The Kansas City Southern Railway Company v. Angela Horton and Kevin Houser

Supreme Court of Texas
══════════
No. 21-0769
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Angela Horton and Kevin Houser,
Petitioners,

v.

The Kansas City Southern Railway Company,
Respondent

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fifth District of Texas
═══════════════════════════════════════

Argued January 31, 2023

JUSTICE BOYD delivered the opinion of the Court, in which Chief
Justice Hecht, Justice Lehrmann, Justice Devine, Justice Busby, Justice
Bland, and Justice Huddle joined, and which Justice Blacklock and
Justice Young joined as to Parts I, II, and III.

JUSTICE BUSBY filed a concurring opinion, in which Justice
Devine, Justice Blacklock, and Justice Young joined.

JUSTICE YOUNG filed a dissenting opinion, in which Justice
Blacklock joined.

Angela Horton and Kevin Houser (together, Horton) sued the
Kansas City Southern Railway Company (KC Southern) for the
wrongful death of their mother, alleging KC Southern negligently
maintained a railroad crossing by raising the crossing grade over time
to form a “humped crossing” and by failing to replace a missing yield
sign. In response to a single broad-form negligence question, the jury
found both parties negligently caused the accident. In response to a
separate question, the jury found the parties equally responsible. The
trial court rendered judgment on the jury’s verdict, awarding Horton
fifty percent of the damages the jury found. The court of appeals held
that the evidence supports a finding that the missing yield sign
proximately caused the accident but that federal law preempts a
negligence claim based on the humped crossing. 666 S.W.3d 1, 9, 10
(Tex. App.—Dallas 2021). Because the appellate court could not
determine which of the two allegations the jury relied on when it found
KC Southern negligent, it reversed the judgment and remanded for a
new trial. Id. at 12.
Both parties sought review, which we granted. On June 30, 2023,
we affirmed the court of appeals’ judgment, but on different grounds. We
held that (1) federal law does not preempt the humped-crossing claim
and (2) no evidence supports the jury’s finding that the absence of the
yield sign proximately caused the accident. Like the court of appeals,
but for the opposite reasons, we concluded that only one of the two
allegations could support the jury’s negligence finding, and we could not
be certain which of the two allegations the jury relied on. We thus agreed
with the court of appeals that the trial court’s use of a broad-form
question to submit the negligence claim constituted harmful error and
that a new trial is required. But unlike the court of appeals, we

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remanded for a new trial on the humped-crossing allegation rather than
on the missing-yield-sign allegation.
Both parties filed motions for rehearing. On December 15, 2023,
we denied KC Southern’s motion and granted Horton’s, which (among
other arguments) urged us to reconsider our holding that the submission
of the broad-form question constituted harmful error. We invited and
received additional briefing on that issue from the parties and from
various amici curiae.1 Having reviewed that briefing and the authorities
they address, we now agree with Horton. As in our original opinion, we
hold that (1) federal law does not preempt the negligence claim based on
the humped-crossing allegation and (2) no evidence supports a finding
that the missing yield sign caused the accident. But we now conclude
that the submission of the broad-form question did not constitute
harmful error in this case. We therefore withdraw our June 30, 2023
opinion and judgment and issue this opinion. Because we do not find
harmful error, we reverse the court of appeals’ judgment and reinstate
the trial court’s judgment.
I.
Background
A KC Southern train collided with Ladonna Sue Rigsby’s pickup
truck as she drove across a railroad track on a rural county road near
her home. The track had been there for over a century, and KC Southern
maintained it by lifting and adding materials under the rails and ties,
incrementally raising the track over the course of many years. This

1 We received amicus briefs on rehearing from (1) the Texas Association

of Defense Counsel and American Trucking Associations, (2) Harvey Brown
and W. Daryl Moore, and (3) David M. Gunn and Russell S. Post.

3
created a “humped crossing,” with the mid-point rising around thirty
inches above the level road thirty feet away. No signal lights, bells, or
barrier gates protected the crossing, but “crossbuck” signs—white,
X-shaped signs reading “Railroad Crossing”—marked the tracks from
both directions. The posts holding those signs also previously included
yield signs, but—for reasons no one could explain—the yield signs were
missing at the time of Rigsby’s accident.
According to a video of the accident recorded by a camera installed
on the train, Rigsby slowed her vehicle to around seven miles per hour
as she approached the track, and then to three or three-and-a-half miles
per hour as she began to ascend the hump. Rigsby, who was deaf in her
left ear, continued to cross the track as if she never saw or heard the
train approaching from her left. She did not survive the collision.
Rigsby’s adult children, Horton and Houser, sued KC Southern,
alleging negligence based on the humped crossing and missing yield
sign. KC Southern filed a summary-judgment motion, asserting, among
other things, that federal law preempts Horton’s claim. The trial court
denied the motion, and KC Southern filed a motion for reconsideration,
arguing federal law preempts Horton’s claim at least to the extent it is
based on the humped crossing. The trial court did not rule on that
motion, and the case proceeded to trial.
The trial court submitted a single broad-form liability question to
the jury, asking whether the negligence of Rigsby or KC Southern
proximately caused the accident. KC Southern objected to the question,
arguing the court should submit two separate negligence questions—
one based on Horton’s humped-crossing allegation and the other on the

4
missing-yield-sign allegation. The trial court overruled that objection.
The jury found both Rigsby and KC Southern negligently caused the
accident and assigned fifty percent of the responsibility to each. The trial
court rendered a final judgment based on the verdict, awarding Horton
$200,000 in damages.
KC Southern appealed, and the court of appeals reversed, with
one justice dissenting. 666 S.W.3d at 4, 25. The court concluded the
evidence supports negligence liability under the yield-sign allegation
but federal law preempts the claim to the extent it is based on the
humped-crossing allegation. Id. at 14–15. Because the court could not
“determine whether the jury rested its liability determination on
[Horton’s] preempted humped crossing theory, which should not have
been submitted, or the missing yield sign theory,” it remanded the case
for a new trial only on the yield-sign allegation. Id. at 18. Horton and
KC Southern both filed petitions for review, which we granted.
II.
Preemption
We begin by addressing whether federal law preempts Horton’s
negligence claim based on the humped crossing.2 The United States
Constitution provides that federal law “shall be the supreme Law of the
Land; and the Judges in every State shall be bound thereby.” U.S.
CONST. art. VI, cl. 2. As a result, federal statutes may preempt state laws
and render them ineffective. Altria Grp., Inc. v. Good, 555 U.S. 70, 76
(2008). They may do this expressly, by declaring that intent on the face

2 KC Southern no longer argues federal law preempts the negligence

claim to the extent it is based on the missing yield sign.

5
of the statute, Arizona v. United States, 567 U.S. 387, 399 (2012), or
impliedly, by demonstrating an intent to “occup[y] the field” or creating
an irreconcilable “conflict,” Cipollone v. Liggett Grp., Inc., 505 U.S. 504,
516 (1992) (first quoting Pac. Gas & Elec. Co. v. State Energy Res.
Conservation & Dev. Comm’n, 461 U.S. 190, 204 (1983); and then
quoting Fid. Fed. Sav. & Loan Ass’n v. De la Cuesta, 458 U.S. 141, 153
(1982)). KC Southern asserts—and the court of appeals agreed—that
provisions of the federal ICC Termination Act of 1995, Pub. L.
No. 104-88, 109 Stat. 803 (1995) (codified at 49 U.S.C. §§ 10101–16106),
expressly and impliedly preempt Horton’s humped-crossing claim. We
disagree. To explain, we describe the ICCT Act and its relevant
provisions, the separate Federal Rail Safety Act and its relationship to
the ICCT Act, and other court decisions addressing preemption under
the ICCT Act before turning to our own preemption analysis.
A. The ICCT Act
Congress enacted the ICCT Act “to reform economic regulation of
transportation, and for other purposes.” 109 Stat. at 803. The Act
amended numerous federal statutes, including Subtitle IV of Title 49 of
the United States Code, which addresses and governs interstate
transportation. Id. at 803–04. Part A of Subtitle IV specifically
addresses rail transportation. 49 U.S.C. §§ 10101–11908. KC Southern’s
contention that the Act preempts Horton’s humped-crossing claim relies
on this part, which we refer to as the Rail Provisions.
As part of its reform of “economic regulation of transportation,”
the ICCT Act abolished the Interstate Commerce Commission and
created a new federal agency called the Surface Transportation Board,
granting it “jurisdiction over transportation by rail carrier that

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is . . . only by railroad” or, in some circumstances, “by railroad and
water.” 109 Stat. at 807; see 49 U.S.C. § 10501(a)(1). More specifically,
Section 10501(b) grants the Surface Transportation Board “exclusive”
jurisdiction over:
(1) transportation by rail carriers, and the remedies
provided in [the Rail Provisions] with respect to rates,
classifications, rules (including car service,
interchange, and other operating rules), practices,
routes, services, and facilities of such carriers; and

(2) the construction, acquisition, operation, abandonment,
or discontinuance of spur, industrial, team, switching,
or side tracks, or facilities, even if the tracks are located,
or intended to be located, entirely in one State.

49 U.S.C. § 10501(b). Immediately following this jurisdictional grant,
the section includes a preemption clause: “Except as otherwise provided
in [the Rail Provisions], the remedies provided under [the Rail
Provisions] with respect to regulation of rail transportation are exclusive
and preempt the remedies provided under Federal or State law.” Id.
(emphasis added).
The Act defines the term “rail carrier” to mean “a person
providing common carrier railroad transportation for compensation.” Id.
§ 10102(5). And it defines the term “transportation” to include a “facility,
instrumentality, or equipment of any kind related to the movement of
passengers or property, or both, by rail” and “services related to that
movement.” Id. § 10102(9). The parties here do not dispute that KC

7
Southern is a “rail carrier” and that its tracks and crossings qualify as
“facilities” or “equipment,” and thus “transportation.”3
B. The Federal Rail Safety Act
The ICCT Act is not the only federal statute that addresses rail
transportation. The Federal Rail Safety Act (the Safety Act) created a
separate statute contained within Subtitle V of Title 49 of the United
States Code. See id. §§ 20101–21311. The Safety Act directly addresses
rail-safety concerns, as its express purpose “is to promote safety in every
area of railroad operations and reduce railroad-related accidents and
incidents.” Id. § 20101. The Safety Act delegates rail-safety regulation
to the federal Secretary of Transportation, not to the Surface
Transportation Board. Id. § 20103. Because Horton alleges the humped
crossing created safety issues, the Safety Act complicates the question
of whether the ICCT Act preempts Horton’s common-law negligence
claim, particularly because the Safety Act contains its own preemption
provisions that explicitly address common-law claims concerning safety
issues.

3 The Second Circuit has held that rail crossings do not qualify as a

“facility” under the Act, see Island Park, LLC v. CSX Transp., 559 F.3d 96, 103
n.9 (2d Cir. 2009), and the Fifth Circuit has expressed similar skepticism, see
Franks Inv. Co. v. Union Pac. R.R. Co., 593 F.3d 404, 411 (5th Cir. 2010). In
this case, the dissenting opinion in the court of appeals expressed a similar
concern that a broad construction of the term “facility” could preclude any state
regulatory authority over any movement—by vehicles, bicycles, or
pedestrians—over a rail crossing. 666 S.W.3d at 20 n.2 (Carlyle, J., dissenting).
Because the parties here do not raise the issue, we assume without deciding
that the Rail Provisions reach rail crossings, although that assumption does
not affect our conclusions regarding the types of state laws Section 10501(b)
preempts.

8
The Safety Act’s preemption provisions permit states to adopt
their own regulations governing rail safety but only if the state
regulation is “not incompatible with” federal regulations and “does not
unreasonably burden interstate commerce.” Id. § 20106(a)(2); see CSX
Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993) (holding federal
regulations adopted under the Safety Act preempt state-law regulations
“if the federal regulations substantially subsume the subject matter of
the relevant state law”). In 2002, however, Congress amended the Safety
Act to “clarify” that nothing in Section 20106 “shall be construed to
preempt an action under State law seeking damages for personal injury,
death, or property damage” if the action alleges that a party (a) “failed
to comply with the Federal standard of care established by a regulation
or order issued by the Secretary of Transportation,” (b) “failed to comply
with its own plan, rule, or standard that it created pursuant to a
regulation or order issued by” the Secretary, or (c) “failed to comply with
a State law, regulation, or order that is not incompatible with
subsection (a)(2).” 49 U.S.C. § 20106(b). As a result, federal rail-safety
regulations can provide the “standard of care by which a defendant’s
actions are judged for negligence.” Gallo v. Union Pac. R.R. Co., 372
F. Supp. 3d 470, 483 (W.D. Tex. 2019) (addressing cases). In the absence
of a federal safety regulation covering the subject matter at issue, the
Safety Act has no preemptive effect. Id. (citing Easterwood, 507 U.S. at
664).
Addressing the relationship between the Safety Act and the ICCT
Act, courts have generally agreed that “the federal statutory scheme
places principal federal regulatory authority for rail safety with the

9
Federal Railroad Administration . . . not the [Surface Transportation
Board]” and thus the Safety Act “provides the appropriate basis for
analyzing whether a state law, regulation or order affecting rail safety
is pre-empted by federal law.” Island Park, 559 F.3d at 107; see BNSF
Ry. Co. v. Hiett, 22 F.4th 1190, 1195–96 (10th Cir.), cert. denied sub
nom. City of Edmond v. BNSF Ry. Co., 142 S. Ct. 2835 (2022). As the
Sixth Circuit explained, the Federal Railroad Administration’s and the
Surface Transportation Board’s “complementary exercise of their
statutory authority accurately reflects Congress’s intent for the [ICCT
Act] and [the Safety Act] to be construed in pari materia,” granting the
Federal Railroad Administration “primary authority over rail safety
matters” and subjecting state laws related to rail safety to “preemption
analysis under the Safety Act,” not under the ICCT Act. Tyrrell v.
Norfolk S. Ry. Co., 248 F.3d 517, 523 (6th Cir. 2001). Moreover, the
Safety Act specifically addresses safety issues affecting “grade crossings
and railroad rights of way,” which it expressly refers to as “the railroad
grade crossing problem.” Iowa, Chi. & E. R.R. Corp. v. Washington
County, 384 F.3d 557, 559 (8th Cir. 2004) (quoting 49 U.S.C. § 20134(a)).
As a result, the Safety Act, rather than the ICCT Act, appears to be the
primary authority governing federal preemption of state-law claims
addressing rail safety and, particularly, the safety of railroad crossings.
But the Safety Act and the ICCT Act have a “complicated”
relationship, particularly “when a state action or common law claim falls
at the intersection of [the ICCT Act’s] realm of economic regulation and
the [Safety Act]’s realm of safety regulation.” Ezell v. Kan. City S. Ry.
Co., 866 F.3d 294, 300 n.6 (5th Cir. 2017). The Surface Transportation

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Board has suggested that “the overwhelming weight of precedent holds
that safety issues are generally governed by [the Safety Act]
preemption.” Jimmy Lee Waneck & Starr Swearingen Waneck, et
al.-Petition for Declaratory Order, FD 36167, 2018 WL 5723286, at *4
(S.T.B. Oct. 31, 2018) [hereinafter Waneck Petition]. Although “there can
be rare cases when both the Safety Act and [the ICCT Act] preemption
may apply,” such cases do not include allegations of unsafe conditions at
a railroad crossing.
KC Southern does not contend the Safety Act preempts Horton’s
humped-crossing negligence claim but instead asserts that the final
sentence of Section 10501(b) of the ICCT Act expressly preempts
Horton’s claim because it would regulate KC Southern’s construction,
repair, and maintenance of the humped crossing. And in the event it
does not, KC Southern contends the Rail Provisions impliedly preempt
such claims. We must thus consider whether these facts provide one of
the circumstances under which the ICCT Act may have a preemptive
effect over a state-law rail-safety claim.
C. Precedent
We are not the first to consider this thorny question. Numerous
courts have addressed the scope of preemption under Section 10501(b)
and have reached varying conclusions. Many have addressed the
question of whether the section preempts state and local legislative
enactments—particularly statutes, regulations, and ordinances—as
opposed to state common-law claims like the negligence claim at issue
in this case. Most of these have concluded Section 10501(b) expressly or

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“completely”4 preempts state and local legislation that attempts to
“regulate,” “manage,” “govern,” or “restrain” a rail carrier’s “operations,”
or at least its operations “in the economic realm.”5 Conversely, others

4 Many federal courts have analyzed preemption under Section 10501(b)

to determine their jurisdiction under the federal removal statute. Under the
“complete preemption doctrine,” a state-law claim arises under federal law and
can be removed to federal court if a federal statute wholly displaces the
state-law claim. See Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 8 (2003).
Although complete preemption and express preemption are not identical
concepts, they are sufficiently similar to each other—and sufficiently distinct
from implied (or “as-applied”) preemption—to render the complete-preemption
cases helpful guidance in this case.
5 See, e.g., Hiett, 22 F.4th at 1192 (holding Section 10501(b) expressly

preempted a state statute regulating trains blocking track crossings because
the statute “regulates railroad operations”); Tex. Cent. Bus. Lines Corp. v. City
of Midlothian, 669 F.3d 525, 533 (5th Cir. 2012) (holding Section 10501(b)
expressly preempted a city ordinance that prevented a rail carrier from
expanding transloading operations because the ordinance dictated
“construction design and layout of railroad tracks” and thus “would frustrate
[the carrier’s] economic decision making”); Elam v. Kan. City S. Ry. Co., 635
F.3d 796, 807 (5th Cir. 2011) (holding Section 10501(b) expressly and
completely preempted a state statute regulating trains blocking track
crossings because the statute “is a direct attempt to manage [the rail carrier’s]
decisions in the economic realm”); Green Mountain R.R. v. Vermont, 404 F.3d
638, 643 (2d Cir. 2005) (holding Section 10501(b) expressly preempted a state
environmental-land-use statute requiring a pre-construction permit for a
transloading facility because the statute restrained a rail carrier from
developing its land); see also State v. CSX Transp., Inc., 200 N.E.3d 215, 220
(Ohio 2022) (holding Section 10501(b) expressly preempted a state statute
regulating trains blocking track crossings because the statute regulates,
manages, and governs rail traffic); A & W Props., Inc. v. Kan. City S. Ry. Co.,
200 S.W.3d 342, 348 (Tex. App.—Dallas 2006, pet. denied) (holding
Section 10501(b) expressly preempted a landowner’s suit to enforce a rail
carrier’s alleged statutory obligation to widen a bridge and culvert to prevent
flooding of the landowners’ land because the statute would regulate rail
operations); Burlington N. & Santa Fe Ry. Co. v. City of Houston, 171 S.W.3d
240, 248–49 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (holding
Section 10501(b) preempted a state statute limiting a rail carrier’s

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have held Section 10501(b) does not expressly preempt state and local
legislation that does not attempt to “regulate” or “interfere with” a rail
carrier’s operations.6
Several courts have also addressed Section 10501(b)’s preemptive
effect on common-law claims, including claims for negligence,7 trespass,

condemnation power and preempted a state paramount-purpose doctrine
because they prevented the rail carrier from constructing and operating a rail
line the Surface Transportation Board had approved).
6 See, e.g., Island Park, 559 F.3d at 103–04 (holding Section 10501(b)

did not expressly preempt a state agency order requiring a rail carrier to close
a private rail crossing because the order did not interfere with the carrier’s
operations); New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 332–33
(5th Cir. 2008) (holding Section 10501(b) did not completely preempt a state
law governing landowners’ access across rail lines because local crossing
disputes typically do not regulate carriers); Iowa, Chi. & E. R.R. Corp., 384
F.3d at 561–62 (holding Section 10501(b) did not expressly preempt a state
statute requiring rail carriers to construct and maintain safe bridges and
crossings, at least absent evidence that the carrier obtains federal funding for
such projects); Fla. E. Coast Ry. Co. v. City of West Palm Beach, 266 F.3d 1324,
1329, 1331 (11th Cir. 2001) (holding Section 10501(b) did not preempt a city
zoning and licensing ordinance as applied to an aggregate company leasing
land from a rail carrier because application “does not constitute ‘regulation of
rail transportation’”).
7 Courts have employed a different analysis when addressing
negligence per se claims based on a rail carrier’s alleged violation of a statute,
regulation, or ordinance, usually holding Section 10501(b) preempts such
claims when they are “based solely on [a] preempted state statute.” Elam, 635
F.3d at 807; see Ezell, 866 F.3d at 299–301 (holding Section 10501(b) expressly
preempted a negligence per se claim alleging violation of an anti-blocking
statute); R.R. Ventures, Inc. v. Surface Transp. Bd., 299 F.3d 523, 563 (6th Cir.
2002) (“Congress intended to preempt the Ohio state statutes, and any claims
arising therefrom, to the extent that they intrude upon the [Surface
Transportation Board’s] exclusive jurisdiction over ‘transportation by rail
carriers’ . . . .”); Friberg v. Kan. City S. Ry. Co., 267 F.3d 439, 443 (5th Cir.
2001) (holding Section 10501(b) preempted a negligence per se claim based on
alleged violations of a state anti-blocking statute because “regulation of KCS

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nuisance, and even inverse condemnation. Some have held that
Section 10501(b) expressly preempted such common-law claims—which
complained of noise and vibrations from a rail carrier’s operations or of
a train’s speed, length, scheduling, use of side tracks, and extended
blocking of crossings—because such claims (like the state and local
legislation discussed above) sought to regulate, manage, or govern a rail
carrier’s operations or rail transportation.8

train operations, as well as the construction and operation of the KCS side
tracks, is under the exclusive jurisdiction of the [Surface Transportation
Board] unless some other provision in the [ICCT Act] provides otherwise”). We
need not and do not address preemption of such negligence per se claims in
this case.
8 See, e.g., Ezell, 866 F.3d at 299–300 (holding Section 10501(b)
expressly preempted a negligence claim based on a train’s blocking of a
crossing because the claim would “economically regulate [the carrier’s]
switching operations” (quoting Elam, 635 F.3d at 807)); Tubbs v. Surface
Transp. Bd., 812 F.3d 1141, 1145–46 (8th Cir. 2015) (holding Section 10501(b)
expressly preempted a landowners’ common-law claims for trespass, nuisance,
negligence, inverse condemnation, and statutory trespass, alleging a rail
carrier built embankments that caused flooding on the landowner’s land,
because the claims “would unreasonably burden or interfere with rail
transportation”); Franks, 593 F.3d at 411 (stating Section 10501(b) would
expressly preempt “a tort suit that attempts to mandate when trains can use
tracks and stop on them” because the suit would “attempt[] to manage or
govern rail transportation in a direct way”); Friberg, 267 F.3d at 444 (holding
Section 10501(b) expressly preempts common-law claims seeking to impose
liability for “a railroad’s economic decisions such as those pertaining to train
length, speed or scheduling”); Rushing v. Kan. City S. Ry. Co., 194 F. Supp. 2d
493, 500 (S.D. Miss. 2001) (holding Section 10501(b) expressly preempted
common-law nuisance and negligence claims complaining of a rail carrier’s
annoying switch-yard operations); Guckenberg v. Wis. Cent. Ltd., 178 F. Supp.
2d 954, 959 (E.D. Wis. 2001) (holding Section 10501(b) expressly preempted a
common-law nuisance claim complaining of a rail carrier’s use of a side track
because the claim would effectively regulate the carrier’s operations); A & W
Props., 200 S.W.3d at 351 (holding Section 10501(b) expressly preempted a
landowner’s common-law nuisance, trespass, and negligence claims seeking to

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Other courts, however, have held that Section 10501(b) does not
expressly preempt common-law claims, for various reasons. Some
concluded the rail carrier’s allegedly negligent conduct was not the type
of “transportation”-related conduct the Rail Provisions address and for
which they provide remedies that carry preemptive power under
Section 10501(b).9 Others focused on the idea that an adverse judgment
on a common-law claim would not necessarily require the carrier to alter
its operations, see Elam, 635 F.3d at 813–14, or observed that a
common-law claim seeking only compensatory damages does not
attempt to “manage” or “govern” operations, even in the “economic
realm,” id. at 813.10 And several concluded that common-law claims, by

force a rail carrier to widen a bridge and culvert to prevent flooding of the
landowners’ land because the claims would regulate the carrier’s operations).
9 See, e.g., Emerson v. Kan. City S. Ry. Co., 503 F.3d 1126, 1131 (10th

Cir. 2007) (holding Section 10501(b) did not expressly preempt claims for
trespass, unjust enrichment, nuisance, and negligence based on a rail carrier’s
alleged dumping of used railroad ties and vegetation in a drainage culvert,
causing flooding to the plaintiffs’ land, because “these acts or omissions are not
‘transportation’ under § 10102(9)”); Rushing, 194 F. Supp. 2d at 501 (holding
although Section 10501(b) expressly preempted negligence and nuisance
claims complaining of noise and vibrations caused by a carrier’s rail-yard
operations, it did not preempt such claims complaining that a carrier’s
construction of a berm to minimize rail-yard noise resulted in flooding the
plaintiff’s property because the carrier’s “design/construction of the berm does
not directly relate to the manner in which the Defendant conducts its switching
activities”).
10 See Elam, 635 F.3d at 813 (holding Section 10501(b) did not expressly

preempt a negligent-failure-to-warm claim by a driver who drove into the side
of a stopped train because a “typical negligence claim seeking damages for a
typical crossing accident (such as the Elams’ simple negligence claim) does not
directly attempt to manage or govern a railroad’s decisions in the economic
realm”); Rushing, 194 F. Supp. 2d at 501 (holding Section 10501(b) did not
expressly preempt negligence and nuisance claims complaining that a carrier’s

15
their nature, do not “directly” address rail-carrier operations and
instead have only an “incidental” effect on rail transportation. See, e.g.,
id. (citing Franks, 593 F.3d at 411).
The Fifth Circuit focused on this direct-versus-incidental
distinction in Franks, holding that Section 10501(b) did not expressly
preempt a landowner’s claim seeking to enforce a covenant in an
easement deed to prevent a rail carrier from removing a track crossing
on the landowner’s land, explaining that the claim was “governed by
Louisiana property laws and rules of civil procedure that have nothing
to do with railroad crossings. Railroads are only affected when the
[easement] happens to cross a railroad.” 593 F.3d at 411. The same court
later applied that distinction to conclude the ICCT Act did not expressly
preempt a negligent-failure-to-warn claim, explaining that, “[l]ike state
property laws and rules of civil procedure that generally ‘have nothing
to do with railroad crossings,’ the effects of state negligence law on rail
operations are merely incidental.” Elam, 635 F.3d at 813 (quoting
Franks, 593 F.3d at 411). As a Texas federal district court explained
when applying this Fifth Circuit approach, although tort claims may
“affect the management or governance of railroads if the railroad
company is the tortfeasor, these claims arise under state common law

construction of a berm to minimize rail-yard noise resulted in flooding the
plaintiffs’ property because “an order by the Court directing the Defendant to
compensate and correct drainage problems resulting from the construction of
the berm would not implicate the type of economic regulation Congress was
attempting to prescribe when it enacted the [ICCT Act]”).

16
and are not intended to regulate railroad transportation even if they
may incidentally affect it.” Gallo, 372 F. Supp. 3d at 480.11
Two other federal district courts within the Fifth Circuit,
however, have addressed “humped crossing” negligence claims like the
one at issue here, and both concluded that Section 10501(b) expressly
preempted such claims. Addressing claims by those injured and killed
when a train struck a tour bus that got stuck on a humped crossing, a
federal district court in Mississippi reasoned that the plaintiffs’
negligent-maintenance claims were “tantamount to a claim regarding
the design and construction of the crossing” and thus “directly attempt
to manage or govern a railroad’s decisions in the economic realm such
as the construction and operation of tracks.” Waneck v. CSX Corp.,
No. 1:17CV106-HSO-JCG, 2018 WL 1546373, at *5 (S.D. Miss. Mar. 29,
2018). Addressing similar claims arising from a similar train–bus
collision, a Texas federal district court reasoned that an adverse
judgment would require “changes in design and construction of railroad
tracks and crossings” and thus would “have the effect of managing or
governing rail transportation in the economic realm.” Voight v. CSX
Transp., Inc., No. 3:17-CV-01018-N, slip op. at 7, 9 (N.D. Tex. June 19,
2017).
A federal district court in Kentucky, however, expressly rejected
the reasoning in Voight and Waneck, concluding that both “cases are

11 See Battley v. Great W. Cas. Ins. Co., No. CIV.A. 14-494-JJB, 2015

WL 1258147, at *4–5 (M.D. La. Mar. 18, 2015) (“[T]he plaintiffs’ negligence
claim [does not] challenge [the carrier’s] general operating procedures,” and a
“judgment for the plaintiffs based on the circumstances presented in this case
would have only an incidental and limited effect on rail transportation.”).

17
inconsistent with Sixth Circuit and Supreme Court law on complete
preemption.” Minton v. Paducah & Louisville Ry., Inc., 423 F. Supp. 3d
375, 383 (W.D. Ky. 2019). And the Surface Transportation Board itself
rejected their reasoning in response to requests for administrative
rulings from the parties involved in Waneck. See Waneck Petition, 2018
WL 5723286, at *4. According to the Board, the question of federal
preemption of these types of humped-crossing claims “should be
governed by the preemption provisions of the Federal Railway Safety
Act . . . and not by 49 U.S.C. § 10501(b).” Id. at *1. Expressly rejecting
the courts’ holdings in Voight and Waneck, the Board opined that the
plaintiffs’ negligent-maintenance claims based on humped crossings
“appear to be focused on purely safety-related issues” and thus “are not
in direct conflict with the Board’s exclusive jurisdiction over
transportation that is part of the interstate rail network.” Id. at *7.
Having described the ICCT Act’s relevant provisions and its
complex relationship with the Safety Act, as well as the broad array of
precedent considering this question, we now turn to our own analysis of
whether Section 10501(b) expressly or impliedly preempts Horton’s
humped-crossing claim. We agree with KC Southern that federal law
can expressly preempt common-law negligence claims in some
circumstances,12 but we hold that the ICCT Act does not expressly

12 It is well-established that federal law can preempt a state
common-law negligence claim. See Cont’l Airlines, Inc. v. Kiefer, 920 S.W.2d
274, 282 (Tex. 1996); see also Easterwood, 507 U.S. at 676; Ezell, 866 F.3d at
298. But courts have applied presumptions both for and against federal
preemption of state laws—particularly state common-law claims like
negligence—that are relevant here. Courts presume, for example, that federal
law does not preempt “the historic police powers of the State . . . unless that

18
preempt Horton’s humped-crossing claim. We reach this conclusion
based on the ICCT Act’s clear language, which much of the precedent
has underemphasized.
D. Express preemption
It is clear that Section 10501(b) expressly “preempts” something,
but we must focus on the statute’s language to determine the scope of

was the clear and manifest purpose of Congress” and that presumption
“applies with particular force when Congress legislates in a field traditionally
occupied by the states.” Altria, 555 U.S. at 77 (quoting Rice v. Santa Fe
Elevator Corp., 331 U.S. 218, 230 (1947)). And as the Supreme Court noted
long ago, “[t]he care of [railroad] grade crossings is peculiarly within the police
power of the states.” Lehigh Valley R. Co. v. Bd. of Pub. Util. Comm’rs, 278
U.S. 24, 35 (1928). This presumption “is nowhere stronger than under
circumstances in which a state is exercising” authority “in matters involving
[its] citizens’ public health and safety” because states have traditionally
“exercised primary authority” in such matters. Great Dane Trailers, Inc. v. Est.
of Wells, 52 S.W.3d 737, 743 (Tex. 2001) (first citing Medtronic, Inc. v. Lohr,
518 U.S. 470, 475 (1996); and then citing Hillsborough County v. Automated
Med. Labs., Inc., 471 U.S. 707, 718–19 (1985)). Because common-law
negligence claims “involve the state’s power to regulate health and safety
matters,” overcoming the presumption against preemption of a negligence
claim presents a “difficult burden.” Id.
On the other hand, the presumption against preemption applies with
less force when the federal statute addresses a field in which the federal
government has historically been significantly involved, as is true for railroad
regulation. Elam, 635 F.3d at 803–04. Congress and federal courts have long
recognized a need for federal regulation of railroad operations. City of Auburn
v. United States, 154 F.3d 1025, 1029 (9th Cir. 1998). These considerations
make the usual presumption against preemption somewhat hazy in the context
of this case. But we are guided here by our previous recognition that, “while a
federal requirement would ordinarily not preempt general state common law
requirements such as a duty of care or a duty to warn in the abstract, a federal
requirement would preempt a particularized application of such duties that
imposed a specific ‘standard of care or behavior’ different or in addition to the
federal requirement.” Worthy v. Collagen Corp., 967 S.W.2d 360, 371 (Tex.
1998) (quoting Medtronic, 518 U.S. at 504–05 (Breyer, J., concurring)).

19
that preemption. “Where, as in this case, Congress has superseded state
legislation by statute, our task is to ‘identify the domain expressly
pre-empted.’ To do so, we focus first on the statutory language, ‘which
necessarily contains the best evidence of Congress’ pre-emptive intent.’”
Dan’s City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 260 (2013) (first
quoting Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541 (2001); and
then quoting Easterwood, 507 U.S. at 664).
As noted, Section 10501(b) states that “the remedies provided”
under the Rail Provisions “with respect to regulation of rail
transportation” are “exclusive and preempt” the “remedies” provided
under state law. 49 U.S.C. § 10501(b). In a statement other courts have
often quoted, one federal district court suggested that it “is difficult to
imagine a broader statement of Congress’s intent to preempt state
regulatory authority over railroad operations.” CSX Transp., Inc. v. Ga.
Pub. Serv. Comm’n, 944 F. Supp. 1573, 1581 (N.D. Ga. 1996). We agree
with the Eleventh Circuit, however, that “[a]lthough this subsection on
its surface seems to provide for broad pre-emption, the text contains
limitations on the reach of pre-emption.” West Palm Beach, 266 F.3d at
1330. Specifically, the section grants preemptive power only to the
“remedies” provided in the Rail Provisions “with respect to regulation of
rail transportation.” 49 U.S.C. § 10501(b). To determine the scope of
preemption, we must explore the section’s references to “remedies,”
“with respect to,” and “regulation” of rail transportation.
1. “Remedies”
Section 10501(b)’s preemption clause uses “remedies” twice—first
to describe what has preemptive power (remedies “provided under [the
Rail Provisions] with respect to regulation of rail transportation”), and

20
then to describe what is preempted (remedies “provided under Federal
or State law”). Id. Thus, per the clause’s explicit text, the “remedies” that
preempt state law are those provided in the Rail Provisions. The Rail
Provisions provide “remedies” in Sections 11701 through 11708,
including the recovery of “damages sustained by a person as a result of
an act or omission of” a rail carrier “in violation of” the Rail Provisions.
Id. § 11704(b). A person who sustains such damages as a result of a
violation may assert a claim for those damages before the Surface
Transportation Board and through a civil action to enforce the Board’s
order. Id. § 11704(c)(1)–(2), (d)(1)–(2).
Relying primarily on the ICCT Act’s purpose and legislative
history, some courts have concluded that the Rail Provisions’ remedies
address only economic regulation of rail transportation. See, e.g., Elam,
635 F.3d at 805 (relying on legislative history to “observe Congress was
particularly concerned about state economic regulation of railroads
when it enacted the [ICCT Act]”). Based on this conclusion, they have
construed Section 10501(b) to grant preemptive power to (and against)
only “laws (and remedies based on such laws) that directly attempt to
manage or govern a railroad’s decisions in the economic realm.” Id. at
807 (emphasis added).13 Other courts have disagreed, see, e.g., N.Y.
Susquehanna & W. Ry. Corp. v. Jackson, 500 F.3d 238, 252 (3d Cir.

13 Although the Elam court acknowledged that the “preemptive effect of

§ 10501(b) may not be limited to state economic regulation,” it nevertheless
concluded that because “economic regulation is at the core of [the ICCT Act]
preemption,” it expressly and completely preempts only state laws that
“directly attempt to manage or govern a railroad’s decisions in the economic
realm.” 635 F.3d at 806–07.

21
2007) (“[The ICCT Act] does not preempt only explicit economic
regulation.”), as has the Surface Transportation Board, see CSX
Transp., Inc.—Petition for Declaratory Order, Fed. Carr. Cas. (CCH)
¶ 37186, 2005 WL 584026, at *7−8 (S.T.B. Mar. 14, 2005) (concluding
that Section 10501’s preemption scope “is broader than just direct
economic regulation of railroads” and that states and municipalities
“cannot take an action that would have the effect of foreclosing or unduly
restricting a railroad’s ability to conduct its operations”).
Based on the ICCT Act’s text, we also disagree. The Act’s
introduction states that its purpose is “to reform economic regulation of
transportation, and for other purposes,” 109 Stat. at 803 (emphasis
added), and we find nothing in its text that strictly limits its remedies
to address only violations of “economic” regulations. Yet we note that, as
even the Board has suggested, characterizing the ICCT Act as
regulating “economic” operations can provide a helpful label for
distinguishing between the ICCT Act and the Safety Act, which
generally governs rail-safety issues, along with their respective
preemption provisions. See Waneck Petition, 2018 WL 5723286, at *4
(agreeing that “safety issues are generally governed by [the Safety Act]
preemption” but concluding “there can be rare cases when both [the
Safety Act] and [the ICCT Act] preemption may apply”). In other words,
whether we label14 the ICCT Act’s regulatory scope as “economic” or

14 As the Second Circuit has explained, labels distinguishing between

“economic” and other types of regulation, such as “environmental” regulation,
are not particularly “useful” in this context because various types of regulation
can and often do overlap. Green Mountain, 404 F.3d at 644–45 (explaining how
a regulation labeled as “environmental” can “in fact amount to ‘economic

22
merely “non-safety operational-related,” as the Board has labeled it,15
the important point is that the two Acts generally address different
regulatory scopes, although they may overlap.
These observations about the remedies the Rail Provisions
provide (in contrast to those the Safety Act provides) matter here
because the types of state-law “remedies” Section 10501(b) preempts are
the same types of federal-law remedies the Rail Provisions provide.
Although the sentence does not expressly limit its reference to
state-provided remedies to those “with respect to regulation of rail
transportation,” the sentence clearly imposes that limitation. See, e.g.,
Franks, 593 F.3d at 410 (explaining that the preempted state-law
“remedies receive their meaning from the earlier part of the sentence”).
We thus conclude that Section 10501(b) grants preemptive power only
to remedies provided in the Rail Provisions “with respect to regulation
of rail transportation” and those remedies only preempt state-law
remedies “with respect to regulation of rail transportation.” We thus
turn to the meaning of that limitation.
2. “With respect to regulation”
Consistent with the jurisdiction the ICCT Act grants exclusively
to the Surface Transportation Board, the Rail Provisions address a rail

regulation’ when it prevents a carrier from conducting economic activities”
(quoting City of Auburn, 154 F.3d at 1031)).
15 Waneck Petition, 2018 WL 5723286, at *7 (agreeing it can be “difficult

for courts and the Board to draw the line between safety-related claims (subject
to [the Safety Act] preemption) and non-safety operational-related claims
(subject to [the ICCT Act] preemption)” (citing Griffioen v. Cedar Rapids &
Iowa City Ry. Co., 914 N.W.2d 273, 289 (Iowa 2018))).

23
carrier’s “rates, classifications, rules . . . , practices, routes, services, and
facilities” and the “construction, acquisition, operation, abandonment,
or discontinuance of” its tracks and facilities. 49 U.S.C. § 10501(b); see
Franks, 593 F.3d at 409 (addressing the Act’s exclusive remedies);
Jackson, 500 F.3d at 252 (same). Section 10501(b), however, does not
grant preemptive power to or against all laws that merely affect these
types of activities, but instead grants such power only to and against
remedies provided “with respect to regulation” of such activities.
Rather than encompassing any law that might indirectly touch
on the relevant subject matter, the phrase “with respect to” limits the
clause’s preemptive effect so that it includes only those remedies that
directly “concern” or “involve” the matter the clause describes. Dan’s
City, 569 U.S. at 261–62.16 And the matter the clause describes—
“regulation of rail transportation”—further narrows its preemptive
scope. Section 10501(b) does not preempt “all state laws”17 or even all

16See also Consumer Data Indus. Ass’n v. Frey, 26 F.4th 1, 8 (1st Cir.

2022) (holding a statute that preempted state laws “with respect to” a subject
intentionally narrowed the scope of preemption to those laws that directly
concern the subject matter), cert. denied, 143 S. Ct. 777 (2023); Galper v. JP
Morgan Chase Bank, N.A., 802 F.3d 437, 446 (2d Cir. 2015) (same).
17 As the Eleventh Circuit has noted, see West Palm Beach, 266 F.3d at

1330, Section 11321 of the same chapter provides a helpful contrast. See 49
U.S.C. § 11321(a). There, the statute expressly provides that a rail carrier is
exempt from “all other law, including State and municipal law,” as necessary
to permit the carrier to participate in a corporate consolidation, merger, or
acquisition the Surface Transportation Board has approved. Id. (emphasis
added). As the Supreme Court has recognized, this language “is clear, broad,
and unqualified.” Norfolk & W. Ry. Co. v. Am. Train Dispatchers Ass’n, 499
U.S. 117, 128 (1991). Section 10501(b), by contrast, does not preempt “all other
law” but only state remedies “with respect to the regulation of rail
transportation.”

24
state-law remedies “with respect to rail transportation.” Instead, it
preempts state-law remedies with respect to “regulation of” rail
transportation. 49 U.S.C. § 10501(b). The inclusion of the word
“regulation” within the description of the section’s preemptive scope
“necessarily means something qualitatively different from remedies
‘with respect to rail transportation.’” West Palm Beach, 266 F.3d at 1331.
Both the Supreme Court and this Court have recognized the
narrow scope of a statutory reference to laws that “regulate” a subject
matter. Concluding that an insured’s common-law claims against an
insurance carrier for breach of contract, breach of fiduciary duty, and
fraud did not “regulate insurance,” the Supreme Court explained that a
“common-sense view of the word ‘regulates’ would lead to the conclusion
that in order to regulate insurance, a law must not just have an impact
on the insurance industry but must be specifically directed toward that
industry.” Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 50 (1987)
(emphasis added).18 And applying that same “common-sense view,” we
held that Texas laws that empower state-agency executives to discipline
licensees for violations of other laws that “regulate” abortions are not
themselves laws that regulate abortions because such laws are not
“specifically directed toward” that subject. Whole Woman’s Health v.
Jackson, 642 S.W.3d 569, 578 (Tex. 2022). Similarly, as discussed above,
the Fifth Circuit has held that Section 10501(b) expressly preempts

18 See also Ky. Ass’n of Health Plans, Inc. v. Miller, 538 U.S. 329, 334

(2003); Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 365–66 (2002);
UNUM Life Ins. Co. of Am. v. Ward, 526 U.S. 358, 368 (1999); FMC Corp. v.
Holliday, 498 U.S. 52, 61 (1990).

25
state “laws that have the effect of managing or governing rail
transportation.” Franks, 593 F.3d at 410 (emphasis added).
Under this “common-sense view,” a state statute that restricts the
amount of time a train may block a crossing “regulates” rail
transportation because the statute “homes in on ‘railroad compan[ies]’”
and “has no application” at all “except with respect to the operation of
railroads at rail crossings.” Elam, 635 F.3d at 807 (quoting MISS. CODE
§ 77–9–235). But general laws that are not specifically directed toward
rail transportation, such as general state property laws, “are not meant
to regulate railroad transportation, though at times they may have an
incidental effect on railroad transportation.” Franks, 593 F.3d at 411.
The same is true of “standard building, fire, and electrical codes,” which
do not specifically “target[] the railroad industry,” Jackson, 500 F.3d at
254, and even common-law contract laws, which enforce “[v]oluntary
agreements between parties” and “are not presumptively regulatory
acts,” PCS Phosphate Co. v. Norfolk S. Corp., 559 F.3d 212, 218 (4th Cir.
2009). In the same way, a common-law negligence claim does not
ordinarily “regulate” rail transportation because it is not specifically
directed toward rail transportation and only incidentally affects rail
transportation when the alleged tortfeasor happens to be a rail carrier.
As we have previously recognized, although “the term ‘law’ can
include both common law and statutory law” and “jury awards can have
an effect akin to regulation,” generally, such a “regulatory effect is not
as direct as that of positive enactments,” and thus a federal law that
preempted state “laws and regulations” did not preempt state
common-law claims. Moore v. Brunswick Bowling & Billiards Corp., 889

26
S.W.2d 246, 247, 249–50 (Tex. 1994) (holding the Federal Boat Safety
Act did not preempt a “state law tort claim that a boat was defective
because it lacked a propeller guard”).19
The combination of these phrases, with their respective histories,
is determinative, especially when considered within the context of the
chapter that also includes the Safety Act. Section 10501(b) does not
expressly preempt this common-law negligence claim. It may be, as

19 We are aware, of course, of the Supreme Court’s observations that

state “regulation can be as effectively exerted through an award of damages as
through some form of preventive relief” and that an “obligation to pay
compensation can be, indeed is designed to be, a potent method of governing
conduct and controlling policy.” San Diego Bldg. Trades Council, Millmen’s
Union, Loc. 2020 v. Garmon, 359 U.S. 236, 246–47 (1959). And the Court
quoted this principle again as part of its preemption analysis in Cipollone. 505
U.S. at 521. In this context, however, the text of Section 10501(b) indicates a
narrower understanding of the term “regulation.” Neither of those cases
addressed a clause preempting state laws or remedies related to “regulation”
of a subject matter, much less “with respect to” such “regulation.” Because the
federal law at issue in Garmon provided essentially no guidance on the scope
of its preemptive effect, the Court based its decision in that case on its own
perception of the federal law’s “national purposes,” 359 U.S. at 244, not on a
statute that preempted state “regulation” of anything, id. at 240 (noting that
the federal law “leaves much to the states, though Congress has refrained from
telling us how much” (quoting Garner v. Teamsters, Chauffeurs & Helpers Loc.
Union No. 776 (A.F.L.), 346 U.S. 485, 488 (1953))). Similarly, in Cipollone, the
federal law at issue preempted any “requirement or prohibition . . . imposed
under state law,” not any state law that “regulated” the subject matter. 505
U.S. at 515 (emphasis added). The Court concluded this “broad” language, not
any reference to “regulation,” effected preemption of state common-law claims.
Id. at 520. In fact, the Court recognized that a prior version of the federal law,
which did not target state “requirements or prohibitions,” “most naturally
refers to positive enactments by those bodies, not to common-law damages
actions” and thus preempted “rulemaking bodies from mandating particular
cautionary statements and did not pre-empt state-law damages actions.” Id. at
519–20. The prior law, the Court explained, was concerned not with
“requirements or prohibitions” but with “‘regulations’—positive enactments,
rather than common-law damages actions.” Id. at 521 n.19.

27
other courts have held, that a common-law claim could so directly seek
to control, manage, or govern the core operational functions of a rail
carrier that it could only be said to seek a “remedy with respect to
regulation of rail transportation.”20 But in our view, negligence claims
based on railroad-crossing safety will rarely meet that standard.
Considering Section 10501(b)’s language limiting its preemptive
effect to “remedies” provided by state law “with respect to regulation” of
rail transportation, the Safety Act’s primary role in addressing
rail-safety issues, and its clause expressly allowing certain common-law
claims, we conclude that Section 10501(b) does not expressly preempt
Horton’s common-law claim that KC Southern negligently maintained
the crossing resulting in an allegedly distracting and dangerous hump.
E. Implied Preemption
We now turn to the issue of whether Section 10501(b) impliedly
preempts Horton’s humped-crossing claim. As stated above, a federal
law may impliedly preempt state law if Congress intended federal law
to occupy the field exclusively or if the state law is in actual conflict with

20 See, e.g., West Palm Beach, 266 F.3d at 1331 (holding Section 10501(b)

preempts “state laws that may reasonably be said to have the effect of
‘manag[ing]’ or ‘govern[ing]’ rail transportation, while permitting the
continued application of laws having a more remote or incidental effect on rail
transportation” (quoting Regulation, BLACK’S LAW DICTIONARY (6th ed.
1990))); Elam, 635 F.3d at 805 (holding Section 10501(b) expressly preempts
laws that “have the effect of managing or governing rail transportation” but
not “generally applicable state laws that have a mere ‘remote or incidental’
effect on rail transportation” (quoting Franks, 593 F.3d at 410)); City of
Midlothian, 669 F.3d at 532 (“[E]nactments that ‘have the effect of managing
or governing,’ and not merely incidentally affecting, rail transportation are
expressly or categorically preempted under the ICCTA.” (quoting Franks, 593
F.3d at 410)).

28
and creates an obstacle for the federal law. See Cipollone, 505 U.S. at
545 (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). Within the
context of the ICCT Act, courts have relied on the “conflict” prong of
implied preemption to hold that Section 10501(b) may impliedly
preempt a generally applicable state-law remedy if, as applied to a
particular case, that remedy has the effect of “unreasonably burdening
or interfering with rail transportation.” Elam, 635 F.3d at 805 (quoting
Franks, 593 F.3d at 410); see CSX Transp., Inc. v. City of Sebree, 924
F.3d 276, 284 (6th Cir. 2019); Tubbs, 812 F.3d at 1145–46; PCS
Phosphate Co., 559 F.3d at 220–21; Jackson, 500 F.3d at 254; Emerson,
503 F.3d at 1133. We might question whether an unreasonable burden
or interference, standing alone, is sufficient to create the kind of legal
“conflict” required to establish implied preemption, but the parties here
agree that this is the proper test in this context. So, for purposes of this
case, and for the sake of consistency with courts across the country, we
will apply this standard here, without suggesting that it provides the
proper test for evaluating conflict preemption in other contexts.
A party arguing for implied preemption has the burden on that
issue. Mo. Pac. R.R. v. Limmer, 299 S.W.3d 78, 84 (Tex. 2009). In the
context of Section 10501(b) and a claim involving a rail crossing, this
means the rail carrier must provide specific evidence regarding the
crossing at issue rather than rely on assertions about the effect of grade
crossings on rail transportation in general. See Elam, 635 F.3d at 813;
Franks, 593 F.3d at 415. This requirement is consistent with the
requirements of an “as-applied” preemption analysis, which considers
the degree to which a specific scenario conflicts with requirements and

29
objectives of the federal law at issue. Thus, for example, evidence that
private crossings can affect drainage, increase track maintenance costs,
and cause trains to move at slower speeds, without evidence that the
particular private crossing at issue would have those effects, is
insufficient to establish the kind of unreasonable burden or interference
necessary to trigger implied preemption. Franks, 593 F.3d at 415; see
Emerson, 503 F.3d at 1133.
Here, Horton’s negligence claim does not seek a court order
requiring KC Southern to alter its operations. Horton sought only
economic damages, not any sort of injunctive relief that could prevent
KC Southern from maintaining the lines, crossings, services, rates, or
other operations in which it was engaged at the time of Rigsby’s death.
Consistent with the typical purpose of a negligence claim, Horton sought
only compensation for damages resulting from the accident. See Akin,
Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Rsch. Corp., 299
S.W.3d 106, 122 (Tex. 2009) (“A negligence claim . . . is about
compensating an injured party.”).
As KC Southern notes, however, the effect of a successful
negligence claim can far exceed the payment of compensatory damages
to a particular claimant. KC Southern contends that a successful claim
in this case would effectively require KC Southern to alter all its
humped crossings, or at least this particular line and crossing, and that
requirement would unreasonably burden KC Southern or interfere with
its operations. The trial court made no factual findings on this assertion,
so we must presume the court resolved any factual disputes against
preemption. See Pharo v. Chambers County, 922 S.W.2d 945, 948 (Tex.

30
1996). Thus, KC Southern must conclusively demonstrate its contention
as a matter of law. Nevertheless, even if we assume that KC Southern
could have established an unreasonable burden or interference based on
changes in its tracks and operations (as opposed to the damages award),
we conclude KC Southern’s evidence is insufficient here.
A lack of definitive evidence regarding costs and operational
methods will render evidence insufficient to establish an unreasonable
burden or interference as a matter of law. In Gallo, for example, the
federal district court found the evidence of unreasonable burden was
insufficient when the parties offered competing visions for how a
railroad could remedy a potential drainage issue, and different cost
estimates for those changes, without any clear evidence that the
defendant’s more burdensome proposed change was required. See 372
F. Supp. 3d at 481.
On the other hand, in Union Pacific Railroad Co. v. Taylor Truck
Line, Inc., No. 15-0074, 2018 WL 1750516 (W.D. La. Apr. 10, 2018), the
railroad offered evidence that lowering the specific crossing at issue
would require extensive studies and redesign of the drainage, signal
circuits, and nearby crossings; rehabilitation of the switches, adjacent
tracks, and drainage culverts; and extensive construction work at the
crossing and three-quarters of a mile of track on both sides, at a cost of
approximately $2,000,000. Id. at *7–8. It also provided evidence that the
work would require closure of the mainline track through the area for at
least three to four days, impacting five road crossings. Id. The court
found this evidence, in the absence of any sufficient opposing evidence,

31
established that the change would pose an unreasonable burden and
result in regulation of the railroad. Id. at *8–9.
Here, KC Southern failed to provide such definitive evidence. At
trial, Horton’s railroad-maintenance expert, Allen Blackwell, testified
without opposition that KC Southern could address the humped
crossing either by lowering the track to the level of the county road or
by raising the county road to create a gradual incline up to the track.
KC Southern did not present its own expert or other specific evidence of
the likely cost and burden of either option. Instead, it relied on
Blackwell’s deposition testimony that lowering the track might cost up
to $300,000. But at trial, Blackwell testified that number was inaccurate
and that the project would more likely cost between $50,000 to $150,000.
Horton also offered evidence that the cost of removing the hump would
be comparable to KC Southern’s routine-maintenance process, which,
incidentally, created the hump in the first place, saving KC Southern
about $100,000 that could be deducted from the cost of removing the
hump.
Even if this cost were unreasonable, courts have generally
concluded that increased costs alone cannot create the type of
“unreasonable” burden or interference necessary to trigger implied
preemption. See Barrois, 533 F.3d at 335; Adrian & Blissfield R.R. v.
Village of Blissfield, 550 F.3d 533, 541 (6th Cir. 2008); City of Sebree,
924 F.3d at 284–85. KC Southern therefore also relied on Horton’s
expert to describe the type of construction required to lower the track to
the road level. Blackwell agreed that lowering the track by thirty-two
inches—the amount required for KC Southern to comply with its own

32
adopted safety guidelines—would require “major revision to the
alignment, elevation, or profile of the track.” According to Blackwell, KC
Southern would have to remove asphalt up to six feet away from each
side of the track rails, cut and remove the rails and track panel at the
crossing, resurface the crossing area with new ballast, pour new asphalt,
and then install new crossing panels. The parties also agreed that KC
Southern would need to extend the renovation out at least 661 feet on
each side to maintain required evenness of the track. KC Southern’s
corporate representative testified that a culvert present under the track
could make it impossible to lower the track by the full thirty-two inches.
Thus, KC Southern argued this project would far exceed the scope and
cost of a typical crossing rehabilitation.
On the other hand, Horton provided evidence that, despite the
seemingly broad scope of work, it would take relatively little time.
Blackwell testified that undercutting the track would take the same
amount of time as a routine resurfacing (six to eight hours). He also
specified that, to the extent work could not be completed in a day, KC
Southern could run trains in the evening at a reduced speed, with
subsequent speed and tonnage restrictions lasting no more than
forty-eight hours. KC Southern did not contest this evidence.
All this evidence, however, addressed only one possible means of
eliminating the hump. Other testimony established that KC Southern
could address the safety issue by raising the county road on each side of
the crossing. Blackwell testified that, while KC Southern would not have
a sufficient right-of-way to complete that project alone, it would not be
unusual for the railroad to coordinate with county and state authorities

33
to complete the work. KC Southern argued it could not alter the road
alone but failed to dispute that it could do so in coordination with the
county. More importantly, it offered no evidence regarding the probable
costs and burdens of such a project.
We conclude that KC Southern did not meet its burden to
establish that Horton’s negligence claim complaining of the humped
crossing would pose the “unreasonable burden or interference with rail
transportation” required to trigger implied preemption under
Section 10501(b). Even assuming we should consider more than the
burden of the compensatory damages alone, KC Southern failed to
provide definitive evidence of the cost of any of the possible solutions
needed to eliminate the hazard at this specific crossing. And even if we
assume, as KC Southern argues, that Horton’s claim could require it to
lower all the humps on all its crossings, it provided no evidence of those
costs and burdens either.
The most specific evidence KC Southern presented to establish an
“unreasonable” burden involved testimony that the curvature of this
section of track, which was in a hilly area, would require undercutting
a longer section of track than normal and would be further complicated
by the presence of a flood-control culvert in the area. KC Southern’s
witness testified that this would not be “a very feasible function for us
to perform.” But even accepting KC Southern’s assertions that lowering
the track would exceed the scope of a typical crossing rehabilitation, KC
Southern failed to contest Horton’s evidence that lowering the track
would close the track for less than a day and would only require weight
and speed restrictions for forty-eight hours. As to the less burdensome

34
option of raising the road, KC Southern provided no evidence of possible
delays associated with such a solution, nor did it successfully refute
Horton’s evidence that partnering with the local road authority for such
a project would be routine.
We thus hold that KC Southern failed to meet its burden to
establish that Section 10501(b) impliedly preempts Horton’s
humped-crossing negligence claim. And having also concluded that the
section does not expressly preempt the claim, we hold that the court of
appeals erred by holding that Section 10501(b) preempts Horton’s claim
that KC Southern negligently caused the accident by creating the
humped crossing.
III.
Yield Sign
In addition to the complaint about the humped crossing, Horton
also alleged that KC Southern negligently caused the accident by failing
to ensure that yield signs remained in place on the posts containing the
crossbuck signs at the crossing. KC Southern argues that no evidence
could support a finding that the lack of a yield sign proximately caused
the accident. We agree.
In reviewing the legal sufficiency of evidence to support a jury
verdict, we honor the rule that the jurors “are the sole judges of the
credibility of the witnesses and the weight to give their testimony,” and
it is their role to resolve any conflicts in the evidence. City of Keller v.
Wilson, 168 S.W.3d 802, 819–21 (Tex. 2005) (citations omitted). We
“credit favorable evidence if reasonable jurors could, and disregard
contrary evidence unless reasonable jurors could not.” Id. at 827. We
must consider the evidence “in the light most favorable to the verdict,

35
and indulge every reasonable inference that would support it,” and we
must credit any evidence that “allows of only one inference.” Id. at 822
(citations omitted). We cannot substitute our judgment for the jury’s. Id.
Through expert testimony and supporting studies and
documents, Horton submitted the following evidence to support her
missing-yield-sign allegation:
- Like a yield sign, “[t]he purpose of a crossbuck sign is to tell a
motorist they need to yield.” In a sense, it sends the same
message as a yield sign. But it is “a more specific yield sign,”
specifically telling drivers “there’s a railroad crossing” and
they need to “yield for [a] train.”
- “[S]tudies have shown that [a] crossbuck [sign] alone does not
give the kind of warning . . . that reminds people that there is
a potential train coming.”
- This is because the same type of crossbuck sign is used at both
active rail crossings (those with lights, bells, or protective
gates that automatically warn a driver that a train is
approaching) and passive crossings (those lacking such
automatic signals). As a result, drivers “tend to regard the
crossbuck sign as marking there’s a railroad track here” and
then rely on “active signals as being the devices that control
whether they should stop or go through the crossing.” So, at
passive crossings, drivers “sometimes think the crossbuck sign
merely marks the location of the grade crossing when, in fact,
it . . . also needs to [warn drivers to] yield to trains.”
- Because “research . . . showed road users do not fully
comprehend the message being communicated by the
crossbuck” sign, and because “there is an advantage for
awareness improvement with the use of a yield sign,” in 2009,
federal law began requiring yield signs be posted along with
crossbuck signs at passive crossings.
- Studies “indicate that [adding a] yield sign . . . conveys the
message that the driver has the responsibility to look for and

36
yield to an oncoming train better than . . . the crossbuck
alone.”
- Adding the yield sign “adds awareness and it makes people
recognize yield more than they recognize a crossbuck [sign].
So the combination together works well.”
- This is particularly true for drivers who are not as familiar
with the crossing. “[D]rivers who are crossing the tracks for
the first time or very infrequently would be more prone to
respond by slowing somewhat and more conscientious about
searching for oncoming traffic.” But drivers who cross the
tracks “on a frequent basis” are likely to “eventually . . . revert
back to [their] behavior before the yield sign was installed.”
Warnings “tend to be less effective” for those who “use the
same crossing over and over.”
We agree with Horton that this evidence would support a finding
that adding a yield sign to an already existing crossbuck sign would help
alert drivers and cause them to look for an oncoming train before
actually crossing an otherwise unprotected track. And so conversely, we
agree that the evidence would support a finding that the absence of the
yield sign made it less likely that Rigsby would have looked and stopped
for the train that struck her pickup. But it is not sufficient to support
the finding Horton had to obtain to prevail on the yield-sign claim: that,
more likely than not, the absence of the yield sign proximately caused
Rigsby to proceed into the train’s path.
Other evidence, which a reasonable juror could not have ignored,
established that no studies or empirical data confirm that adding a yield
sign helps reduce crashes. The literature on which the experts relied
provides “little empirical basis regarding the change in crash rates at
crossings with either a yield or a stop sign,” and “no study has been
conducted on crash effect when yield signs are used.” As one report

37
explained, “[i]t is expected that this knowledge [a yield sign provides]
should increase advanced searching [for oncoming trains], but how this
apparent effectiveness carries over to actual locations, especially if most
passive crossings were to have a yield sign, is a matter of conjecture.”
A jury finding of proximate causation cannot be based on such
“conjecture.” Horton’s expert conceded that he could not point to any
study or evidence that the absence of the yield sign, “more likely than
not, would have been a difference” for this accident. And he could not
say that “this accident more likely than not would not have happened if
the yield sign was present.” Nor does any other evidence support such a
finding. Horton’s expert testified that, in his opinion, the addition of a
yield sign more likely than not provides a more effective warning, but
he based that opinion merely on the fact that the federal government
recommended the addition of yield signs in 2000 and required them in
2009. This is not the type of basis that could support such an opinion,
and the opinion itself was insufficient to support a finding that the
absence of the yield sign more likely than not caused this particular
accident.
As to this accident, the video recording confirms that Rigsby, who
lived near the crossing and regularly crossed it for years up until she
was hospitalized several weeks before the accident in fact did slow down
as she approached the crossing, and then slowed even more, to three or
three-and-a-half miles per hour, before reaching the rails. As Horton’s
expert confirmed, Rigsby “was cautious. She showed approach. It looked
like she was intent. The purpose of those kind of signs and a warning
sign is to alert that.” We must conclude that no evidence supports a

38
finding that, more likely than not, Rigsby would have approached the
crossing any more cautiously or intently had the yield sign been present
or that the absence of the yield sign more likely than not caused Rigsby
to drive into the train’s path.
IV.
Harmless Error
To recap, we have rejected KC Southern’s argument that the
ICCT Act preempts liability on Horton’s humped-crossing allegation,
but we have agreed with KC Southern that no evidence supports liability
on Horton’s missing-yield-sign allegation. Horton attempted to prove
that allegation and argued to the jury that she had done so, and the trial
court’s single broad-form question permitted the jury to find liability
under either allegation. Because no evidence supported the yield-sign
allegation, the trial court erred by submitting a question that allowed
the jury to find liability based on that allegation. See Harris County v.
Smith, 96 S.W.3d 230, 236 (Tex. 2002) (“[T]he trial court’s duty is to
submit only those questions, instructions, and definitions raised by the
pleadings and the evidence.”).21 But an error in a jury charge does not
require reversal unless the error was harmful. Columbia Rio Grande
Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 856 (Tex. 2009).22 We must
decide whether the court’s error was harmful in this case.

21 See also TEX. R. CIV. P. 278 (“The court shall submit the questions,

instructions and definitions . . . which are raised by the written pleadings and
the evidence.”).
22 This case does not involve any type of error that is harmful per se or

“as a matter of law.” See, e.g., United Rentals N. Am., Inc. v. Evans, 668 S.W.3d
627, 635–39 (Tex. 2023) (purposeful and unaddressed racial discrimination in

39
A. The test for harm
Generally, a trial court’s error is harmful if it either (1) probably
caused the rendition of an improper judgment or (2) probably prevented
the appealing party from properly presenting the case to the court of
appeals. TEX. R. APP. P. 44.1(a) (governing court of appeals’ review), 61.1
(governing Supreme Court review). To determine whether an error was
harmful under either of the two prongs, the appellate court must
consider the entire record of the case as a whole. In re Est. of Poe, 648
S.W.3d 277, 285–86 (Tex. 2022).23 The court need not conclude that the

jury selection); In re J.N., 670 S.W.3d 614, 619 (Tex. 2023) (denial of
“constitutional rights basic to fair criminal trials, such as the deprivation of
counsel, the denial of a public trial, or the refusal to honor a defendant’s right
of self-representation”); Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678,
682 (Tex. 2008) (“jury argument . . . designed to incite passions of the jury and
turn the jurors against defense counsel for doing what lawyers are ethically
bound to do: advocate clients’ interests within the bounds of law”); In re K.R.,
63 S.W.3d 796, 800 (Tex. 2001) (“total deprivation of an accused’s right to
counsel at trial, a trial before a judge who was not impartial, the unlawful
exclusion of members of a defendant’s race from the grand jury, the denial of
an accused’s right of self-representation, and the denial of a public trial”); In
re Union Pac. Res. Co., 969 S.W.2d 427, 428 (Tex. 1998) (trial before a
disqualified judge); Palmer Well Servs., Inc. v. Mack Trucks, Inc., 776 S.W.2d
575, 577 (Tex. 1989) (verdict supported by juror disqualified due to felony
indictment).
23 For example, to the extent they are relevant in a given case, the
appellate court must consider the parties’ pleadings, the specific theories
asserted, whether the challenged theory was “critical to [the] case,” statements
made during voir dire, the evidence admitted and excluded, whether the
admission or exclusion was “calculated or inadvertent,” the relative strength
and weakness of the evidence, whether the theory was “hotly” or “vigorously”
contested, the jury charge “in its entirety,” including all instructions and
questions, counsels’ closing arguments, any questions or reports the jury
submitted to the court during deliberations, and whether the jury’s verdict was
unanimous. See Schindler Elevator Corp. v. Ceasar, 670 S.W.3d 577, 587 (Tex.
2023); In re Commitment of Jones, 602 S.W.3d 908, 914 (Tex. 2020); U-Haul

40
error “necessarily” caused harm or reach its conclusion with certainty.
McCraw, 828 S.W.2d at 758.24 Instead, the question is whether the error
“probably” caused harm under either of the two prongs. See Jones, 602
S.W.3d at 913.
Under the first prong, an erroneous jury charge probably results
in an improper judgment when it confuses or misleads the jury in
answering a question that is material to the judgment. Est. of Poe, 648
S.W.3d at 286.25 But an erroneous question or instruction is not harmful
if the record as a whole does not establish that the error probably
resulted in an improper judgment.26

Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 136 (Tex. 2012); Serv. Corp. Int’l v.
Guerra, 348 S.W.3d 221, 236 (Tex. 2011); Interstate Northborough P’ship v.
State, 66 S.W.3d 213, 220 (Tex. 2001); Quantum Chem. Corp. v. Toennies, 47
S.W.3d 473, 480 (Tex. 2001); Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 617
(Tex. 2000); Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749,
755–56 (Tex. 1998); McCraw v. Maris, 828 S.W.2d 756, 758 (Tex. 1992); Island
Recreational Dev. Corp. v. Republic of Tex. Sav. Ass’n, 710 S.W.2d 551, 555
(Tex. 1986); Lorusso v. Members Mut. Ins. Co., 603 S.W.2d 818, 821 (Tex. 1980).
24 We have recognized the “impossibility” of imposing a more specific

test and have instead required only that the reviewing court conclude that the
error “probably” caused the asserted harm, entrusting “the matter to the sound
discretion of the reviewing court.” Caffe Ribs, Inc. v. State, 487 S.W.3d 137, 145
(Tex. 2016); see Lorusso, 603 S.W.2d at 821.
25 See, e.g., Transcon. Ins. Co. v. Crump, 330 S.W.3d 211, 226 (Tex. 2010)

(holding instruction on “producing cause” that erroneously excluded “but for”
requirement was harmful because proper instruction “would have assisted the
jury in resolving the disputed expert testimony at the crux of the case and,
more importantly, would have stated the law accurately”).
26 See supra note 23 (listing potentially relevant considerations). For

example, the submission of an erroneous question is harmless if the jury’s
answers to other questions support the trial court’s judgment. See Boatland of
Hous., Inc. v. Bailey, 609 S.W.2d 743, 750 (Tex. 1980). Similarly, an erroneous
failure to instruct the jury that it must find specific elements will not be

41
Under the second prong, the “proper inquiry” is whether the error
probably prevents the appellant from making the showing required
under the first prong. Jones, 602 S.W.3d at 914. When the error involves
the jury charge, and the appellate court—after reviewing the entire
record—is “‘reasonably certain that the jury was not significantly
influenced by’ the error,” the second prong is not met and the error was
not harmful. Id. (quoting Romero v. KPH Consolidation, Inc., 166
S.W.3d 212, 227–28 (Tex. 2005)).
B. Presumption of harm under Casteel
As explained, the error in this case involves the trial court’s
submission of both of Horton’s negligence allegations through a single
broad-form jury question. Our rules have long required trial courts to
submit issues to juries using broad-form questions “whenever feasible.”
TEX. R. CIV. P. 277.27 This requirement, however, “is not absolute,” and

harmful if undisputed evidence conclusively establishes those elements. See
Operation Rescue–Nat’l v. Planned Parenthood of Hous. and Se. Tex., 975
S.W.2d 546, 553 (Tex. 1998). The erroneous refusal of a broad-form question
was not harmful when the granulated questions “contained the proper
elements,” “fairly submitted to the jury the disputed issues of fact,” and
“incorporated a correct legal standard.” H. E. Butt Grocery Co. v. Warner, 845
S.W.2d 258, 260 (Tex. 1992). And as we explain below, a broad-form question
that merely allows the jury to consider a factually unsupported theory or
allegation may not be harmful.
27 Our previous rules, which required courts to submit all allegations

“separately and distinctly,” Harris County, 96 S.W.3d at 235, promoted a
“complex and artificial proliferation of narrow special issues, especially in
ordinary negligence cases,” Scott v. Atchison, Topeka & Santa Fe Ry. Co., 572
S.W.2d 273, 278 (Tex. 1978). Too often, separate submissions produced
conflicting jury answers, resulting in unnecessary appeals and retrials. Tex.
Dep’t of Hum. Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990). By amending
the rules to require the use of broad-form questions, we aimed to promote

42
we have recognized that broad-form questions are not always feasible.
Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 390 (Tex. 2000). We held
in Casteel that the use of a broad-form question to submit multiple
“theories of liability” was not feasible and in fact constituted error when
one or more of the theories was legally “invalid.” Id. at 381.
We also held that the error in Casteel was harmful under the
harm test’s second prong because we could not determine “whether the
jury based its verdict on one or more of the invalid theories.” Id. At best,
we could conclude only “that some evidence could have supported the
jury’s conclusion on a legally valid theory.” Id. We held that when a trial
court erroneously submits a broad-form liability question that includes
multiple theories, the error is harmful and a new trial is required if an
appellate court “cannot determine whether the jury based its verdict on
an improperly submitted invalid theory.” Id.28

judicial economy by minimizing appeals and new trials and simplifying the
process of crafting a proper jury charge, making the questions “easier for the
jury to comprehend and answer.” Id.; see Hyundai Motor Co. v. Rodriguez, 995
S.W.2d 661, 664 (Tex. 1999).
28 In light of that holding, we advised that “when the trial court is
unsure whether it should submit a particular theory of liability, separating
liability theories best serves the policy of judicial economy underlying Rule 277
by avoiding the need for a new trial when the basis for liability cannot be
determined.” Casteel, 22 S.W.3d at 390. Although this advice remains sound,
we note that in many cases rephrasing the question or giving an instruction
not to consider theories or allegations that are unpleaded, invalid, or lacking
in evidentiary support can eliminate the error without the risk of confusion or
conflicting answers that submitting separate questions can create. See, e.g.,
Benge v. Williams, 548 S.W.3d 466, 474–76 (Tex. 2018) (holding it was error to
deny a jury instruction not to consider an unpleaded negligence allegation);
Tex. Comm’n on Hum. Rts. v. Morrison, 381 S.W.3d 533, 535–36 (Tex. 2012)
(per curiam) (holding it was error to deny a request to rephrase an

43
We have since clarified that Casteel creates a presumption that
the erroneous submission of valid and invalid theories in a broad-form
question is harmful and requires reversal. See Sw. Energy Prod. Co. v.
Berry-Helfand, 491 S.W.3d 699, 728 (Tex. 2016) (“In some cases, such as
preserved Casteel error, harm may be presumed.”).29 The presumption

employment-discrimination liability question to specify discriminatory
termination rather than a term that encompassed actions that had not been
administratively exhausted); Hawley, 284 S.W.3d at 863–65 (holding it was
error to deny a limiting instruction that the jury should not consider actions of
a doctor who was not the hospital’s agent in determining hospital’s liability).
In this case, for example, the trial court would not have erred by submitting a
broad-form negligence question if it had recognized that the evidence was
legally insufficient to support liability on the missing-yield-sign allegation and
included an instruction that the jury should not consider that allegation.
29 The Casteel court did not use any form of the term “presume.”
Facially, Casteel simply held that the trial court’s use of a broad-form jury
question in that case constituted harmful error under Rule 61.1’s second prong
because the Court could not “determine whether the jury based its verdict on
an improperly submitted invalid theory.” 22 S.W.3d at 388. Nor did the Court
treat Casteel as creating a presumption when we first applied it in Harris
County. See 96 S.W.3d at 232–33 (“In Casteel, we ruled that when a single
broad-form liability question commingles valid and invalid liability grounds
and the appellant’s objection is timely and specific, the error is harmful and a
new trial is required when the appellate court cannot determine whether the
jury based its verdict on an invalid theory.” (emphasis added)).
We first suggested that Casteel creates a presumption in Cortez v.
HCCI–San Antonio, Inc., 159 S.W.3d 87, 91 (Tex. 2005) (“But as in Casteel, we
cannot know for certain that his inclusion did not affect the verdict, so we
presume harm.”), and then expressly characterized it in that manner in Bed,
Bath & Beyond, Inc. v. Urista, 211 S.W.3d 753, 756 (Tex. 2006) (“Under Casteel
and Harris County, we presume that the error was harmful and reversible and
a new trial required when we cannot determine whether the jury based its
verdict solely on the improperly submitted invalid theory or damage
element.”). We have consistently treated Casteel as creating a presumption
ever since. See Benge, 548 S.W.3d at 475 (referring to Casteel’s “presumption-
of-harm rule”); Ford Motor Co. v. Castillo, 444 S.W.3d 616, 621 (Tex. 2014)

44
applies because a broad-form submission, by its very nature, can be
expected to make it impossible to “determine whether the jury relied on
an invalid theory.” Morrison, 381 S.W.3d at 534–35. When Casteel
applies, reviewing courts will presume that harm exists under the
second prong of the harmful-error test: “the error ‘probably prevented
the petitioner from properly presenting the case to the appellate courts.’”
Urista, 211 S.W.3d at 757 (quoting TEX. R. APP. P. 61.1(b)).30

(“We held in Casteel that harmful error will be presumed when a broad-form
jury question contains both valid and invalid theories of liability, and the jury’s
answer fails to specify on which theory it rests.”); Morrison, 381 S.W.3d at 534–
35 (“In Casteel, we held that error is presumed harmful and a new trial is
required when a trial court submits a broad-form liability question containing
both valid and invalid theories of liability because the appellate court cannot
determine whether the jury relied on an invalid theory.”); Thota v. Young, 366
S.W.3d 678, 680 (Tex. 2012) (“We have held that reversible error is presumed
when a broad-form question submitted to the jury incorporates multiple
theories of liability and one or more of those theories is invalid.”); Hawley, 284
S.W.3d at 864 (“[In Casteel] we held that when a trial court submits a single
broad-form liability question commingling valid and invalid theories of
liability, the error is presumed harmful if an appellate court cannot determine
whether the jury based its answer on an invalid theory.”).
30 Of course, the appellant must also have preserved its complaint in

the trial court by timely and specifically objecting to the error in the proposed
broad-form jury charge. Emerson Elec. Co. v. Johnson, 627 S.W.3d 197, 211
(Tex. 2021); Bombardier Aerospace Corp. v. SPEP Aircraft Holdings, LLC, 572
S.W.3d 213, 228 n.17 (Tex. 2019); Morrison, 381 S.W.3d at 536; Thota, 366
S.W.3d at 691; In re A.V., 113 S.W.3d 355, 363 (Tex. 2003); In re B.L.D., 113
S.W.3d 340, 349–50 (Tex. 2003); Harris County, 96 S.W.3d at 236; Casteel, 22
S.W.3d at 389; State Dep’t. of Highways & Pub. Transp. v. Payne, 838 S.W.2d
235, 240 (Tex. 1992) (“The objection must be specific enough to call the court’s
attention to the asserted error in the charge.”). Here, KC Southern properly
preserved its complaint by objecting to the trial court’s broad-form question,
arguing that it could permit the jury to find negligence on an invalid liability
theory. It also tendered a proposed question that included two blanks for the
jury to separately determine whether liability in negligence arose from the
humped crossing or the missing yield sign.

45
A “presumption,” however, is merely a legal rule that requires the
court to reach a particular conclusion absent contrary evidence. Sudduth
v. Commonwealth Cnty. Mut. Ins. Co., 454 S.W.2d 196, 198 (Tex. 1970).
When a party who would otherwise bear the burden of proof
demonstrates that a presumption applies, the burden shifts and
requires the other party to rebut the presumption. Gen. Motors Corp. v.
Saenz, 873 S.W.2d 353, 359 (Tex. 1993).31 Similarly, if an appellant who
complains of jury-charge error establishes that Casteel’s presumed-
harm rule applies, the burden shifts and requires the prevailing party
to show, based on the record, that the alleged error does not probably
prevent the appellant from presenting the appeal. If the prevailing party
makes that showing, the presumption is rebutted and the court must
determine whether the error was harmful based on a review of the
record as a whole, “as it would . . . in any other case.” Saenz, 873 S.W.2d
at 359.

31 See, e.g., Sky View at Las Palmas, LLC v. Mendez, 555 S.W.3d 101,

107–08 (Tex. 2018) (explaining how a non-settling defendant triggers the
presumption of right to a settlement credit by introducing evidence of the
settlement amount and thus shifts the burden to require the plaintiff to show
amounts that should not be credited); Alamo Heights Indep. Sch. Dist. v. Clark,
544 S.W.3d 755, 782 (Tex. 2018) (explaining how a plaintiff triggers the
presumption of employment discrimination by establishing a prima facie case
and thus shifts the burden to require defendant to rebut the presumption by a
showing legitimate, nondiscriminatory reason for an adverse employment
action); Phila. Indem. Ins. Co. v. White, 490 S.W.3d 468, 487 (Tex. 2016)
(explaining how a landlord triggers the presumption that a tenant caused
damage by showing that the premises were under tenant’s control and thus
shifts the burden to require tenant to prove otherwise); Richey v. Brookshire
Grocery Co., 952 S.W.2d 515, 517–18 (Tex. 1997) (explaining how a defendant
accused of malicious prosecution enjoys a presumption that he acted
reasonably, in good faith, and with probable cause, requiring the plaintiff to
bear burden of presenting contrary evidence).

46
So even when the presumption applies, it will be rebutted and the
appellate court may conclude that the error was not harmful if, based
on a review of the entire record, the court is “reasonably certain that the
jury was not significantly influenced by issues erroneously submitted to
it.” Romero, 166 S.W.3d at 227–28 (quoting Braun v. Flynt, 731 F.2d
1205, 1206 (5th Cir. 1984)). Conversely, if Casteel’s presumption does
not apply, the reviewing court may still conclude that a charge error was
harmful if it concludes that the error probably caused the rendition of
an improper judgment or probably prevented the appealing party from
properly presenting the case to the court of appeals. TEX. R. APP. P.
44.1(a), 61.1. That a legal presumption does not apply does not prevent
a court from reaching the conclusion that would be presumed if it did.32
C. When the Casteel presumption applies
Horton offers two related reasons why Casteel’s presumed-harm
rule should not apply in this case. First, Horton argues that Casteel
applies only when a broad-form liability question comingles two or more
legal theories or causes of action, not when it submits a single cause of
action (here, negligence) based on two or more alleged wrongful acts.
Second, Horton argues that Casteel applies only when one or more of the

32 Today’s dissenting opinion accurately describes the rebuttable
presumption of harm but contends our precedent does not support it. Post at
8–9 (Young, J., dissenting). It acknowledges that we have consistently
characterized Casteel as creating a presumption in at least eight decisions
since Casteel and Harris County, but it would discard our precedent on the
assertion that the Court was merely using “loose language.” Id. at 9. Our
confidence in the Court’s decision-making process, however, prohibits us from
joining that conclusion.

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commingled theories or allegations is legally invalid, not when it is
legally valid but unsupported by legally sufficient evidence.
As discussed below, our precedent generally refutes Horton’s first
argument, although some of our decisions contain statements that at
least appear to support it. And our precedent on Horton’s second
argument is admittedly even less clear. We will thus make some effort
here to review and clarify our precedent. We ultimately reject Horton’s
first argument but agree with his second. We hold that Casteel’s
presumed-harm rule (1) applies when a broad-form jury charge
commingles valid and invalid theories or allegations and permits the
jury to make a finding based on either one but (2) does not apply when
a theory or allegation is “invalid” merely because it lacks legally
sufficient evidentiary support. We emphasize, however, that this rule
merely governs whether harm will be presumed. If the presumption does
not apply (or is rebutted), the reviewing court must determine in light
of the entire record whether the error was in fact harmful under Rules
44.1 and 61.1.
1. Horton’s first argument: Theories and allegations
As explained, Casteel involved a broad-form question that asked
whether the jury found the defendant liable on any one of several
distinct “theories of liability.” 22 S.W.3d at 388. Focusing on that
language, Horton first argues that Casteel does not apply here because
“[f]ailing to maintain tracks and failing to post a yield sign are different
negligent acts, not separate theories of liability.” In a couple of our
decisions applying Casteel, we have made statements that support this
argument. See Thota, 366 S.W.3d at 692 (“[T]his case involves a single
liability theory—negligence—so Casteel’s multiple-liability-theory

48
analysis does not apply.”); Urista, 211 S.W.3d at 757 (“When, as here,
the broad-form questions submitted a single liability theory (negligence)
to the jury, Casteel’s multiple-liability-theory analysis does not apply.”).
In Casteel, however, the Court relied on and reaffirmed our prior
decision in Lancaster v. Fitch, 246 S.W. 1015 (Tex. 1923), in which “the
trial court submitted a single general negligence issue with instructions
regarding three distinct theories of negligence liability.” Casteel, 22
S.W.3d at 389. And since Casteel, we have repeatedly explained that its
presumed-harm rule applies not just to the erroneous broad-form
submission of liability theories or causes of action but to any erroneous
broad-form charge that permits the jury to rely on a legally invalid
theory or allegation presented to the jury.33
We expressly rejected Horton’s first argument in Benge, holding
that a trial court harmfully erred by refusing to instruct the jury not to
consider the plaintiff’s evidence and arguments regarding a negligence
allegation the plaintiff did not assert in his pleadings. 548 S.W.3d at
476. We acknowledged that the broad-form question in Benge, unlike the
one in Casteel, “did not include multiple theories, some valid and some
invalid.” Id. Instead, it “inquired about a single theory: negligence.” Id.

33 See, e.g., Hawley, 284 S.W.3d at 865 (applying Casteel’s presumed-

harm rule when a broad-form question allowed the jury to consider an
independent contractor’s acts for which the defendant could not be legally
liable); Romero, 166 S.W.3d at 215 (applying presumption when an erroneous
apportionment question permitted the jury to consider an invalid allegation
when allocating legal responsibility among the parties); Harris County, 96
S.W.3d at 233–34 (rejecting court of appeals’ restriction of Casteel to “the
submission of an invalid liability theory” and holding that the presumed-harm
rule applied when a trial court erroneously submitted a broad-form question
that allowed the jury to award damages for multiple alleged losses).

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at 475. But because the broad-form question, combined with the court’s
refusal to submit the requested instruction, permitted the jury to
answer the question by finding “liability based on evidence that cannot
support recovery,” we held that “the same presumption-of-harm rule
must be applied.” Id.; see Morrison, 381 S.W.3d at 536 (applying Casteel
presumption where broad-form question allowed the jury to find liability
based on a jurisdictionally barred allegation).
Despite the statements in Thota and Urista to the contrary,34 our
decisions have not limited Casteel’s presumed-harm rule to cases in
which a broad-form question submits multiple liability theories or
causes of action. Instead, we have applied it in cases where a jury
charge, as a whole, permits the jury to reach a finding based on a legally
invalid theory or allegation presented to the jury.35 In other words,

34 We ultimately declined to apply Casteel’s presumed-harm rule in
Thota because the errors in that case did not “prevent the harmed party from
obtaining meaningful appellate review.” 366 S.W.3d at 693. And we declined
to apply it in Urista because the error in that case could not be addressed by
“departing from broad-form submission and instead employing granulated
submission.” 211 S.W.3d at 756–57.
35 Compare Benge, 548 S.W.3d at 475–76 (applying presumed-harm rule

even though the jury question “inquired about a single theory: negligence”
because the court’s erroneous refusal of requested instruction permitted the
jury to find negligence based on an allegation the plaintiff did not assert, and
“we [could not] determine whether it was the basis for the jury’s finding”), and
Hawley, 284 S.W.3d at 864–65 (applying presumed-harm rule even though
“negligence was the only theory of liability submitted” because the court’s
erroneous refusal of requested instruction permitted the jury to find the
hospital liable based on an independent contractor’s conduct and “there is no
way for . . . an appellate court to tell if it did so”), with Urista, 211 S.W.3d at
757 (refusing to apply presumed-harm rule because the error resulting from
submission of inferential rebuttal instruction was not due to improper broad-
form question), and Thota, 366 S.W.3d at 692–93 (refusing to apply presumed-

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Casteel’s presumed-harm rule applies when a jury charge permits a jury
to “consider erroneous matters.” Harris County, 96 S.W.3d at 233. We
conceive of no reason to depart from this applicability standard, as it
appropriately reflects the reality that a broad-form submission that
combines both valid and invalid theories or allegations will often
prevent appellate courts from determining whether the error caused the
rendition of an improper judgment. Casteel, 22 S.W.3d at 390.
2. Horton’s second argument: Allegations lacking
evidentiary support
Horton’s second argument is that Casteel’s presumed-harm rule
does not—or, at least, should not—apply when a broad-form submission
is erroneous only because it permits the jury to base a finding on a theory
or allegation that is legally valid but lacks evidentiary support. Here,
Horton contends, we should not presume that the broad-form
submission of her negligence claim caused harmful error because the
claim was legally valid and any error resulted only from our conclusion
that no evidence supports the missing-yield-sign allegation.
Once again, our precedent is somewhat unclear and conflicting
regarding this argument. On the one hand, many of our decisions
include statements that the presumed-harm rule applies when a theory
or allegation is “invalid” because it lacks evidentiary support.36 But we

harm rule because error in asking the jury to decide the plaintiff’s contributory
negligence did not cause doubt or confusion about the jury’s failure to find that
defendant was negligent).
36 See Benge, 548 S.W.3d at 475 (“[W]hen the question allows a finding

of liability based on evidence that cannot support recovery, the same
presumption-of-harm rule must be applied.”); Morrison, 381 S.W.3d at 537 (“A
broad-form question cannot be used to ‘put before the jury issues that have no

51
recently expressly held otherwise in Castillo, 444 S.W.3d at 621. The
jury question at issue in Castillo asked whether a fraudulent statement
was “sent by or at the direction of the plaintiffs or their agents or
representatives with knowledge it was false.” Id. at 620–21. The
plaintiffs argued that the presumed-harm rule applied because,
although some evidence may have supported a finding that the
plaintiffs’ attorney sent the statement, there was no evidence that the
plaintiffs themselves sent it. Id. at 621. We rejected the argument,
concluding that it “misunderstands Casteel,” which applies only “when
one of the choices presented to the jury on a single, indiscernible
question is legally invalid.” Id. (emphasis added). Because the plaintiffs
argued only that the evidence was insufficient and did not “argue the
legal invalidity” of the claim, we held “Casteel does not apply.” Id.37

basis in the law or the evidence.’” (quoting Romero, 166 S.W.3d at 215)); Thota,
366 S.W.3d at 680 (confirming that Harris County applied Casteel “when the
broad-form question commingle[d] damages elements that [were] unsupported
by legally sufficient evidence”); Urista, 211 S.W.3d at 756 (explaining that
Harris County “extended the Casteel holding to broad-form questions that
commingle damage elements when an element is unsupported by legally
sufficient evidence”); Romero, 166 S.W.3d at 215 (stating that “broad-form
submission cannot be used to put before the jury issues that have no basis in
the law or the evidence” and the benefits of broad-form submission “neither
necessitate nor justify misleading the jury with legally or factually invalid
claims” (emphases added)); Harris County, 96 S.W.3d at 231–35 (applying
presumed-harm rule when broad-form damages question was erroneous
because at least one element of damages lacked evidentiary support).
37 Similarly, in Schindler Elevator, we did not rely on a presumption

when determining that harm resulted when a trial court erroneously
instructed a jury to consider an alternative res ipsa loquitur theory of
negligence that was not supported by legally sufficient evidence. 670 S.W.3d
at 586–87.

52
Our refusal to presume harm in Castillo reflects our recognition
that the broad-form submission of valid and invalid theories or
allegations is less likely to be harmful when the invalidity results only
from a lack of legally sufficient evidence than when it results from legal
invalidity. Harm may also be less likely if the jury charge merely
presents the supported and unsupported theories or allegations as
alternatives the jury may disregard, as in Castillo. But harm will be
more likely if the trial court expressly instructs the jury that it must
base a finding on a factually unsupported theory or allegation, which is
what occurred in many of the cases that contain the kind of language on
which Horton relies.38 Such an instruction may support the ultimate
conclusion that the error was harmful under Rules 44.1 and 61.1, even
when harm is not presumed.
But when a theory or allegation is invalid only because no
evidence supports it, harm is far less likely because nothing prevents
the jury from reaching a valid and proper finding based on the evidence
it heard. As we stated in Romero, “the error of including a factually
unsupported claim in a broad-form jury question” is not “always

38 See, e.g., Romero, 166 S.W.3d at 225 (trial court instructed the jury

“to apportion responsibility among [various parties], and in doing so, to
consider” liability under a factually unsupported theory); Harris County, 96
S.W.3d at 231 (trial court instructed the jury to consider factually unsupported
elements when determining amount of damages); Hawley, 284 S.W.3d at 864
(trial court “affirmatively told the jury that the hospital acted through its
[agents],” which erroneously “allowed the jury to speculate whether Dr.
Valencia was an agent of the hospital” (emphasis added)); Lancaster, 246 S.W.
at 1015–17 (trial court instructed the jury that a negligent-defect allegation
lacking evidentiary support “was alone a sufficient ground of recovery” and
“specifically instructed [the jury] to find for [plaintiff] if the [equipment] was”
negligently defective and caused the plaintiff’s injury).

53
reversible” because “a jury may simply ignore a factor in the charge that
lacks evidentiary support.” 166 S.W.3d at 227. In this important sense,
a broad-form submission that permits a jury to make a finding based on
a legally invalid theory or allegation is far more likely to cause harm
than a broad-form submission that merely permits a jury to make a
finding based on a theory or allegation that is invalid only because it
lacks evidentiary support.
For this reason, and in an effort to clarify the law and simplify
the process, we hold that reviewing courts should not presume harm
when a broad-form submission permits a jury to make a finding based
on a theory or allegation that is invalid only because it lacks evidentiary
support. Because the broad-form negligence question submitted in this
case was erroneous only for that reason, we conclude that Casteel’s
presumed-harm rule does not apply.
But we reiterate that the effect of our holding here is merely that
appellate courts should not presume harm in such a case. Just as the
applicability of the presumption does not compel the conclusion that the
error was harmful, the fact that the presumption does not apply does
not compel the conclusion that the error was not harmful. Whether the
presumption applies (because a broad-form charge commingled legally
valid theories or allegations with legally invalid theories or allegations)
or does not apply (because the charge commingled valid theories or
allegations with theories or allegations that were invalid only because
the evidence did not support them), the parties may rely on the record
to demonstrate that the error was or was not harmful. When they do,
the ultimate question for the reviewing court is not whether the Casteel

54
presumption applies but whether a review of the entire record reveals
that the erroneous charge probably caused an improper judgment or
probably prevents the appellant from properly presenting the case on
appeal. See TEX. R. APP. P. 44.1(a), 61.1.
The Casteel presumption of harm, in other words, may be helpful
in some cases to demonstrate that a charge error was harmful under the
second prong of the harm test under Rules 44.1 and 61.1. But courts and
parties should not be unduly distracted by the issue of whether the
presumption applies. After determining whether it applies, and
assuming the parties point to the record to support their conflicting
positions, reviewing courts should focus on the ultimate question of
whether “a review of the entire record provides [a] clear indication that
the contested charge issues probably caused the rendition of an
improper judgment.” Thota, 366 S.W.3d at 687. Focusing on that
ultimate issue, reviewing courts should explain in their opinions why
the record as a whole does or does not establish harm in each particular
case. Cf. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)
(directing that factual sufficiency review be clearly explained in detail).
We turn now to that analysis based on the record in this case.
D. Application of harm test
Having concluded that we should not presume harm in this case
because the missing-yield-sign allegation was invalid only because no
legally sufficient evidence supported it, we must nevertheless determine
whether the erroneous negligence question was harmful under
Rule 61.1. Based on our review of the entire record, we conclude that the
trial court’s erroneous submission of Horton’s negligence allegations
through a broad-form question did not probably cause the rendition of

55
an improper judgment. To the contrary, based on our review of the entire
record, we are “reasonably certain that the jury was not significantly
influenced by issues erroneously submitted to it.” Romero, 166 S.W.3d
at 227–28.
In reaching this conclusion, we consider it important that
Horton’s counsel focused his trial presentation primarily on the
humped-crossing allegation, comparatively neglecting the yield-sign
allegation. During his opening statement, in fact, he acknowledged to
the jury that “the worst thing [KC Southern] did wasn’t the yield sign,”
it was the failure to maintain the hump to “no more than three inches
high.” The evidence and arguments Horton offered to support the
yield-sign allegation, in addition to being legally insufficient to support
causation, were also minimal in comparison to her presentation
regarding the humped crossing. As KC Southern’s counsel characterized
the trial during oral argument in this Court, “90% of the testimony”
dealt with the humped-crossing allegation and there was only a “half
mention of the yield sign.”
Moreover, KC Southern does not dispute that Horton offered
substantial evidence supporting her claim that KC Southern negligently
created the humped crossing and thereby caused the accident. This
evidence indicated that the crossing was not merely humped but that it
was some ten times higher than it should have been. KC Southern has
argued unsuccessfully that federal law preempts any liability based on
that allegation, but it has not argued that the evidence does not support
a finding that it negligently created the hump or that the hump caused
the accident.

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We also note that the jury charge did not instruct the jury that it
could find negligence based on the missing yield sign or otherwise
suggest that it could do so. Unlike the jury charges in Romero, Harris
County, Hawley, and Lancaster, the charge at issue here did not mention
the missing yield sign at all, much less lead the jury to believe that it
should or could find liability based on that allegation. Ultimately, the
jury (on a 10–2 vote) found KC Southern and Rigsby were both negligent
and equally responsible for causing the accident, and the trial court
rendered judgment on that verdict awarding Horton $200,000.
Based on this record, we cannot say that the judgment is probably
improper, and we are instead reasonably certain that the jury was not
significantly influenced by the erroneous broad-form submission. In
essence, we conclude that this case is like Castillo, in which the jury
could, and probably did, “simply ignore a factor in the charge that lacks
evidentiary support,” and not like Romero, where the jury was “as
misled by the inclusion of a claim without evidentiary support as by a
legally erroneous instruction.” Romero, 166 S.W.3d at 227. We thus
conclude that the submission of the broad-form negligence question,
although erroneous, did not cause the rendition of an improper
judgment and thus did not constitute harmful or reversible error.
V.
Conclusion
We hold that the ICCT Act does not expressly preempt Horton’s
humped-crossing negligence claim, that KC Southern failed to bear its
burden of proving that the Act impliedly preempts that claim, and that
the evidence is legally insufficient to support liability based on Horton’s
missing-yield-sign negligence claim. Because we also conclude the trial

57
court’s erroneous use of a broad-form question to submit Horton’s
negligence claim did not constitute harmful error, we reverse the court
of appeals’ judgment and reinstate the trial court’s judgment.

Jeffrey S. Boyd
Justice

OPINION DELIVERED: June 28, 2024

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