CHICAGO – U.S. Seventh Circuit appellate judges affirmed District Judge Phil Gilbert of Benton in rejecting a conductor’s injury suit against Union Pacific.
On June 17, they found Bradley LeDure couldn’t sue under the Locomotive Inspection Act because his train was not in use at the time of his injuries.
The act establishes negligence for accidents on a train in use if a railroad violated any regulation in preparing it for use.
The appellate judges quoted a precedent that, “to service an engine while it is out of use, to put it in readiness for use, is the antithesis of using it.”
LeDure’s accident happened at 2 a.m. on Aug. 12, 2016, in Salem.
Magistrate Judge Mark Beatty, then in private practice at the Schlichter Bogard firm in St. Louis, filed a complaint for LeDure in 2017.
He claimed LeDure slipped on oil or grease that the railroad should have removed.
Union Pacific moved for summary judgment in 2018, and brought the motion before Gilbert last year.
Beatty had left Schlichter Bogard at that point, and Nelson Wolff of that firm argued for LeDure.
Gilbert asked Wolff, “Wasn’t it his job to inspect?”
Wolff said it wasn’t, “because when the train came through he had the right to believe that it had already been inspected.”
He said Union Pacific previously identified “oil or grease or some slipping hazard on that side of the exterior passageway of that locomotive before.”
Gilbert asked if that was three years earlier and Wolff said it was.
Gilbert said, “I assume this train had never had any rain on it.”
Wolff said, “I assume you are being facetious.”
Gilbert said, “It is not reasonable.”
Wolff said petroleum products have to come from somewhere.
He said a shoulder injury required surgery and a back injury required two surgeries including a fusion that had an unfortunate complication.
“This is a case of permanent pain from a failed back surgery but he also suffered a traumatic head injury where he has neurology -” Wolff said.
Gilbert interrupted and said, “This is the guy that fell down and completed his work and then went home?”
Wolff said LeDure wanted to finish his job.
Gilbert asked if he had preexisting conditions and Wolff said he had back problems about 20 years earlier.
Gilbert said, “I wasn’t born last night and I’m trying to put myself in the position of a jury, especially a jury in this neck of the woods.”
Wolff said a preexisting condition didn’t eliminate a cause of action.
Gilbert said, “I’m not saying it does. I’m just trying to find out what kind of a plaintiff you have.”
Union Pacific counsel Erick VanDorn of Belleville said LeDure worked for BNSF and made a claim for a spine injury and a head injury.
He said LeDure signed a release, acknowledged that he was permanently disabled from railroad work, and was awarded $850,000.
Gilbert granted summary judgment in two weeks, finding the train wasn’t in use.
He found LeDure couldn’t identify the substance or its source.
He found no evidence that Union Pacific saw it before LeDure did or that earlier inspection would have revealed it.
LeDure’s argument fared no better on appeal.
Seventh Circuit judge William Bauer found the engine was stationary on a sidetrack and part of a train needing assembly.
“For those reasons, we agree it was not in use and that the Locomotive Inspection Act and its regulations are inapplicable,” Bauer wrote.
Judges Michael Kanne and Amy Barrett concurred.