Kreisman Law Offices Professional Corporation
In a case decided in the Eastern District of Pennsylvania, Perry v. A.W. Chesterton Inc., it was determined that brakes located onto a rail car are a “part or appurtenance” to a locomotive and therefore the plaintiff’s state law asbestos claims were pre-empted by the federal Locomotive Inspection Act (LIA).
Alice Perry brought this lawsuit on behalf of her husband, who died of asbestos-related injuries after installing and removing Railroad Friction Products Corp. brake shoes on rail cars.The locomotive is at the front of the train, which pulls the rail cars that carry the cargo of passengers or products.
Perry argued that the specific brakes and brake materials that her husband was exposed to were found only in rail cars and not locomotives. She maintained that her claim was not pre-empted by the LIA, which governs only locomotives.
The district court examined the U.S. Supreme Court case of Napier v. Atlantic Coast R. Co., 272 U.S. 605 (1926), which stands for the proposition that the intention of the LIA was to govern all locomotive equipment including “the design, construction and material of every part of the locomotive and tender and all appurtenances.” Id at 611.
In another Supreme Court case, Southern Ry. Co. v. Lunsford, 297 U.S. 398 (1936), it was stated that anything the secretary of transportation is allowed to regulate within the field of locomotives was intended to be pre-empted by the LIA.
Alice Perry’s claims arise out of the brake shoes on a rail car, which the court found was an essential and integral part of the locomotive braking system because the rail car brakes would be necessary to stop the locomotive and the whole train.
The district court also reviewed another Supreme Court case dealing with a mesothelioma claim in which the court found that the plaintiff’s state law claims were pre-empted because he “worked in locomotive repair and maintenance facilities,” which fell under the LIA. Kurns v. Railroad Friction Products Corp., 132 S.Ct. 1261 (2012). In the Kurns case, the estate of George M. Korsin brought a state law claim alleging that the products Korsin was exposed to contained asbestos and caused his injuries and resulting death.
Kurns argued that the federal Railway Safety Act limited the field of pre-emption identified in the Napier case and that her field was different from Napier. Id at 1266. The Supreme Court in the Kurns case rejected the attempt to redefine the pre-empted field. Likewise, the district court in the Perry case denied the plaintiff’s arguments to draw a “railcar distinction.”
The LIA was intended to include every part of the locomotive or car attached to the locomotive. Accordingly, the Perry attempt to distinguish between brakes used on the locomotive and those brakes on the railcars failed. The federal LIA pre-empted the state case. Unfortunately for the Perry family it was the end of the line. All of the attempts to re-define their claims were unsuccessful.
The court here under Federal Rules of Civil Procedure §12(b)(6) motion to dismiss brought by the defendant Railroad Friction Parts Corp. was granted.
Alice Perry, Administratrix of the Estate of George Perry, deceased and Alice Perry v. A.W. Chesterton, Inc., et al., E.D. Pa. Civil Action No. 2:95-cv-01996-ER (December 4, 2013).
Kreisman Law Offices has been successfully handling worker injuries, including mesothelioma and asbestos cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Lyons, Alsip, Blue Island, Riverdale, Calumet City, South Holland, Chicago Heights, Lansing, Crete, Steger, Richton Park, Forest Park, Country Club Hills, Markham, Harvey, East Hazel Crest, Chicago (Lake Calumet, Hegewisch, East Chicago, Calumet Heights, South Chicago, South Shore), LaGrange and Orland Park, Ill.
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