2019 IL 124454 

IN THE 

SUPREME COURT 

OF 

THE STATE OF ILLINOIS 

(Docket No. 124454) 

MELVIN AMMONS et al., Appellees, v. CANADIAN NATIONAL RAILWAY 

COMPANY et al. (Wisconsin Central, Ltd., Appellant). 

Opinion filed December 19, 2019. 

JUSTICE GARMAN delivered the judgment of the court, with opinion. 

Chief Justice Burke and Justices Thomas, Karmeier, and Theis concurred in the 

judgment and opinion. 

Justice Kilbride dissented, with opinion, joined by Justice Neville. 

OPINION 

¶ 1 The Federal Employers’ Liability Act (FELA) (45 U.S.C. § 51 et seq. (2012)) 

provides the exclusive remedy for railroad employees to recover damages for 

injuries suffered due to their employer’s negligence. This appeal asks whether 

counterclaims filed by a railroad employer against its allegedly negligent 
 

 

 

 

 

employees are prohibited by sections 55 and 60 of the FELA. We hold that they are 

not prohibited. We reverse the appellate court’s decision and remand to the circuit 

court for further proceedings. 

¶ 2 BACKGROUND 

¶ 3 Plaintiffs Melvin Ammons and Darrin Riley filed separate lawsuits under the 

FELA against defendant Wisconsin Central, Ltd. (Wisconsin Central), for injuries 

they sustained during their employment with the railroad in December 2014. 

Ammons was employed as a conductor, and Riley was the locomotive engineer 

when the train they were operating struck another train that was stationary on the 

same track. In their lawsuits, both plaintiffs alleged Wisconsin Central was 

negligent in violating various rules and regulations, which resulted in their injuries. 

As the lawsuits concerned the same incident and contained similar issues, the Cook 

County circuit court consolidated the cases. 

¶ 4 Wisconsin Central denied liability and filed counterclaims against both 

plaintiffs. In the counterclaims, Wisconsin Central alleged that plaintiffs failed to 

exercise ordinary care and acted in an otherwise careless and negligent manner. As 

a result of its employees’ negligence, Wisconsin Central claimed multiple 

locomotives, railroad cars, railroad track, and railroad track structures sustained 

significant damage, which caused it to spend significant amounts of money to 

repair, perform environmental cleanup and remediation, and incur other incidental 

and consequential damages. Wisconsin Central sought damages in excess of $1 

million. 

¶ 5 Plaintiffs filed a motion to dismiss the counterclaims pursuant to section 2-615 

of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2016)), arguing 

Wisconsin Central’s counterclaims violated sections 55 and 60 of the FELA. 

Section 55 of the FELA prohibits “[a]ny contract, rule, regulation, or device 

whatsoever, the purpose or intent of which shall be to enable any common carrier 

to exempt itself from liability.” 45 U.S.C. § 55 (2012). Section 60 of the FELA 

prohibits “[a]ny contract, rule, regulation, or device whatsoever, the purpose, intent, 

or effect of which shall be to prevent employees of any common carrier from 

furnishing voluntarily information to a person in interest as to the facts incident to 

the injury or death of any employee.” Id. § 60. 

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¶ 6 Plaintiffs argued that Wisconsin Central’s counterclaims constituted a “device” 

designed to exempt itself from liability to pay damages to injured employees, to 

deter railroad employees from providing information regarding injury or death of 

an employee, or both. As the counterclaims had the potential to negate any 

compensation plaintiffs received for their injuries, plaintiffs argued allowing the 

counterclaims would have a chilling effect on the filing of injury claims under the 

FELA. 

¶ 7 The circuit court granted plaintiffs’ motion to dismiss, finding a state commonlaw counterclaim brought by a common carrier employer against an employee 

constituted a “device” under the FELA because a successful counterclaim could 

reduce or effectively eliminate a damages award to the employee. 

¶ 8 The appellate court affirmed the circuit court’s dismissal. 2018 IL App (1st) 

172648. Noting several federal cases have found counterclaims for property 

damage do not fall within the meaning of “device” under section 55 of the FELA, 

the appellate court found a lack of a clear consensus and stated cases to the contrary 

conclude “the counterclaims are retaliatory devices calculated to intimidate and 

exert economic pressure on injured employees, curtail their rights when asserting 

injury claims and supplying information, and ultimately, exempt the railways from 

liability under the FELA.” Id. ¶ 19. The appellate court concluded that prohibiting 

counterclaims by railroads against their employees is the correct interpretation of 

sections 55 and 60 of the FELA “and is the interpretation most consistent with the 

FELA’s overarching goal of providing a remedy to employees injured while 

participating in this dangerous occupation.” Id. ¶ 21. 

¶ 9 Justice Pierce dissented, believing “a railroad’s counterclaim for property 

damages is not a ‘device’ used to ‘exempt’ a railroad from ‘liability’ under the 

FELA.” Id. ¶ 35 (Pierce, J., dissenting). The dissent expressed concern that the 

majority’s decision “would produce the absurd result that an uninjured employee 

that negligently causes property damage would be liable for damages but an injured 

employee that negligently causes damages would be immune from a property 

damage claim.” Id. ¶ 40. 

¶ 10 Wisconsin Central petitioned this court for leave to appeal, and we allowed that 

petition. Ill. S. Ct. R. 315 (eff. July 1, 2018). The Illinois Trial Lawyers Association 

and the Academy of Rail Labor Attorneys sought, and we granted, leave to file 

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amicus briefs. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010). 

¶ 11 ANALYSIS 

¶ 12 I. Standard of Review 

¶ 13 The appellate court affirmed the circuit court’s order dismissing Wisconsin 

Central’s counterclaims pursuant to plaintiffs’ motion under section 2-615 of the 

Code. Although the motion to dismiss would have been more appropriately filed 

under section 2-619 of the Code (735 ILCS 5/2-619 (West 2016)) because 

plaintiffs’ motion sought to raise an affirmative matter seeking to avoid the legal 

effect of or defeat the claim, our review of a dismissal under either section is 

de novo. Patrick Engineering, Inc. v. City of Naperville, 2012 IL 113148, ¶ 31. 

¶ 14 II. Whether Wisconsin Central’s Counterclaims 

Against Plaintiffs Are Prohibited 

¶ 15 A. The FELA 

¶ 16 The FELA provides, in relevant part, that 

“[e]very common carrier by railroad while engaging in commerce *** shall be 

liable in damages to any person suffering injury while he is employed by such 

carrier in such commerce *** for such injury or death resulting in whole or in 

part from the negligence of any of the officers, agents, or employees of such 

carrier.” 45 U.S.C. § 51 (2012). 

Congress enacted the FELA in 1908 in response to the rising toll of serious injuries 

and death to railroad workers. Norfolk Southern Ry. Co. v. Sorrell, 549 U.S. 158, 

165 (2007). To further the humanitarian purposes of the FELA, Congress 

eliminated several of the common-law defenses that had previously barred railroad 

workers from prevailing on their injury claims. Consolidated R. Corp. v. Gottshall, 

512 U.S. 532, 542 (1994). For example, Congress “abolished the fellow servant 

rule, rejected the doctrine of contributory negligence in favor of that of comparative 

negligence, and prohibited employers from exempting themselves from FELA 

through contract; a 1939 amendment abolished the assumption of risk defense.” Id. 

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at 542-43. 

¶ 17 B. Federal Court Interpretation of Federal Statutes 

¶ 18 This case necessarily requires us to interpret the language of sections 55 and 60 

of the FELA and consider the decisions of federal courts analyzing these sections. 

“When interpreting federal statutes, we look to the decision of the United States 

Supreme Court and federal circuit and district courts. [Citation.] United States 

Supreme Court interpretation of federal law is clearly binding on this court. 

However, in the absence of a United States Supreme Court decision, the weight 

this court gives to federal circuit and district court interpretations of federal law 

depends on factors such as uniformity of law and the soundness of the 

decisions.” State Bank of Cherry v. CGB Enterprises, Inc., 2013 IL 113836, 

¶ 33. 

Therefore, “if the lower federal courts are uniform on their interpretation of a 

federal statute, this court, in the interest of preserving unity, will give considerable 

weight to those courts’ interpretations of federal law and find them to be highly 

persuasive.” (Emphasis in original.) Id. ¶ 35. If, however, the federal courts are 

split, we may elect to follow those decisions we believe are better reasoned. Id. 

¶ 19 Having determined the standard for assigning weight to federal court decisions 

interpreting federal law, we now apply that standard in our interpretation of the 

language found in sections 55 and 60 of the FELA. As the United States Supreme 

Court has not addressed this issue, we turn to the lower federal courts to guide our 

interpretation of the statute. 

¶ 20 In arguing that sections 55 and 60 of the FELA do not bar counterclaims 

brought by railroads asserting their common-law right to recover property damages 

against FELA plaintiffs, Wisconsin Central relies on Cavanaugh v. Western 

Maryland Ry. Co., 729 F.2d 289 (4th Cir. 1984), Sprague v. Boston & Maine Corp., 

769 F.2d 26 (1st Cir. 1985), Nordgren v. Burlington Northern R.R. Co., 101 F.3d 

1246 (8th Cir. 1996), and Withhart v. Otto Candies, L.L.C., 431 F.3d 840 (5th Cir. 

2005). In arguing that the counterclaims by Wisconsin Central are prohibited 

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because they would defeat the broad remedial purpose of the FELA, plaintiffs rely 

in large part on Deering v. National Maintenance & Repair, Inc., 627 F.3d 1039 

(7th Cir. 2010). We will look at each case in turn. 

¶ 21 In Cavanaugh, 729 F.2d at 290, the plaintiff train engineer was injured when 

his train collided head-on with another train. The plaintiff filed an FELA action to 

recover for personal injuries, and the railroad defendants counterclaimed under 

state law for $1.7 million in property damages sustained by them in the same 

accident. Id. After the plaintiff moved to dismiss the counterclaim, the district court 

granted the motion, finding the counterclaim would violate sections 55 and 60 and 

be contrary to the public policy reflected in the FELA. Id. 

¶ 22 On appeal, the Fourth Circuit began its analysis by recognizing the “well 

accepted common law principle that a master or employer has a right of action 

against his employee for property damages suffered by him ‘arising out of ordinary 

acts of negligence committed within the scope of [his] employment’ by the 

offending employee.” Id. (quoting Stack v. Chicago, Milwaukee, St. Paul & Pacific 

R.R. Co., 615 P.2d 457, 459 (Wash. 1980) (en banc)). 

¶ 23 The plaintiff argued that the defendants’ counterclaim constituted a “device” in 

violation of section 55 and to allow it would deprive the plaintiff of his right to 

recovery under the FELA and chill justifiable claims. Id. at 292. The Fourth Circuit 

found the argument unpersuasive. Id. 

¶ 24 In looking at section 55, the court of appeals stated that neither the express 

language of the statute nor the legislative history suggested the word “device” was 

meant to include a railroad’s counterclaim to recover losses in connection with the 

accident in which the employee was injured. Id. The court found the critical word 

in the definition of “device” was “exemption,” as it was only when the contract or 

device qualified as an exemption from liability that it became void under section 

55. Id. As a counterclaim was not an exemption of liability, it was not a device 

within the meaning of the statute. Id. 

¶ 25 The court of appeals also considered the plaintiff’s argument that sections 55 

and 60 evince a legislative purpose to prohibit counterclaims by the defendant 

railroads in FELA actions “because the filing of such counterclaims will unfairly 

coerce or intimidate the injured employee from filing and pursuing his FELA 

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action.” Id. at 293. The court disagreed, finding nothing in the legislative history to 

support the plaintiff’s reasoning, and noted “[t]he same argument could be 

advanced against the admissibility of a counterclaim in any tort action.” Id. at 294. 

¶ 26 The dissenting judge contended that the majority construed sections 55 and 60 

too narrowly and that allowing “the railroads’ counterclaim to proceed would 

pervert the letter and spirit of the FELA and would destroy the FELA as a viable 

remedy for injured railroad workers.” Id. at 296 (Hall, J., dissenting). The dissent 

believed the railroads’ counterclaim was a “ ‘device’ calculated to intimidate and 

exert economic pressure upon [the plaintiff], to curtail and chill his rights, and 

ultimately to exempt railroads from liability under the FELA.” Id. 

¶ 27 In Sprague, 769 F.2d at 27, the plaintiff train engineer sued the railroad under 

the FELA for injuries he suffered when the locomotive he was operating collided 

with a train. The railroad filed a counterclaim for damages to the vehicles involved 

in the accident. Id. 

¶ 28 On appeal, the plaintiff argued the railroad’s counterclaim should have been 

dismissed because Congress implicitly rescinded an employer’s right to sue its 

employees for property damage. Id. at 28. The First Circuit found the reasoning in 

Cavanaugh persuasive and agreed with its analysis. Id. at 29. 

¶ 29 In Nordgren, 101 F.3d at 1247, the plaintiff train conductor filed an FELA suit 

seeking damages for personal injuries allegedly caused by the railroad’s 

negligence. The railroad sought to file a counterclaim to recover property damage 

sustained in the train collision but was denied the opportunity to do so. Id. 

¶ 30 On appeal, the Eighth Circuit considered whether the FELA precluded a 

railroad from counterclaiming for property damages. Id. at 1248. The court noted 

the United States Supreme Court “has recognized FELA as a broad remedial statute 

and has construed FELA liberally in order to accomplish Congress’s goals.” Id. at 

1249. The plaintiff argued the word “device” in section 55 encompassed a statelaw based counterclaim for property damages, which precluded the railroad’s 

counterclaim. Id. at 1250. After acknowledging the rulings in Sprague and 

Cavanaugh, the Eighth Circuit found the phrase “any device whatsoever” was 

informed by its preceding terms of “contract,” “rule,” and “regulation.” Id. at 1250-

51. The court stated the latter terms related to “legal instruments” that railroads had 

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used prior to the enactment of the FELA to exempt themselves from liability and 

“ ‘any device whatsoever’ refers only to any other creative agreements or 

arrangements the railroad might come up with to exempt itself from liability.” Id. 

at 1251. Moreover, finding that “only when something exempts the railroad from 

FELA liability can it be a device,” the court concluded a counterclaim does not 

constitute a “device” under section 55 because it does not exempt the railroad from 

FELA liability. Id. While the court acknowledged the plaintiff’s concerns about 

counterclaims frustrating the purpose of the FELA, it stated “Congress’s silence on 

this issue speaks volumes.” Id. at 1253. 

¶ 31 The dissenting judge believed the railroad’s counterclaims were “devices” 

under sections 55 and 60 of the FELA. Id. (McMillian, J., dissenting). Relying on 

a 1985 law review article, the dissenting judge concluded the counterclaims would 

frustrate the remedial purpose of the FELA and could inhibit coworkers of the 

injured employee from volunteering information pertinent to an FELA action. Id. 

at 1255-58 (citing William P. Murphy, Sidetracking the FELA: The Railroads’ 

Property Damage Claims, 69 Minn. L. Rev. 349 (1985)). 

¶ 32 In Withhart, 431 F.3d at 841, the plaintiff was an employee on a maritime vessel 

and was injured at sea as a result of a collision. The plaintiff filed a complaint under 

the Jones Act (46 U.S.C. app. § 688 (2000)), and the shipowner filed a negligence 

counterclaim against him for property damage. Withhart, 431 F.3d at 841. The 

district court dismissed the counterclaim. Id. 

¶ 33 The Fourth Circuit noted that Congress created a negligence cause of action for 

ship personnel against the employers when it passed the Jones Act and it extended 

to seamen “the same rights granted to railway employees by FELA.” Id. at 843. 

Thus, the court found interpretations of the FELA were instructive in Jones Act 

cases. Id. 

¶ 34 The plaintiff argued Congress implicitly rescinded an employer’s common-law 

right to sue its employees under the FELA and the Jones Act. Id. However, the Fifth 

Circuit disagreed, finding the rulings in Cavanaugh, Sprague, and Nordgren to be 

persuasive. Id. Thus, the court held “no statutory provision in the FELA, and 

consequently, in the Jones Act, prohibits a shipowner-employer from pursuing a 

claim against its negligent seaman-employee for property damage.” Id. at 845. 

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¶ 35 In contrast to the rulings in the previous four cases, plaintiffs rely on the Seventh 

Circuit’s decision in Deering. There, the plaintiff riverboat pilot sued the defendant 

employer under the Jones Act for injuries he sustained in an accident on the 

Mississippi River. Deering, 627 F.3d at 1040. The defendant filed a counterclaim 

for damages the plaintiff allegedly caused to the boat, but the district court 

dismissed it as in the nature of a setoff and prohibited by the Jones Act. Id. 

¶ 36 The court of appeals in that case noted “a suit or counterclaim by a shipowner 

against a seaman is a setoff against the seaman’s personal injury claim; the question 

is whether such a setoff is permissible.” Id. at 1043. In looking at the language of 

section 55 of the FELA, the court found the defendant’s counterclaim for setoff 

constituted a “device” and thus was prohibited. Id. However, the court 

acknowledged that the issue presented in this case was not before it and, not 

wanting to create a conflict with the Fifth Circuit in Withhart, stated it would “leave 

for a future day” whether property damage claims by an employer should be 

permitted in an employee’s personal injury case under the FELA. Id. at 1048. 

¶ 37 After considering the opinions of the five federal courts of appeal, we find better 

reasoned those four that found counterclaims are not prohibited under sections 55 

and 60 of the FELA. First, nothing in the FELA suggests it was intended to abrogate 

an employer’s common-law right to assert claims against its workers who 

negligently caused damage to company property. Nordgren, 101 F.3d at 1252-53; 

Cavanaugh, 729 F.2d at 290-91. 

¶ 38 Second, the plain language of section 55 of the FELA does not evince an intent 

by Congress to prohibit an employer’s counterclaims. Section 55 provides “[a]ny 

contract, rule, regulation, or device whatsoever, the purpose or intent of which shall 

be to enable any common carrier to exempt itself from any liability created by this 

chapter, shall to that extent be void.” 45 U.S.C. § 55 (2012). The parties agree the 

Seventh Circuit’s statements on section 55 amount to judicial dictum, which is “an 

expression of opinion upon a point in a case argued by counsel and deliberately 

passed upon by the court, though not essential to the disposition of the cause.” Cates 

v. Cates, 156 Ill. 2d 76, 80 (1993). “[A] judicial dictum is entitled to much weight, 

and should be followed unless found to be erroneous.” Id. We find the Seventh 

Circuit’s reasoning unpersuasive. 

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¶ 39 The Seventh Circuit found “device” similar to the word “contract” and stated a 

counterclaim had the same effect as a provision in an employment contract where 

the employee waives the employer’s liability. Deering, 627 F.3d at 1044. However, 

a counterclaim does not equate to a contract, rule, or regulation. A counterclaim 

does not create rights between the parties but is an independent cause of action 

seeking to assert rights against another. See Wilson v. Tromly, 404 Ill. 307, 309-10 

(1949) (“A counterclaim is an independent cause of action.”). Unlike a contract, 

rule, or regulation that can be rendered “void,” a counterclaim, while subject to 

dismissal, would not suffer the same fate as being void. 

¶ 40 The Seventh Circuit also dismissed the doctrine of ejusdem generis, which 

states that, “when a statutory clause specifically describes several classes of persons 

or things and then includes ‘other persons or things,’ the word ‘other’ is interpreted 

to mean ‘other such like.’ ” Pooh-Bah Enterprises, Inc. v. County of Cook, 232 Ill. 

2d 463, 492 (2009) (quoting People v. Davis, 199 Ill. 2d 130, 138 (2002)); see also 

Bullman v. City of Chicago, 367 Ill. 217, 226 (1937) (utilizing the doctrine of 

ejusdem generis to construe the words “ ‘junk, rags,’ ” and “ ‘any second-hand 

article whatsoever’ ” to mean that the general words “any second-hand article 

whatsoever” include “only things of the same kind as those indicated by the 

preceding particular and specific words”). Here, we find the words “or device 

whatsoever” are to be interpreted like “contract,” “rule,” and “regulation,” the latter 

three referring to legal instruments that an employer could use to escape liability. 

Nordgren, 101 F.3d at 1251. 

¶ 41 The words “or device whatsoever” are also defined by the phrase that follows: 

“the purpose or intent of which shall be to enable any common carrier to exempt 

itself from any liability.” 45 U.S.C. § 55 (2012). Unlike a contractual agreement or 

a release, a counterclaim does not extinguish a plaintiff’s FELA cause of action or 

exempt the railroad employer from liability. Nordgren, 101 F.3d at 1251; 

Cavanaugh, 729 F.2d at 292. Here, Wisconsin Central could still be found liable to 

plaintiffs in their FELA claims. Thus, we find the specific language of section 55 

does not encompass counterclaims filed by an employer against its allegedly 

negligent employees. 

¶ 42 We also find counterclaims are not prohibited by section 60 of the FELA, which 

voids “[a]ny contract, rule, regulation, or device whatsoever, the purpose, intent, or 

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effect of which shall be to prevent employees of any common carrier from 

furnishing voluntarily information to a person in interest as to the facts incident to 

the injury or death of any employee.” 45 U.S.C. § 60 (2012). The court in Deering 

did not discuss section 60. The Fourth Circuit in Cavanaugh noted section 60 was 

intended to keep the railroad from preventing other employees from providing 

information to the injured employee in the latter’s lawsuit against the railroad. 

Cavanaugh, 729 F.2d at 293. We fail to see how a counterclaim against an allegedly 

negligent employee would prevent other employees from stepping forward to 

provide relevant information. Instead, like section 55, section 60 prohibits railroad 

employers from thwarting an employee’s ability to provide information by way of 

“contract, rule, regulation or device whatsoever,” and a counterclaim has no such 

muzzling effect on those employees. 

¶ 43 Third, we note there are several cases that fall on both sides of the issue. For 

example, in 1980, the Washington Supreme Court held the railroad’s counterclaim 

violated sections 55 and 60 of the FELA because the counterclaim had the potential 

to discourage employees from filing FELA actions or providing information as to 

facts relating to an employee’s injury or death. Stack, 615 P.2d at 460-61; see also 

Blanchard v. Union Pacific R.R. Co., No. 15-0689-DRH, 2016 WL 411019, at *2 

(S.D. Ill. Feb. 2, 2016) (finding Deering instructive and dismissing the railroad’s 

counterclaim). In contrast, a federal district court recently followed the “majority 

view” in adopting the reasoning set forth in Withhart, Nordgren, Sprague, and 

Cavanaugh and concluded counterclaims are not a “device” under section 55 of the 

FELA. Norfolk Southern Ry. Co. v. Tobergte, No. 5:18-cv-207-KKC, 2018 WL 

6492606, at *3 (E.D. Ky. Dec. 10, 2018). 

¶ 44 Cavanaugh was decided in 1984, and since that time, three federal courts of 

appeal have followed its reasoning, and only one, in dictum, has disagreed. 

Congress, however, has not stepped in to amend sections 55 and 60 of the FELA to 

specifically prohibit an employer’s counterclaims. Considering the arguments and 

case law on both sides of the issue throughout the years, we find such silence telling. 

See Hilton v. South Carolina Public Rys. Comm’n, 502 U.S. 197, 202 (1991) 

(stating Congress had had almost 30 years to correct the Supreme Court’s decision 

if it disagreed with it and, because it had chosen not to do so, the Court accorded 

weight to Congress’s continued acceptance of its earlier holding). Given the 

employer’s long-standing right to sue its employees for negligence and considering 

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the plain language of the statute, the federal court decisions, and Congress’s silence, 

we hold sections 55 and 60 of the FELA do not prohibit a railroad employer from 

filing a counterclaim for property damages against its employees. 

¶ 45 CONCLUSION 

¶ 46 We reverse the judgment of the appellate court that upheld the circuit court’s 

dismissal of Wisconsin Central’s counterclaims and remand to the circuit court for 

further proceedings. 

¶ 47 Judgments reversed. 

¶ 48 Cause remanded. 

¶ 49 JUSTICE KILBRIDE, dissenting: 

¶ 50 As the majority explains, the federal courts are split on their interpretation of 

the Federal Employers’ Liability Act (FELA) (45 U.S.C. § 51 et seq. (2012)) as it 

applies to the circumstances presented by this case. We must, therefore, review the 

federal decisions and follow those we consider better reasoned. Contrary to the 

majority, I believe the better reasoned decisions hold that the FELA prohibits 

counterclaims by railroads against their workers for damages to railroad property. 

The alternative interpretation adopted by the majority defeats the purpose of the 

FELA to provide a remedy for railroad workers injured as a result of the railroad’s 

negligence. Accordingly, I respectfully dissent. 

¶ 51 The majority reviews the federal court of appeals decisions weighing on this 

issue. In my view, the Seventh Circuit’s opinion in Deering v. National 

Maintenance & Repair, Inc., 627 F.3d 1039, 1041 (7th Cir. 2010), is persuasive. In 

that case, a riverboat pilot suffered career-ending injuries when the towboat he was 

operating was swamped and sank in the Mississippi River. The plaintiff filed a 

claim for personal injuries under the Jones Act (46 U.S.C. § 30101 et seq. (2006)), 

the admiralty counterpart to the FELA. Deering, 627 F.3d at 1041. The employer 

responded by filing a counterclaim for damages it alleged the plaintiff caused to the 

towboat. The district court granted the plaintiff’s motion to dismiss the employer’s 

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counterclaim, holding it was in the nature of a setoff to the plaintiff’s Jones Act 

claim. Deering, 627 F.3d at 1041-42. In affirming, the Seventh Circuit observed 

that 

“shipowners, unless they are trying to reduce or eliminate their liability for 

personal injuries caused by their negligence, do not sue their employees for 

property damage except in the very rare case in which the employee is so highly 

paid as to be worth suing. In the case of seamen, even if they are riverboat pilots 

rather than just deckhands, such suits are unknown—unless, as in this case, the 

seaman is seeking damages from the employer. As a practical matter, then, a 

suit or counterclaim by a shipowner against a seaman is a setoff against the 

seaman’s personal injury claim.” Deering, 627 F.3d at 1043. 

¶ 52 The Seventh Circuit observed that the FELA is incorporated by reference into 

the Jones Act and determined that setoffs are not permitted under section 55 of the 

FELA, prohibiting “ ‘[a]ny contract, rule, regulation, or device whatsoever, the 

purpose or intent of which shall be to enable any common carrier to exempt itself 

from any liability created by this chapter.’ ” Deering, 627 F.3d at 1043 (quoting 45 

U.S.C. § 55 (2006)). The employer’s counterclaim for damages to the towboat was 

properly described as a device intended to enable the employer to exempt itself 

from liability because that was the only purpose of the counterclaim in those 

circumstances. Deering, 627 F.3d at 1043. The Seventh Circuit concluded that the 

phrase “any device whatsoever” should be construed broadly as a catchall given 

Congress’s intent to provide a remedy for injured employees. Deering, 627 F.3d at 

1044. 

¶ 53 Similarly, in Stack v. Chicago, Milwaukee, St. Paul & Pacific R.R. Co., 615 

P.2d 457, 461 (Wash. 1980) (en banc), the Washington Supreme Court held a 

railroad’s counterclaim for $1.5 million in property damage was barred by the 

FELA. The court concluded that the remedial purpose of the FELA supported a 

broad interpretation of the term “device.” Stack, 615 P.2d at 460. More recently, in 

Blanchard v. Union Pacific R.R. Co., No. 15-0689-DRH, 2016 WL 411019 (S.D. 

Ill. Feb. 2, 2016), the federal district court granted a FELA plaintiff’s motion to 

dismiss a counterclaim for property damage filed by a railroad, holding the 

counterclaim violated the public policy reflected in the FELA. The district court 

found the counterclaim was a device calculated to intimidate and exert economic 

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pressure on the plaintiff, to curtail his rights, and ultimately to exempt the railroad 

from liability under the FELA. Blanchard, 2016 WL 411019, at *3; see also Yoch 

v. Burlington Northern R.R. Co., 608 F. Supp. 597, 598 (D. Colo. 1985) (concluding 

“the more realistic and less legalistic view” is that the railroad’s $5 million property 

damage counterclaim is a “device” within the meaning of the FELA). 

¶ 54 In my view, Deering, Stack, Blanchard, and Yoch are better reasoned decisions 

because they effectuate the purpose and intent of the FELA to provide a remedy for 

injured railroad workers. While the majority engages in a technical construction of 

the statutory language, we must keep in mind that “ ‘statutes always have some 

purpose or object to accomplish, whose sympathetic and imaginative discovery is 

the surest guide to their meaning.’ ” Corbett v. County of Lake, 2017 IL 121536, 

¶ 28 (quoting Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945)). The purpose 

of the FELA is to provide compensation for injured railroad workers by imposing 

liability upon railroads for injuries resulting in whole or in part from the railroad’s 

negligence. 45 U.S.C. § 51 (2012); Kernan v. American Dredging Co., 355 U.S. 

426, 432 (1958). In Sinkler v. Missouri Pacific R.R. Co., 356 U.S. 326, 329 (1958), 

the United States Supreme Court stated that the FELA 

“was a response to the special needs of railroad workers who are daily exposed 

to the risks inherent in railroad work and are helpless to provide adequately for 

their own safety. [Citation.] The cost of human injury, an inescapable expense 

of railroading, must be borne by someone, and the FELA seeks to adjust that 

expense equitably between the worker and the carrier. [Citation].” 

¶ 55 The FELA provides injured railroad workers with their exclusive remedy for 

injuries sustained as a result of their employer’s negligence (New York Central R.R. 

Co. v. Winfield, 244 U.S. 147, 151-52 (1917)), and “it is clear that the general 

congressional intent was to provide liberal recovery for injured workers” (Kernan, 

355 U.S. at 432). The statute has, therefore, been construed liberally to accomplish 

its important remedial and humanitarian purpose. Urie v. Thompson, 337 U.S. 163, 

180 (1949). Indeed, the Supreme Court has stated “[t]he coverage of the statute is 

defined in broad language, which has been construed even more broadly.” Atchison, 

Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 561-62 (1987). 

¶ 56 In my view, the analysis in Deering correctly effectuates the FELA’s important 

remedial and humanitarian purpose by construing its broad language liberally. 

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Here, as in Deering, Wisconsin Central would have no incentive to sue plaintiffs 

for damage to its property if plaintiffs were not seeking damages for their personal 

injuries. A setoff for damages to the railroad’s property in these circumstances 

defeats the purpose of the FELA to provide a remedy for injured railroad workers. 

The practical effect is the same as if the railroad had exempted itself from liability 

by a contract, rule, or regulation. Wisconsin Central’s counterclaim seeks more than 

$1 million in damages to two trains and railroad tracks and reimbursement for 

environmental cleanup. It is not difficult to imagine a large award, given the 

potential cost of the damaged property. Those damages will almost certainly 

eliminate any recovery by plaintiffs for their personal injuries. The majority’s 

interpretation of the FELA allowing the railroad to exempt itself from liability 

through a setoff defeats Congress’s intent to compensate railroad workers for 

injuries caused negligently by their employer. Consistent with the FELA’s purpose, 

I believe the phrase “any device whatsoever” should be construed broadly as a 

catchall to prohibit railroads from filing counterclaims for damage to railroad 

property and thereby exempting themselves from liability for a railroad worker’s 

personal injuries. 

¶ 57 In sum, I would affirm the circuit and appellate court decisions dismissing 

Wisconsin Central’s counterclaim in this case. As the appellate court held, 

prohibiting the counterclaim “is the interpretation most consistent with the FELA’s 

overarching goal of providing a remedy to employees injured while participating in 

this dangerous occupation.” 2018 IL App (1st) 172648, ¶ 21. I believe the 

majority’s technical reading of section 55 of the FELA defeats the statute’s purpose 

and undermines the congressional intent to provide a remedy for workers injured 

as a result of a railroad’s negligence. Accordingly, I respectfully dissent from the 

majority’s decision allowing Wisconsin Central to pursue its counterclaim for 

damages to railroad property. 

¶ 58 JUSTICE NEVILLE joins in this dissent. 

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