The 'In-Use' Requirement Under the Locomotive Inspection Act

y R. Seth Crompton  [1] and Patrick R. Dowd [2]

The Federal Employers’ Act (“FELA”) supplants state tort and workers’ compensation schemes for railway workers who are injured on the job and provides their only right to recover damages for workplace injuries.  N.Y. Cent. R.R. Co. v. Winfield, 244 US 147, 150-52 (1917).

A plaintiff suing under FELA must prove that the railroad either was negligent or violated one of two safety statutes, the Locomotive Inspection Act (“LIA”)[3] or the Safety Appliance Act (“SAA”), 49 USC §§ 20301-20306.  Id. at 189.  The purpose of FELA is “to provide liberal recovery for injured workers.”  Kernan v. Am. Dredging Co., 355 US 426, 432 (1958). The LIA and SAA each set forth specific safety standards that apply to different aspects of railroad operations.  All three statutes are “to be liberally construed in the light of [their] prime purpose, the protection of employees and others by requiring the use of safe equipment.”  Lilly v. Grand Trunk W. R.R. Co., 317 US 481, 486 (1943).

A finding that the railroad violated the LIA can drastically impact an injured employee’s lawsuit, including partial summary judgment or a directed verdict in favor of the employee.  One of, if not the most, contentious and hotly contested areas of litigation within the LIA is the “in-use” requirement.  The railroad defendants often obfuscate the law and facts in an effort to impermissibly narrow the scope of the meaning of “in-use” in order to avoid liability under the LIA.

1. The Locomotive Inspection Act

The LIA provides that a railroad may use or allow to be used a locomotive “only when the locomotive...and its parts and appurtenances – (1) are in proper condition and safe to operate without unnecessary danger of personal injury...”  49 U.S.C. §20701.    A railroad worker who is able to show a violation of the LIA, or other railroad safety statute or regulation, has shown FELA negligence as a matter of law for which the railroad is strictly liable.   45 U.S.C. §§53–54a; CSX Transp., Inc. v. McBride, 564 U.S. 685, 131 S.Ct. 2630, 2643 n.12 (2011); Urie v. Thompson, 337 U.S. 163 (1949). In such cases, the railroad cannot assert the plaintiff’s contributory negligence as a defense and the plaintiff need not prove notice of the hazardous condition or the railroad’s failure to exercise ordinary care. 45 U.S.C. §§53–54a; Wright v. Ark. & Mo. R.R., 574 F.3d 612, 620 (8th Cir. 2009); O’Donnell v. Elgin, Joliet & E. Ry., 338 U.S. 384, 393–94 (1949).  To avoid this strict liability, railroad defendants began challenging whether the locomotive at issue was “in use” at the time of the injury which is necessary for the LIA to apply.

1. In-use under the Locomotive Inspection Act

The purpose of the “in use” requirement is to effect Congress’ intent to “exclude those injuries directly resulting from the inspection, repair, or servicing of railroad equipment located at a maintenance facility.” Steer v. Burlington N., Inc., 720 F.2d 975, 976–77 (8th Cir. 1983)(quoting Angell v. Chesapeake & Ohio Ry., 618 F.2d 260, 262 (4th Cir. 1980)). “The ‘in use’ limitation gives the railroad an opportunity to remedy hazardous conditions before strict liability attaches to claims made by injured workers.” Wright, 574 F.3d at 620.

1. United States Supreme Court Precedent
   

The seminal case for starting the analysis is Brady v. Terminal R.R. Ass’n, 303 U.S. 10 (1938).  Consistent with the remedial purpose of the statutes that protect injured railroad workers, the Supreme Court has explained that a locomotive or other vehicle is “in use” when it has “not been withdrawn from use.”  Id. at 13.  That includes vehicles moving from one city to another, as well as motionless vehicles that are on yard tracks undergoing inspection.  Id.  Liability attaches “[e]ven where the required equipment is known to have become defective and the car is being hauled to the nearest available point for repairs….”  Id. at 15-16.  A vehicle is not “in use” when it “has reached a place of repair.”  Id. (emphasis added).

To obfuscate application of this seemingly straightforward rule, railroad defendants have spent decades urging courts to employ a totality of the circumstances or multi-factor approach in deciding whether the locomotive was in-use.  Accordingly, the practitioner should plan to also make an argument under the totality of the circumstances or multi-factor approach as most courts now tend to use this method in determining whether the locomotive was in-use, which is a question of law for the court to decide.  See, e.g., Huntsinger v. BNSF Railway Co., 286 Or.App. 84, 90, Fn. 8 (Or. Ct. App. 2017).  

1. The Totality of the Circumstances or Multi-Factor Approach
   

While there is no uniform set of factors or circumstances, the following cases will be helpful in winning the argument regarding in-use under the LIA:

• Angell v. The Chesapeake and Ohio Railroad Company, 618 F.2d 260, 262 (4th Cir. 1980) (locomotive being moved “to another track … to later pull a train also indicates that the engine was not in need of further repair or servicing” and was “in use”);

• Deans v. CSX Transp., Inc., 152 F.3d 326, 329 (4th Cir. 1988) (locomotive being prepared for outbound trip was “in use” even though it had not undergone final pre-departure inspection);

• Rivera v. Union Pac. R., 868 F Supp. 294, 301 (D. Colo. 1994) (“The [LIA] is not rendered inapplicable simply because a worker is injured while performing an inspection of a locomotive.”);

• McGrath v. CONRAIL, 136 F.3d 838, 842 (1st Cir. 1998) (locomotive at issue was idling on a yard track used to store, inspect, classify, and switch locomotives and railroad cars. Plaintiff, the engineer, allegedly sustained an injury after boarding the locomotive and walking toward the daily inspection card, which he was required to consult prior to moving the locomotive.  Applying the two determinative factors, the First Circuit held that the injury was actionable under the LIA since plaintiff sustained the injury in the course of performing duties “‘incidental to [the] task of operating the train as an engineer,’” rather than in the course of maintenance work, and the locomotive's location-the yard track-was not a place of repair.);

• Bardin v. Consolidated Rail Corporation, 270 A.D. 2d 696, 698 (S.C. App. Div. N.Y. 2000) (finding that a locomotive was in use, when the conductor, a member of the transportation crew with no maintenance or repair duties, was injured while disengaging a brake before departure. The court noted that “Plaintiff was not performing any maintenance function but was merely making a final visual inspection to see that nothing was out of the ordinary and that the cars' hand brakes had been released.”);

• Wagner v. Union Pac. R.R., 642 N.W.2d 821, 837–38 (Neb.App. 2002) (locomotive was “in use” when employee was injured in the process of putting a locomotive on a train being readied for departure from the yard);

• Horibin v. Providence & Worcester R. Co., 352 F.Supp. 2d 116, 121 (D. Mass 2005) (finding that a locomotive was in use when an engineer, who was a member of the transportation crew with no maintenance duties or repair duties, was injured setting a handbrake following its arrival at the engine house, a part of his required duties and which must be done before it is taken out of “use”);

• Bearfield v. Soo Line Railroad Company, 2008 WL 268587 *4 (D. N.D. Jan. 29, 2008) (Citing to McGrath, the court found that plaintiff’s inspection duties were “incidental to [the] task of operating the train as its engineer.” The court also found that even though the crew had not fully assembled the train, the “in use” determination focuses on the locomotive, as opposed to the entire train and the locomotive was “in use” at the time Bearfield suffered his injury.);

• Balough v. Ne. Ill. Reg’l Commuter R.R. Corp., 409 Ill.App.3d 750,765–66 (Ill.App. 2011) (that the train was not assembled at the time and no crew was assigned when plaintiff was injured did not preclude a finding the locomotive was “in use”);

• Babin v. New Orleans Pub. Belt R.R. Comm’n, No CIV A 12-1868, 2013 WL 1856067 at *5 (E.D. La. May 1, 2013) (reasoning that “it is irrelevant that the train was still being inspected and had not yet been released,” and “[w]hat is relevant is that the locomotive had already been inspected and okayed a[t] the time of the plaintiff’s accident”) (emphasis added);

• Edwards v. CSX Transp. Inc., 821 F.3d 758, 762 (6th Cir. 2016) (“[A] locomotive is ‘in use’ almost any time it is not stopped for repair.”);

• Huntsinger v. BNSF Railway Co., 286 Or.App. 84, 94-95 (Or. Ct. App. 2017) (finding that the locomotive was in use even though an air pressure monitor was malfunctioning, the train was blue-flagged (which signals that workers are in, under or around a train), the train did not have a scheduled departure time, and the transportation crew was not on site. That the locomotive was coupled to a train being readied for departure indicates the servicing, repair and maintenance of the locomotive were completed.).

For their part, Defendants tend to repeatedly rely on one case in particular:  Trinidad v. So. Pac. Trans. Co. 949 F.2d 187 (5^th Cir. 1991). However, Trinidad is an outlier decision which adopted a bright line test that requires a train to be fully assembled, through all inspections, and released for travel.  Many courts have refused to adopt this approach as overly restrictive and contrary to the liberal construction that courts must give to the FELA and related safety statutes.  See, e.g., Wright, 574 F.3d at 623–24; Babin, 2013 WL 1856067 at *7-8 (distinguishing Trinidad which involved whether a train is in use under the Safety Appliance Act from the issue of whether a locomotive is in use under the LIA) (emphasis in original); See also, Hinkle v. Norfolk S. Ry., 2006 WL 3783521 at *3-4 (S.D.Ohio Dec. 21, 2006); Haworth v. Burlington Northern and Santa Fe Ry. Co., 281 F.Supp.2d 1207, 1211-12 (E.D. Wash. 2003); Huntsinger, 286 Or.App. 84 at 92.

• Conclusion
  

The defendant railroad will obfuscate and often misrepresent the law and facts in an effort to avoid liability under the LIA.  An understanding of the case law is necessary to develop the pertinent facts you need so as to maximize the recovery for the injured railroad worker.

[1] Mr. Crompton grew up in a family of union railroad workers, which gives him a unique and specialized understanding and knowledge of the dangers and difficulties faced by railroad and maritime workers.  He has represented injured railroad and maritime workers across the United States, and has obtained millions of dollars in verdicts and settlements on their behalf.  In addition to specializing in FELA and Jones Act litigation, his practice also encompasses other high stakes litigation including class action, pharmaceutical drug and device, complex commercial litigation, environmental contamination, product liability, trucking accidents, and a variety of other catastrophic injuries.  He has been appointed by courts across the country to a variety of leadership positions and has obtained multi-million dollar awards, as well as resolutions of large, national complex litigations, He has also been recognized by his peers and the judiciary as a distinguished trial lawyer, including receiving the Martindale-Hubbell preeminent AV rating (5.0/5.0), the National Trial Lawyers Top 100 Trial Lawyer, inclusion in the Global Directory of Who’s Who, and designation in Super Lawyers.

[2] Mr. Dowd is a third-generation attorney who grew up in a family of lawyers and judges in the St. Louis area.  He has spent years successfully representing injured railroad and maritime workers across the United States.  In addition to FELA and Jones Act litigation, his practice includes pharmaceutical and drug devices, product liability, trucking accidents, medical malpractice, chemical and toxic exposures, and complex business and commercial litigation.

[3] Until 1994, the LIA was known as the Boiler Inspection Act.  The names was changed when the statute was recodified.  Tootle v. CSX Transp., Inc., 746 F Supp. 2d 1333, 1340 (S.D. Ga. 2010).