Interpretation of the phrase “in use” as used in the Locomotive Inspection Act (LIA) continues to baffle courts across the country, including the Supreme Court of the United States. On April 28, 2022, the Supreme Court let stand a Seventh Circuit decision that held Union Pacific was not liable for injuries an engineer suffered when he slipped and fell preparing a train to depart an Illinois rail yard. Bradley LeDure v. Union Pac. R.R. Co., case number 20-807. The deadlocked Court left intact the Seventh Circuit’s finding that a train sitting on a sidetrack in preparation for departure is not “in use” under the LIA. The LIA and its corresponding regulations require railroads to keep locomotive walkways clear of hazards while the locomotive is “in use.” The relevant language states a “railroad carrier may use or allow to be used” on “its railroad lines” a locomotive “only” if the locomotive meets the statutory safety requirements.

Bradley LeDure, a Union Pacific locomotive engineer, alleged in his lawsuit that Union Pacific failed to do so in violation of the LIA and the Federal Employers’ Liability Act (FELA). Many courts consider the LIA and the Federal Safety Appliance Act (which contains the same “use or allowed to be used” provision as the LIA), as amendments to the FELA because all three statutes share a “prime purpose, the protection of employees and others by requiring the use of safe equipment.” Lilly v. Grand Trunk W.R.R. Co., 317 U.S. 481, 486 (1943); see also Urie v. Thompson, 337 U.S. 163, 189 (1949). Notably, if a FELA Plaintiff can successfully show that a locomotive is in violation of the LIA while it is in use on the railroad’s line, then the Plaintiff can argue negligence per se. This can also result in railroad defendants losing the Plaintiff’s own negligence as an affirmative defense.

LeDure was injured when he slipped on an oil slick alongside an exterior passageway of a locomotive. The locomotive was part of a freight train traveling from Chicago to Dexter, Missouri. According to LeDure’s broad interpretation of the LIA, the train was only temporarily stopped and idling on a sidetrack in the Salem, Illinois railyard as part of the train’s journey to Dexter, and was “in use.”
Union Pacific contended the locomotive was not “in use” under the LIA because it was motionless, parked on a sidetrack, had not been inspected for departure, and was tagged to “run dead” to its next destination as part of a train that had yet to be assembled. The Seventh Circuit Court of Appeals agreed with Union Pacific that the locomotive was not “in use” at the time of LeDure’s injury under the LIA.

The Supreme Court held oral arguments in March 2022, which consisted of several interesting hypotheticals, railroad-related puns, and even a reference by outgoing Justice Breyer to the children’s classic “The Little Engine That Could.” For example, Chief Justice Roberts posed the following hypothetical to the Plaintiff’s counsel: A locomotive has been placed on a sidetrack and the railroad says the next time we are going to use it is in 10 days. Throughout those 10 days, would the locomotive be considered “in use”? In response, the Plaintiff’s counsel replied, “Yes, it would. And the reason is that locomotives are used for many purposes even before their necessary transiting functions.” Likewise, the government took an extremely expansive position with respect to “in use.” According to counsel for the government, the only time a locomotive would not be considered “in use” would be a situation where the locomotive has been drained of fuel and the battery has been disconnected so as to render it inoperable.

In response, Union Pacific’s counsel maintained that these arguments had no basis in the actual statute or actual railroad operations: “It seems to me that Petitioner and the government are just rewriting the statute Congress wrote. All of this about draining fluids and unhooking batteries isn’t in the statute.” Union Pacific’s counsel also rebuffed Justice Kagan’s questions regarding interpreting the statute broadly as a preventative statute and contended that the Plaintiff and government’s view would render meaningless the FRA’s safe harbor provisions for moving defective locomotives for repair.

For the railroad industry, the Court’s affirmance comes with a sigh of relief after the potential for an expansion of strict liability under the LIA and the subsequent stripping of affirmative defenses for the railroad. If the Plaintiff and government’s position had prevailed, the result could have led to imposing strict liability; civil penalties; and increased costs and additional burdens on railroads, who have served a vital role in our nation’s over-stressed supply chain. Ultimately, in anti-climatic fashion, the split Court left the Seventh Circuit’s LIA “in use” decision intact.