Reprinted with permission from The Transportation Lawyer, July 2022 issue.

On April 28, 2022, the United States Supreme Court let stand a Seventh Circuit decision that held Union Pacific was not liable for injuries an engineer suffered when he slipped and fell preparing a train to depart an Illinois rail yard. The decision in Bradley LeDure v. Union Pac. R.R. Co. maintains the status quo and provides little guidance to lower courts that have struggled to garner consensus on how to interpret the phrase “in use” in the Locomotive Inspection Act (“LIA”).[1]

Bradley LeDure, a locomotive engineer, brought suit  against against his employer, Union Pacific Railroad Company, under the Federal Employers Liability Act (“FELA”)[2] and the LIA.[3] LeDure argued that Union Pacific failed to maintain a safe workplace in violation of the FELA. The LIA and its corresponding regulations require railroads to keep locomotive walkways clear of hazards while the locomotive is “in use.”[4]

Notably, if a FELA plaintiff can successfully show that a locomotive is in violation of the LIA, then the plaintiff can argue negligence per se. This can result in the railroad defendant losing the plaintiff’s contributory negligence as an affirmative defense. The recent trend in FELA litigation has been for the plaintiff to move affirmatively for partial summary judgment citing violations of the LIA or the related Safety Appliance Act (SAA) to take contributory negligence away from the defense.  In keeping with this trend, LeDure moved for partial summary judgment, arguing Union Pacific failed to comply with LIA regulations to subject Union Pacific to a negligence per se standard, rather than the FELA’s negligence standard.

Union Pacific moved for summary judgment, arguing that the LIA’s negligence per se standard did not apply because LeDure was not injured while the locomotive was “in use” on Union Pacific’s line.[5] The district court entered summary judgment for Union Pacific, and the Seventh Circuit Court of Appeals affirmed the decision. The Supreme Court affirmed.

The “Rail” Facts

Despite going all the way up to the Supreme Court, the actual facts resemble a routine slip-and-fall case.  On August 12, 2016, at approximately 2:10 a.m., LeDure reported to work at a rail yard in Salem, Illinois. His task? To assemble a train for a trip to Dexter, Missouri. To do so, LeDure had to determine how many locomotives were necessary to carry the load and to tag each one to determine whether or not they would operate. LeDure turned to three locomotives, coupled together on a nearby sidetrack, that had arrived earlier that morning from Chicago, Illinois. LeDure decided that only one locomotive needed to be powered on for the trip to Dexter. LeDure tagged the first locomotive for operation and the second locomotive for non-operation. As he moved to the third locomotive, UP5683, to shut it down and tag it appropriately, he slipped and fell down the locomotive’s steps.

LeDure got up, proceeded to power down and tag the locomotive, and returned to the walkway where he fell. He identified a “slick” substance on the walkway. LeDure reported the incident to his supervisor and gave a written statement before he went home later that day. Union Pacific conducted an inspection and reported cleaning a “small amount of oil” on the walkway.

The Track to the Supreme Court

The district court entered summary judgment for Union Pacific. Addressing the LIA claim, the court pointed out that other district courts’ decisions on what constitutes “in use” under the LIA “are irreconcilably disparate.”[6] Recognizing the differing approaches courts take when deciding what constitutes “in use,” the district court chose to follow the binding standard of Lyle v. Atchison, T. & S.F. Railway Co.[7] The district court concluded the locomotive was stationary, parked on a back track of the depot yard, had not yet been inspected or tagged, and had not been assembled into a train for use in interstate commerce, all of which weighed against considering the locomotive “in use.”

The Seventh Circuit affirmed the district court’s ruling and explained the district court properly applied Lyle and its holding that “to service an engine while it is out of use, to put it in readiness for use, is the antithesis of using it.”[8]

Divergent Tracks

Problematically, “Lyle did not create any sort of concrete test or set of guidelines… [consequently, courts] applying the case are all over the map.”[9] Much like the Seventh Circuit, other circuits have developed varying standards regarding whether a locomotive is “in use” for the purposes of the LIA.

The Tenth Circuit has said that “in use” means “used in moving interstate or foreign traffic.”[10] In Estes, the court held that a locomotive, housed in a roundhouse and “given light maintenance,” was not being used to move interstate or foreign traffic; therefore, the locomotive was not “in use.”[11] The Fifth Circuit has said that a locomotive is not “in use” until all predeparture procedures are complete.[12] In Trinidad, the plaintiff was injured while walking to inform his engineer of a defect discovered during a predeparture inspection. The court determined the locomotive was not in use because the predeparture inspection was not complete. [13]

In contrast to these more formalistic rules, the Fourth Circuit in Deans applied a “totality of the circumstances” test with the most important factors being (1) where the train was located; (2) if the train was stationary, what time the train was scheduled to depart; and (3) what the injured party was doing at the time of the accident.[14] Deans, a conductor, was injured while releasing a handbrake to set the train in motion. Under Trinidad v. S. Pac. Transp. Co., Deans would have been unable to recover because he was injured before a predeparture test had been conducted. The Fourth Circuit diverged from the Fifth Circuit’s standard so liability would not be determined “on the mere happenstance of whether an employee chooses to release the hand brakes or conduct an air brake test first.”[15]

The First Circuit chose to apply a formulistic test in McGrath. The determination of use under the First Circuit’s standard depends whether a locomotive is running on the yard track and ready to move into service, and whether the worker was injured while performing pre-departure inspection duties.[16] If both questions are answered in the affirmative, then the locomotive was “in use.”[17]

Given the different interpretations among the circuits, many were hopeful the Supreme Court would clarify the standard for the determination of “in use” in LeDure. Union Pacific argued that LeDure was not injured on a train that was “in use” under any standard because “a locomotive that is not operating, is not going to be operated, or requires preparation for future operation” could never be considered “in use.” Union Pacific contended the locomotive was not “in use” under the LIA because it was motionless, parked on a sidetrack, had not been inspected for departure, and was tagged to “run dead” to its next destination as part of a train that had yet to be assembled.

LeDure, on the other hand, argued the train was “in use” despite being temporarily stopped and idling on a sidetrack because it was being prepared to resume travel to its assigned destination. Ledure urged that use be interpreted in the broader sense, which includes a locomotive being “put to a purpose.”  LeDure’s arguments sounded in the totality of the circumstances standard as applied by the Fourth Circuit.

The Sheet Metal, Air, Rail Transportation Workers - Transportation Division, the Association of American Railroads, the Chamber of Commerce of the United States of America, and the Solicitor General all filed amicus curiae briefs in the case.

The Solicitor General and the Sheet Metal, Air, Rail Transportation Workers argued that rail equipment (both locomotives under the LIA and cars under the SAA) should be considered “in use” whenever it is in the “employment” of a railroad and that it is only out of use when it has been withdrawn from service for repair, storage, or retirement. According to the Solicitor General and the Sheet Metal, Air, Rail Transportation Workers, this interpretation promotes “[t]he clear intent, encouragement, and dedication of Congress . . . [to] safety in railroad transportation.” Their amicus briefs highlighted safety concerns, including the fact that railroad workers are injured more frequently on stationary locomotives than on moving locomotives.

The Association of American Railroads and the Chamber of Commerce of the United States of America both warned against a broad interpretation of “in use” that would expand strict liability against railroads. They warned that strict-liability can lead to “over-deterrence and inefficiency” and that “[g]iven the railroads’ key role in our over-stressed supply chain, courts should take care before imposing rules that would reduce efficiency of rail operations and increase costs for shippers and consumers without increasing safety.” Their amicus briefs pointed out the petitioner and the government’s position would affect potentially hundreds, or even thousands, of locomotives each day and would result in wasteful use of resources in the form of daily inspections of idle locomotives.

Oral Argument

The Supreme Court held oral argument in March 2022, which consisted of several interesting hypotheticals, railroad-related puns, and even a reference by outgoing Justice Breyer to the children’s classic “The Little Engine That Could.” For example, Chief Justice Roberts posed the following hypothetical to Plaintiff’s counsel:  A locomotive has been placed on a sidetrack and the railroad says the next time we are going to use it is in 10 days.  Throughout those 10 days, would the locomotive be considered “in use”?  In response, LeDure’s counsel replied, “Yes, it would. And the reason is that locomotives are used for many purposes even before their necessary transiting functions.”

Most interestingly, the Solicitor General’s office, purporting to speak on behalf of the Federal Railroad Administration (“FRA”), took an extremely expansive position with respect to “in use.”  According to counsel, the only time a locomotive would not be considered “in use” would be a situation where the locomotive has been drained of fuel and the battery has been disconnected so as to render it inoperable. No circuit court has applied such a broad interpretation.

In response, Union Pacific’s counsel maintained that these arguments had no basis in the actual statute or actual railroad operations:  “It seems to me that Petitioner and the government are just rewriting the statute Congress wrote.  All of this about draining fluids and unhooking batteries isn’t in the statute.”  Union Pacific’s counsel also rebuffed Justice Kagan’s questions regarding interpreting the statute broadly as a preventative statute and contended that LeDure and the Solicitor General’s view would render meaningless the FRA’s safe harbor provisions for moving defective locomotives for repair.

Where Does “In Use” Stand?

The deadlocked court left intact the Seventh Circuit’s finding that a train sitting on a sidetrack in preparation for departure is not “in use” under the LIA without clarifying which federal circuit court interpretation is correct and without providing guidance going forward.

At a moment in time where precision scheduled railroading, long trains, customer service, and worker safety dominate the headlines, the court’s affirmance comes with a sigh of relief for the railroad industry after the potential for an expansion of strict liability under the LIA and the subsequent stripping of affirmative defenses for the railroad.  If LeDure’s position had prevailed, the result could have led to imposing strict liability, civil penalties, and increased costs and additional burdens on railroads, who have served a vital role in our nation’s over-stressed supply chain. Particularly, railroads and contractors engaged in local switching operations have been spared from the additional costs and inefficiencies that could result from a strict liability scheme.  But the LeDure case certainly sounded the alarms for the future of litigation under the FELA, the LIA, the Federal Safety Appliance Act, and their respective negligence-based schemes.  Practitioners on both sides of the track will undoubtedly find the arguments advanced in this case helpful in their briefing on this issue.  And, for now, the success of these arguments remain dependent on which court you find yourself in.

To see the article in publication, view the pdf here (article starts on page 50).  

 

[1] 142 S. Ct. 1582 (2022).

[2] 49 U.S. C. § 51 et seq.

[3] 49 U.S.C. § 20701 et seq. The LIA delegates authority to the Secretary of Transportation to create regulations governing the safe use of locomotives. Id.

[4] The relevant language states that a “railroad carrier may use or allow to be used” on “its railroad lines” a locomotive “only” if the locomotive meets the statutory safety requirements. 49 U.S.C. § 20791.

[5] Many courts consider the LIA and the Federal Safety Appliance Act (which contains the same “use or allowed to be used” provision as the LIA), to be amendments to the FELA because all three statutes share a “prime purpose, the protection of employees and others, by requiring the use of safe equipment.” Lilly v. Grand Trunk W.R.R. Co., 317 U.S. 481, 486 (1943); see also Urie v. Thompson, 337 U.S. 163, 189 (1949).

[6] LeDure v. Union Pac. R.R. Co., No. 317CV00737JPGGCS, 2019 WL 399924, at *4 (S.D. Ill. Jan. 31, 2019).

[7] 177 F. 2d 221 (7th Cir. 1949).

[8] LeDure v. Union Pac. R.R. Co., 962 F. 3d 907, 910 (7th 2020) (citing Lyle, 177 F. 2d at 223).

[9] LeDure, 2019 WL 399924, at *4.

[10] Estes v. Southern Pacific, 598 F.2d 1195, 1198 (10th Cir. 1979).

[11] Id. at 1198–99.

[12] Trinidad v. S. Pac. Transp. Co., 949 F.2d 187, 189 (5th Cir. 1991).

[13] Id.

[14] Deans v. CSX Transp., Inc., 152 F.3d 326, 329–30 (4th Cir. 1998).

[15] Id at 329.

[16] McGrath v. Consol. Rail Corp., 136 F.3d 838, 842 (1st Cir. 1998).

[17] Id.