Carrillo v. ACF Industries, Inc. , 86 Cal. Rptr. 2d 832 ( 1999 )

Opinion

BROWN, J.

Under the supremacy clause of the United States Constitution (art. I, § 8), do federal statutes specifying safety equipment on railroad freight cars preempt a state common law claim for tort damages based on allegedly defective design with respect to such equipment? The Court of Appeal determined federal law did not displace the state action. We conclude otherwise. As interpreted by the United States Supreme Court, the statutes and their implementing regulations reflect a congressional intent to occupy the field regulating railroad safety appliances, thus precluding any state law directed to the same matter, including common law tort claims predicated on design defects. Accordingly, we reverse the Court of Appeal.

Facts

On June 30, 1992, plaintiff Jose Carrillo (plaintiff) was driving a truck for his employer, Amoco Chemical Company. He delivered a truckload of polystyrene pellets to a hopper car—a type of boxcar equipped with roof hatches and funnel-like internal compartments in which small pieces of material can be stored and unloaded through a hinged door in the floor— owned by Wincup Holdings, Inc. The pellets were transferred from the truck to the roof hatches of the railcar by pumping them through a heavy steel hose. On the preceding day and for much of that day, Wincup employees did the actual work of transferring the pellets, using a rope to secure the steel hose to one of the car’s roof hatches. Plaintiff operated the pump from his truck below.

Around noon, Wincup’s employees told plaintiff they were leaving for lunch and would be back in about 30 minutes. They had not returned after half an hour, at which point he noticed pellets overflowing from the top of the railcar. He turned off the truck’s pump motor and waited another 20 minutes. When Wincup’s workers still had not returned, plaintiff decided to reposition the steel hose himself. Climbing a ladder to the top of the lSVa-foot-high car, he untied the rope from the hatch and began to pull the steel hose from the car’s interior. As he did so, the rope securing the hose came free, allowing the hose to hit him. Plaintiff spun backward and off the top of the car, struck a concrete wall alongside the track with both hands before hitting the ground, and sustained extensive wrist, leg and heel injuries.

Plaintiff filed this personal injury suit for tort damages against the railcar manufacturer, ACF Industries, Inc. (defendant), based on strict product liability theories of design defect and failure to warn. He asserted the top walkways on either side of the car’s roof hatches were unsafe because they were not equipped with either a 3 Vi-foot-high railing or a lower railing to which a lanyard and safety harness could be attached to secure a worker atop the car against falls. Neither the federal Safety Appliance Acts (collectively the SAA; see 49 U.S.C. § 20301 et seq.) nor its regulations (see 49 C.F.R. § 231 et seq. (1997)) require these features. Nor does the Federal Railroad Safety Act (FRSA; see 49 U.S.C. § 20101 et seq.).

Following trial, a jury awarded plaintiff $1.4 million in damages. Defendant sought a judgment notwithstanding the verdict on the ground that state tort remedies were preempted by the SAA and the FRSA. The trial court denied the motion. The Court of Appeal affirmed the judgment, holding that federal law did not preempt plaintiff’s action because neither statute specifically addressed the subject of guardrails on hopper cars.

We granted defendant’s petition for review and for the reasons that follow now reverse.

Discussion

Federal preemption “fundamentally is a question of congressional intent . . . .” (English v. General Electric Co. (1990) 496 U.S. 72, 78-79 [110 S.Ct. 2270, 2274-2275, 110 L.Ed.2d 65].) “Pre-emption occurs when Congress, in enacting a federal statute, expresses a clear intent to pre-empt state law, [citation], when there is outright or actual conflict between federal and state law, [citation], where compliance with both federal and state law is in effect physically impossible, [citation], where there is implicit in federal law a barrier to state regulation, [citation], where Congress has legislated comprehensively, thus occupying an entire field of regulation and leaving no room for the States to supplement federal law, [citation], or where the state law stands as an obstacle to the accomplishment and execution of the full objectives of Congress. [Citation.]” (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].) In whichever circumstance the question arises, “we ‘start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’ [Citations.]” (Medtronic, Inc. v. Lohr (1996) 518 U.S. 470, 485 [116 S.Ct. 2240, 2250, 135 L.Ed.2d 700] (Medtronic).) These principles apply with equal force whether the state law takes the form of a legislative enactment or an award of damages through private suit. (San Diego Unions v. Garmon (1959) 359 U.S. 236, 247 [79 S.Ct. 773, 780-781, 3 L.Ed.2d 775]; Texas & Pacific Ry. Co. v. Rigsby (1916) 241 U.S. 33, 41-42 [36 S.Ct. 482, 485, 60 L.Ed. 874]; see Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 521 [112 S.Ct. 2608, 2620, 120 L.Ed.2d 407].)

The SAA, now set forth at 49 United States Code section 20301 et seq., constitutes a series of measures enacted between 1893 and 1910 intended to standardize regulations relating to freight-railcar safety devices for the benefit of workers and passengers. (See, e.g., Illinois Central R.R. Co. v. Williams (1917) 242 U.S. 462, 466-467 [37 S.Ct. 128, 129-130, 61 L.Ed. 437].) As early as 1915, the United States Supreme Court spoke to its preemptive effect. While as a general rule state and federal sovereignties may exercise concurrent jurisdiction and each penalize the same act, that principle “has no application where one of the governments has exclusive jurisdiction of the subject-matter, and therefore the exclusive power to punish. Such is the case here where Congress, in the exercise of its power to regulate interstate commerce, has legislated as to the appliances with which certain instrumentalities of that commerce must be furnished in order to secure the safety of employe[e]s. Until Congress entered this field, the States could legislate as to equipment in such manner as to incidentally affect without burdening interstate commerce. . . . Congress of course could have ‘circumscribed its regulations’ so as to occupy a limited field. [Citations.] 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 employe[e]s.” (Southern Ry. Co. v. R. R. Comm., Indiana (1915) 236 U.S. 439, 446 [35 S.Ct. 304, 305, 59 L.Ed. 661] (Southern).) In sum, “it is sufficient here to say that Congress has so far occupied the field of legislation relating to the equipment of [rail] freight cars with safety appliances as to supersede existing and prevent further legislation on that subject.” (Id. at p. 447 [35 S.Ct. at p. 305].)

Shortly thereafter, the high court cited Southern in reiterating that “the United States has exercised its exclusive powers over interstate commerce so far as to take possession of the field [of rail safety appliances], [and thus] the States no more can supplement its requirements than they can annul them. [Citations.]” (Penna. R. R. Co. v. Pub. Service Comm. (1919) 250 U.S. 566, 569 [40 S.Ct. 36, 37, 63 L.Ed. 1142] (Penna. R. R.).) “So far as the safety equipment of [rail] vehicles is concerned, these Acts operate to exclude state regulation whether consistent, complementary, additional, or otherwise. [Citations.]” (Gilvary v. Cuyahoga Valley Ry. (1934) 292 U.S. 57, 60-61 [54 S. Ct. 573, 574, 78 L.Ed. 1123] (Gilvary); see also Davis v. Manry (1925) 266 U.S. 401, 404-405 [45 S.Ct. 163, 164, 69 L.Ed. 350].) As Justice Holmes succinctly explained, “The subject-matter in this instance is peculiarly one that calls for uniform law . . . .” (Penna. R. R., supra, 250 U.S. at p. 569 [40 S.Ct. at p. 37]; cf. Transportation Union v. Long Island R. Co. (1982) 455 U.S. 678, 687-688 [102 S.Ct. 1349, 1355-1356, 71 L.Ed.2d 547], fns. omitted [“Railroads have been subject to comprehensive federal regulation for nearly a century. . . . There is no comparable history of longstanding state regulation ... of the railroad industry.”].)

That insight is as true now as it was in the glory days of rail a century ago. In our modem rail system, individual freight cars are treated interchangeably as “free runners,” traveling on continent-wide routes and multiple roads in an interstate system that knows no boundaries. “The country’s railroads long ago abandoned the custom of shifting freight between the cars of connecting roads, and adopted the practice of shipping the same loaded car over connecting lines to its ultimate destination. The freight cars of the Nation thus became in essence a single common pool, used by all roads.” (United States v. Allegheny-Ludlum Steel (1972) 406 U.S. 742, 743 [92 S.Ct. 1941, 1944, 32 L.Ed.2d 453]; Southern Pacific Transp. Co. v. I.C.C. (D.C. Cir. 1995) 69 F.3d 583, 585 [314 App.D.C. 419].) Standardization of safety devices is thus vital, and employees depend upon the certainty that at all times and in all weather conditions they “will find them in like place and of like size and usefulness on all cars, from whatever line of railway or section of the country they may come.” (Illinois Central R.R. Co. v. Williams, supra, 242 U.S. at p. 467 [37 S.Ct. at p. 129]; see also Penna. R. R., supra, 250 U.S. at p. 569 [40 S.Ct. at p. 37]; cf. 49 U.S.C. § 20302(b) [railroad carrier may refuse to receive vehicle from connecting carrier that does not comply with SAA].) Permitting state tort claims “would generate precisely those inconsistencies in railroad safety standards that Congressional action was intended to avoid.” (Ouellette v. Union Tank Car Co. (D.Mass. 1995) 902 F.Supp. 5, 10.)

Although the SAA does not expressly define “safety appliances,” the determination whether a particular piece of equipment comes within its purview is a question of law. (See Shields v. Atlantic Coast Line R. Co. (1956) 350 U.S. 318, 322-325 [76 S.Ct. 386, 390-391, 100 L.Ed. 364] (Shields); Hercules, Inc. v. Eilers (Tex.Civ.App. 1970) 458 S.W.2d 221, 228-229.) “[A]s a practical matter, the central function of every device identified in the Act is safety: hand holds, running boards, hand brakes, automatic couplers, [and ladders].” (Jordan v. Southern Ry. Co. (4th Cir. 1992) 970 F.2d 1350, 1354 (Jordan), see 49 U.S.C. § 20302(a)(1); see also 49 C.F.R. § 231 et seq.) Since Congress “has so far occupied the field” (Southern, supra, 236 U.S. at p. 447 [35 S.Ct. at p. 305]), “the categories of safety appliances created by [the SAA] . . . should be broadly read to include every device falling within that category, even if the Secretary of Transportation has not seen fit to standardize a particular type or use of that device.” (Jordan, supra, 970 F.2d at p. 1354.)

On this point, we find the analysis in Shields, supra, 350 U.S. 18, instructive. There, the plaintiff sustained injuries when a platform board attached to the dome of a tank car broke; the question was “whether this device, which for convenience we shall call a dome running board, is a safety appliance within the meaning” of the SAA. (Shields, supra, 350 U.S. at p. 319 [76 S.Ct. at p. 388].) Although regulations promulgated by the Interstate Commerce Commission did specify “in detail for one running board running around the perimeter, or at least the full length of the sides, of tank cars,” neither the SAA nor the regulations made mention of “dome running boards.” (Id. at pp. 320-321 [76 S.Ct. at p. 389], fn. omitted.) The Supreme Court did not find this conclusive. “[T]here is no showing that the regulations purport to exhaust by implication each category of statutory appliances listed in [the SAA]. Omission of dome running boards of itself shows no more than that the Commission has not standardized all possible running boards within the [SAA].” (Id. at p. 322 [76 S.Ct. at p. 390].) Instead, the court took a pragmatic approach and found that dome running boards served the same purpose and function as the running boards standardized in the regulations and that railroad employees considered them as such. (Id. at p. 321 [76 S.Ct. at p. 389].) Given this parity, the court concluded they came within the meaning of “running boards” as used in the SAA. (Ibid.)

Here, plaintiff asserts defendant should have incorporated a guardrail in the design of its hopper car. Applying the analysis in Shields, such equipment plainly comes within the SAA. (Cf. Silkwood v. Kerr-McGee Corp. (1984) 464 U.S. 238, 250-255 [104 S.Ct. 615, 622-625, 78 L.Ed.2d 443] (Silkwood) [field of nuclear safety regulation does not include remedies for violations, therefore state law actions not preempted].) Like handholds and grab holds, and even running boards and sill steps, guardrails allow a worker to maintain stable and secure footing while performing tasks on the railcar. Current regulations support this view. Although guardrails are not specified for hopper cars (see 49 C.F.R. §§ 231.1, 231.27, 231.28 (1997)), they are required on tank cars. (49 C.F.R. §§ 231.7(f), 231.8(h) (1997).) For tank cars with side platforms, they are an alternative to tank-head handholds. (49 C.F.R. § 231.7(e)(1).) Accordingly, we conclude the SAA precludes state regulation of guardrails on rail freight cars “whether consistent, complementary, additional, or otherwise” (Gilvary, supra, 292 U.S. at pp. 60-61 [54 S.Ct. at p. 574]) and thus preempts plaintiff’s cause of action. (Southern, supra, 236 U.S. at p. 447 [35 S.Ct. at p. 305].)¹

Plaintiff makes several arguments against this conclusion, none of which are persuasive. Citing language in Atlantic Coast Line v. Georgia (1914) 234 U.S. 280 [34 S.Ct. 829, 58 L.Ed. 1312] (Atlantic), he argues that Southern, supra, 236 U.S. 439, should be read narrowly to preempt only regulation of safety appliances expressly required by the SAA. Atlantic involved a state law prescribing a certain type of headlight for locomotives. To avoid this requirement, the defendant railroad invoked the SAA. Although the SAA regulated sill steps, hand brakes, ladders, running boards, and handholds, the Supreme Court found that “none of these acts provides regulations for locomotive headlights.” (Atlantic, supra, 234 U.S. at p. 293 [345 S.Ct. at p. 832].) It thus determined Congress had not intended “to supersede the exercise of the State’s police power with respect to this subject. . . .” (Id. at p. 294 [34 S.Ct. at p. 833].)

We are unconvinced Atlantic controls our interpretation of Southern. First, it would appear locomotive headlights could not reasonably be classified with any of the safety appliances enumerated in the SAA. (See Southern, supra, 236 U.S. at p. 446 [35 S.Ct. at p. 305] [citing Atlantic as a case in which Congress has occupied a “limited field”].) Neither the statute nor the regulations referred to lights of any type or any comparable equipment. By contrast, guardrails are plainly safety appliances by virtue of both their function and the regulatory agency’s designation. Moreover, the Supreme Court in Southern chose to speak expansively and categorically regarding congressional intent to occupy the field: “ ‘[T]he legislation of Congress, in what it does prescribe, manifestly indicates that it does not intend that there shall be any farther legislation to act upon the subject-matter. Its silence as to what it does not do, is as expressive of what its intention is as the direct provisions made by it. . . the will of Congress upon the whole subject is as clearly established by what it had not declared, as by what it has expressed.’ ” (Southern, supra, 236 U.S. at p. 447 [35 S.Ct. at p. 305].) Plaintiff’s contrary theory that the SAA preempts only the limited class of devices expressly enumerated conflates field preemption with conflict preemption. (See id. at p. 448 [35 S.Ct. at p. 306].)

In a similar vein, plaintiff contends that in Terminal Assn. v. Trainmen (1943) 318 U.S. 1, 4-5 [63 S.Ct. 420, 422, 87 L.Ed. 571] (Terminal), the Supreme Court clarified it intended a narrow holding in Penna. R. R., supra, 250 U.S. 566. In Terminal, state law required the provision of caboose cars for railroad employees performing terminal services. As in Atlantic, this did not involve a matter addressed either by Congress or the Interstate Commerce Commission. (Terminal, supra, 318 U.S. at p. 4 [63 S.Ct. at p. 422]; see also Atlantic, supra, 234 U.S. at pp. 293-294 [34 S.Ct. at pp. 832-833].) In other words, it did not implicate regulation of any safety appliance.

Plaintiff also cites Napier v. Atlantic Coast Line Railroad Co. (1926) 272 U.S. 605 [47 S.Ct. 207, 71 L.Ed. 432], In that case, state laws prohibited use of locomotives not equipped with automatic doors to fireboxes to protect railroad firemen from exposure to extremes of heat and cold and cab curtains to shield engineers and firemen against winter weather. The Supreme Court found the requirements preempted under the Boiler Inspection Act, which “extends to the design, the construction, and the material of every part of the locomotive and tender and of all appurtenances.” (Id. at p. 611 [47 S.Ct. at p. 209]; see 49 U.S.C. § 20701 et seq.) In passing, the court found no preemption under the SAA, “since its requirements are specific.” (Ibid.) Plaintiff would read this observation out of context. The court made the statement in reference to the question, “Does the legislation of Congress manifest the intention to occupy the entire field of regulating locomotive equipment?” (Ibid.) The regulations at that time required that interstate locomotives be equipped with a variety of devices. (See id. at pp. 608-609 & fn. 1 [47 S.Ct. at p. 208]; but see 49 U.S.C. § 20302(a)(4) [current version of SAA addresses only locomotive brakes].) None, however, concerned any equipment relating to the working conditions of engineers or firemen. This distinction in coverage—reflecting congressional intent—would account for the court’s conclusion the SAA did not preempt state law. (See also Atlantic, supra, 234 U.S. at pp. 293-294 [34 S.Ct. at pp. 832-833].) Plaintiff’s unduly narrow reading also disregards the teachings of Southern, Penna. R. R., and Gilvary.

Plaintiff notes that in Rucker v. Norfolk & W. Ry. Co. (1979) 77 III.2d 434 [33 III.Dec. 145, 396 N.E.2d 534], involving a design defect tort action for failure to equip a railroad tank car with a protective “headshield,” the Illinois Supreme Court found “no indication in the Federal regulations that the preemption of State tort law was intended [despite the presence of Federal regulations on the subject].” (Id. at p. 440 [396 N.E.2d at p. 537].) We are unpersuaded by this conclusory preemption analysis. (See Ouellette v. Union Tank Car Co., supra, 902 F.Supp. at p. 11.) In our view, the Rucker court failed to account for the guiding principles articulated in Southern and Penna. R. R.²

Nor does Silkwood, supra, 464 U.S. 238, or Medtronic, supra, 518 U.S. 470, assist plaintiff’s position. He argues these decisions “demonstrate[] the anti-preemption stance taken by the Supreme Court in recent years.” In actuality, and consistent with our interpretation of the SAA, they simply illustrate the proper application of three interrelated principles of the preemption doctrine: that courts “start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear manifest purpose of Congress” (Rice v. Santa Fe Elevator Corp. (1947) 331 U.S. 218, 230 [67 S.Ct. 1146, 1152, 91 L.Ed. 1447]); that preemption “fundamentally is a question of congressional intent” (English v. General Electric Co., supra, 496 U.S. at pp. 78-79 [110 S.Ct. at p. 2275]); and that “whether Congress and its commissions acting under it have so far exercised the exclusive jurisdiction that belongs to it as to exclude the State, must be answered by a judgment upon the particular case.” (Penna. R. R., supra, 250 U.S. at p. 569 [40 S.Ct. at p. 37].)

In Medtronic, the high court confronted an express preemption provision contained in the Medical Device Amendments of 1976 (MDA), which the defendant contended preempted a state common law negligence action for manufacturing an allegedly defective medical device. The court first rejected the argument the statute precluded all common law claims. “If Congress intended such a result, its failure even to hint at it is spectacularly odd, particularly since Members of both Houses were acutely aware of ongoing product liability litigation.” (Medtronic, supra, 518 U.S. at p. 491 [116 S.Ct. at p. 2253], fn. omitted.) With respect to the plaintiffs’ specific claims, the court also found no preemption under the MDA or its implementing regulations. “Unlike the statute construed in Cipollone, for instance, pre-emption under the MDA does not arise directly as a result of the enactment of the statute; rather, in most cases a state law will be pre-empted only to the extent that the [federal Food and Drug Administration] has promulgated a relevant federal ‘requirement.’ ” (Id. at p. 496 [116 S.Ct. at p. 2255].) No such “requirement” applied to the device in question; therefore, the state action was permitted. (Id. at pp. 496-497 [116 S.Ct. at p. 2256].)

Here, we have a case of field preemption, which by definition means congressional intent generally extends beyond the express terms of the statute and regulations to all aspects coming within their contemplation. (Southern, supra, 236 U.S. at pp. 446-447 [35 S.Ct. at p. 305].) Like the other devices itemized in the SAA, guardrails are safety appliances, which the designated regulatory authority has prescribed for some railcars and not for others. This determination leaves no place for state common law actions, “consistent, complementary, additional, or otherwise.” (Gilvary, supra, 292 U.S. at p. 61 [54 S.Ct. at p. 574].)

In Silkwood, the heir of a nuclear laboratory worker brought state law tort claims for strict liability and negligence based on the decedent’s excessive exposure to plutonium. The jury verdict in favor of the plaintiff included an award of punitive damages, which the defendant contended was precluded under the Atomic Energy Act. After a careful examination of the statutory and regulatory scheme, the Supreme Court found a contrary congressional intent. (Silkwood, supra, 464 U.S. at pp. 250-255 [104 S.Ct. at pp. 622-625].) By subsequent enactment of the Price-Anderson Act, Congress “assumed that persons injured by nuclear accidents were free to utilize existing state tort law remedies.” Considering the historical record, “[t]his was true even though Congress was fully aware of the [Nuclear Regulatory] Commission’s exclusive . . . authority over safety matters.” (Id. at pp. 252-253 [104 S.Ct. at p. 624].) Thus, while federal law controlled the formulation of nuclear safety standards (see id. at pp. 250-251 [104 S.Ct. at p. 622]), state law compensation remained available in the event of radiation accidents. (Id. at pp. 251-252 [104 S.Ct. at p. 623].)

In contrast, the SAA contains no evidence Congress assumed or intended state remedies for design defects would be preserved. Given the goal of national uniformity, allowing such claims would substantially impair its function. As Judge Kozinski expounded in Law v. General Motors Corp., supra, 114 F.3d at pages 910-911: “Apart from compensating victims of accidents for their injuries, the purpose of tort liability is to induce defendants to conform their conduct to a standard of care established by the state. [Citation.] A railroad equipment manufacturer found to have negligently designed a braking system, for example, is expected to modify that system to reduce the risk of injury. If the manufacturer fails to mend its ways, its negligence may be adjudged willful in the next case, prompting a substantial punitive damages award. If each state were to adopt different liability-triggering standards, manufacturers would have to sell locomotives and cars whose equipment could be changed as they crossed state lines, or adhere to the standard set by the most stringent state. Either way, Congress’s goal of uniform, federal railroad regulation would be undermined. [Citation.]” (Cf. Gade v. National Solid Wastes Management Assn. (1992) 505 U.S. 88, 103 [112 S.Ct. 2374, 2385, 120 L.Ed.2d 73] [“ ‘A state law also is pre-empted if it interferes with the methods by which the federal statute was designed to reach th[at] goal.’ [Citation.]”].)

This observation suggests an additional concern considering the national dimension of rail transportation. Should safety requirements imposed by individual states conflict, they could create an unconstitutional burden on interstate commerce. (See, e.g., Bibb v. Navajo Freight Lines (1959) 359 U.S. 520 [79 S.Ct. 962, 3 L.Ed.2d 1003]; Southern Pacific Co. v. Arizona (1945) 325 U.S. 761 [65 S.Ct. 1515, 89 L.Ed. 1915].) “A State which insists on a design out of line with the requirements of almost all the other States may sometimes place a great burden of delay and inconvenience on those interstate [transporters] entering or crossing its territory.” (Bibb v. Navajo Freight Lines, supra, 359 U.S. at pp. 529-530 [79 S.Ct. at p. 968].) Absent uniform federal standards for safety appliances, such potential is inherent in the “free runner” system by which freight cars are readily interchanged throughout the country.³

Conclusion

“The principle to be derived from our decisions is that federal regulation of a field of commerce should not be deemed preemptive of state regulatory power in the absence of persuasive reasons—either that the nature of the regulated subject matter permits no other conclusion, or . . . Congress has unmistakably so ordained.” (Florida Avocado Growers v. Paul (1963) 373 U.S. 132, 142 [83 S.Ct. 1210, 1217, 10 L.Ed.2d 248].) Because the SAA “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” (Rice v. Santa Fe Elevator Corp., supra, 331 U.S. at p. 230 [67 S.Ct. at p. 1152]), we find both of these grounds present in this case, where plaintiff’s cause of action is based upon an alleged defective design of a railcar for failure to include a safety appliance not prescribed by the statute or its implementing regulations.⁴

Disposition

The judgment of the Court of Appeal is reversed and the matter remanded for further proceedings consistent with this opinion.

George, C. J., Kennard, J., Baxter, J., Werdegar, J., and Chin, J., concurred.

1 This conclusion extends to plaintiffs failure-to-wam claim as well. “As for warning requirements, these too are within the scope of the [Secretary of Transportation’s] authority—an authority which the Secretary has often invoked. [Citations.]” (Law v. General Motors Corp. (9th Cir. 1997) 114 F.3d 908, 911.)

2 Other decisions plaintiff relies on are distinguishable: In each instance, the court found that the equipment in question did not come within any of the categories of devices set forth in the SAA. (See Moses v. Union Pacific R.R. (8th Cir. 1995) 64 F.3d 413, 418 [pull plate]; Jordan, supra, 970 F.2d at p. 1354 [door and ratchet mechanism]; Hercules, Inc. v. Eilers, supra, 458 S.W.2d at p. 299 [dome lid].) In both Jordan and Hercules, the courts reached their conclusions applying the analysis in Shields, supra, 350 U.S. 318. (Jordan, supra, 970 F.2d at pp. 1353-1354; Hercules, Inc. v. Eilers, supra, 458 S.W.2d at pp. 228-299.)

3 The Court of Appeal also held plaintiff’s common law tort judgment was not preempted by the FRSA. The House report accompanying the bill that became the FRSA noted that “[o]ver the years there have been several enactments . . . dealing with certain phases of railroad safety,” including the “Safety Appliance Acts, Signal Inspection Acts, Ash Pan Act, Locomotive Inspection Act, Accidents Report Act, and the Hours of Service Act.” (1970 U.S. Code Cong. & Admin. News, at p. 4105.) “These particular laws have served well,” the report concluded; “[i]n fact the committee chose to continue them without change.” (Ibid.) Because Congress continued the SAA intact and unmodified within its historic regulatory area, our conclusion as to its preemptive effect is not affected by passage of the FRSA. Since the SAA preempts plaintiff’s tort claim, we have no occasion to consider whether the FRSA does also.

4 Our holding applies only to the narrow facts before us; we do not determine the SAA’s preemptive effect with respect to any other types of action. We note that under the Federal Employers’ Liability Act of 1908 (45 U.S.C. § 51 et seq.) an injured railroad employee may bring a cause of action without proof of negligence based on failure of the SAA-mandated safety appliances to function. (See Crane v. Cedar Rapids & I. C. R. Co. (1969) 395 U.S. 164, 166 [89 S.Ct. 1706, 1708, 23 L.Ed.2d 176]; cf. A. T. & S.F. Ry. v. Scarlett (1937) 300 U.S. 471, 474 [57 S.Ct. 541, 543, 81 L.Ed. 748] [strict liability applies only when injurious safety appliance is clearly within SAA].) When such strict liability does not apply, i.e., the injury does not result from defective equipment covered by the SAA, the employee must establish common law negligence. (See Jordan, supra, 970 F.2d at p. 1354.) The Supreme Court has also recognized that the SAA imposes a duty on railroads extending to nonemployee travelers at railway/highway crossings (see Fairport R. Co. v. Meredith (1934) 292 U.S. 589, 597 [54 S.Ct. 826, 829, 78 L.Ed. 1446]), who must bring a common law tort action in state court (absent diversity) and must prove negligence. (Crane v. Cedar Rapids & I. C. R. Co., supra, 395 U.S. at p. 166 [89 S.Ct. at p. 1708].)