fact-intensive "totality of the circumstances"
December 15, 2021
SCOTUS to decide if stopped train is 'in use' under labor law
By Daniel Wiessner
Railroads liable for injuries when trains are 'in use'
Union Pacific engineer injured while preparing train for departure
Plaintiff backed by DOJ, unions
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(Reuters) - The U.S. Supreme Court on Wednesday said it would clear up confusion among appeals courts over whether a train that has temporarily stopped is still "in use," exposing railroads to liability for worker injuries.
The court granted a petition for certiorari by Bradley LeDure, a Union Pacific engineer who slipped on an oily locomotive platform while preparing to depart from an Illinois railyard.
The 7th U.S. Circuit Court of Appeals last year upheld dismissal of the lawsuit LeDure filed against Union Pacific, saying the railroad was not liable for his injuries because the train was not "in use" when he fell.
LeDure's lawyer, Nelson Wolff of Schlichter Bogard & Denton, did not immediately respond to a request for comment. Neither did Omaha-based Union Pacific and its lawyers at Latham & Watkins and Taft Stettinius & Hollister.
The federal Locomotive Inspection Act (LIA) requires that trains "in use" be inspected at least once per day and that their walkways be kept free from oil, water and other hazards.
Federal appeals courts are split over how to determine whether a train is in use under the LIA.
The 7th Circuit in LeDure's case said readying a locomotive for use "is the antithesis of using it." The 4th Circuit uses a fact-intensive "totality of the circumstances" test, while the 5th Circuit has said the LIA applies once a train is assembled and the crew has completed pre-departure procedures.
The U.S. Department of Justice in a November amicus brief urged the Supreme Court to clear up the inconsistency and rule that the LIA applies broadly, including when a train is stopped.
LeDure is also backed by a coalition of railroad unions who said in a separate amicus brief that most injuries to employees on locomotives occur when a train is not moving.
The case is LeDure v. Union Pacific Railroad Co, U.S. Supreme Court, No. 20-807.
For LeDure: Nelson Wolff of Schlichter Bogard & Denton
For Union Pacific: J. Scott Ballenger; Tyce Walters of Latham & Watkins; Jonathan Amarilio of Taft Stettinius & Hollister
https://www.reuters.com/legal/transactional/scotus-decide-if-stopped-train-is-in-use-under-labor-law-2021-12-15/
So he was on duty on his outbound train and UP said his train was not "in use"... So if we get hurt while on duty but not on a moving train we can expect UP to try and back out of liability...