Anyone else keeping an eye on this one?
https://www.scotusblog.com/2022/03/justices-search-for-the-line-on-use-of-a-locomotive/
It's been fun. But it isn't much fun anymore. Signing off for now.
The opinions expressed here represent my own and not those of my employer, any other railroad, company, or person.t fun any
I'd say a locomotive is "in use" if it's sitting in a yard and capable of being put to work after starting it. If it's under repair or stored, then it's not in use. I like them saying twice about draining the brake flud.
The thing that bothers me - I cut away from other engines all the time that are, by some of these definitions, "not in use".
We're still perfomring duty, and I'm required by rulebook to make sure said engine is set up right when cutting away. Def'n lack of understanding comparing it to, say, towing a car.
That's another thing I was going to mention...if during the course of your duties, you have to be on/in it, it's in use.
Now I have to go back and read all these actual comments.
Can anyone state the original controversy -- what was he doing on the engine when he suffered the injury, and did the railroad require him to be there?
I did not read that any of the justices considered the specific case of a locomotive being hauled dead-in-train either as part of a consist that has been shut down 'to save fuel' or that is being power-balanced. In both cases I would argue that the locomotive is "in use" BUT that accessing it by the engine crew as part of normal operation of the train would not 'count' as part of the job of 'operating the train'. I'll defer to Zug, Jeff or other railroaders on this.
I personally see little difference between an engine stored on a shop track and an engine actually moved into an enginehouse or similar facility to be worked on. BUT if the plaintiff were in the process of arranging to set up or move the engine around shop trackage, or into (or out of) the shop, I'd think that safety rules would apply.
The current requirement is that a locomotive in use has to be inspected once each calendar day. In theory, it could be ~47 hours between inspections. It is perfectly legal to wait until the end of the day to do the inspection.
We regularly take locomotives "out of service" during extended periods of inactivity. It's noted on the blue card when it comes time time to put the loco back in service, and those days are not counted in the required periodic inspections.
The question here is plainly "in use." I didn't get a sense from the article that the locomotive in question was "stored servicable." Nor did I get a sense of the circumstances of the incident. Was the incident caused by something that should have been caught in an inspection?
My perspective may be a little different than a Class 1, however, as our engineers do the inspection, not the mechanical department.
Larry Resident Microferroequinologist (at least at my house) Everyone goes home; Safety begins with you My Opinion. Standard Disclaimers Apply. No Expiration Date Come ride the rails with me! There's one thing about humility - the moment you think you've got it, you've lost it...
The guy who fell on the engine was doing something while on duty, I assume. No? If an on-duty employee is on the engine, I'd say the engine is in use, unless that employee is involved in the repair of a dead engine.
Still in training.
A Union Pacific employee was injured on Union Pacific property.. unless it can be shown that the employee had no right to be on said property or that he was clearly prohibited from occupying said property then his injury claim should be treated like any other injury involving a locomotive that is in transit. That the locomotive wasn't in use.. parked.. or whatever should have no bearing on the case if the engineer was required to be on that locomotive, was directed to be there by his superior, for whatever work related reason. Lawyers are being paid thousands of dollars an hour to parse the meaning of the phrase "in use".. heaven forbid we defer to commonsense instead.
UlrichA Union Pacific employee was injured on Union Pacific property.. unless it can be shown that the employee had no right to be on said property or that he was clearly prohibited from occupying said property then his injury claim should be treated like any other injury involving a locomotive that is in transit.
I would opine that since "in use" is such a major part of the case that perhaps there was a defect that would/should have been repaired after being reported (in the daily inspection) that was a factor in the injury.
If there was no such defect, I have to wonder what the ado is about.
Good point, Larry.
I see.. so if an employee is sent to work on a locomotive that is deemed to be "not in use" and he's injured then his injury claim is ruled inadmissable, invalid. Hmmm... ok..
Salem, IL is not a repair point on the UP. A locomotive not at a repair point on a repair facility track behind Blue Flag shop protection to my mind is IN USE.
Never too old to have a happy childhood!
As far as I'm concerned.. If it's not on the deadline, or laid up good order it's in use..
What the Carriers might be looking at is more than a liability aspect. Perhaps they are looking at the possibility that a locomotive "not in use" for a particular time ,say a day or two, be granted credit towards the 92 day "Quarterly" inspections, which in turn might affect the other inspections required.
BUT, in my mind and experience any locomotive that is in use, or has the potential to be used has to 1- be inspected prior to it being used, and 2- if not usable be tagged as such. In any event the employee involved had to be on the locomotive to ensure this (handles correctly positioned, isolated, shut down (if required)) and a safety inspection on the exterior was done prior to movement.
From one of the documents filed in the suit:
LeDure’s claims arise from injuries he sustained after slipping on the oily passageway of a UP locomotive which was part of a freight train that originated in Chicago and temporarily stopped in a UP railyard before continuing into Missouri. Although a federal safety regulation enacted pursuant to the LIA requires that locomotive passageways be kept free of oil and other slipping hazards and the FELA imposes negligence per se liability when that regulation is violated, the courts below held that the locomotive was not “in use” within the meaning of the LIA to trigger application of the regulation and dismissed that claim. As to the general FELA negligence claim, the lower courts held that the oily passageway was not foreseeable to UP even though it failed, for several days before the incident, to perform the mandatory daily inspections of the locomotive.
I would opine that this would have major repercussions for the railroads, especially shortlines and such that may have several locomotives but only use one or two at a time, with the rest sitting idle as spares or for when they need more power.
The same is true for the Class 1's if they have the a similar situation.
Essentially, the outcome could be that every locomotive that is not dead-lined has to have an inspection daily, whether it's going to even be started that day or not. For a M-F operation, that means two days of OT.
I suspect that if that's how the court rules, you'll see a rule change in short order.
tree68From one of the documents filed in the suit: LeDure’s claims arise from injuries he sustained after slipping on the oily passageway of a UP locomotive which was part of a freight train that originated in Chicago and temporarily stopped in a UP railyard before continuing into Missouri. Although a federal safety regulation enacted pursuant to the LIA requires that locomotive passageways be kept free of oil and other slipping hazards and the FELA imposes negligence per se liability when that regulation is violated, the courts below held that the locomotive was not “in use” within the meaning of the LIA to trigger application of the regulation and dismissed that claim. As to the general FELA negligence claim, the lower courts held that the oily passageway was not foreseeable to UP even though it failed, for several days before the incident, to perform the mandatory daily inspections of the locomotive. I would opine that this would have major repercussions for the railroads, especially shortlines and such that may have several locomotives but only use one or two at a time, with the rest sitting idle as spares or for when they need more power. The same is true for the Class 1's if they have the a similar situation. Essentially, the outcome could be that every locomotive that is not dead-lined has to have an inspection daily, whether it's going to even be started that day or not. For a M-F operation, that means two days of OT. I suspect that if that's how the court rules, you'll see a rule change in short order.
Using that logic - SCOTUS members outside of their court chambers are just ordinary citizens and not entitled to the numerous protections and perks they enjoy.
tree68 From one of the documents filed in the suit: LeDure’s claims arise from injuries he sustained after slipping on the oily passageway of a UP locomotive which was part of a freight train that originated in Chicago and temporarily stopped in a UP railyard before continuing into Missouri. Although a federal safety regulation enacted pursuant to the LIA requires that locomotive passageways be kept free of oil and other slipping hazards and the FELA imposes negligence per se liability when that regulation is violated, the courts below held that the locomotive was not “in use” within the meaning of the LIA to trigger application of the regulation and dismissed that claim. As to the general FELA negligence claim, the lower courts held that the oily passageway was not foreseeable to UP even though it failed, for several days before the incident, to perform the mandatory daily inspections of the locomotive. I would opine that this would have major repercussions for the railroads, especially shortlines and such that may have several locomotives but only use one or two at a time, with the rest sitting idle as spares or for when they need more power. The same is true for the Class 1's if they have the a similar situation. Essentially, the outcome could be that every locomotive that is not dead-lined has to have an inspection daily, whether it's going to even be started that day or not. For a M-F operation, that means two days of OT. I suspect that if that's how the court rules, you'll see a rule change in short order.
I saw this in a handout from one of our designated legal firms that handle FELA cases a couple months back at a union meeting. I no longer have the handout. As I recall, the train was stopped waiting on other trains and the engineer was making the required daily inspection.
To say the engine was not in use, even if it was isolated or dead in the consist, is ludicrous. UP requires all engines in a consist, whether used for power or not, to be inspected. If you pick up an engine on line and it hasn't been inspected, the engineer is supposed to inspect the engine. The inspection can't be done moving. This is the railroad trying to use lawyer legalese to get out of paying compensation for an on duty injury.
I disagree that finding that an engine temporarily stopped is in use will mean that every locomotive on every railroad needs to be inspected every day. By that, I mean that a short line, or even a class one, would be required to send an employee out to a remote location specifically to inspect an engine that will sit idle over a weekend, for example. Clearly, that's not going to happen.
However, if an engineer is sent out to use the engine or is instructed to stop his train to pick it up, even if to move it to another location as an isolated or shut down engine, he would have to do the daily inspection on it. If a short line normally shuts down over Saturday and Sunday, it wouldn't be expected to inspect the power. However, should something unusual happen and the short line needs to run a train or switch job on Saturday or Sunday, then it will need to be inspected for that day.
Jeff
What all is involved with a routine inspection? Is there a checklist that's mandated by the FRA? I had no idea that engines were supposed to be inspected daily.
Interesting case.
Lithonia OperatorWhat all is involved with a routine inspection?
Fluid levels, guards in place and secure, trucks and brake rigging intact & correct, brakes (independent & automatic), leaks, lights, horn, bell, radio, couplers, hoses, required supplies (flagging, tools). Our inspection sheet covers both sides of the paper.
In this case, the question arises - just who is responsible to perform the inspection? Our engineers do the inspection, generally at the start of the day - better to find something broken then than while you're halfway to wherever with a trainload of passengers. And we're not a 24/7 operation.
The Class 1's may give that responsibility to the mechanical department. Our Class 1 folks will have to address that.
Following is an example - I offer no assurances that this represents any one railroad's procedure, but it is pretty close, and also has some reference information.
http://etnsplace.com/758/stuff/locoinspguide.htm
tree68The Class 1's may give that responsibility to the mechanical department. Our Class 1 folks will have to address that.
Sometimes mechanical, sometimes the engineers. Depends on where, when, and circumstances.
zugmann tree68 The Class 1's may give that responsibility to the mechanical department. Our Class 1 folks will have to address that. Sometimes mechanical, sometimes the engineers. Depends on where, when, and circumstances.
tree68 The Class 1's may give that responsibility to the mechanical department. Our Class 1 folks will have to address that.
Same for us. The Canadian daily inspection is a bit briefer than yours, but we also must (obviously) check for and report any unsafe conditions before taking charge of a locomotive or adding it to the consist. Further, both our operating manual and contract state that a walk-around inspection is part of the engineer's normal duties.
I found a unit with oil all over the rear walkways just the other day, it was a middle remote on another train. Barely 100 miles out of the shop and the oil level was an inch or two below the add line, almost off the dipstick. But it was still running so the train kept going, I think it made it another 50 or 100 miles before it died and the train had to be rescued with another unit and another crew.
Greetings from Alberta
-an Articulate Malcontent
In my ignoranceWhen a locomotive is inspected (dailly) where is the log kept?A book kept on the unit? The "inspector's" pocket? The (nearest) Service track office? An electronic record?
Does the "daily" inspection report get copied/reported to the Company Power bureau?
When does any discovered servicing issue get reported to the mechanical department?(imagining the "inspector" walking from the East end of the yard to the West end roundhouse while the locomotive sits "almost, but not quite ready" to be "used")
Something I'm not quite grasping is how it's any different if the employee slipped on a parked locomotive or on the ground next to it. It's still on railroad property.
Thanks to Chris / CopCarSS for my avatar.
abdklWhen a locomotive is inspected (daily) where is the log kept?
Our inspection sheets go in a binder on the locomotive. They are to be held for one year.
If we have a problem, we'll usually notify mechanical directly. We're a small operation, so mechanical is generally available.
Murphy Siding Something I'm not quite grasping is how it's any different if the employee slipped on a parked locomotive or on the ground next to it. It's still on railroad property.
Whether it's on rail property or not is not relevant - this employee is covered by FELA, not workers comp.
Under FELA, the employee can only collect if the railroad was negligent, and the negligence caused the employee's injury.
There are two ways to do this. The first is to show that the employer met the common-law definition of negligence, i.e. that they failed to take "proper care", and that their failure led directly to the injury. Typically, that involves finding that the railroad knew or should have known about the situation and failed to act anyways. In a situation like this, that would be a factual question for the jury. The jury would also have to decide whether the employee's own actions made the employee responsible for what happened.
Imagine a typical "slip, trip, fall" case at your local supermarket. If a child is running down the aisle and slips on some spilled milk, the jury would have to decide whether the store's failure to clean up or protect the spill was an unreasonable violation of their duty to provide a safe shopping experience for their customers; and if so, they would still have to decide whether that was the cause of the fall, or whether it's the child's fault (in whole or in part) for running in a store.
The second way is to show negligence is to prove that the railroad violated the Locomotive Inspection Act. This law has a "strict liability" provision, which means that mere violation of the law is enough to show negligence. If the jury decides they violated the LIA, then the negligence question is decided in favor of the plaintiff, period, regardless of whether the railroad OR the employee could or should have done something to prevent the accident.
So that is what the case is about - can the employee recover under the "strict liability" provisions of the LIA, or does he have to prove actual common-law negligence?
In the blog post that zugmann linked to, it mentions that this subject came up in the oral arguments at the SCOTUS - "Roberts noted that the Federal Employers Liability Act allows a railworker to recover for negligence by his employer, regardless of whether the Locomotive Inspection Act applies."
Dan
tree68 abdkl When a locomotive is inspected (daily) where is the log kept? Our inspection sheets go in a binder on the locomotive. They are to be held for one year. If we have a problem, we'll usually notify mechanical directly. We're a small operation, so mechanical is generally available.
abdkl When a locomotive is inspected (daily) where is the log kept?
We just have pads of papers that each engineer is supposed to fill out at the end of their trip or shift. The Canadian ones are designated as CN form 538-D (the American ones are form 1443) and they have had that same name ever since the end of the steam era, judging by references to them in old contract documents. All the old ones get removed every time a unit visits a shop and any problems are supposed to get fixed at that point.
We are supposed to book any problems with the Diesel Doc, but they don't always answer in a timely manner so minor stuff often just gets written on the form.
They're supposed to be working on digitizing these, but so far it hasn't happened yet.
Thanks, everyone. I'll assume the "corporate" big-wigs don't get dinged should a locomotive be found without a log entry. Although I also think that modern (?) locomotive units could track/monitor most of the component levels and even alert the engineer/hostler/? and even report the same to corporate computers. The requisite visual checks could be requested by the unit, providing there was a display terminal (tablet/laptop/cell phone,…) available.
Most of the railroads have a separate daily inspection record sheet. The individual sheets, ours our multi-fold forms, record the month and engine number for the sheet and has at least 31 spots for entries. It records where the inspection was done, date & time, who did the inspection (we use our employee ID number instead of signature), if the person inspecting was a Qualified Mechanical Inspector (mech dept, although not all forms may ask this question) and if the engine is Compliant or Non Compliant.
Actual work report forms are separate. CSX uses a combined work report and inspection record book, although I've seen a daily inspection form at times on their units as well. Often one of our forms on a unit that's not been home for awhile.
When we tie up a job, we have an engine inspection screen. Besides signing off the inspection card, we enter into the computer if we inspected unit(s) or if they were already inspected by others. It also allows us to enter defects, even if someone else had already inspected the unit(s). Defects can happen enroute after an inspection. When an engine enters a mechanical or even a servicing facility, the mechanical department can look up any defects that have been reported.
When reporting a defect, it always asks if it's complying or noncomplying defect. Certain noncomplying defects can sideline an engine, others can allow it to stay in service, with or without restrictions. A mechanical employee once told me when entering a defect into the computer, mark them all as noncomplying. The reason is if the defect isn't listed as noncomplying the mechanical department ignores the entry. If the defect is compliant it doesn't need fixing.
jeffhergert... When reporting a defect, it always asks if it's complying or noncomplying defect. Certain noncomplying defects can sideline an engine, others can allow it to stay in service, with or without restrictions. A mechanical employee once told me when entering a defect into the computer, mark them all as noncomplying. The reason is if the defect isn't listed as noncomplying the mechanical department ignores the entry. If the defect is compliant it doesn't need fixing. Jeff
What is a complying defect? A defect by its very nature is not complying to the accepted standard .
BaltACDWhat is a complying defect? A defect by its very nature is not complying to the accepted standard .
FRA-non compliant defect.
For example: older locomotives (pre-2012) with air conditioning. If it doesn't work - it's a defect, but it's not a FRA non-compliant defect that would prevent it from being used.
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