In the

United States Court of Appeals

For the Seventh Circuit

No. 19-2164

BRADLEY LEDURE,

Plaintiff-Appellant,

v.

UNION PACIFIC RAILROAD COMPANY,

Defendant-Appellee.

Appeal from the United States District Court for the 

Southern District of Illinois.

No. 3:17-cv-00737-JPG-GCS — J. Phil Gilbert, Judge.

ARGUED FEBRUARY 12, 2020 — DECIDED JUNE 17, 2020

Before BAUER, KANNE, and BARRETT, Circuit Judges.

BAUER, Circuit Judge. Bradley LeDure, a conductor for

Union Pacific Railroad Company, slipped and fell while

preparing a locomotive for departure. LeDure brought suit for

negligence against Union Pacific under the Locomotive

Inspection Act and the Federal Employers’ Liability Act. The

district court granted summary judgment for Union Pacific. It
2 No. 19-2164

found the Locomotive Inspection Act inapplicable and then

determined that LeDure’s injuries were otherwise unforeseeable because he slipped on a small “slick spot” unknown to

Union Pacific. For the following reasons, we affirm.

I. BACKGROUND

On August 12, 2016, at about 2:10 a.m., LeDure reported to

work at a rail yard in Salem, Illinois. His job was to assemble

a train for a trip to Dexter, Missouri. The first step was to

determine how many locomotives were necessary andtag each

one to indicate whether or not they would operate.

Three locomotives were coupled together on a sidetrack.

The locomotives arrived at 2:00 a.m. from Chicago, Illinois.

LeDure decided that only one locomotive would be powered

on. LeDure tagged the first locomotive for operation and the

second for non-operation. He moved to the final locomotive,

UP5683, to shut it down and tag it accordingly.

While on the exterior walkway of UP5683, LeDure slipped

andfelldownits steps. LeDure got up and proceeded to power

down and tag the locomotive. He returned to where he fell

and, using a flashlight, bent down to identify a “slick” substance. LeDure reported the incident to his supervisor. He gave

a written statement before going home. Union Pacific conductedan inspection and reported cleaning a “small amount of

oil” on the walkway.

LeDure sued Union Pacific for negligence. He alleged

violations of the Locomotive Inspection Act and the Federal

Employers’ Liability Act, arguing that Union Pacific failed to

maintain the walkway free of hazards. Both parties moved for
No. 19-2164 3

summary judgment. The district court agreed with Union

Pacific and dismissed LeDure’s claims with prejudice. The

court found the Locomotive Inspection Act inapplicable since

UP5683 was not “in use” during the incident. It also held

LeDure’s injuries were notreasonablyforeseeable because they

resulted from a small “slick spot” unknown to Union Pacific.

LeDure moved to alter or amend the judgment, and the court

denied the motion. LeDure timely appealed.

II. DISCUSSION

We review de novo the grant of summary judgment. Kopplin

v. Wis. Cent. Ltd., 914 F.3d 1099, 1102 (7th Cir. 2019). Summary

judgment is required if “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a

matter of law.” Fed.R.Civ.P. 56(a). A court will grant summary

judgment against a party “who fails to make a showing

sufficient to establish the existence of an element essential to

that party's case, and on which that party will bearthe burden

of proof at trial.” Bio v. Fed. Express Corp., 424 F.3d 593, 596 (7th

Cir. 2005).

The Locomotive InspectionAct andthe FederalEmployers’

Liability Act together provide redress for injured railroad

workers. Specifically, the Locomotive Inspection Act supplements a FederalEmployers’ LiabilityAct negligence claim. The

Locomotive InspectionAct delegates authorityto the Secretary

of Transportation to create regulations delineating the safe

“use” of locomotives. 49 U.S.C. § 20701. If the plaintiff shows

a regulatory violation, this establishes negligence per se. The

plaintiff must still show, per the Federal Employers’ Liability

Act, the injury resulted “in whole or in part” from this negli-
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gence. Crane v. Cedar Rapids Iowa City Ry., 395 U.S. 166 (1969)

(citing 45 U.S.C. § 51).

The first question for the Locomotive Inspection Act is

whether the locomotive was “in use” at the time of the accident. Brady v. Terminal Rail Ass’n of St. Louis, 303 U.S. 10, 13

(1938); Lyle v. Atchison T. & S.F. Ry. Co., 177 F.2d 221, 222 (7th

Cir. 1949). The district court noted the circuit courts’ various

tests. Forinstance, while the Fourth Circuit created a totality of

the circumstances analysis, the Fifth Circuit has said a locomotive is “in use” if it is assembled and the crew has completed

pre-departure procedures.Deans v.CSX Transportation,Inc., 152

F.3d 326, 329 (4th Cir. 1998); Trinidad v. Southern Pacific

Transportation Co., 949 F.2d 187, 189 (5th Cir. 1991).

Indetermining that UP5683 was not inuse, the district court

properly applied Lyle and its holding that “to service an engine

while it is out of use, to put it in readiness for use, is the

antithesis of using it.” Lyle, 177 F.2d at 223. LeDure essentially

seeks to limit this holding to say a locomotive is not “in use”

only when it is being repaired, but this is an unduly narrow

reading of Lyle and its progeny. See Tisneros v. Chicago & N.W.

Ry. Co, 197 F.2d 466 (7th Cir. 1952). The district court reasoned

that UP5683 was stationary, on a sidetrack, and part of a train

needing to be assembled before its use in interstate commerce.

For those reasons, we agree it was not “in use” and that the

Locomotive InspectionAct andits regulations are inapplicable.

LeDure argues that Union Pacific is nevertheless liable

because it did not clean up the slick spot or alternatively

because UP5683’s walkway traction was not adequately

maintained. For claims about unsafe work conditions, an
No. 19-2164 5

essential element of a Federal Employers’ Liability Act claim is

foreseeability, or whether there were “circumstances which a

reasonable person would foresee as creating a potential for

harm.” Holbrook v. Norfolk Southern Ry. Co., 414 F.3d 739, 742

(7th Cir. 2005) (quoting McGinn v. Burlington N. R.R., 102 F.3d

295, 300 (7th Cir. 1996)). The plaintiff “must show that the

employer had actual or constructive notice of those harmful

circumstances.” Id. (citing Williams v. Nat'l R.R. PassengerCorp.,

161 F.3d 1059, 1063 (7th Cir.1998)).

The district court correctly held that LeDure failed to

provide evidence sufficient to prove his injuries were reasonably foreseeable. Whereas the Holbrook plaintiff identified the

potential source of oil he slipped on, LeDure does not claim

Union Pacific had notice of the slick spot or any hazardous

condition that couldhave leaked the oil. Instead, he argues that

Union Pacific should have inspected UP5683 and cleaned the

spot beforehand. But, as in Holbrook, there is no evidence that

an earlier inspection would have cured the hazard. This is

problematic when LeDure testified the spot was small, isolated, and without explanation. Under these facts, a jury could

not find Union Pacific knew or should have known about the

oil or its hazard to LeDure.

Finally, LeDure argues the district court failed to address

his argument that UP5683’s walkway was not adequately

maintained. This is inaccurate. LeDure introduced pictures of

UP5683’s walkway two years afterthe incident and pictures of

another locomotive walkway that did not use metal studs for

traction.As the district court noted,LeDure presentedevidence

to support a design-defect theory but nothing to show negligence. Just as importantly, the cause of his injury was
6 No. 19-2164

undisputedly the slick spot and there is no evidence—aside

from LeDure’s lay testimony—to suggest the alternate design

pattern could have prevented his injury.

III. CONCLUSION

We conclude that the Locomotive Inspection Act and its

regulations are inapplicable since UP5683 was not “in use” at

the time of LeDure’s injury. We further hold that LeDure’s

injuries were not reasonably foreseeable under the Federal

Employers’ Liability Act and thus Union Pacific breached no

duty of care. For those reasons, we AFFIRM the grant of

summary judgment for Union Pacific.