A New Mexico federal judge recently granted a BNSF summary judgment motion that plaintiff’s ballast claims are preempted by federal law. The Westlaw cite for this opinion is Sanchez v. BNSF Railway Company, CIV No. 12-0377 LH/LFG,2013 WL 5567998 (D.N.M. Sept. 30, 2013). This case involves an employee of Savage who slipped and fell while refueling a BNSF locomotive in the Belen yards outside of Albuquerque, N.M. Plaintiff claimed substantial personal injuries. The court granted summary judgment for BNSF, finding that plaintiff’s lawsuit, which was primarily based on a claim that the ballast was too large, was preempted.

The court noted that the Secretary of Transportation has promulgated regulations regarding the use of ballast, and the court adopted with approval the reasoning of the Sixth Circuit Court of Appeals in Nickels v. Grand Trunk W. R.R., Inc., 560 F.3d 426 (6th Cir. 2009), that found such federal regulation substantially subsumes the issue of ballast size, therefore wholly precluding plaintiff’s claims against BNSF.

The court also dismissed Plaintiff’s argument that BNSF’s selection of ballast had not complied with the engineering standards for ballast promulgated by the American Railway Engineering and Maintenance of Way Association (“AREMA”), which Plaintiff claimed constituted a federal safety standard of care. The Court concluded that the AREMA standards are not only not issued by the Secretary of Transportation as required by the federal statute to constitute a federal safety standard of care, but are indeed merely non-binding recommendations. A motion for rehearing was filed by Plaintiff, but denied in late January 2014.

Tim Fields of Modrall, Sperling, Roehl, Harris & Sisk in Albuquerque was assisted in this case and in the summary judgment briefing by Susan Bisong, along with research and writing assistance from Alana De Young.