to exercise reasonable care could be
violated even if the federal train speed limits are being
followed.’’ (Footnote omitted.) Id.
Similarly, in Bashir v. National Railroad Passenger
Corp., 929 F. Supp. 404, 412 (S.D. Fla. 1996), aff’d sub
nom. Bashir v. Amtrak, 119 F.3d 929 (11th Cir. 1997),
the United States District Court for the Southern Dis-
trict of Florida concluded that a plaintiff’s state law
negligence claims based on a failure to stop was not
preempted by the railroad act. The railroad had asserted
that the failure to stop claims were covered by the
federal regulations on excessive speed. Id. The court
rejected that claim, reasoning that the railroad was
‘‘quite correct’’ that the relevant regulation; see 49
C.F.R. § 213.9 (1993); ‘‘preempts inconsistent state laws
regarding speed. As the [c]ourt understands [the]
[p]laintiff’s negligent failure to stop claims, however,
they are not necessarily inconsistent with [that regula-
tion]. This section simply prescribes the maximum
speed at which trains may operate given certain track
types and conditions. It is silent as to the instances
in which a train must stop to avoid colliding with an
obstruction on the tracks. State laws that direct a train
to stop when, for instance, a child is standing on the
tracks do not conflict with federal speed limits that
prescribe the speed at which the same train may travel
in normal circumstances on the same track. Indeed, if
[the railroad’s] position were correct, railroads would
be insulated from state tort liability regardless of
whether a train attempted to stop to avoid even the
most obvious obstructions, simply because federal law
prescribes the speed at which they may travel absent
obstructions. Easterwood does not support this result.’’
Bashir v. National Railroad Passenger Corp., supra,
412.
Like the claims in Dresser and Bashir, the speed of
the train in the present case is tangentially related to
the plaintiff’s claim. In other words, the plaintiff’s claim
alleges that the defendant was negligent in choosing to
operate a train that did not stop at the Noroton Heights
station on the track immediately adjacent to the plat-
form. Because the plaintiff’s claim relates to the fact
that the train did not stop at the Noroton Heights station,
the speed of that train is tangentially related to the
plaintiff’s claim. As the courts in Dresser and Bashir
explained, title 49 of the Code of Federal Regulations,
§ 213.9, prescribes only the maximum speed at which
trains may operate on certain track classifications.
Nothing in that regulation covers the subject of the
plaintiff’s claim—namely, whether it is negligent to
operate a through train on a track immediately adjacent
to the platform when another track is available. Accord-
ingly, we disagree that the plaintiff’s claim is essentially
an excessive speed claim that is preempted by the rail-
road act.
In light of the presumption against preemption, the
narrow preemption provision in the railroad act, the
express acknowledgment in title 49 of the Code of Fed-
eral Regulations, § 213.1, that the federal regulations
provide the minimum safety standards, and the lack
of a regulatory provision expressly addressing track
selection, we cannot conclude that the defendant has
met its burden of demonstrating that the plaintiff’s claim
was preempted under the railroad act. Accordingly, we
conclude that the trial court improperly granted the
defendant’s motion for summary judgment.
The judgment is reversed and the case is remanded
with direction to deny the defendant’s motion for sum-
mary judgment and for further proceedings according
to law.
In this opinion the other justices concurred.
1
Although the plaintiff also brought claims against the town of Darien
and Wilton Enterprises, Inc., she has subsequently withdrawn those claims.
For the sake of simplicity, we refer to Metro-North Commuter Railroad
Company as the defendant.
2
During the underlying proceedings, the defendant asserted that the Inter-
state Commerce Commission Termination Act, 49 U.S.C. § 10101 et seq.,
also preempted the plaintiff’s negligence claims. The defendant has with-
drawn that claim, and, therefore, we do not address it in the present appeal.
3
We note that the plaintiff amended her complaint five times. The opera-
tive complaint was filed on March 21, 2017.
4
The plaintiff appealed from the judgment of the trial court to the Appellate
Court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
5
To the extent that the trial court’s decision can be read to conclude that
the plaintiff’s negligence claim relating to track selection is preempted by
the railroad act solely because ‘‘there is no federal standard of care for the
defendant to have violated,’’ we disagree. Instead, we conclude that, under
the two part test adopted by federal courts, if there is no express regulation
governing the subject area of the plaintiff’s complaint, the court must next
consider whether there is a federal regulation or order covering the subject
matter of state law related to the plaintiff’s claim in order to resolve the
question of preemption. Indeed, both parties agree on the applicable test.
6
We recognize that CSX Transportation, Inc. v. Easterwood, supra, 507
U.S. 661–65, was decided prior to the 2007 amendment to the preemption
provision in the railroad act. Nevertheless, it is well established that the
interpretation of the preemption provision in Easterwood remains good law
for the purpose of interpreting 49 U.S.C. § 20106 (a). See, e.g., Zimmerman
v. Norfolk Southern Corp., supra, 706 F.3d 177–78.
7
As noted subsequently in this opinion, a separate claim that the railroad
had failed to remove excessive vegetation from the area surrounding the
crossing was the subject of further proceedings on remand. See Shanklin
v. Norfolk Southern Railway Co., 369 F.3d 978, 987 (6th Cir. 2004).
8
In Haynes v. National Railroad Passenger Corp., supra, 423 F. Supp.
2d 1073, the railroad also asserted that the plaintiffs’ claims were preempted
under the commerce clause of the United States constitution because
allowing states to regulate these areas would place an undue burden on the
flow of commerce across state borders. See U.S. Const., art. I, § 8, cl. 3.
The court concluded that the plaintiffs’ claims regarding seats and seat
configuration were preempted under a dormant commerce clause analysis
but that the plaintiffs’ claims relating to the railroad’s duty to warn passen-
gers were not. Haynes v. National Railroad Passenger Corp., supra, 1083–84.
9
We also note that, in California, the California High-Speed Train Proj-
ect regulates track selection for through trains and has done so for almost
ten years. See California High-Speed Train Project, ‘‘Technical Memoran-
dum 2.2.4: High-Speed Train Station Platform Geometric Design’’ (2010)
p. 11, available at http://www.hsr.ca.gov/docs/programs/eir_memos/Proj_
Guidelines_TM2_2_4R01.pdf (last visited July 3, 2019). This memorandum
provides that, ‘‘[w]here practical, do not locate the platform adjacent to
mainline high-speed tracks. If this is not possible, passenger access to plat-
forms adjacent to tracks where trains may pass through stations without
stopping may require mitigation . . . .’’ Id. The existence of the regulatory
scheme in California further supports our conclusion that the railroad act
does not preempt state law governing track selection.
10
The plaintiff’s initial complaint included a claim that the defendant
‘‘failed to maintain a proper operating speed of the train . . . .’’ The defen-
dant subsequently filed motions in limine seeking to preclude the plaintiff
from offering any evidence, testimony, or argument regarding a claim of
negligence based on the speed of the train and any evidence, testimony, or
argument regarding any claim preempted by the railroad act or the Interstate
Commerce Commission Termination Act. The trial court granted the defen-
dant’s motions. Thereafter, the plaintiff filed the operative complaint, which
does not contain any claim related to the speed of the train. Indeed, the
plaintiff concedes that ‘‘the sole remaining theory of negligence is limited
to track selection.’’