352 F.Supp.2d 116 (2005) | Cited 2 times | D. Massachusetts | January 6, 2005


On January 16, 2003, plaintiff Kenneth Horibin instituted thisaction against defendant Providence & Worcester Railroad Company("P&W"), seeking compensation under the Federal Employers'Liability Act, 45 U.S.C. § 51, et seq. ("FELA") for an injury heallegedly suffered while working as a locomotive engineer forP&W.1 Horibin contends that he injured his lower back dueto a malfunction in a locomotive hand brake, and that themalfunction resulted from P&W's failure to inspect and lubricatethe brake chain. He advances several grounds for liability underthe FELA, alleging that defendant is (1) strictly liable forviolating the Federal Locomotive Inspection Act,49 U.S.C. §§ 20701-20703 ("FLIA"); (2) strictly liable for violating theFederal Safety Appliance Act, 49 U.S.C. §§ 20301-20306 ("FSAA");and (3) liable for negligence.2 Pending before the Court is plaintiff's motion for partialsummary judgment as to the FLIA claim. Pursuant to Fed.R. Civ.P. Rule 56, Horibin requests that the Court enter a judgment thatthe FLIA applies to this case, as a matter of law, because thelocomotive on which he was injured was "in use" within themeaning of the statute.3

Factual Background

P&W hired Horibin to work in its Transportation Department onJune 24, 1982. In the course of his eighteen-year tenure with thecompany, Horibin served at various times as a conductor,brakeman, and locomotive engineer.

On March 13, 2000, Horibin served as the engineer of a trainassigned to travel from Worcester, Massachusetts, to the ValleyFalls railroad yard in Cumberland, Rhode Island, servicingcustomers along the way. Horibin completed this assignment,arriving at the Valley Falls railroad yard at approximately 3:00A.M. the following day. Robert Gibbons, the conductor of thetrain, accompanied Horibin on the trip.

Once Horibin entered the railroad yard, he switched the trainfrom main line tracks onto yard tracks and came to a stop. Atthat point, the train's freight cars were decoupled from thelocomotive. Horibin then switched the locomotive from the yardtracks to the storage tracks and proceeded to the Valley FallsEngine House. The Engine House is used to store locomotives while they awaitfuture use.4 It has no mechanical department to repair,service, or maintain locomotives; maintenance and repair of P&Wlocomotives is performed in Worcester.

Horibin parked the locomotive inside the Engine House,deactivated its engines, disconnected its electric generator,turned off its interior and exterior lights, physically removedthe handles necessary to operate the locomotive's brakes andthrottle, and set the automatic brakes. He then attempted to setthe locomotive's hand brake.

P&W employees are required to follow the Northeast OperatingRules Advisory Committee Operating Rules ("NORAC OperatingRules") and the Providence and Worcester Railroad Company AirBrake and Train Handling Rules ("P&W Rules"). Both rules requiredHoribin, as the engineer, to set the hand brake before leavingthe locomotive. The hand brake is operated by moving a handlethat ratchets a chain over a sprocket drive; the motion of thehandle applies tension to the chain, which in turn pulls thebrakes into tight contact with a set of the locomotive's wheels.

Horibin alleges that, while he was setting the hand brake, thehandle unexpectedly rotated freely, causing him to lose hisbalance, fall forward against the nose of the locomotive, andtwist his back. Horibin states that he felt an immediate onset ofacute back pain.

There were no witnesses to Horibin's alleged injury; Gibbonswas in the office doing paperwork at the time. Horibin filed areport documenting the incident on March 14. Horibin instituted the present action against P&W on January16, 2003. On December 8, 2004, he filed the pending motion forpartial summary judgment.


I. Standard of Review

The role of summary judgment is "to pierce the pleadings and toassess the proof in order to see whether there is a genuine needfor trial." Mesnick v. General Elec. Co., 950 F.2d 816, 822(1st Cir. 1991) (quoting Garside v. Osco Drug, Inc.,895 F.2d 46, 50 (1st Cir. 1990)). The burden is upon the moving party toshow, based upon the pleadings, discovery and affidavits, "thatthere is no genuine issue as to any material fact and that themoving party is entitled to a judgment as a matter of law."Fed.R.Civ.P. 56(c).

Once the moving party has satisfied its burden, the burdenshifts to the non-moving party to set forth specific factsshowing that there is a genuine, triable issue. Celotex Corp. v.Catrett, 477 U.S. 317, 324 (1986). The court must view theentire record in the light most hospitable to the non-movingparty and indulge all reasonable inferences in that party'sfavor. O'Connor v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993).If, after viewing the record in the non-moving party's favor, thecourt determines that no genuine issue of material fact existsand the moving party is entitled to judgment as a matter of law,summary judgment is appropriate.

II. Applicability of the FLIA

The FLIA imposes strict liability on railroad carriers forviolations of its safety standards. See Urie,337 U.S. at 188-190. The Act provides in pertinent part: 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.

Absolute liability under the FLIA does not attach unless thelocomotive in question was "in use" at the time of the employee'salleged injuries. McGrath v. Consolidated Rail Corp.,136 F.3d 838, 842 (1st Cir. 1998) (FBIA).5 The purpose of the "inuse" limitation is to give railroads the opportunity to inspectfor and correct defective conditions before being exposed tostrict liability. Angell v. Chesapeake and Ohio Railway Co.,618 F.2d 260, 262 (4th Cir. 1980) (FBIA); Phillips,190 F.3d at 288. Thus, "[c]ongressional intent and the case law construingthe statute clearly exclude those injuries directly resultingfrom the inspection, repair, or servicing of railroad equipmentlocated at a maintenance facility." Angell, 618 F.2d at 262.

Determining whether a locomotive is "in use" is not always the"fairly straightforward exercise" that one would expect. SeeDeans v. CSX Transportation, Inc., 152 F.3d 326, 329 (4th Cir.1999) (FSAA). Obviously, a locomotive pulling a train on a mainline from one city to another is "in use," and a locomotive thatis in storage or in a repair shop for servicing is not "in use."See Pinkham v. Maine Central R.R. Co., 874 F.2d 875, 881 (1stCir. 1989) (FBIA); McGrath, 136 F.3d at 842; Phillips,190 F.3d at 288. The difficulty arises principally when a locomotive is in transition from one status to another.Locomotives (and trains) must be both prepared for departure andattended to upon arrival, and there is no bright line separating"use" from "non-use" — that is, repair, maintenance, servicing,switching, and other activities that are intended to be excludedfrom the statutory definition. See Deans, 152 F.3d at 330(discussing "the multitude of steps required — and varioussequences in which these steps may be taken — to prepare a trainfor departure"). It is thus possible for a locomotive to be "inuse" even though it is motionless and not on a main track.McGrath, 136 F.3d at 842; Brady v. Terminal R.R. Ass'n of St.Louis, 303 U.S. 10, 13 (1938) (FSAA).

In the First Circuit, the two "determinative factors" fordetermining whether a locomotive is "in use" are (1) the activityof the plaintiff at the time of the injury, and (2) the locationof the locomotive at the time of the injury. McGrath,136 F.3d at 842; Pinkham, 874 F.2d at 882. "Whether a locomotive is `inuse' under the Act is `a question of law for the trial court todecide and not a question of fact for the jury.'" McGrath,136 F.3d at 842 (quoting Pinkham, 874 F.2d at 881).

There are a number of reported cases involving injuriesoccurring prior to the departure of a train, while it was intransition from "non-use" to "use," not all of which arecompletely consistent. Compare, e.g., McGrath, 136 F.3d at 838(in use; employee was engineer performing inspection duties priorto departure, injured while beginning inspection); Angell,618 F.2d at 260 (in use; employee was machinist assisting in assemblyof train for departure, injured while uncoupling air brakes);Deans, 152 F.3d at 326 (in use; employee was conductor couplinglocomotives to train for departure and testing brakes, injuredwhile releasing hand brakes); with Trinidad v. Southern PacificTrans. Co., 949 F.2d 187 (5th Cir. 1991) (not in use; plaintiffwas carman responsible for testing brakes prior to departure, injuredwhile attempting to notify engineer of a problem); Phillips,190 F.3d at 289-90 (not in use; plaintiff was member of yard crewresponsible for switching operations, injured while settingbrakes prior to pre-departure inspection of assembled train).

In McGrath, the locomotive at issue was idling on a yardtrack used to store, inspect, classify, and switch locomotivesand railroad cars. Id. Plaintiff, the engineer, allegedlysustained an injury after boarding the locomotive and walkingtoward the daily inspection card, which he was required toconsult prior to moving the locomotive. Id. Applying the twodeterminative factors, the First Circuit held that the injury wasactionable under the FLIA. Id. Plaintiff sustained the injuryin the course of performing duties "`incidental to [the] task ofoperating the train as an engineer,'" rather than in the courseof maintenance work, and the locomotive's location — the yardtrack — was not a place of repair. Id. (quoting Rivera v.Union Pacific Railroad Co., 868 F. Supp. 294, 301 (D. Col.1994)).

Similarly, in Deans, a case analogous to the action at bar,the court held that an injury allegedly suffered by a conductorwhile releasing a locomotive's hand brake before departure wascovered by the FLIA. 152 F.3d at 330. The locomotive was "in use"at the time of the injury because the injured employee was amember of the transportation crew, in the process of releasingthe hand brakes to put the train in motion. Id.6 Inaddition, the train was located "on a track in the rail yard inpreparation for imminent departure" and was "close? to actualmotion." Id.

The present case is somewhat different in that it involves thehandling of a locomotive after arrival, rather than prior to departure. Nonetheless, there aresubstantial similarities. When a train crew reaches the end ofits journey, it cannot simply abandon the train and walk away; itmust engage in certain activities in order to "park" thelocomotive safely. Those activities may vary by locomotive, byrailroad, or by employee job responsibility, but clearly there issome set of activities in each case that represent the end of"use" and the beginning of storage, switching, or repair. Here,the application of the two factors dictate that the locomotive inquestion was still "in use" at the time of Horibin's allegedinjury.

As to the first factor, there is no dispute that Horibin wasacting as a locomotive engineer at the time of his injury. He wasa member of the Transportation Department and was not responsiblefor maintenance or repair. See Deans, 152 F.3d at 329;McGrath, 136 F.3d at 842; compare Phillips, 190 F.3d at 290;Pinkham, 874 F.2d at 881. He sustained the alleged injury whileperforming a duty (setting the hand brake) that was required ofan engineer by the P&W Rules and NORAC Operating Rules. Thatactivity was thus "`incidental to [the] task of operating thetrain as an engineer.'" McGrath, 136 F.3d at 842 (quotingRivera, 868 F. Supp. at 301).

Moreover, although movement of the locomotive was in theimmediate past rather than the imminent future, the locomotivewas nonetheless "close? to motion" when Horibin attempted to setthe hand brake. See Deans, 132 F.3d at 330; see also Angell,618 F.2d at 262 (finding train "in use" where employee wasinjured as he was moving an engine in order to coupled to a trainto be moved a few hours later). The setting of the hand brake,like shutting off the engine and turning off the lights, was anintegral and necessary part of the process by which the engineershut down the locomotive and took it out of "use."7

As to the second factor, it appears that the Valley FallsEngine House, where the injury occurred, is simply a storage shedwhere the locomotive would be parked temporarily prior to itsreturn to Worcester. The Engine House did not serve as amaintenance facility for repair, inspection, or servicing oflocomotives.

P&W directs the Court's attention to several cases in whichlocomotives located inside of storage facilities were found notto be "in use." See Tisneros v. Chicago & N.W.RY. Co.,197 F.2d 466, 467 (7th Cir. 1952); Lyle v. Atchison, 177 F.2d 221,222-223 (7th Cir. 1949); Baltimore & O.R. Co., v. Hooven,297 F. 919, 922-923 (6th Cir. 1924); Simpkins v. Baltimore & O.R.R.Co., 449 F. Supp. 613, 616 (S.D. Ohio 1976). However, in eachcase cited, employees responsible for transportation turned thelocomotive over to a maintenance or repair crew, and a member ofthat crew thereafter sustained an injury while servicing thelocomotive. See Tisneros, 197 F.2d at 466-467 ("The engineerhad left . . . Plaintiff then started to perform his duty," whichwas to "build? up and maintain? the fire, to have it incondition for future use . . ."); Lyle, 177 F.2d at 222-223(the locomotive's operator "had turned it over to the round-houseemployees, [who] turned it over to plaintiff whose duty it was tomake the service and to prepare the engine for future furtheruse"); Hooven, 297 F. at 922-923 (locomotive was "withdrawnfrom service and at rest in a stall of the railroad's roundhouseundergoing repairs . . ."); Simpkins, 449 F. Supp. at 616(locomotive was located on a "track devoted primarily to maintenance,inspection and repair activities and all the plaintiffs wereengaged in servicing the engine when their respective mishapsoccurred"). The presence of the locomotive in a storage facilitywas incidental to, rather than dispositive, of the outcome.

Here, the plaintiff was a member of the transportation crew,with no maintenance or repair duties, and there is no evidencethat repair or maintenance ever occurred inside the Engine House.Horibin had to park the locomotive somewhere at the close ofhis run. Under the circumstances, it is immaterial that he did soin the Engine House, as opposed to the yard, a siding, or indeedthe main line.8

Accordingly, the Court concludes that the locomotive inquestion was "in use" at the time of the alleged injury, andtherefore P&W is strictly liable for injuries suffered as aresult of any violation of the FLIA.


For the reasons stated in the foregoing memorandum, plaintiff'smotion for partial summary judgment under Fed.R.Civ.P. 56 isGRANTED.

So Ordered.

1. The parties stipulate that Horibin is entitled to bringsuit under the FELA because P&W is a common carrier by railroad,the parties were engaged in interstate commerce at the time andplace of Horibin's alleged injury, and Horibin was performing hisduties as a P&W locomotive engineer at the time and place of thealleged injury. See 45 U.S.C. § 51.

2. The FELA affords employees of common carriers a cause ofaction for work-related injuries suffered as a result of theiremployer's negligence. 45 U.S.C. § 51. The FLIA and the FSAA "aresubstantively if not in form amendments to the [FELA]. Theydispense . . . with the necessity of proving . . . negligence . . .in certain classes of [FELA] suits." Urie v. Thompson,337 U.S. 163, 188-190 (1949). Thus, employers are strictly liable forinjuries resulting from violations of the FLIA and FSAA. Seeid.

3. Horibin's motion and complaint actually refer to theFederal Boiler Inspection Act, 45 U.S.C. § 23 ("FBIA"). However,as P&W notes, the FBIA was recodified in 1994 without substantivechange under the title Federal Locomotive Inspection Act. SeePub.L. 103-272, § 1(a), July 5, 1994, 108 Stat. 85.

4. Ordinarily, the locomotive operated by Horibin would havebeen parked in the Engine House until 7:30 A.M. or 9:30 A.M. onMarch 14, at which point another engineer would have taken itback out to the yard tracks, where it would have been coupled tofreight cars and taken back to Worcester. The record does notdisclose whether this course of action was followed with respectto the locomotive in question.

5. The "in use" requirement of the former FBIA wassubstantially similar to that set forth in the FLIA. See45 U.S.C. § 23. The FSAA also contains functionally equivalent "inuse" language. See Phillips v. CSX Transportation, Inc.,190 F.3d 285, 288 n. 2 (4th Cir. 1999) (applying case lawinterpreting the FBIA to an FSAA claim because the two statutescontain identical "in use" language). This opinion will thereforerefer to decisions rendered under the FBIA and the FSAA.

6. The fact that the conductor had yet to complete apre-departure air brake test when the injury occurred was notdispositive of the question of whether the train was "in use."Id.

7. By way of analogy, an automobile may be said to be in "use"until the operator has taken all steps incidental to shuttingdown the vehicle: e.g., stopping it, putting the transmission in"park," turning off the ignition, turning off the lights, settingthe brake, exiting, and locking the doors. Some of those stepsmay be different for different vehicles (e.g., automatic vs.manual transmissions), or at different times (e.g., day vs.night), and some may be optional (e.g., locking the doors), butall of them are part of the process of taking an automobile outof "use." It is noteworthy here that under the relevant operatingrules the setting of the hand brake was necessary, not merelyoptional or incidental, to shutting down the locomotive.

8. To return to the automobile analogy, the automobile remainsin "use" until it is shut down, whether or not it is parked onthe street, in the driveway, or in the garage.

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