Opinion
Civ. 76-269.
July 13, 1977.
Bailey Erickson, Jamestown, N.Y., for plaintiffs; James J. Moran, Jamestown, N.Y., of counsel.
Brown, Kelly, Turner, Hassett Leach, Buffalo, N.Y., for defendant and third-party plaintiff; Ogden R. Brown, Buffalo, N Y, of counsel.
Ohlin, Damon, Morey, Sawyer Moot, Buffalo, N.Y., for third-party defendant; James S. McAskill, Buffalo, N.Y., of counsel.
MEMORANDUM AND ORDER
This action is before me upon my motion for plaintiffs to show cause why the fifth and sixth claims for relief should not be stricken. Plaintiff John F. Capozzi was injured while in the employ of third-party defendant Dresser Industries, Inc. The injury occurred when an allegedly defective railroad car which was sold by defendant to Dresser Industries, Inc. caused a flask to fall upon John Capozzi's foot resulting in its amputation. The fifth claim for relief requests the recall of all similarly defective used railroad cars. The sixth claim for relief requests an injunction to prevent defendant from selling such similarly defective railroad cars in the future.
Plaintiffs do not cite any case in which such a recall and prohibition were permitted, but argue generally that such relief is appropriate. Railroad safety has been delegated by Congress to the Secretary of Transportation. 45 U.S.C. § 431. Inasmuch as Congress's delegation of authority to the Secretary has preempted the field, injunctive relief is not a remedy available for the correction of unsafe conditions. Donelon v. New Orleans Terminal Company, 474 F.2d 1108 (5th Cir.), cert. denied, 414 U.S. 855, 94 S.Ct. 157, 38 L.Ed.2d 105 (1973).
It is therefore hereby
ORDERED that plaintiffs' fifth and sixth claims for relief are stricken from the complaint.