Gilliam v. Norfolk Southern Railway Company

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

CHARLES GILLIAM, Case No. 1:18-cv-700

Plaintiff, Cole, J.

Bowman, M.J.

v.

NORFOLK SOUTHERN RAILWAY COMPANY,

Defendant.

REPORT AND RECOMENDATION

Plaintiff Charles Gilliam filed suit in October 2018 under the Federal Employers’

Liability Act (“FELA”) against his employer, the Norfolk Southern Railway Company

(“NSRC”). Defendant has moved for partial summary judgment, as well as to strike an

affidavit filed by Plaintiff in opposition to summary judgment. (Docs. 21, 27). This case

has been referred to the undersigned for a recommended disposition of the pending

motions. (Doc. 2). For the following reasons, both motions should be granted.

I. Summary Judgment Standard

In a motion for summary judgment, “a court must view the facts and any inferences

that can be drawn from those facts ... in the light most favorable to the nonmoving party.”

Keweenaw Bay Indian Comm. v. Rising, 477 F.3d 881, 886 (6th Cir. 2007) (internal

quotation marks omitted). “Summary judgment is only 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 as to any material fact and that the

moving party is entitled to a judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P.

56(c)) (internal quotation marks omitted). “Weighing of the evidence or making credibility

determinations are prohibited at summary judgment - rather, all facts must be viewed in

the light most favorable to the non-moving party.” Id. The parties agree on most facts;

where disagreement exists, the undersigned has drawn all reasonable inferences in favor

of the Plaintiff.

II. Findings of Fact

Plaintiff alleges injuries from two separate workplace accidents. Defendant’s

motion for summary judgment concerns only the more recent accident, which occurred

when Plaintiff slipped on a step while exiting a locomotive on which he had been assigned

to work. Thus, only facts relevant to the March 8, 2018 incident are summarized in this

Report and Recommendation (“R&R”).

Plaintiff worked exclusively at the Portsmouth Yard. The Portsmouth Yard

contains three yard areas with multiple tracks, two connected areas known as the “East

Yard and the West Yard,” and a third “shop yard” near the service building where repairs

and servicing are conducted. (Doc. 18, Plaintiff’s Depo. at 25, PageID 124; id. at 102,

PageID 201). Plaintiff was working as an engineer in the “UP03” job. In that position,

Plaintiff used a locomotive to move rail cars around the car shop and its adjacent yard so

that others could make repairs. (Id., at 104, PageID 203). To make room for incoming

cars, Plaintiff also would move the rail cars on which service had been completed. (Id. at

105, PageID 204). As opposed to an engineering position more directly involved in

interstate commerce, the UP03 job was limited to moving cars into and out of the service

building and - once service was completed - to the East Yard where other transportation

workers would move them further to assemble outbound trains. (Id.)

In the days leading up to March 8, the weather had been “clear and cold” but dry.

(Id. at 106, PageID 205). There was no snow in the forecast, nor was there snow on the

ground. (Id.; see also id. at 110, PageID 209). Little snow had fallen all winter. (See id.,

testimony that it had snowed “[m]aybe one time, maybe an inch I think it was all year that

year.”) However, on that day a brief but intense snow squall began around 10:30 a.m.

The unexpected snow “came out of the blue,” surprising everyone. (Id. at 106, PageID

205). During the squall, the snow fell heavily, “like a white out.” (Id. at 109, PageID 208).

The storm lasted no more than 10 to 15 minutes but approximately a half inch of snow

covered the ground by its end. (Id. at 122, PageID 121; id. at 184, PageID 283 (estimating

that storm altogether lasted “[p]robably ten minutes.”).

When the storm arose, Plaintiff was working in the cab of a locomotive identified

as NS 3058. (Id. at 117, PageID 216). When he reported to work, he performed a 20-

minute daily inspection on NS 3058. (Id. at 117-119, PageID 216-218). The inspection

included the exterior steps and walkway where he later fell; he saw no slip or trip hazard

at that time. (Id. at 119, PageID 218).

Within “a couple of minutes” of the storm’s onset, Plaintiff’s conductor, Ralph

Boggs, ordered Plaintiff to leave the NS 3058 cab due to poor visibility. (Id. at 115).

Specifically, Plaintiff was instructed to shove cars in the clear on the shop lead and to “tie

it” down (setting a brake on NS 3058) before going inside the service building for a job

briefing and break, and to secure winter boots. At the time, the locomotive was parked

across from the service building, approximately 25 yards away.

Plaintiff “never used” snow boots because “[w]e didn’t get any snow.” (Id. at 111,

PageID 210). When he exited the cab wearing regular work boots, it had only been

snowing a “couple of minutes” or “probably three minutes, [or] four.” (Id. at 109, PageID

208; id. at 122, PageID 221). Plaintiff observed that the ground was “probably just

covered.” (Doc. 18 at 122, PageID 221). He stepped out a side door of the cab to a

platform where he could see a thin coating of light snow. (Id. at 128, PageID 227).

Attached to the platform were three steps, from which Plaintiff believed he could safely

descend to the ground. (Id. at 129-136, Page ID 228-235). He placed both hands on the

grab irons as he began his descent, but his left foot slipped on the second step. He lost

his grip with his right hand and the wrenching motion caused an injury to his shoulder.

Plaintiff has not been able to return to work.

There is no evidence that there was anything other than snow on the step. When

asked whether it was “just snow,” Plaintiff speculated that some ice might have been

“mixed in” but had no knowledge that was the case. He testified he saw only snow, and

did not observe ice or anything else that had accumulated in the 3 or 4 minutes of snowfall

prior to his accident:

It could have been ice with that [snow]. I don’t know what it was. It was a bad

storm. I don’t know what was in it. You mean mixed in with the snow? It could

have been ice. I don’t know.

Q: In order for it to be ice, it would have had to thaw and refreeze, wouldn’t it?

A: I don’t know. It was bad weather. I’m not a weatherman.

…

A: All I saw was snow.

(Id. at 146, PageID 245 emphasis added).

In hindsight, Plaintiff opined that the conductor should have instructed him to stay

inside the cab rather than exiting, and that someone should have brought snow boots out

to him from the service building rather than asking him to take a break to retrieve them.

However, Plaintiff did not question his conductor’s order at the time, even though he would

not have followed the order if it was unsafe. Plaintiff “didn’t think it was dangerous or I

wouldn’t have did it.” (Id. at 129, PageID 228; see also id. at 130, PageID 229 “I didn’t

think it was unsafe” or that “anything would go wrong.”).

III. Preliminary Issue Concerning Plaintiff’s Expert’s Opinion

Prior to turning to the merits of the pending motion for partial summary judgment,

the undersigned must address Defendant’s motion to strike the affidavit of Patrick F. Reilly

and attachments thereto, which have been filed by Plaintiff as exhibits in opposition to

Defendant’s dispositive motion. For the reasons stated in Defendant’s memoranda in

support of the motion to strike, the undersigned agrees that the Reilly affidavit should not

be considered. Expert opinion will not assist the trier of fact in understanding any factual

issue, and instead addresses issues of law that are reserved to this Court. The

undersigned therefore has not considered the affidavit on summary judgment, but

declines to strike it in order to preserve the record for any reviewing court. See Clausing

v. Norfolk So. Ry. Co., Case No. 1:16-cv-703 (Doc. 28, Opinion & Order filed 9/30/20 at

PageID 574, striking similar affidavit because the opinions were “clearly legal opinions

directly bearing on whether the LIA and the federal regulations at issue in this case have

been violated.”).

IV. Analysis of Defendant’s Partial Summary Judgment Motion

Plaintiff seeks to hold Defendant liable for his injuries under FELA, which requires

rail carriers to provide rail workers a safe place to work. There are two ways for Plaintiff

to recover under FELA: (1) by proving the elements of simple negligence; or (2) by

showing that the Defendant violated a specific statutory or regulatory duty, which

constitutes negligence per se.

If a plaintiff proves a railroad violated a statutory duty, then the plaintiff need

not prove the common law elements of foreseeability, duty, or

breach. Edwards v. CSX Transp. Inc., 821 F.3d 758, 760 (6th Cir. 2016).

Moreover, a violation of a safety statute “creates liability under FELA

...without regard to whether the injury flowing from the breach was the injury

the statute sought to prevent.” Kernan, 355 U.S. at 433, 78 S.Ct. 394. Thus,

“a railroad's violation of a safety statute ... is negligence per se.” McBride,

564 U.S. at 703 n.12, 131 S.Ct. 2630.

Miller v. Union Pacific R. Co., 972 F.3d 979, 984 (8th Cir. 2020).

The issues presented have been thoroughly briefed by both parties, including not

only the usual memoranda in support, in opposition, and in reply, but also supplemental

memoranda and Notices of authority. (See Docs. 21-26, 29, 34-40, 42-45). Based upon

the extensive briefing and the Court’s review of the issues presented, the undersigned

will deny Plaintiff’s request for oral argument as unnecessary to aid the Court.1

A. Plaintiff Cannot Prove Simple Negligence

Under the “relaxed” negligence standard that applies under FELA, “an employee

must prove only that the railroad's negligence played a part in producing the injury for

which the employee seeks damages.” Szekeres v. CSX Transp., Inc., 731 F.3d 592, 597

1Ordinarily, the undersigned attempts to liberally accommodate all requests for oral argument, with

particular consideration afforded to counsel (such as Plaintiff’s counsel here) who have been more recently

admitted to the bar. The undersigned regrets that this practice has been negatively impacted by the national

pandemic at this time.

(6th Cir. 2013) (emphasis original). The duty to provide a “reasonably safe

workplace…does not mean that a railroad has the duty to eliminate all workplace dangers,

but only the duty of exercising reasonable care to that end.” Williams v. Grand Trunk

Western R.R., Inc., 352 Fed. Appx. 13, 16 (6th Cir. 2009) (holding that rail carrier could

not be held liable for failure to remove snow from equipment or track, internal quotation

marks and additional citation omitted). Here, Plaintiff cannot identify any unreasonable

risk to which he was subjected.

“[T]he Sixth Circuit has held: ‘[A] railroad's failure to cure specific dangerous

conditions, including failures to remedy conditions created by winter weather, may

constitute negligence.’” Tipton v. Norfolk Southern Ry. Co., 2010 WL 2927186, at *3

(N.D. Ohio 2010) (quoting Williams, 352 Fed. Appx. at 17). However, the operative word

is “may”: a railroad is not liable for an accident that occurs under severe weather unless

a plaintiff shows that the defendant “should or could have [] known” of the risk, and had

the “opportunity to correct it.” Id. (quoting Miller v. Cincinnati, N.O. & T. P. Ry. Co., 317

F.2d 693, 695 (6th Cir. 1963)). As a case cited by Plaintiff explains:

The FELA does not assign liability based solely on “the existence of

transient conditions created by the weather....” Borum v. Grand Trunk W.

R.R., Inc., 659 F.Supp.2d 853, 857 (E.D. Mich. 2009) …. If, however,

snowfall is considerable in quantity and allowed to remain for extended

periods of time, the employer would be required to exercise a

reasonable degree of care to prevent an accumulation of snow or ice in

such quantity and location as would constitute a menace to the safety of

the employees in the performance of their various duties. The degree of

care required by such employer must have some reasonable

relationship to the ability of that party upon whom the duty is cast to

perform such duty.

Keller v. Norfolk Southern Ry. Co., 2013 WL 322176, at **2-3 (N.D. Ohio 2013) (additional

internal citations and citations omitted).

Here, the weather that created the alleged slippery condition was completely

unforeseen and had been ongoing for mere minutes prior to Plaintiff’s accident. Plaintiff

might be able to demonstrate that Defendant subjected him to an “unreasonable” risk if it

had been snowing for some time. But unlike the cases on which Plaintiff relies, Defendant

did not ignore the accumulation of snow or ice for hours, or fail to react to the inclement

weather. Instead, Boggs called for a break as soon as the squall arose. Plaintiff’s

locomotive was parked directly across from the service station. By the time Plaintiff exited

the cab and slipped, only a “relatively thin coating” of snow that “[j]ust covered” the ground

was visible and no more than “three or four minutes” had elapsed. (Doc. 18 at 128,

PageID 227; id. at 122, 109, PageID 221, 208).

Working (and walking) in a rail yard necessarily involves some risk. Even

considering its liberal purpose and relaxed standard of negligence, liability under FELA

attaches only when a risk of which a defendant knew or should have known is deemed

“unreasonable.” Most cases involving inclement winter weather arise when a defendant

has failed to move snow from driveways or from concrete work areas. Williams, 352 Fed.

Appx. at 16 (collecting cases). Because there was no snow in the forecast and Plaintiff’s

supervisor acted so swiftly in calling for a work stoppage to retrieve nearby snow gear,

Defendant cannot be held liable for creating an unreasonable risk. Otherwise, FELA

would impose liability for any slip or fall during any type of precipitation, a standard that

the Supreme Court has rejected as inconsistent with Congressional intent. See

Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 543, 114 S.Ct. 2396 (1994) (“The

FELA ‘does not make the employer the insurer of the safety of his employees while they

are on duty. The basis of …liability is his negligence, not the fact that injuries occur.’”)

(internal citation omitted). In other words, “[t]hat FELA is to be liberally construed… does

not mean that it is a workers’ compensation statute.” Id.

Plaintiff protests that a question of fact remains, asserting that it would have been

safer for Plaintiff to remain where he was in the locomotive cab until Boggs or someone

else could bring Plaintiff a pair of snow boots. (See Doc. 25 at 19, arguing that “at the

time of injury Plaintiff was safely positioned in a locomotive during a break period.”).

Plaintiff asserts that Defendant seeks “a free pass to expose Plaintiff to clearly unsafe

conditions” based on weather. (Doc. 25 at 18). However, the mere fact that Plaintiff can

conceive of a way in which to reduce hypothetical risk (by taking Plaintiff a pair of snow

boots before he exited) does not mean that the risk to which he was subjected by leaving

the cab was “unreasonable” as a matter of law.2

“‘[T]he proper inquiry is whether the method prescribed by the employer

was reasonably safe, not whether the employer could have employed a

safer alternative method for performing the task.’” Johnson v. Grand Trunk

Western R.R., 2008 WL 283703, *4 (E.D. Mich. Jan. 31, 2008) citation

omitted); See also Detroit T. & I.R. Co. v. Banning, 173 F.3d 752, 755

(6th Cir.1949) (finding district court erred in submitting to jury the issue

whether railroad was negligent because a “temporary dangerous working

condition” resulting from weather does not constitute negligence

if “reasonable steps are taken or means provided by the carrier to

counteract or avoid the danger ...”).

Borum v. Grand Trunk Western R.R., Inc., 659 F.Supp.2d 853, 857-58 (E.D. Mich. 2009).

Defendant cannot have been expected to foresee that dismounting the cab to

traverse the short distance to retrieve snow boots within three to four minutes of the onset

2Any reduction in risk is theoretical because it would have required additional employees to carry heavy

boots while climbing up the ladder to take the boots to Plaintiff (as well as to anyone else working in the

yard). Plaintiff testified that multiple people were working in the yard at the time and were instructed to stop

work and come in to get their snow boots. (Doc. 18 at 155-156, PageID 254-255). It is unclear whether

requiring additional personnel to go into the yard carrying snow boots would increase or decrease the risk

that someone may slip or otherwise suffer injury.

of a storm would result in Plaintiff’s fall. Plaintiff testified that he had been up and down

similar steps thousands of times over his 20 years of employment, including in inclement

weather and including when some snow covered the steps, but had never before slipped.

(Doc. 18 at 137-138, PageID 236-237). Plaintiff observed the conditions and testified

repeatedly that he would not have attempted to dismount if he thought it “unsafe.” Accord,

Williams, 252 Fed. Appx. at 17 (plaintiff failed to produce evidence that anyone had

observed ice and snow on the track or any dangerous condition; the only person known

to have observed the track was plaintiff himself, who did not report any dangerous

condition); contrast O’Heron v. CSX Transp., Inc., 181 F. Suppp.2d 779 (N.D. Ohio 2001)

(summary judgment denied where defendant took no action to apply salt or otherwise

abate icy conditions on walkway despite eight hours of freezing rain). Based on the lack

of notice or foreseeability, Defendant cannot be held liable for breaching a specific duty

to Plaintiff under a simple negligence theory.

B. The Locomotive Inspection Act

Even if he cannot prove simple negligence, a plaintiff may still recover under FELA

if he can show a violation of a supplementary safety statute or regulation. Plaintiff here

argues that Defendant violated the Locomotive Inspection Act (“LIA”) (formerly known as

the Boiler Inspection Act (“BIA”)) and three supporting regulations. In order to state a

claim under the LIA, Plaintiff must show that the locomotive was “in use” under the statute:

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 (emphasis added).

Defendant argues that the LIA does not apply because the locomotive was not “in

use.” In the alternative, Defendant argues that it is entitled to judgment because it did not

violate the language of the statute or any applicable regulation. The undersigned rejects

Defendant’s first contention, but agrees with the second.

1. The “In Use” Element

The question of whether a locomotive is “in use” and “on its line” under the LIA is

for this Court to decide. See, e.g., McGrath v. Consolidated Rail Corp., 136 F.3d 838,

842 (1st Cir. 1998). If a locomotive is not “in use,” an LIA claim fails as a matter of law.

Coleman v. Norfolk So. R. Co., 304 F. Supp.3d 648, 653 (E.D. Ky. 2018). A significant

body of case law has developed concerning the meaning of “in use” under both the LIA

and a collection of closely related supplemental safety statutes known as the Federal

Safety Appliance Acts (“FSAA”). Because of its broader application, courts frequently cite

to FSAA cases when interpreting whether a locomotive is “in use” under the LIA, as do

the parties in this case. Unfortunately, the case law is far from uniform in its construction.

Importantly, the 1994 enactment of the FSAA cobbled together multiple precursor

statutes, including the Coupler Act and Hand Brake Act. As their titles suggest, the

precursor statutes focused on discrete safety equipment with varying “uses.” Some

courts accordingly have interpreted the “in use” provisions of the FSAA based upon which

subparagraph (or precursor statute) is involved: whether the equipment that contributed

to the injury was located on a “vehicle,” or a “locomotive,” or a fully assembled “train,” and

(sometimes) based upon the job description of the injured worker. Although not all courts

have drawn the same distinctions, the undersigned finds this differentiated approach to

be persuasive. See Underhill v. CSX Transp., Inc., 2006 WL 1128619, at *4 (N.D. Ind.

2006) (“[U]nder the FSAA, there are separate ‘in use’ inquiries depending on whether the

usage of a vehicle, locomotive, or train is at issue.”).

Plaintiff advocates for an “in use” definition that is equivalent to the interpretation

of “in use” provisions applied to “any vehicle” under the FSAA. See 49 U.S.C.

§20302(a)(1) - (3). Those provisions focus on couplers, sill steps, hand brakes, ladders,

grab irons, and running boards. In considering the safety standards for that equipment,

many courts have concluded that the “use” of any “vehicle” means any operational use.

Thus, a vehicle remains “in use” when it is employed in the assembly or disassembly of

rail cars and trains in a rail yard or on side tracks apart from mainline tracks. In fact, a

vehicle remains in use whenever it has not been pulled out of use for repair but is instead

being used in its usual and customary way on any track. See, e.g., Marks v. Union Pacific

R. Co., 2013 WL 5309135 at *2 (E.D. Ark. Sept. 19, 2013) (“It would be passing strange

if the [FSAA] Act’s required safety equipment for cars – automatic couplers, efficient hand

brakes, secure sill steps, secure ladders and grab irons – was not required, after all, in a

place (rail yards) where this equipment was used regularly during a time (switching) when

this equipment was needed to accomplish the Act’s purpose.”); White v. BNSF Ry. Co.,

2010 WL 1186197 at *5 (W.D. Wa. March 23, 2010) (“[I]f…the FSAA’s coupling provisions

do not apply during switching operations, the coupling provision is rendered

meaningless.”).

In contrast, Defendant asks this Court to adopt the “in use” definition applied to 49

U.S.C. §20302(a)(5) of the FSAA, a provision that pertains to air brakes on a “train.”

Despite the identical “used on any of its railroad lines” phrase that modifies all parts of the

FSAA, the Sixth Circuit and other courts have held that the air brake provision applies

only to fully assembled trains that are “in use” on a mainline track, which would not include

switching operations or individual cars located in side yards or on side tracks. See

Erskine v. Consolidated Rail Corp., 814 F.2d 266, 270 (6th Cir. 1987) (holding air brake

provision of FSAA covers only “train” movement on “mainline tracks” and therefore is

inapplicable to detached locomotives involved in switching operations on a separate

track).3 Because NS 3058 was a detached locomotive parked by itself in a side yard, was

assigned to a crew involved in maintenance and repair, and was not used in commerce

on the mainline track, Defendant argues that it was not “in use” at the time of Plaintiff’s

injury under the LIA. See also Trinidad v. Southern Pac. Transp. Co., 949 F.2d 187, 189

(5th Cir. 1991) (a “train” that had not been moved from where it was assembled and not

yet released for departure into interstate commerce because inspection was not yet

complete was not “in use” under the FSAA).

The undersigned finds Plaintiff’s definition of “in use” to be more persuasive. The

Sixth Circuit has stated that “a locomotive is ‘in use’ almost any time it is not stopped for

repair.” Edwards v. CSX Transp. Inc., 821 F.3d at 762 (quoting Wright v. Ark. & Mo. R.R.

Co., 574 F.3d 612, 620-22 (8th Cir. 2009) (additional citations omitted)); see also Aldridge

v. CS Transp., Inc., 2007 U.S. Dist. LEXIS 97971 at *15 (S.D. Ohio Apr. 17, 2007)

3Subparagraph (a)(4) of the FSAA pertains only to the brake system of a “locomotive.” See 49 U.S.C. §

20302(a)(4). Neither party has cited, and the undersigned has not located, any recent decision that

interprets this subparagraph’s “in use” requirement.

(suggesting that under LIA, “[t]he significant issue is … the fact that the locomotive had

not been marked as defective and pulled from service.”). NS 3058 was not under repair

and had not been flagged or otherwise pulled from service. Rather, it was being used in

the manner in which it was intended: to push or pull other rail cars to and from the service

yard. See generally, Santillanes v. Union Pacific R. Co., 2015 WL 1137888 at ** 4-7 (D.

Idaho March 13, 2015) (discussing cases defining the use of a “locomotive” under the

LIA). Other courts have found similar use to fall within the scope of the LIA. See Hinkle

v. Norfolk Southern Ry. Co., 2006 WL 3783521, at *3 (S.D. Ohio. Dec. 21, 2006);

Hoemmelmeyer v. CSX Transportation, Incorporated, No. 1:04-CV-00166, 2005 WL

2124259 (S.D. Ohio Aug. 30, 2005); Underhill v. CSX Transp., Inc., 2006 WL 1128619;

see also Angell v. Chesapeake and Ohio Ry. Co., 618 F.2d 260, 262 (4th Cir. 1980)

(suggesting that BIA clearly excludes only “those injuries directly resulting from the

inspection, repair, or servicing of railroad equipment located at a maintenance facility.”).

Defendant attempts to distinguish Hinkle and Hoemmelmeyer on grounds that

Plaintiff was not engaged in the same type of “switching operations.” A switching

operation often involves the transition point between “non-use” and “in-use” for trains. In

Hinkle, for example, the plaintiff fell while using a locomotive to assemble cars into trains.

Accord Underhill v. CSX Transp., Inc., 2006 WL 1128619 at *5 (holding that “a plain

understanding of the word ‘use’ suggests a [locomotive] used to assemble a train is in

use, whether the train is about to leave or not.”); Hoemmelmeyer, 2005 WL 2124259 at

**4-5 (holding that the “Automatic Coupler Act” provision of the FSAA applies to switching

operations). Defendant insists that because NS 3058 was not engaged in the assembly

of trains but instead was dedicated to a service area, the locomotive was not “in use.”4

Defendant maintains that a locomotive used to support service operations should be

viewed differently. See, e.g., Lyle v. Atchison, Topeka and Santa Fe Ry. Co., 177 F.2d

221 (7th Cir. 1949); Tisneros v. Chicago & N.W. Ry. Co., 197 F.2d 466 (7th Cir. 1952).

However, in the cases on which Defendant relies, the locomotives in question were

actually being serviced. See also LeDure v. Union Pacific R. Co., 962 F.3d 907 (7th Cir.

2020) (affirming holding that locomotive on a side track was not “in use” because it was

still being “serviced” and readied for its trip). NS 3058 was not being serviced or repaired

but was being actively used as fully functioning rail yard equipment.

Further undercutting Defendant’s argument, “switching service” in 49 C.F.R.

§229.5 includes not only “assembling cars for train movements” but also “changing the

position of cars for purposes of loading, unloading, or weighing; placing locomotives and

cars for repair or storage; or moving rail equipment in connection with work service that

does not constitute a train movement.” (emphasis added); see also 49 C.F.R. § 220.5.

There is no rational basis for distinguishing between types of switching operations. Thus,

NS 3058 was “in use” in switching yard operations to move other rail cars that required

service or repair, and had not itself been pulled out of use for service or repair.

To the extent that Plaintiff’s precise job duties are considered, Plaintiff remained

“a member of the transportation crew, meaning not involved in the servicing or repair of

the locomotive.” Chapman v. Norfolk So. Ry. Co., ___ F.Supp.3d ___, 2020 WL 1676915

at *5 (S.D. Ohio Apr. 6, 2020). As an engineer assigned to operate a functioning

locomotive, Plaintiff’s duties fell within the scope of the LIA.5 That Plaintiff was in the

4Plaintiff testified that the UP03 job involved “switching in the yard.” (Doc. 18 at 102, PageID 201).

5Neither party cites the court to a different definition of “transportation engineer” than that used in Chapman.

process of complying with his conductor’s order to take a “break” indoors, or that NS 3058

was momentarily parked, has no bearing on whether the locomotive remained “in use.”

No less authority than the Supreme Court has held that a temporary pause in movement

does not remove a functional car from “use.” See Brady v. Terminal R. Ass’n of St. Louis,

303 U.S. 10, 13 (1938) (car placed on a receiving track pending the continuation of

transportation after inspection, which was temporarily paused on its journey, remained “in

use”). There is nothing in the statutory language of the LIA that limits its application to

locomotives that remain in motion. See also, generally, Deans v. CSX Transp. Inc., 152

F.3d 326, 330 (4th Cir. 1998) (locomotive that was not in storage or waiting to be moved

to a repair location, but was ready for “imminent departure,” remained “in use” under

FSAA); Nelson v. Grand Trunk W. R. Co., 2020 WL 3469175 (E.D. Mich. June 25, 2020)

(concluding a train was “in use” when engineer’s injury occurred during a brief stop in the

middle of regularly scheduled route).

2. The LIA and Its Related Regulations

The LIA, like the FSAA, supplements FELA by ensuring that the rail carrier takes

steps to create a safe work environment. In that vein, the LIA imposes a statutory duty

upon a rail carrier to “allow” a locomotive “to be used” only if “its parts and appurtenances”

“are in proper condition and safe to operate without unnecessary danger of personal

injury,” and “have been inspected as required,” and “can withstand every test prescribed.”

49 U.S.C. § 20701. The Federal Railroad Commission (“FRC”) is tasked with enacting

safety regulations to implement those statutory requirements. In addition to arguing that

the step was not “in proper condition and safe to operate without unnecessary danger of

personal injury” under the statute, Plaintiff cites three supporting regulations: 49 C.F.R.

§§229.45, 229.7, and 229.119. A violation of an LIA regulation, like a violation of the

statute, constitutes negligence per se under FELA. See Coleman, 304 F. Supp.3d at 653.

a. The General Duty of Safety and Maintenance Under 49 U.S.C.

§20701 and 49 C.F.R. §§ 229.45 and 229.7

Plaintiff’s first theory of liability is that the Defendant violated the general duty of

maintenance that requires a carrier to maintain the locomotive “in proper condition and

safe to operate without unnecessary danger of personal injury,” in violation of 49 U.S.C.

§20701 as well as 49 C.F.R. §§ 229.45 and 229.7. The two related regulations are

respectively entitled “General Condition” and “Prohibited acts and penalties.”

All systems and components on a locomotive shall be free of conditions that

endanger the safety of the crew, locomotive or train. These conditions

include: insecure attachment of components, including third rail shoes or

beams, traction motors and motor gear cases, and fuel tanks; fuel, oil,

water, steam, and other leaks and accumulations of oil on electrical

equipment that create a personal injury hazard; improper functioning of

components, including slack adjusters, pantograph operating cylinders,

circuit breakers, contactors, relays, switches, and fuses; and cracks,

breaks, excessive wear and other structural infirmities of components,

including quill drives, axles, gears, pinions, pantograph shoes and horns,

third rail beams, traction motor gear cases, and fuel tanks.

49 C.F.R. § 229.45, General Condition.

(a) Federal Rail Safety Laws (49 U.S.C. 20701–20703) make it unlawful for any

carrier to use or permit to be used on its line any locomotive unless the

entire locomotive and its appurtenances -

(1) Are in proper condition and safe to operate in the service to which

they are put, without unnecessary peril to life or limb; and

(2) Have been inspected and tested as required by this part.

(b) Any person… who violates any requirement of this part or of the Federal

Rail Safety Laws or causes the violation of any such requirement is subject

to a civil penalty…

(c) Any person who knowingly and willfully falsifies a record or report

required by this part is subject to criminal penalties under 49 U.S.C. 21311.

49 C.F.R. § 229.7, Prohibited acts and penalties.

The undersigned does not view the broad mandates in §§ 229.45 or 229.7 to

impose any specific requirements beyond the general statutory requirement to keep the

entire locomotive and its “parts” in “proper condition and safe to operate…without

unnecessary peril” or “unnecessary danger of personal injury.” 6 Other courts have

similarly interpreted the referenced regulations as not expanding the LIA but “simply

restat[ing] the general requirements of the LIA; railroad carriers must maintain the

locomotive in a safe condition.” Coll v. BNSF Railway Company, 2014 WL 12465426, at

*5 (D.N.M. 2014) (collecting cases); see also Munns v. CSX Transp., Inc., 579 F. Supp.2d

924, 933-34 (N.D. Ohio Sept. 27, 2008) (stating that §§ 229.45 and 229.7 impose a

“broad” and “general duty to maintain its parts and appurtenances” and to not allow them

to deteriorate to the point that the locomotive cannot operate safely). In context and giving

the language its ordinary meaning, § 229.45 and § 229.7 do no more than emphasize

that “unnecessary danger” must be avoided by proper maintenance.7

The same interpretation is expressed by the Guidance sections provided in the

FRC’s Compliance Manual. Guidance for § 229.45 explains:

This regulation is basically a compendium of many regulations found in the

former part 230. When this regulation was written, the railroads were

concerned that the provisions of this regulation created a degree of

discretion in interpretation and application by the MP&E inspectors. FRA’s

position is that its inspectors have always interpreted the regulations in part

230 in a reasonable manner. FRA also believes that, “conditions that

6Section 23 of the Boiler Inspection Act used the same phrase: “unnecessary peril to life or limb.” See 45

U.S.C. § 23 (repealed). During the amendment of the BIA and enactment of the LIA in 1994, Congress

changed the statutory phrase to “unnecessary danger of personal injury.”

7If the phrase were “any danger” rather than “unnecessary danger,” Plaintiff may have a claim. It remains

within the province of Congress to provide for all-encompassing protection for rail yard workers, but that is

not what FELA and its supplemental safety statutes currently provide.

endanger the safety of the crew, locomotive, or train” provide the proper and

lawful limit to the application of this section.

Similarly, Guidance for § 229.7(a) explains:

Paragraph(a) of this section is the regulatory codification of the general

statutory language previously contained in the Locomotive Inspection Act…

This section should only be cited when defective conditions of a

locomotive’s appurtenances are disclosed on items not specifically covered

by other provisions contained in part 229.

MPE Compliance Manual, https://railroads.dot.gov/sites/fra.dot.gov/files/2020-

05/MPEComplianceManual2013.pdf (July 2012) (accessed on 10/23/20, emphasis

added).

To the extent that § 229.45 is read as emphasizing more particular maintenance

duties for the listed components, the undersigned finds no plausible reading that would

expand that interpretation to prohibit any amount of snow that may fall upon an exterior

walkway. The express terms of the regulation prohibit water for the listed components

only when it is present as a “leak.” In this respect, the undersigned agrees with Coleman:

Plaintiff's argument that naturally occurring snow, rainwater, or sleet which

falls from passing clouds during inclement weather constitute “other leaks”

referenced in the regulation is, at best, a strained and illogical. Nor is there

case law or legislative history which supports his definition of “other leaks.”

Coleman v. Norfolk Southern Railway Company, 304 F.Supp.3d at 655.

Because a violation of the statute constitutes negligence per se under FELA

without the need to establish even the “relaxed” elements of simple negligence, courts

must take care to determine that a regulatory violation has actually occurred. In a

supplemental memorandum, (Doc. 42 at 3), Defendant points out that § 229.45 uses the

phrase “[t]hese conditions include” before its specific list of components and non-

complying conditions, rather than the phrase “include but are not limited to.” Defendant

argues that the rule of construction known as “ejusdem generis” limits the scope of the

regulation to the specifically listed components. (Id.)

Contrary to Defendant’s argument, the referenced rule of construction “may not be

used to defeat the obvious purpose of legislation.” Gooch v. United States, 297 U.S. 124,

128 (1936); Other courts have held that § 229.45’s list is “merely illustrative, not

exclusive.” See Diede v. Burlington N.R.R. Co., 772 F.2d 593, 595 (9th Cir. 1985). The

undersigned agrees with Ratcliff v. Norfolk So. Ry. Co., Case No. 2:18-cv-715, 2020 WL

6287111 at * 6 (S.D. Ohio Oct. 27, 2020), that an exterior walkway “could fall within the

purview” of § 229.45, if a rail carrier has allowed the walkway to deteriorate to an unsafe

condition that constitutes unnecessary peril.8 “Claims that railroads have breached the

duty to maintain its equipment in a good and safe manner generally arise when they have

allowed a locomotive, or its parts or appurtenances to deteriorate so that the locomotive

cannot operate safely.” Munns, 579 F. Supp.2d at 934.

At the same time, too broad an application of such general language threatens to

supplant, rather than merely supplement, the FELA and transform it into the workers’

compensation statute that the Supreme Court consistently has held it is not. And it is the

FELA that remains the source of Plaintiff’s claim. While the LIA and its regulations are

indeed broad, they are not intended to impose liability for every slip and fall that may

occur in a rail yard.

Here, § 229.45 was not violated as a matter of law because it cannot be read to

prohibit the existence of snow on an exterior step within the first few minutes of a sudden

squall. Unlike in Ratcliff, the brevity and timing of the sudden squall is undisputed and

8Ratcliff was decided while this R&R was being drafted. Plaintiff is to be commended for quickly bringing

the decision to the undersigned’s attention. (See Doc. 38, filed 10/28/20).

there are no genuine issues of material fact to submit to a jury. See Ratcliff, 2020 WL

6297111 at *6 (holding that factual issues remained under §229.45 concerning “when

the snow and ice accumulated, the extent to which the snow and ice covered the

walkway…, and whether Defendant had time to correct the snowy and icy conditions

before Plaintiff and his fellow crew members arrived.”). The step did not have excessive

wear or any other structural infirmity or defect in design. It fully complied with the LIA and

was in proper working order when Plaintiff inspected it at the beginning of his shift that

day when the weather (and presumably the step) was dry. Contrast Whelan v. Penn

Central Co., 503 F.2d 886, 889 (2nd Cir. 1974) (evidence of uncorrected defects in step

assembly noted on daily inspection report together with step being coated with ice for

several hours was sufficient to show “unsafe” condition).

The undersigned cannot agree that the light accumulation of snow within the first

minutes of an unexpected snow squall constitutes the deterioration of the step to the point

of violating express statutory language of the LIA or the closely related “maintenance”

language contained within 49 C.F.R. §§ 229.45 and 229.7(a). The FRC could not have

intended for a precipitation event that occurred less than 5 minutes prior to the use of a

functional step to render it suddenly, and without warning, unnecessarily dangerous and

unsafe to use. Otherwise, a rail carrier would be required to hire a 24/7 locomotive

attendant to be available to wipe dry any exterior step or exterior walkway at any moment

that precipitation should fall. “No reasonable jury could conclude that carriers have an

absolute, ongoing duty to keep a locomotive’s exterior walkways entirely free of

precipitation-caused slipping hazards at all times - - naturally-occurring weather simply

does not allow for this degree of responsiveness.” Ratcliff, supra at *8.

Virtually all of the cases on which Plaintiff relies are distinguishable because they

involved the accumulation of snow or ice over time, which would constitute improper

maintenance, and/or prior knowledge of a non-compliant condition. See id. (evidence that

snow and ice were present for an unknown period of time before crew’s arrival, and lack

of evidence about the steps defendant took to address accumulation, precluded summary

judgment because a jury could find for either party); Calabritto v. New York, New Haven

and Hartford R.R., 287 F.2d 394 (2nd Cir. 1961) (jury verdict affirmed where employee

slipped on sand on platform, where witness testified he saw sand during routine check

prior to accident); Whelan, 503 F.2d at 889 (inspection report prior to accident described

defect in step that included loose metal strip, and step assembly that “had been coated

with ice for several hours prior to the accident.”); Wagner v. Union Pac. R. Co., 642

N.W.2d 821, 830-831 (Ct. App. Neb. 2002) (evidence indicated that all locomotives were

snowy and icy, having “quite a bit of snow on their walkways and steps” with 1 to 6 inches

of snow plus 3-4 inches of ice).

The Chapman case is one of the lone cases involving the general duties of

maintenance and repair under §§ 229.45 and 229.7 that does not involve a deteriorating

condition over time. In that case, Judge Barrett recently found liability when an engineer

slipped on an interior step that was unexpectedly dark due to a burned out lightbulb.

Chapman held that the defendant’s duty to keep the locomotive “in a proper condition and

safe to operate” meant that it could be held liable for plaintiff’s injuries even if the light

bulb had burned out randomly and without warning. The court reasoned that

“predictability is not the standard. Rather, a rail carrier's duty under the statute is absolute

and continuous.” Chapman v. Norfolk So. Ry. Co, 2020 WL 1676915, at *6 (additional

citation omitted).

The undersigned respectfully disagrees with Chapman’s suggestion that a rail

carrier will be liable under the LIA and the referenced regulations from the very moment

that any part of a locomotive ceases to be “in a proper condition.” The fact that a rail

carrier’s duty to comply with the statute and its regulations is “absolute and continuous”

does not mean that the text of every regulation imposes an “absolute and continuous”

duty. That may well be the import of some safety regulations such as the Coupler Act,9

but that is not always the case. Controlling Sixth Circuit case law teaches that regulatory

language must be reviewed carefully and in context to ensure that the rail carrier actually

has violated it before finding negligence per se. See Edwards v. CSX Transp. Inc., 821

F.3d at 762 (holding that defendant did not violate regulation that bathrooms “shall be

sanitary” because other regulations contemplated temporary periods of unsanitary

conditions); see also, generally, Miller v. Union Pacific R. Co., 972 F.3d at 985-86 (railroad

required to inspect switch monthly was not liable when a third party was alleged to have

tampered with switch after monthly inspection); Gregory v. Missouri Pacific R. Co., 32

F.3d 160 (5th Cir. 1994) (regulation is violated only if a hazard is created, not by “the mere

presence” of any substance including rainwater).

ii. Cab Floors and Passageways

That brings the Court to the third regulation on which Plaintiff relies, 49 C.F.R.

§229.119(c). Unlike the more general provisions §§ 229.45 and 229.7, § 229.119

specifically governs “Cabs, Floors, and Passageways.” Each subparagraph is devoted to

9See, e.g., O’Donnell v. Elgin, J. & E. Ry. Co., 338 U.S. 384, 389 (1949) (holding that the then-operative

language of the coupler provision was violated when a coupler broke during an emergency stop.)

different components of a cab. Subparagraph (c), on which Plaintiff relies, has remained

unchanged since at least 1980:

Floors of cabs, passageways, and compartments shall be kept free from oil,

water, waste or any obstruction that creates a slipping, tripping or fire

hazard. Floors shall be properly treated to provide secure footing.

Id., 49 C.F.R. § 229.119(c).

Plaintiff argues that § 229.119(c) imposes a continuing duty to keep exterior

“passageways” free from “water” or snow. However, the undersigned concludes that

subparagraph (c) governs only for the interior flooring of the cab or of the compartments

and passageways of a locomotive. In this respect, I respectfully part ways with Ratcliff

and the unpublished case on which Ratcliff relied, Brall v. Norfolk So. R. Co., 2018 WL

2144612 (W.D. Va. May 8, 2018).

As explained below, the undersigned finds Brall to be unpersuasive and instead is

persuaded – notwithstanding my previously noted disagreement with its “in use” analysis

- that Coleman’s succinct analysis of § 229.119(c) is spot on:

This regulation pertains [to] “cabs, passageways and compartments”, all

areas which are located in interior areas of the locomotive. There is

absolutely no mention of exterior walkways in this regulation. Moreover,

there is no mention in this regulation of any requirement that the railroad

keep locomotive exterior walkways (which do not have a roof and are open

to the elements and precipitation) completely free of naturally occurring

precipitation such as rainwater, snow, ice or sleet.

Id., 304 F.Supp.3d at 655.

Ratcliff accepted Brall’s criticism of Coleman as overly brief and failing to cite to

other authority. In contrast to that brevity, Brall provided an expansive analysis for its

view that exterior walkways fall within the scope of § 229.119(c). Brall lays out three

reasons: (1) that “overwhelming support in the case law” supports its view; (2) that the

word “passageways” in § 229.119(c) is ambiguous; and (3) that the FRC’s inclusion of

the word “walkways” in a compliance manual means exterior walkways. However, like a

house of cards, Brall’s reasoning collapses under close analysis.

First, Brall misstates the holdings of all five cases it cites as examples of

“overwhelming support” for its expansive interpretation. See id. at *10. In truth, none of

those cases applied §229.119(c) to an exterior walkway. The two cases involving exterior

walkways cited to an entirely different provision, 49 C.F.R. §229.119(e), which specifically

addresses the exterior “open-end platforms” of coupled cars and requires “safe passage”

between connected locomotives. See e.g., Wells v. CSX Transp. Inc., 2010 WL 3703711

(S.D. Ohio Sept. 17, 2010); McClain v. Norfolk So. Ry. Co., 2009 WL 1812090 at *1 (N.D.

Ohio June 23, 2009). The other three cases cited by Brall all applied § 229.119(c)

exclusively to interior passageway floors or cab floors. See, e.g., Kehdi v. BNSF Ry.

Co., Civil No. 06–6242–AA, 2007 WL 2994600, at *4 (D.Or. Oct. 11, 2007))

(uncontradicted evidence of slipping hazard including photos “showing a slick looking

substance with a slip mark running through it” on the interior compressor compartment

floor and a post-accident inspection report stating that the substance existed in sufficient

amounts to require cleanup which violated LIA “on its face.”); McGinn v. Burlington N. R.

Co., 848 F. Supp. 827, 830 (N.D. Ill. 1994)(regulation was not violated when plaintiff

tripped over his personal belongings on the floor of the engine cab); Riley v. Union Pacific

R. Co., 2010 WL 1929623 at *1 (E.D. Okla. May 12, 2010) (summary judgment granted

where plaintiff tripped over rusted lid to battery box on interior floor of

“passageway/walkway”).

A sixth case cited by Ratcliff is no more persuasive. In Wagner, 642 N.W.2d 821,

the trial court cited §229.119(c) on its own initiative, without significant analysis or any

briefing by the parties. The court granted summary judgment where undisputed evidence

showed that the exterior platform contained a buildup of many inches of ice and snow,

requiring post-accident removal with a steel bar and shovel. Id. at 832. The plaintiff had

argued that the deteriorated condition violated the BIA’s general mandate to maintain the

locomotive “in proper condition and safe to operate without unnecessary peril to life and

limb” as well as 49 C.F.R. § 229.7(a), and that the defendant had failed to conduct a daily

inspection under 49 C.F.R. §229.21. Rather than relying upon the duties of maintenance

and inspection, the trial court cited § 229.119(c) and dicta in McGinn (an interior floor

case) in granting summary judgment. The Nebraska Court of Appeals pointed out that

discrepancy,10 and discussed cases more generally holding that “ice and snow[] can

plainly render equipment unsafe to operate without unnecessary peril to life or limb and

have been found to violate the BIA both directly as well as through a rail carrier’s

noncompliance with federal regulations promulgated under the BIA.” Id. at 839. On

appeal, the railroad did not specifically challenge the scope of §229.119(c), but instead

argued only that the trial court had erred by not submitting the issue to the jury. The

appellate court affirmed based upon “undisputed” evidence that “the walkway was

covered with 6 inches of snow and patches of ice 4 inches thick.” See id. at 840-841.

For the reasons explained herein, Wagner reached the correct result but erred in citing to

§ 229.119(c) rather than the general duty of maintenance.11

10Id. at 840 (acknowledging that § 229.119(c) was “not one of the specific Code of Federal Regulations

sections asserted” by Wagner).

11The same can be said of Martin v. BNSF Ry. Co., 379 Mont. 423 (Mont. S. Ct. 2015), another case cited

by Ratcliff but in which there was no discussion at all as to whether § 229.119(c) applied. In Martin, the

In addition to Brall’s misstatement of the holdings of every case cited, the

undersigned does not agree with Brall that the word “passageways” in the regulation is

ambiguous. The language of §229.119(c) has remained unchanged for more than 40

years, and has always focused on “Floors” of locomotive cabs.12 Reading the language

grammatically, it specifically addresses “[f]loors of cabs, [floors of] passageways, and

[floors of] compartments” that must be kept free of hazards, and directs “[f]loors” to be

“properly treated to provide secure footing.” Id. The most natural reading of the word

“floor” in this context means interior flooring, not exterior steps open to the elements.

Adding to this natural construction is the contextual knowledge that when the FRC has

intended to address specific exterior components, such as connective exterior platforms

between locomotives, it has done so. See 49 C.F.R. § 229.119(e). In fact, the scope of

the FSAA covers exterior steps and grab irons of all railroad vehicles, including

locomotives, in order to mandate the use of safety elements that decrease tripping and

slipping dangers.13 See, e.g., 49 U.S.C. § 20302(a) (requiring vehicles to be equipped

with “secure sill steps” and “secure ladders and running boards”); see also generally, 49

C.F.R. §§ 231.1 and 231.16 (requiring footboards on locomotives used in switching

service to have tread surface “of antiskid design and constructed with sufficient open

space to permit the elimination of snow and ice from the tread surface” and with additional

specifications for steps).

plaintiff appealed after the trial court submitted the issue of liability to the jury, which returned a defense

verdict. On appeal, Plaintiff argued that it was undisputed that ice and snow existed on the step. However,

the Montana Supreme Court agreed that issues of fact remained as to whether ice and snow on the

locomotive step caused the plaintiff to slip; therefore, the court affirmed.

12A locomotive cab consists of the interior compartment that is “occupied.” See 49 C.F.R. § 229.5, defining

a “cab” as “that portion of the superstructure designed to be occupied by the crew operating the locomotive.”

See also id., defining a “[l]ocomotive cab” as “the compartment or space on board a locomotive where the

control stand is located and which is normally occupied by the engineer when the locomotive is operated.”

13Plaintiff claims no violation of any of those regulations.

Finally, the undersigned disagrees with Brall that the FRC compliance manual

alters the natural reading of §229.119(c). Again, the regulation in grammatical structure

and in its most natural reading covers only the interior floors of “cabs, passageways, and

compartments.” To support its expansion to exterior uncovered walkways and steps, Brall

focused on the addition of the word “walkways” in the first sentence of the opening

paragraph of the Guidance on the regulation:

Section (c): Accumulations of oil, water, debris, and other items on

passageway [sic], walkways, cab control compartment floors, or engine

compartment floors should be of such a nature as to present a potential

hazard and unsafe condition for any person who would use them (e.g.,

slipping, tripping, or does not provide secure footing). When an inspector

discovers these conditions, he/she should also determine the source and

take appropriate enforcement action. The regulation does not require that

such things as portable ice chests or crew luggage be secured in the cab,

but if these items create a personal injury hazard they should be addressed.

See MPE Compliance Manual, https://railroads.dot.gov/sites/fra.dot.gov/files/2020-

05/MPEComplianceManual2013.pdf (emphasis added). Rather than viewing the word

“walkways” as a synonym for interior walkways in context, Brall opined that the FRC

meant to expand the reach of the regulation to uncovered surfaces.

There is no support for that hypothesis. The referenced section of the compliance

manual continues on for many paragraphs to provide representative examples of what is

proscribed by §229.119(c). Notably, all examples concern interior floors and

passageways, with particular emphasis on different compartment floors.14 There is not a

single reference to any exterior walkways or steps. That the FRC used the term as a

rough synonym for interior passageways (as did cases cited by Brall, see Riley, supra at

14Most of the guidance concerns the floors of air compressor compartments. Interestingly, the manual

explains that the mere presence of oil on the floors of such compartments is not to be considered in violation

of (c) so long as certain conditions are met.

*1), is further supported by the only other time the word “walkways” appears in the

manual. Under the interpretive Guidance provided for § 229.47, the manual speaks to

the location of safety equipment on “locomotives with enclosed walkways.”

To summarize: (1) there is no “overwhelming support” in the case law to expand

the reach of § 229.119 to exterior walkways open to the elements; (2) the grammatical

structure of the regulation is unambiguous and supports limiting its reach to interior floors;

(3) there is no support for presuming that the addition of the word “walkways” in the

compliance manual was intended to expand § 229.119(c) to encompass exterior steps of

a locomotive. Alternatively, if a reviewing court were to disagree and conclude that

§229.119(c) applies to an exterior step fully exposed to the elements, the undersigned

still would conclude that Plaintiff cannot prove a violation here. The compliance manual

prohibits “[a]ccumulations” of “water…and other items…of such a nature as to present a

potential hazard and unsafe condition.” Referring to a few minutes’ worth of snowfall on

an exterior step as a prohibited “accumulation” is beyond even the most expansive

reading provided by the compliance manual.15

Finally, the conclusion that § 229.119(c) cannot be read to place a rail carrier in

violation for failing to remove snow from an exterior step the instant it falls is supported

by the same “daily inspection” regulation cited by the Sixth Circuit in Edwards v. CSX

Transp. Inc. In Edwards as here, the non-complying condition was alleged to have

occurred during the plaintiff’s shift, despite the fact that the bathroom there had passed

15While neither party has briefed the issue, it is not clear that the compliance manual would be entitled to

full Chevron deference. See generally, Federal Exp. Corp. v. Holowecki, 552 U.S. 389 (2008); Chevron,

U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). In other words, it remains an

open question whether a violation of language in a manual could expand the regulatory language so that a

[debatable] violation of the manual would constitute negligence per se under the FELA.

its daily inspection under 49 C.F.R. § 229.21 prior to the locomotive being put into use.

The Sixth Circuit pointed out that the daily inspection requirement required only that

bathrooms be inspected once per day, and that other regulations governed the timing of

servicing when a non-complying condition was later discovered.

A railroad meets the obligation of sanitary bathrooms by making daily

inspections of them, just as CSX did. The regulations do not create a

violation - negligence per se - any time someone finds a bathroom in an

unsanitary condition, no matter the cause, no matter the time of the last

inspection. The regulations require a daily inspection, 49 C.F.R. § 229.21…

Otherwise, the regulations would create a 24/7 strict liability duty - one that,

as the district court pointed out, would require a full-time bathroom

supervisor. Nothing in the regulations suggests such a strict requirement.

Id., 821 F.3d at 762 (citing 49 C.F.R. § 229.21). The Sixth Circuit reasoned:

We must interpret regulations, no less than other legal texts, “in a way that

renders them compatible, not contradictory.”…Section 229.137(c)…

generally prohibits railroads from putting locomotives that have dirty

bathrooms after the last daily inspection at the front of a train, but it allows

this to happen in specified circumstances. ….

Nor does it help [plaintiff] that a railroad's duties under the Act are “absolute

and continuing” and that negligence per se liability may arise without regard

to whether the railroad acted reasonably. Lilly v. Grand Trunk W. R.R.

Co., 317 U.S. 481, 485…. All these authorities do is take us back to the

threshold question: Did CSX violate the regulations? As shown, it did not.

Id. (additional citations omitted).

In addition to sanitation provisions, the daily inspection regulation incorporates

another regulation, 49 C.F.R. § 229.9, Movement of non-complying locomotives, that

addresses servicing requirements for the use of a non-complying locomotive.

[E]ach locomotive in use shall be inspected at least once during each

calendar day. A written report of the inspection shall be made. …Except as

provided in §§ 229.9, 229.137, and 229.139, any conditions that constitute

non-compliance with any requirement of this part shall be repaired before

the locomotive is used.

49 C.F.R.§229.21(a) (emphasis added)). When a locomotive is discovered upon its daily

inspection to have a non-complying condition, 49 C.F.R. § 229.9(a) explains that it can

only be “used” after being tagged as a “lite locomotive or a dead locomotive.” Here,

however, NS 3058 was not so tagged. Instead, it was properly put into use by Plaintiff at

the beginning of his shift after he performed the daily inspection.

Plaintiff alleges that NS 3058 developed the non-complying condition (the slippery

step) minutes before he used that step, hours after the daily inspection. 49 C.F.R.

§229.9(b) explains the timing of servicing that should occur when a locomotive develops

a non-complying condition after inspection:

(b) A locomotive that develops a non-complying condition en route may

continue to utilize its propelling motors, if the requirements of paragraph (a)

are otherwise fully met, until the earlier of –

(1) The next calendar day inspection, or

(2) The nearest forward point where the repairs necessary to bring it into

compliance can be made.

Id. In other words, as with the unsanitary bathroom at issue in Edwards, there are some

occasions in which other non-complying conditions will be briefly permitted during

continued “use” of a locomotive. When § 229.119(c) is read as a whole and in context

with both the statutory language and other regulations, and considering the record

presented, it is clear that Plaintiff cannot prove a violation as a matter of law.

V. Conclusion and Recommendation

For the foregoing reasons, Defendant is entitled to judgment on Plaintiff’s FELA

claim for the 2018 accident. Therefore, IT IS RECOMMENDED THAT Defendant’s

motion for partial summary judgment (Doc. 21) be GRANTED, and that Defendant’s

motion to strike Plaintiff’s expert’s affidavit (Doc. 27) be GRANTED in part, with the

affidavit to be preserved in the record for the benefit of any future review.

s/ Stephanie K. Bowman

Stephanie K. Bowman

United States Magistrate Judge

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

CHARLES GILLIAM, Case No. 1:18-cv-700

Plaintiff, Cole, J.

Bowman, M.J.

v.

NORFOLK SOUTHERN RAILWAY COMPANY,

Defendant.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written

objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of

the filing date of this R&R. That period may be extended further by the Court on timely

motion by either side for an extension of time. All objections shall specify the portion(s)

of the R&R objected to, and shall be accompanied by a memorandum of law in support

of the objections. A party shall respond to an opponent’s objections within FOURTEEN

(14) DAYS after being served with a copy of those objections. Failure to make objections

in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474

U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).