Opinion
106785/06.
Decided August 10, 2007.
By.: Pat Timmins, Esq., Holly C. Peterson, Esq., and Bracha Statman, Esq., Nancy A. Perry, Esq., Attorneys for Defendant Viad Corp., Mound, Cotton, Wollan Greengrass, One Battery Park Plaza, New York, New York.
Daniel Markewich, Esq., Attorneys for Defendant Griffin Wheel Company, David Ferstendig, Esq., Law Offices of David L. Ferstendig, LLC New York, New York.
Attorneys for Defendant Railroad Friction Products Corporation, Segal McCambridge Singer Mahoney, LTD., New York, New York.
Christian H. Gannon, Esq., Attorneys for Defendant General Motors Corporation, Lavin, O'Neil, Ricci, Cedrone DiSipio, New York, New York.
Timothy J. McHugh, Esq., Attorneys for Defendant LIRR and MTA, Landman Corsi Ballaine Ford P.C., One Gateway Center Newark, New Jersey, Bhavna Changrani
Appearances Attorneys for Plaintiff, Levy, Phillips Konigsberg, LLP, New York, NY
In this asbestos personal injury case, decedent Joseph Caradonna, a long time employee of the Long Island Railroad ("LIRR"), claims exposure to asbestos from brake shoes and gaskets and other asbestos containing materials . Mr. Caradonna worked as a a mechanic's helper, welder, train car inspector, coach cleaner, and assistant foreman from 1949 to 1977 and was diagnosed with mesothelioma in or about February 2006 and died about a year later.
In previous decisions, this Court found that the Locomotive Boiler Inspection Act ("BIA" or "LIA"), 49 U.S.C. § 20701 preempted product liability claims because the BIA occupied the entire field of locomotive regulation. It also found that the Federal Safety Standards Act ("SAA"), 49 U.S.C. § 20301 occupied the field of rail car safety appliance regulation. Thus, no state law product liability claims could be brought against product manufacturers. The Court also found that plaintiff was relegated to a claim under the Federal Employer's Liability Act ("FELA") as to any negligence or violation of safety standards by the railroad.
Defendants LIRR and Metropolitan Transportation Authority ("MTA") now move to dismiss the Federal Employer's Liability Act on the ground that the FELA negligence claims are also preempted by BIA. Defendants aver that it would be anomalous to dismiss claims against the product manufacturers but allow claims against the employer under FELA. Defendants also argue that the Federal Railroad Administration ("FRA") report submitted to Congress in 1996 found that the presence of asbestos in locomotives did not warrant action and posed no threat to employees.
For the following reasons, defendants' motion is denied. First, FELA is a federal statute specifically designed to protect railroad employees from negligence of the employer. It imposes a duty upon railroads to provide a safe working environment upon its employees. Aparacio v. Norfolk Western Railway Co. 84 F. 3d 803 (6th Cir. 1996). That duty may also include a duty to warn as to hazards in the workplace. Urie v. Thompson, 337 U.S. 163 (1949) (finding that failure of a claim under the BIA did not preclude a FELA claim by a railroad employee who allegedly contracted silicosis). In fact, the standard of proof for negligence under FELA is less stringent than it is for most common law negligence claims. Second, although the BIA preempts state law claims that conflict with it or contravene its purpose, it does not preempt other federal statutes. "The preemption doctrine flows from the Constitution's Supremacy Clause, U.S. Const., Art. VI, cl. 2, which invalidates state law that interfere with, or are contrary to federal law.'" Tufariello v. LIRR, 458 F.3d 80 (2d Cir. 2006). In the Tufariello case, the Second Circuit specifically found that the Federal Railroad Safety Act (FRSA) (the successor act to the BIA) did not preclude a FELA suit brought by a railroad worker against the railroad based on the alleged failure to provide adequate hearing protection even though FRSA did establish minimum sound levels for warning devices on trains. Similarly, there is nothing in the BIA or the FRA report that negates or contradicts a finding that under certain circumstances, the presence of asbestos could constitute negligence to employees under the FELA standards.
In a similar case in Nassau County, Kowalski v. Amchem Products, et al., Index No. 010484/07, the Court found that to the extent that the negligence claims under FELA did not expressly conflict with FRSA or any specific provision of the FRA report, they were not preempted. That Court, citing Tufariello, also found that LIA or FRSA claims did not preempt federal common law negligence claims under FELA because one federal statute does not preempt another.
Based on the foregoing, the motion to dismiss the FELA claim is denied. Date: August 10, 2007
Helen E. Freedman, J.S.C. Appearances Attorneys for Plaintiff Levy, Phillips Konigsberg, LLP 800 Third Avenue, 13th Floor New York, NY 10022 By.: Pat Timmins, Esq., Holly C. Peterson, Esq., and Bracha Statman, Esq., Nancy A. Perry, Esq. (212) 605-6205 Attorneys for Defendant Viad Corp. Mound, Cotton, Wollan Greengrass One Battery Park Plaza New York, New York 10004-1486 Att: Daniel Markewich, Esq. Attorneys for Defendant Griffin Wheel Company David Ferstendig, Esq. Law Offices of David L. Ferstendig, LLC 292 Madison Avenue, 22nd Floor New York, New York 10017 (212) 213-1233 Attorneys for Defendant Railroad Friction Products Corporation Segal McCambridge Singer Mahoney, LTD. 830 Third Avenue, 4th Floor New York, New York 10022 Att: Christian H. Gannon, Esq. (212) 651-7500 Attorneys for Defendant General Motors Corporation Lavin, O'Neil, Ricci, Cedrone DiSipio 420 Lexington Avenue New York, New York 10170 Att: Timothy J. McHugh, Esq. (212) 319-6898 Attorneys for Defendant LIRR and MTA Landman Corsi Ballaine Ford P.C. One Gateway Center — 4th Floor Newark, New Jersey 07102 (973) 623-2700 Att:Bhavna Changrani