Negligence Per Se Claims Against Defendant Passenger Railcar Manufacturer Denied; Strict Liability and Negligence Claims Can Proceed Under Federal Statutes

KANSAS — The plaintiff Nancy Little brought an action individually and as the personal representative of the estate of her father, Robert Rabe, against defendant The Budd Company (Budd). The plaintiff alleged that her father was exposed to asbestos-containing pipe insulation while working as a pipefitter for the Atchison Topeka & Santa Fe Railroad (ATSF) between 1951 and the mid-to-late 1970’s; she contends this exposure caused him to develop mesothelioma.  The plaintiff’s decedent passed away on December 28, 2012.

Budd allegedly manufactured passenger railcars and sold them to ATSF.  The plaintiff contends that defendant placed asbestos and asbestos-containing products in its railcars, exposing her father to asbestos while working for ATSF. The plaintiff asserted the following state law claims: negligence, strict product liability design/defect, and strict product liability/warning defect. Alternatively, the plaintiff asserted a state law claim for negligence per se based on the defendant’s alleged violation of two federal statues: (1) the Locomotive Inspection Act (LIA), and (2) the Federal Safety Appliance Act (SAA).

The defendant filed a Motion for Summary Judgment against all claims. The plaintiff also filed a Motion for Summary Judgment on certain elements of her claims and against some of the defendant’s affirmative defenses.

Budd argued that the LIA and SAA preempt plaintiff’s state law claims for negligence, strict product liability/design defect, and strict product liability/warning defect.  Additionally, Budd argued that the plaintiff’s alternative claim for negligence per se based on Budd’s alleged violation of the two federal statutes fails as a matter of law.

The court held that the evidence creates a genuine, triable issue about whether the defective product that allegedly caused the plaintiff’s decedent’s death – asbestos-containing pipe insulation – is a locomotive appurtenance under the LIA, and therefore denied Budd’s MSJ related to the plaintiff’s state law claims based on LIA preemption.

The court deferred ruling on the SAA preemption theory until trial, giving “both parties notice and opportunity to present their arguments in the context of trial evidence.”  By doing so, the court provides the defendant sufficient notice and an opportunity to address the plaintiff’s argument that defendant’s SAA theory fails as a matter of law.

The court granted summary judgment against the plaintiff’s negligence per se claim premised on defendant’s violation of the LIA and SAA.  “Because the two statutes did not apply to manufacturers when the plaintiff’s father allegedly was exposed to asbestos-containing pipe insulation, the court cannot apply the standards contained in those statutes retroactively to impose liability on defendant in the form of a state law claim for negligence per se.”

Lastly, the court held that a reasonable jury could conclude that exposure to other asbestos-containing products – and not just defendant’s asbestos-containing pipe insulation – were a substantial contributing factor to Mr. Rabe’s death. Therefore, the court denied the plaintiff’s Motion for Partial Summary Judgment against defendant’s affirmative defense that asserts other asbestos exposures caused Mr. Rabe to contract mesothelioma.

Read the full case decision here.