U.S. District Court for the Western District of Louisiana, November 10, 2021
In this asbestos action, plaintiff Dennis Bouck alleged that he developed mesothelioma as a result of repairing locomotives and locomotive parts while working for Kansas City Southern Railway Company (KCSR) from 1964 to 2007.
The plaintiff commenced an action against KCSR, as well as various product manufacturers. The court previously found that the Locomotive Inspection Act (LIA) preempted the plaintiff’s defective design and failure to warn state law claims against the product manufacturers. Thereafter, KCSR filed a partial motion for summary judgment, arguing that LIA precludes the plaintiff’s negligence claim pursuant to the Federal Employers Liability Act (FELA).
Under FELA, common carrier railroads are “’liable in damages to any person suffering injury while … employed by [the] carrier if the ‘injury or death result[ed] in whole or in part from the [carrier’s] negligence.” In addition, the Boiler Inspection Act (LIA’s predecessor) and the LIA serve as a supplement to FELA “by imposing on interstate railroads an absolute and continuing duty to provide safe equipment.” The LIA sets forth that:
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—
- are in proper condition and safe to operate without unnecessary danger of personal injury;
- have been inspected as required under this chapter and regulations prescribed by the Secretary of Transportation under this chapter; and
- can withstand every test prescribed by the Secretary under this chapter.
Further, “the LIA can establish the standard of care for FELA negligence claims as a violation of the LIA could result in negligence per se under the FELA.”
With regard to the partial motion for summary judgment, KCSR argued that the plaintiff’s FELA claims pertaining to asbestos exposure from his work with locomotives and locomotive parts are precluded as LIA “occupies the entire field regarding locomotive parts.” However, the court noted that KCSR’s position would essentially leave a plaintiff such as Bouck with no “available remedy for prolonged asbestos exposure arising from work on locomotives and locomotive parts.”
The court also set forth that “[t]he LIA did not eliminate the employer’s duty to ensure a reasonably safe workplace.” As such, the court found that “a jury could reasonably conclude that KCSR breached its non-delegable duty to provide the plaintiff with a reasonably safe workplace by subjecting the plaintiff to prolonged asbestos exposure without proper warnings, testing, safety equipment, or training.” Thus, the court denied KCSR’s partial motion for summary judgment.