UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

ROBERT RATCLIFF, : 

 : Case No. 2:18-cv-715

 Plaintiff, : 

 : CHIEF JUDGE ALGENON L. MARBLEY 

 v. : 

 : Magistrate Judge Kimberly A. Jolson 

NORFOLK SOUTHERN RAILWAY : 

COMPANY : 

 : 

 : 

 Defendant. : 

OPINION AND ORDER 

This matter is before the Court on Plaintiff Robert Ratcliff’s Motion for Partial Summary 

Judgment (ECF No. 32) and Defendant Norfolk Southern Railway Company’s (“NSRC”) Motion 

for Partial Summary Judgment (ECF No. 33). Both motions are fully briefed and ripe for 

disposition. For the following reasons, Plaintiff’s Motion for Partial Summary Judgment is 

DENIED, and Defendant’s Motion for Partial Summary Judgment is DENIED. 

Also before the Court is Plaintiff’s Motion to Supplement Memorandum in Support of 

Plaintiff’s Motion for Partial Summary Judgment (ECF No. 42). Plaintiff’s Motion to Supplement 

simply called the Court’s attention to a case in this District that was decided after briefing closed 

on the cross motions for partial summary judgment. Defendant opposed the motion and filed a 

response as to the inapplicability of the cited case. The Court will determine the relevance of the 

cited case but will allow Plaintiff to supplement his Motion for Partial Summary Judgment. 

Accordingly, Plaintiff’s Motion to Supplement is GRANTED. 

Case: 2:18-cv-00715-ALM-KAJ Doc #: 58 Filed: 10/27/20 Page: 1 of 17 PAGEID #: 867
2 

I. BACKGROUND 

This case arises out of an alleged injury sustained by Plaintiff early on the morning of 

January 15, 2018, on NSRC’s main rail line running between Portsmouth, Ohio and Columbus, 

Ohio. Plaintiff was a locomotive conductor with 16 years of experience and safety training as a 

conductor and engineer. On the morning of the accident, Plaintiff, Engineer David Barnett, and 

Engineer Cori Martin conducted train 742LB12 from Portsmouth, Ohio to Columbus. (ECF No. 

32-2, Ratcliff Dep. at 10, 15, 26–28, 31). After arriving in Columbus at approximately 4:30 a.m., 

the three men were shuttled a short distance to an area known as “Bannon,” where they prepared 

to conduct train 776LB13 back to Portsmouth. (Id. at 27, 31–32, 35–36, 45). Train 776LB13 was 

powered by two locomotive units: NS 3637 and NS 3661. 

There were three to four inches of snow on the ground in Columbus that morning, and 

temperatures were in the single digits. (Id. at 27–28, 52). It is unclear exactly when the snow and 

ice accumulated on the ground. Plaintiff’s expert witness, however, testified that the ice conditions 

were already present when train 776LB13 and its crew arrived in Columbus, at least an hour prior 

to Plaintiff’s arrival, and with enough time to report and correct the conditions. (ECF No. 29-1, 

Reilly Dep. 73−74). He also testified that he could tell that the ice in question “melted and then 

refroze and that [it] happen[ed] over a long period of time.” (Id. at 58−59). The extent to which 

winter weather accumulated during the crew’s time in Columbus is also unclear. Plaintiff testified 

that it was not snowing in Columbus when they arrived and that he did not notice any new 

precipitation while they were at Bannon, but both Barnett and Martin testified that it began to snow 

lightly while they were there. (ECF No. 32-2, Ratcliff Dep. at 32; ECF No. 32-4, Barnett Dep. at 

18; ECF No. 32-4, Martin Dep. at 21). 

Case: 2:18-cv-00715-ALM-KAJ Doc #: 58 Filed: 10/27/20 Page: 2 of 17 PAGEID #: 868
3 

The three men began their pre-departure routine for Train 776LB13. They boarded lead 

locomotive NS 3637 through the door at the short hood end and placed their personal belongings 

in the cab. (ECF No. 32-2, Ratcliff Dep. at 39–41). Barnett then exited the NS 3637 through the 

same door the men entered, climbed onto the snow-covered ground, and released the handbrakes 

for both the lead and trailing locomotives. (ECF No. 32-4, Barnett Dep. at 20–21). On his way 

back, Barnett boarded NS 3637 at the rear of the locomotive and walked along the locomotive’s 

exterior walkway. (Id. at 26). Barnett noticed the walkway was “pretty well covered” with ice and 

he planned to wait until they reached Portsmouth to report the accumulated ice and snow because 

there were no mechanical department employees on duty at Bannon. (Id. at 26–29, 69). 

Meanwhile, Plaintiff tended to his pre-departure duties, which included releasing the 

handbrakes on the train cars behind the lead locomotives. (ECF No. 32-2, Ratcliff Dep. at 52–53). 

Plaintiff took a similar approach to Barnett to complete his exterior duties: he exited NS 3637 the 

same way he entered the locomotive, walked along the snow-covered ground, released the brakes, 

re-boarded NS 3637 at the rear of the locomotive, and proceeded toward the front of the cab via 

the exterior walkway. (Id. at 47–49, 52). Plaintiff chose this route because the other side of the 

train, the ballast side, had worse conditions. (Id.) 

According to NSRC safety rules, employees are required to wear winter footwear and carry 

a lantern and other personal protective equipment when directed to do so. (ECF No. 29-1, Reilly 

Dep. at 3–4). As Plaintiff worked to complete to his pre-departure duties, he wore NSRC-approved 

footwear, carried his NSRC-issued lantern, and carried a “brake stick,” which he used to release 

the handbrakes. (ECF No. 32-2, Ratcliff Dep. at 55, 59). He also held onto a handrail as he walked 

because the “scattered” ice along the walkway made the surface slippery. (Id. at 55−56). 

Case: 2:18-cv-00715-ALM-KAJ Doc #: 58 Filed: 10/27/20 Page: 3 of 17 PAGEID #: 869
4 

About halfway to the cab, Plaintiff slipped on a patch of ice that was too long to avoid. (Id.

at 59). During the fall, Plaintiff’s right foot slipped forward, he lost grip of the railing, and he fell 

on his buttocks and back. (Id. at 60–62). He experienced immediate pain in his lower back and 

right leg. (Id. at 68). Barnett assisted him back into the cab of the train. (Id. at 68–69). Following 

Plaintiff’s fall, NSRC conducted its own investigation and noted in the resulting report that the 

“walkways were observed to be snow and ice covered.” (ECF No. 32-9, NSRC Inv. Rep. at 2). 

Plaintiff initiated this case on July 20, 2018, by filing a complaint asserting two causes of 

action against NSRC under the Federal Employers’ Liability Act, 45 U.S.C. § 51, et seq. Plaintiff’s 

first cause of action alleges that NSRC negligently failed to provide Plaintiff with a reasonably 

safe place to work. Plaintiff’s second cause of action alleges negligence per se for NSRC’s alleged 

violations of the Federal Locomotive Inspection Act, 49 U.S.C. § 20701, et seq., and various 

federal regulations, including 49 C.F.R. § 229.119(c), 49 C.F.R. § 229.45, and 49 C.F.R. § 

229.7(a). Both parties now move for partial summary judgment on Plaintiff’s second cause of 

action. 

II. STANDARD OF REVIEW 

Defendant moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil 

Procedure. Summary judgment is appropriate when “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); Berryman v. 

SuperValu Holdings, Inc., 669 F.3d 714, 716–17 (6th Cir. 2012). The Court’s purpose in 

considering a summary judgment motion is not “to weigh the evidence and determine the truth of 

the matter” but to “determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 249 (1986). A genuine issue for trial exists if the Court finds a jury could return 

a verdict, based on “sufficient evidence,” in favor of the nonmoving party; evidence that is “merely 

Case: 2:18-cv-00715-ALM-KAJ Doc #: 58 Filed: 10/27/20 Page: 4 of 17 PAGEID #: 870
5 

colorable” or “not significantly probative,” however, is not enough to defeat summary judgment. 

Id. at 249–50. 

The party seeking summary judgment shoulders the initial burden of presenting the Court 

with law and argument in support of its motion as well as identifying the relevant portions of “‘the 

pleadings, depositions, answers to interrogatories, and admissions on file, together with the 

affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” 

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56). If this initial 

burden is satisfied, the burden then shifts to the nonmoving party to set forth specific facts showing 

that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); see also Cox v. Ky. Dep’t of Transp., 

53 F.3d 146, 150 (6th Cir. 1995) (finding that after the burden shifts, the nonmovant must “produce 

evidence that results in a conflict of material fact to be resolved by a jury”). 

In considering the factual allegations and evidence presented in a motion for summary 

judgment, the Court “views factual evidence in the light most favorable to the non-moving party 

and draws all reasonable inferences in that party’s favor.” Barrett v. Whirlpool Corp., 556 F.3d 

502, 511 (6th Cir. 2009). Self-serving affidavits alone, however, are not enough to create an issue 

of fact sufficient to survive summary judgment. Johnson v. Washington Cnty. Career Ctr., 982 F. 

Supp. 2d 779, 788 (S.D. Ohio 2013) (Marbley, J.). “The mere existence of a scintilla of evidence 

to support [the non-moving party’s] position will be insufficient; there must be evidence on which 

the jury could reasonably find for the [non-moving party].” Copeland v. Machulis, 57 F.3d 476, 

479 (6th Cir. 1995); see also Anderson, 477 U.S. at 251. 

The Court’s standard of review does not change when the parties file cross-motions for 

summary judgment. See Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991) (“[T]he 

standards upon which the court evaluates the motions for summary judgment do not change simply 

Case: 2:18-cv-00715-ALM-KAJ Doc #: 58 Filed: 10/27/20 Page: 5 of 17 PAGEID #: 871
6 

because the parties present cross-motions.”). Thus, in reviewing cross-motions for summary 

judgment, the Court must still “evaluate each motion on its own merits and view all facts and 

inferences in the light most favorable to the non-moving party.” Wiley v. United States, 20 F.3d 

222, 224 (6th Cir. 1994). 

III. LAW AND ANALYSIS 

Defendant seeks summary judgment on Plaintiff’s claim brought under the Locomotive 

Inspection Act (“LIA”) via 49 C.F.R. § 229.119(c). Both parties seek partial summary judgment 

on Plaintiff’s claims brought under the LIA via 49 C.F.R. § 229.7 and 49 C.F.R. § 229.45. The 

Court will address the potential grounds for recovery in turn below. 

A. Applicable Statutory and Regulatory Scheme 

The Federal Employers’ Liability Act (“FELA”) imposes liability on railroad companies 

for “damages to any person suffering injury while he is employed . . . resulting in whole or in part 

from the negligence” of the railway. 45 U.S.C. § 51. The FELA’s primary purpose is to protect 

railroad employees and give them a statutory cause of action that allows employees to recover for 

employer negligence. Chapman v. Norfolk S. Ry. Co., No. 1:18-CV-00027, 2020 WL 1676915, at 

*3 (S.D. Ohio Apr. 6, 2020). To succeed on a FELA claim, a plaintiff must “prove the traditional 

common law elements of negligence; duty, breach, foreseeability, and causation. Przybylinski v. 

CSX Transp. Inc., 292 F. App’x 485, 488 (6th Cir. 2008) (quoting Adams v. CSX Transp., Inc., 899 

F.2d 536, 539 6th Cir. 1990)). Proof of negligence is not required, however, if a violation of the 

LIA is found. Harper v. Norfolk S. Ry. Co., 992 F. Supp. 2d 795, 803 (S.D. Ohio 2014) (Sargus, 

J.). 

The LIA was enacted by Congress to supplement the FELA. It imposes an absolute duty 

on railroad carriers to ensure that locomotives and their parts and appurtenances “[a]re in proper 

condition and safe to operate without unnecessary danger of personal injury.” 49 U.S.C. § 20701; 

Case: 2:18-cv-00715-ALM-KAJ Doc #: 58 Filed: 10/27/20 Page: 6 of 17 PAGEID #: 872
7 

see also Lilly v. Grand Trunk W.R.R. Co., 317 U.S. 481, 485 (1943). The LIA does not create an 

independent cause of action but instead establishes that violating the LIA is negligence per 

se under the FELA. Szekeres v. CSX Transp., Inc., 617 F.3d 424, 427 (6th Cir. 2010); see also 

Wells v. CSX Transp. Inc., No. 1:08-CV-00837, 2010 WL 3703711, at *4 (S.D. Ohio Sept. 17, 

2010) (citing O'Donnell v. Elgin, Joliet & E. Ry. Co., 338 U.S. 384, 390–91 (1949)) (“There is no 

question that a . . . LIA violation is per se negligence in a FELA suit, such that if the injured 

employee shows any such violation, the railroad is strictly liable for any injury resulting from the 

violation.”). Accordingly, if a railway carrier employee presents “proof of an unsafe locomotive 

component” and establishes that the unsafe condition caused his injury, “absolute liability is 

imposed upon the [railway carrier].” Chapman, 2020 WL 1676915 at *3 (quoting Williams v. S. 

Pac. Transp. Co., 813 F. Supp. 1227, 1230 (S.D. Miss. 1992)). 

Carriers violate the LIA either by breaching their “broad duty to keep its locomotives’ parts 

and appurtenances in proper condition and safe to operate without unnecessary danger of personal 

injury,” or by failing to comply with regulations issued by the Federal Railroad Administration 

(“FRA”). Id. (citing McGinn v. Burlington N. R.R. Co., 102 F.3d 295, 298–99 (7th Cir. 1996)). 

The Secretary of Transportation has the authority to issue regulations relating to every area of 

railroad safety. 49 U.S.C. § 20103(a). Acting through the FRA, the Secretary may also promulgate 

and enforce safety regulations affecting the working conditions of railroad employees. Practico v. 

Portland Terminal Co., 783 F.2d 183, 186 (3d Cir. 1987). Pursuant to this authority, the Secretary 

promulgated three regulations applicable to this case: 

Case: 2:18-cv-00715-ALM-KAJ Doc #: 58 Filed: 10/27/20 Page: 7 of 17 PAGEID #: 873
8 

(1) 49 C.F.R. § 229.119(c) 

Floors of cabs, passageways, and compartments shall be kept free from oil, water, 

waste or any obstruction that creates a slipping, tripping or fire hazard. Floors shall 

be properly treated to provide secure footing. 

(2) 49 C.F.R. § 229.45 General Conditions 

All systems and components on a locomotive shall be free of conditions that 

endanger the safety of the crew, locomotive, or train. These conditions include: 

insecure attachment of components, including third rail shoes or beams, traction 

motors and motor gear cases, and fuel tanks; fuel, oil, water, steam, and other leaks 

and accumulations of oil on electrical equipment that create a personal 

injury hazard; improper functioning of components, including slack adjusters, 

pantograph operating cylinders, circuit breakers, contactors, relays, switches, and 

fuses; and cracks, breaks, excessive wear and other structural infirmities of 

components, including quill drives, axles, gears, pinions, pantograph shoes and 

horns, third rail beams, traction motor gear cases, and fuel tanks. 

(3) 49 C.F.R. § 229.7 Prohibited Acts 

(a) [The LIA makes] it unlawful for any carrier to use or permit to be used on its 

line any locomotive unless the entire locomotive and its appurtenances─

(1) Are in proper condition and safe to operate in the service to which they are 

put, without unnecessary peril to life or limb; . . . 

The Court will assess Plaintiff’s claims under each of these regulations as well as the 

general standard set forth in the LIA. 

B. Plaintiff’s Claim Arising under 49 C.F.R. § 229.119(c). 

Defendant moves for summary judgment for Plaintiff’s § 229.119(c), apparently on two 

separate grounds: (1) that the regulation does not apply to outdoor walkways like the one where 

Plaintiff’s accident occurred; and (2) that the regulation does not impose a duty on railroads to 

prevent the accumulation of ice and snow on walkways. Neither of these arguments is supported 

by case law, as is detailed below. 

 

Case: 2:18-cv-00715-ALM-KAJ Doc #: 58 Filed: 10/27/20 Page: 8 of 17 PAGEID #: 874
9 

1. Whether Section 229.119(c) applies to outdoor locomotive walkways 

Defendant argues that a plain reading of § 229.119(c) dictates that the regulation only 

contemplates slipping hazards that are present inside a locomotive and is therefore inapplicable to 

outdoor walkways. To make this argument, Defendant cites the testimony from its expert witness, 

who stated that, in his experience, “the Federal Railroad Administration has interpreted 

‘passageways’ to mean the area on closed carbody locomotives where it is necessary to walk along 

the diesel engine and associated mechanical and electrical equipment in order to move from one 

end of the locomotive to the other.” (ECF No. 33-1, Ex. A-1, Honeycutt Findings ¶ 47).1

Accordingly, Defendant argues that indoor “passageways” and outdoor “walkways” are distinct 

from one another, that the regulation does not apply to outdoor walkways, and that the regulation 

does not apply Plaintiff’s accident, which occurred on an outdoor walkway. Defendant relies 

heavily on Coleman v. Norfolk Southern Railway Co., which adopted Defendant’s proposed 

approach “[b]ased upon the plain reading of the regulations,” but did not cite any caselaw or federal 

guidance in support of that approach. 304 F. Supp. 3d 648, 655 (E.D. Ky. 2018). 

The Western District of Virginia, on the other hand, arrived at the opposite conclusion in 

Brall v. Norfolk Southern Railroad Co., because it found that Coleman could not be reconciled 

with regulatory guidance written by the FRA. No. 2:17-cv-00017, 2018 WL 2144612 (W.D. Va. 

May 8, 2018). In Brall, the plaintiff was injured as he and his fellow crew members prepared a 

train for departure. The accident occurred while the plaintiff was outside of the train cabin, just 

after he had released the train’s handbrakes. He slipped on an unperceived “slippery substance” 

on an outdoor walkway and fell. Id. at *2. The plaintiff brought a LIA claim against NSCR for 

1

 Conversely, Plaintiff’s expert witness, a former National Transportation Safety Board employee and FRA 

inspector, testified that he recalls the FRA citing railroad carriers with “defect[s] for snow and ice accumulations on 

the walkways” on numerous occasions, though he could not recall whether these defects resulted in violations of the 

regulation. (ECF No. 29-1, Reilly Dep. at 42−44, 52−54). 

Case: 2:18-cv-00715-ALM-KAJ Doc #: 58 Filed: 10/27/20 Page: 9 of 17 PAGEID #: 875
10 

violating Section 229.119(c). After the accident, Norfolk Southern Railway Company confirmed 

that oil and grease were present on the walkway and that both substances constituted a “slipping 

and tripping hazard,” but it argued that Section 229.119(c) did “not apply to locations outside the 

[train’s] cab” and therefore did not bear on the plaintiff’s accident. Id at. *10. To evaluate this 

argument, the court reviewed the FRA’s guidance document, the Motive Power and Equipment 

Compliance Manual, and found that the agency was “unambiguous” about the scope of the 

regulation: “To the extent there is a difference between a “walkway” and a “passageway,” Section 

229.119(c) applies to both.” Id. at *9. 

Brall also cited “overwhelming support in the case law” in deciding to treat the terms 

“passageway” and “walkway” as synonymous and under the purview of the LIA. Id. For example, 

in Wells v. CSX Transportation, Inc., the court found that “the safety of [an outdoor] walkway 

between locomotives [is] an issue falling under the LIA.” No. 1:08-CV-00837, 2010 WL 3703711, 

*1, *5 (S.D. Ohio Sept. 17, 2010) (denying the defendant’s motion for summary judgment because 

a reasonable jury could conclude that the defendant failed to provide a safe walkway and that this 

failure contributed to the plaintiff’s injury). In McClain v. Norfolk Southern Railway Co., the court 

applied its Section 229.119(c) analysis to an outdoor walkway between two locomotives. No. 3:07-

cv-2389, 2009 WL 1812090, at *1 (N.D. Ohio June 23, 2009). In McGinn v. Burlington North 

Railroad Co., the court noted that 229.119(c) claims generally occur “when a railroad has allowed 

foreign substances to accumulate on . . . walkways.” 848 F. Supp. 827, 830 (N.D. Ill. Apr. 14, 

1994). Relying on both FRA guidance and case law, the Brall court rejected NSRC’s argument 

and concluded that Section 229.119(c) applies to outdoor walkways. Id. at *10. 

To summarize, the Court’s attention has been drawn to several LIA cases using the terms 

“passageways” and “walkways” interchangeably. Of these, Brall and its progeny have held that 

Case: 2:18-cv-00715-ALM-KAJ Doc #: 58 Filed: 10/27/20 Page: 10 of 17 PAGEID #: 876
11 

Section 229.119(c) applies to outdoor walkways, based on guidance from the FRA . Only one case, 

Coleman, held the opposite. The Court agrees with Brall’s finding that “passageway” and 

“walkway” may be used synonymously and that Section 229.119(c) applies to both. Accordingly, 

Defendant is not entitled to summary judgment because Plaintiff’s accident occurred on an outdoor 

walkway. 

2. Whether Section 229.119(c) applies to the accumulation of snow and ice 

Defendant also argues that § 229.119(c) does not pertain to naturally occurring 

precipitation such as ice or snow. Again, the Defendant relies on a plain reading of the regulation 

and the Coleman case to support its argument. The Defendant contends that applying § 229.119(c) 

to ice and snow accumulation on outdoor walkways leads to “clearly absurd and nonsensical 

results.” (ECF No. at 11). 

 Both federal and state courts, however, have found that accumulation of ice and snow 

constitute a violation of 49 C.F.R. § 229.119(c). See, e.g., McGinn, 102 F.3d at 300 (“The 

regulation also places strict liability on a railroad for failure to keep floors free of foreign 

substances such as oil and grease or the elements such as snow and ice.”). For example, in 

Wagner v. Union Pacific Railroad Company, the Nebraska Court of Appeals held that snow and 

ice covering a locomotive walkway constituted a slipping hazard as a matter of law and “was 

accordingly a violation of § 229.119(c).” 642 N.W. 2d 821, 840 (Neb. Ct. App. 2002). The Court 

of Appeals affirmed the trial court’s decision to grant summary judgment in favor of the 

plaintiff’s LIA claim because the record clearly demonstrated that ice and snow accumulated on 

an outdoor locomotive walkway, that the accumulation created a slipping hazard, and that the 

accumulation caused the plaintiff’s injuries. Id. at 840−41. The Court of Appeals found that this 

evidence “was such that reasonable minds could not conclude other than the ice and snow 

Case: 2:18-cv-00715-ALM-KAJ Doc #: 58 Filed: 10/27/20 Page: 11 of 17 PAGEID #: 877
12 

created a slipping hazard.” Id. at 41. Similarly, in Martin v. BNSF Railway Co., the Montana 

Supreme Court upheld the trial court’s denial of the defendant’s motion for summary judgment 

because it found that accumulated snow and ice on external locomotive steps can constitute a 

violation of the LIA. 352 P.3d 598, 605 (Mont. 2015). Due to the factual disputes in the case, the 

court determined that the jury should determine the extent of the snow and ice accumulation and 

evaluate whether the snow and ice contributed to the plaintiff’s fall. Id. 

The case law demonstrates that § 229.119(c) pertains both to outdoor locomotive 

walkways and to the accumulation of snow and ice on those walkways. As a result, Defendants 

cannot successfully argue that § 229.119(c) does not impose liability on railroads for injuries 

employees sustain due to icy or snowy walkways. The Court DENIES Defendant’s Motion for 

Summary Judgment on Plaintiff’s § 229.119(c) claim. 

C. Plaintiff’s Claim Arising under 49 C.F.R. § 229.45 

Plaintiff argues that Defendant did not provide Plaintiff with a locomotive that was free of 

conditions that endangered the safety of the crew as required by § 229.45 claim and moves for 

summary judgment. Defendant, on the other hand, argues that § 229.45 does not apply to Plaintiff’s 

accident because an outdoor walkway is not a “system or a component” and because the regulation 

did not intend to include snow and ice in the conditions it protects against. Once again citing 

Coleman as its sole case law on this point, Defendant also moves for summary judgment. 

As stated above, § 229.45 mandates that “[a]ll systems and components on a locomotive 

shall be free of conditions that endanger the safety of the crew, locomotive, or train.” The 

regulation also provides examples of applicable components, such as “third rail shoes or beams,” 

and examples of applicable conditions, such as “fuel, oil, water, steam, and other leaks and 

accumulations of oil . . . that create a personal injury hazard.” Diede v. Burlington N. R.R. Co., 772 

F.2d 593 (9th Cir. 1985). The list of components and conditions is meant to be “illustrative, not 

Case: 2:18-cv-00715-ALM-KAJ Doc #: 58 Filed: 10/27/20 Page: 12 of 17 PAGEID #: 878
13 

exclusive.” To determine the extent of the regulation’s scope beyond the examples provided in the 

regulation text, the “FRA believes that, ‘conditions that endanger the safety of the crew, 

locomotive, or train’ provide the proper and lawful limit to the application of this section.” (Fed. 

R.R. Admin., Motive Power and Equipment Compliance Manual 8-33, 8-34 (July 2012), 

https://railroads.dot.gov/elibrary/motive-power-and-equipment-compliance-manual). 

Using this guiding principal, the Colorado Court of Appeals permitted the jury to determine 

whether a plaintiff’s fall on an icy surface running along the outside of a train violated § 229.45 in 

Elston v. Union Pacific R.R. Co., 74 P.3d 478 (Colo. 2003). There, the plaintiff had just replaced 

the controlling locomotive as part of a repair project he completed. As he walked on the tracks 

alongside the locomotive towards the front of the train, he slipped and fell on a snow-covered 

ballast, which is “gravel or broken stone laid in a [railroad] roadbed.” Id. at 481, 487 (quoting 

Webster’s Third New International Dictionary, 167, 1963 (1986)). The court held that there was a 

genuine dispute about whether the defendant failed to comply with 229.45 and denied both parties 

summary judgment. Id. at 484. 

The Court agrees with Elston’s approach. Acknowledging that neither the list of systems 

or components nor the list of conditions in § 229.45 is exhaustive, the Court finds that both the 

train platform where Plaintiff was injured and the snow and ice that had accumulated there could 

fall within the purview of the regulation. The walkway where Plaintiff fell was a feature of the 

locomotive system that enabled crew members like Plaintiff to perform essential pre-departure 

tasks, such as releasing the handbrakes of railcars prior to embarking on a trip. The crew could not 

fully prepare the train for departure without exiting the locomotive and walking along the outdoor 

walkways. Moreover, snow and ice accumulation on a locomotive component like a platform could 

certainly constitute a condition that endangers the crew. Here, factual disputes still exist regarding 

Case: 2:18-cv-00715-ALM-KAJ Doc #: 58 Filed: 10/27/20 Page: 13 of 17 PAGEID #: 879
14 

when the snow and ice accumulated, the extent to which the snow and ice covered the walkway 

Plaintiff used, and whether Defendant had time to correct the snowy and icy conditions before 

Plaintiff and his fellow crew members arrived in Columbus. The Court therefore DENIES both 

Plaintiff’s and Defendant’s motions for summary judgment with respect to Plaintiff’s § 229.45 

claim. 

D. Plaintiff’s Claim Arising under 49 C.F.R. § 229.7(a)(1) and 49 U.S.C. § 20701 

Defendant moves for summary judgment for violations under 49 C.F.R. § 229.7(a),2

arguing that the locomotive walkway in this case does not constitute an “unnecessary peril” or an 

“unnecessary risk of injury” because it is “impossible to eliminate the presence of snow and ice in 

all areas where railroad employees are assigned to work.” (ECF No. 33 at 3, 16−17). Plaintiff, on 

the other hand, alleges that the ice conditions present on the walkway establish that Defendant 

failed to comply with its statutory duty under § 229.7(a). 

The LIA provides that: 

A railroad carrier may use or allow to be used a locomotive or tender on its railroad 

line only when the locomotive or tender and its parts and appurtenances—(1) are 

in proper condition and safe to operate without unnecessary danger of personal 

injury; (2) have been inspected as required under this chapter and regulations 

prescribed by the Secretary of Transportation under this chapter; and (3) can 

withstand every test prescribed by the Secretary under this chapter. 

29 U.S.C. § 20701. Similarly, under 49 C.F.R. § 229.7, it is unlawful for any carrier to use any 

locomotive unless the entire locomotive and its appurtenances “[a]re in proper condition and safe 

to operate in the service to which they are put, without unnecessary peril to life or limb.” Congress 

recognizes that “the operation of an engine, however equipped, involves some ‘danger to life or 

limb.’” Gregory v. Missouri Pacific R.R., 32 F.3d 160, 165 (5th Cir. 1994) (quoting United States 

2

 Plaintiff did not directly allege a violation of § 229.7(a) in his Complaint, but any violation of 45 C.F.R. 

§ 229, et seq., can serve as grounds for Plaintiff’s general FELA and LIA claims. Accordingly, both parties moved for 

summary judgment on this basis. 

Case: 2:18-cv-00715-ALM-KAJ Doc #: 58 Filed: 10/27/20 Page: 14 of 17 PAGEID #: 880
15 

v. Baltimore & O.R. Co., 293 U.S. 454, 462, 55 S. Ct. 268 (1935) (emphasis added)). Unnecessary 

danger, however, is not permitted when “exposure to injury or destruction [] is not required by the 

usual circumstances” of an employee’s job, or when it goes “over and above that which is usually, 

ordinarily or necessarily incidental to the performance of the particular duty.” Banta v. Union Pac. 

R. Co., 362 Mo. 421, 430, 242 S.W.2d 34, 40 (Mont. 1951). 

 Defendant relies on Turner v. Clinchfield Railroad Co. in support of its claim that railroad 

carriers owe no duty to prevent the accumulation of snow or ice under § 229.7. 489 S.W.2d 257 

(Tenn. App. 1972). In Turner, the plaintiff slipped on a single piece of ice on the steps of the 

locomotive, but there was “no proof to show that the ice had been on the steps a sufficient time so 

as to constitute constructive notice.” Id. at 260. Because of this lack of evidence, the court granted 

summary judgment to the defendant. Here, however, Plaintiff has offered evidence that the snow 

and ice were present when the initial crew brought train 776LB13 to Columbus, at least an hour 

before Plaintiff and his crew arrived. Plaintiff has also demonstrated that the previous crew tied 

train 776LB13 down and therefore would have left the cab of the train and experienced the adverse 

conditions outside. Moreover, Defendant has not produced any evidence to dispute this time frame, 

nor has it produced any evidence about the steps it took to address the snow and ice accumulation 

at the railyard. These differences are significant and render Turner an inappropriate case to apply 

to the facts of this case. 

 More apt to the case sub judice are Whelan v. Penn Central Co., 503 F.2d 886 (2d Cir. 

1974) and Wells v. CSX Transp. Inc., No. 1:08-CV-00837, 2010 WL 3703711 (S.D. Ohio Sept. 

17, 2010). First, in Whelan, the Second Circuit held a railroad carrier liable under the LIA 

predecessor statute when a plaintiff slipped on an ice-covered train step that was caused by the 

rain and sleet storm earlier that day. Whelan, 503 F.2d at 888 (reversing the lower court decision). 

Case: 2:18-cv-00715-ALM-KAJ Doc #: 58 Filed: 10/27/20 Page: 15 of 17 PAGEID #: 881
16 

In so deciding, the Whelan court relied on Lilly v. Grand Turk Railroad Co., in which the Supreme 

Court also held that LIA predecessor statute protected against ice accumulation and allowed the 

jury to determine whether the ice at issue constituted unnecessary peril. 317 U.S. 481, 486 (1943). 

Second, in Wells, the plaintiff tripped on an uneven and unlit outdoor walkway while he was 

working on the train. Id. at *1. Defendant argued that the accident did not present unnecessary risk 

of injury because the plaintiff had traversed the walkway before and knew of its condition. Id. at 

*3. Defendant also argued that there was no unnecessary risk because it provided the plaintiff with 

safety chains to assist his passage over the walkway. Id. The Court rejected both arguments and 

denied the defendant’s motion for summary judgment, finding that “a reasonable jury could find 

that a poorly lit passageway of misaligned platforms could constitute an unnecessary peril to life 

or limb in violation of the LIA.” Id. at *4. 

Similarly, here the evidence is such that a jury could reasonably find for either party. No 

reasonable jury could conclude that carriers have an absolute, ongoing duty to keep a locomotive’s 

exterior walkways entirely free of precipitation-caused slipping hazards at all times—naturallyoccurring weather simply does not allow for this degree of responsiveness. Conversely, no 

reasonable jury could conclude that carriers may allow snow and ice to accumulate on a 

locomotive’s exterior walkways indefinitely, and particularly not when the railroad carrier knows 

or should know about inclement weather conditions. The facts and evidence presented in this case 

fall somewhere on the continuum between those two extremes, and the jury should determine 

whether the ice accumulation Plaintiff encountered constitutes an unnecessary danger or peril to 

life and limb. 

 For these reasons, both parties’ cross motions for summary judgment on Plaintiff’s claims 

arising under 49 C.F.R. § 229.7(a)(1) and 49 U.S.C. § 20701 are DENIED. 

Case: 2:18-cv-00715-ALM-KAJ Doc #: 58 Filed: 10/27/20 Page: 16 of 17 PAGEID #: 882
17 

IV. CONCLUSION 

Based on the foregoing, Plaintiff’s Motion for Partial Summary Judgment (ECF No. 32) is 

DENIED, Defendant’s Motion for Partial Summary Judgment (ECF No. 33) is DENIED, and 

Plaintiff’s Motion to Supplement Memorandum in Support of Plaintiff’s Motion for Partial 

Summary Judgment (ECF No. 42) is GRANTED. 

IT IS SO ORDERED. 

 __ ___

 ALGENON L. MARBLEY 

 CHIEF UNITED STATES DISTRICT COURT 

DATED: October 27, 2020 

Case: 2:18-cv-00715-ALM-KAJ Doc #: 58 Filed: 10/27/20 Page: 17 of 17 PAGEID #: 883