Opinion
CIVIL ACTION No. 03-2055 GTV
April 2, 2004
MEMORANDUM AND ORDER
Plaintiff Wayne A. Day asserts two claims against Defendant Union Pacific Railroad Company ("Union Pacific") pursuant to the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51 et seq., for damages arising out of incidents on February 26, 2000 and June 3, 2000 while in the course and scope of his employment with Union Pacific. Plaintiff also asserts one claim against Defendant pursuant to the Federal Locomotive Inspection Act ("LIA"), 49 U.S.C. § 20701 et seq. (formerly the Federal Boiler Inspection Act ("BIA"), 45 U.S.C. § 22 et seq.), arising out of the alleged February 26, 2000 incident.
The case is before the court on Defendant's motion for partial summary judgment (Doc. 20) as to Plaintiff's LIA claim in Count II of his complaint. For the following reasons, the court denies Defendant's motion.
I. FACTUAL BACKGROUND
The following facts are taken from the pretrial order and the summary judgment record and are either uncontroverted or viewed in the light most favorable to the non-moving party's case. Immaterial facts and facts not properly supported by the record are omitted.
In its reply brief, Defendant contends that Plaintiff failed to comply with District of Kansas Local Rule 56.1 by not numbering the paragraphs in the Statement of Facts section of Plaintiff's response brief. The court agrees and strongly suggests that subsequently filed documents comply with all relevant rules.
During all relevant times in his complaint, Plaintiff was employed by Union Pacific as a brakeman. On February 25, 2000, Plaintiff and his crewmates operated a Union Pacific train from Pratt, Kansas to Liberal, Kansas. This particular train contained a locomotive engine on each end; the "front" engine pulled the train from Pratt to Liberal, while the "rear" engine pulled the train from Liberal to Pratt.
On February 26, Plaintiff and his crewmates were to take the train back from Liberal to Pratt. The "rear" engine, however, was not functioning properly and it was removed from the train. This problem required Plaintiff and his crew to use the "front" engine, (hereinafter "Engine UP 3006"), and to push the train from Liberal to Pratt. Thus, the crew had to essentially operate the train backwards in a maneuver termed "long hood forward," forcing Plaintiff and his crewmates to travel with the train's exhaust stack ahead of them. During the return to Pratt, the crew noticed black smoke coming into Engine UP 3006's cab. When the train reached Plains, Kansas, Plaintiff was taken by ambulance to a hospital and was administered oxygen. Plaintiff complained of nausea, sore throat, nasal burning, and that he was generally not feeling well.
Plaintiff prepared an accident report dated February 26, 2000. In this report, Plaintiff stated that as a result of exhaust infiltration in the locomotive cab, he suffered carbon monoxide poisoning. He also noted in the report that Engine UP 3006 had bad seals on the doors, windows, and air conditioning.
Union Pacific conducted inspections of Engine UP 3006 both prior and subsequent to the February 26 incident. On January 12, 2000, a Union Pacific inspection of Engine UP 3006 revealed no defects or malfunctions which would have caused exhaust problems; the locomotive passed all aspects of an outbound smoke emission test, and no defects in the seals of the doors, windows, or air conditioning were noted on the inspection sheet. Union Pacific inspected Engine UP 3006 again on February 28, 2000, and no sealing defects or exhaust leaks were found.
D. D. Adkins, an inspector for the Federal Railroad Administration (FRA), investigated the February 26, 2000 incident. In his report dated September 19, 2000, Mr. Adkins noted that Union Pacific inspected Engine UP 3006 for exhaust leaks on February 28, 2000 and that none were found. He also stated that FRA investigators could not get a "true picture" of how the exhaust system was functioning on February 26, 2000 because several of the major components affecting the exhaust system had been replaced. Mr. Adkins recommended that no violation be filed against Union Pacific for noncompliance with the Railroad Locomotive Safety Standards.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Lack of a genuine issue of material fact means that the evidence is such that no reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be met by showing that there is a lack of evidence to support the nonmoving party's case.Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial. Anderson, 477 U.S. at 256. "[A] party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial."Id. Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. The court must consider the record in the light most favorable to the nonmoving party.Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir. 1984).
III. DISCUSSION
Union Pacific contends that no genuine issues of material fact exist as to whether Union Pacific violated the LIA.
LIA and FELA are "remedial and humanitarian" statutes to protect railroad employees. Matson v. Burlington N. Santa Fe R.R., 240 F.3d 1233, 1235 (10th Cir. 2001) (citing King v. S. Pac. Transp. Co., 855 F.2d 1485, 1488 n. 1 (10th Cir. 1988)). The LIA does not create an independent cause of action and, thus, an LIA claim must be brought under FELA. Id. (citing Feichko v. Denver Rio Grande W. R.R. Co., 213 F.3d 586, 591-92 (10th Cir. 2000)). Negligence is not a basis for liability under the LIA. Lilly v. Grand Truck W. R.R. Co., 317 U.S. 481, 485 (1943). The LIA imposes "`an absolute liability'" on railroad carriers to ensure that all locomotives are properly maintained and safe to operate. Id. (quoting King, 855 F.2d at 1488). Specifically, the LIA states:
A railroad carrier may use or allow to be used a locomotive or tender on its railroad line only when the locomotive or tender and its parts and appurtenances —
(1) are in proper condition and safe to operate without unnecessary danger of personal injury;
(2) have been inspected as required under this chapter and regulations prescribed by the Secretary of Transportation under this chapter; and
(3) can withstand every test prescribed by the Secretary under this chapter.49 U.S.C. § 20701 (2004). A rail carrier can therefore be held liable under the LIA by either: (1) failing to keep its locomotives and appurtenances in proper condition and safe to operate without unnecessary peril to life and limb; or (2) violating an FRA regulation. McGinn v. Burlington N. R.R. Co., 102 F.3d 295, 299 (7th Cir. 1996).
Union Pacific cites Bolan v. Lehigh Vallev R.R. Co., 167 F.2d 934, 936 (2d Cir. 1948), for the proposition that liability under LIA must be based on defective equipment. Union Pacific argues that its January 12, 2000 and February 28, 2000 inspection reports, as well as the September 19, 2000 FRA report, establish that Union Pacific has complied with the LIA because all three reports show that Engine UP 3006's exhaust components were not malfunctioning and that the sealing around the doors, windows and air conditioning of the locomotive cab was not defective. Union Pacific further relies on the FRA investigator's recommendation that no violations be filed against it for non-compliance with Railroad Locomotive Safety Standards.
Plaintiff does not appear to dispute the findings of either the January 12, 2000 inspection or the February 28, 2000 inspection. Plaintiff does suggest that Union Pacific has erroneously relied on the FRA report because that report declines to make any findings as to how the exhaust system would have functioned at the time of the incident.
Plaintiff argues that he need not establish some particular defect in the engine to demonstrate a violation of the LIA. Plaintiff contends that all that needs to be shown is that the locomotive, its parts and appurtenances were not in proper condition and safe to operate without unnecessary danger of personal injury. Because the occupants of Engine UP 3006 were overwhelmed by exhaust fumes, Plaintiff asserts, the locomotive must not have been in proper condition.
Additionally, Plaintiff argues that Union Pacific violated 49 C.F.R. § 229.45 (and, thus, the LIA), a railroad safety standard promulgated by the FRA requiring "[a]ll systems and components on a locomotive [to] be free of conditions that endanger the safety of the crew, locomotive or train. These conditions include: . . . improper functioning of components. . . ." Plaintiff argues that some component of Engine UP 3006 was not functioning properly because the occupants became overwhelmed by exhaust fumes.
Whether a plaintiff claiming a LIA violation must point to a specific defect has not been decided in the Tenth Circuit. Thus, the court turns to other circuits for guidance.
In Southern Railway Co. v. Bryan, the Fifth Circuit determined that a plaintiff need not show a specific defect in the locomotive to establish a violation of the BIA. 375 F.2d 155, 158 (5th Cir. 1967) ("The employee did not have to show the existence of a defect. His burden of establishing liability was discharged when it was proved that he suffered injuries as a proximate result of the failure of the lifting bracket to perform properly. . . ."). The court in Bryan reasoned that the principle that no defect need be shown derives from cases applying the Safety Appliance Act ("SAA"), 45 U.S.C. § 11, and should be applied with equal force to cases brought under the BIA because both statutes are intended as amendments to the FELA and both are remedial in nature and should be broadly construed. Id (citing O'Donnell v. Elgin. J. E.R. Co., 338 U.S. 384 (1949); Affolder v. N.Y. Chi. St. L. R.R. Co., 339 U.S. 96 (1949)); see also Meyers v. Reading Co., 331 U.S. 477, 483 (1947) (stating the SAA does not require plaintiffs to prove a particular defect); Urie v. Thompsoa 337 U.S. 163, 189 (1949) (stating both the SAA and the LIA have the same congressional purpose of facilitating employee recovery, not restricting recovery, and should be liberally construed).
Furthermore, in Roth v. I M Rail Link. L.L.C., the District Court in the Southern District of Iowa followed the Fifth Circuit's reasoning in Bryan and held that "[w]hen a part or appurtenance of a locomotive does not perform properly, the person injured need not prove the existence of a defect." 179 F. Supp.2d 1054, 1058-59 (S.D. Iowa 2001) (citations omitted). The court is persuaded by the decisions in Bryan and Roth, and concludes that in a claim brought pursuant to the LIA, a plaintiff need not establish a specific defect, but need only show that the locomotive was not in proper condition and safe to operate without unnecessary danger of personal injury. The court now turns to the question of whether Union Pacific's two inspection reports and the FRA's report foreclose any genuine issues of material fact as to Plaintiff's LIA claim.
Defendant denies that Plaintiff was injured in the way he claims and relies on the three reports to refute Plaintiff's allegations. In response, Plaintiff relies on the accident report that he filed, as well as his deposition testimony and the deposition testimony of Monty Corbet, Engine UP 3006's conductor on February 26. Plaintiff stated in the accident report that the locomotive cab had bad seals on the doors, windows, and air conditioner. Also, Mr. Corbet stated in his deposition that he "could visibly see the exhaust in the cab," that the "seals were bad," and that he "could see daylight around the door."
Both sides present conflicting evidence regarding the existence of defects in the locomotive cab on February 26, 2000. The court determines that whether Engine UP 3006 was "in proper condition and safe to operate" is an issue of fact for the jury. The fact that the locomotive passed inspections both before and after the date of the incident does not prove as a matter of law that the locomotive did not violate the LIA on the date in question. See Carter v. Atlanta St. Andrews Bay Ry. Co., 338 U.S. 430, 434 (1949) (stating "[t]he fact that the coupler functioned properly on other occasions is immaterial" given that it failed on the day in question). Accordingly, Defendant's motion for summary judgment is denied.
IT IS, THEREFORE, BY THE COURT ORDERED that Defendant's motion for partial summary judgment (Doc. 20) is denied.
Copies of this order shall be transmitted to pro se Plaintiff and counsel of record.