negligence or from its violation of the FSAA or LIA. O'Donnell v. Elgin, Joliet and Eastern
Railway Co., 338 U.S. 384, 391 (1949); Crane, 395 US. at 166.
B. Metra’s Violation of the FSAA and LIA

The FSAA and LIA are regarded as amendments to the FELA which provide additional
public protection and facilitate employee recovery. Urie v. Thompson, 337 U.S. 163, 189, 191
(1949). A violation of the FSAA or LIA constitutes negligence per se under the FELA. Jd. at
188-89. A plaintiff seeking to recover under either of these two statutes “need not show that an
improper or unsafe operation was caused by negligence; proving the improper or unsafe
operation ‘is effective to show negligence as a matter of law.”” Richardson, 17 F.3d at 216
(quoting Urie, 337 U.S. at 189); Lisek, 30 F.3d at 825-26.

The FSAA requires that a locomotive be equipped with “efficient handbrakes.” 49
USS.C. §20301, 20302. The LIA requires that “all parts and appurtenances [of a locomotive be]
in proper condition and safe to operate.” 49 U.S.C. §20701. Keane argues that Metra violated its

, obligations under both of these statutes by failing to provide a locomotive with a safe and
efficient handbrake. A handbrake is “efficient” for purposes of the FSAA if it functions in the
“normal, natural and usual manner.” Meyers v. Reading Co., 331 U.S. 477, 483 (1947).

Keane claims that on November 1, 2000, he climbed onto the locomotive and reached out
with his right hand to release the handbrake, which the parties agree can generally be done easily
with one hand. Pl. Mem., p. 2; Def. Reply, p. 3. The brake would not move, so Keane put two
hands on the wheel and tried a second time to release the brake, again without success. His third
attempt was similarly unavailing. The brake released on Keane’s fourth attempt, but he claims

that he injured his neck in the process of turning the wheel. Pl. Mem, p. 2. See, e.g., Williams v.


Metra finally challenges the qualifications of Keane’s expert witness, David Engle, Jr.,
and his conclusion that the handbrake was defective because it did not operate efficiently as
required by FRA regulations. Def. Reply, pp. 9-13. The Court has not relied on Engle’s opinion
in finding that there are issues of fact in this case and need not address Metra’s arguments here.
The parties may raise any future objections to expert witnesses in the form of motions in limine.
D. Keane’s RSA Claim

Keane does not make any specific argument with respect to his RSA claim. After
generally noting that the RSA empowers the Secretary of Transportation to implement railroad
safety regulations and that the Secretary has done so with respect to locomotive engine
handbrakes, Keane merely asserts in his concluding paragraph that the defective handbrake
“violated . . . the very nature of the FRSA.” Pl. Mem., pp. 8, 14. Without more than this, Keane
has failed to demonstrate a genuine issue of fact as to whether Metra violated the RSA, and
summary judgment is granted on Count 3 of his complaint.

CONCLUSION

For the reasons stated above, the Court denies defendant’s motion for summary judgment
[docket item 15-1] as to Counts 1 and 2, but grants the motion as to Count 3. The final pretrial
order date is extended to October 31, 2002. The case is referred to Magistrate Judge Schenkier

for the purpose of conducting a settlement conference.

MATTHEW F. KENNELLY
United States District Judge

Date: August 6, 2002


the plaintiffs medical condition that resulted in his surgery.”' Def. Reply, pp. 2-3. Accordingly,
summary judgment is not appropriate on Keane’s FSAA or LIA claims.
C. Metra’s Negligence Under the FELA

Keane does not clearly allege an independent FELA claim in his complaint; in fact, he
states in his response brief that because this case is brought under the FSAA, LIA and RSA,
“[t]he issue of railroad ‘negligence’ is simply not involved.” Pl. Mem., p. 10. Nevertheless, both
parties address whether Metra was negligent under the Act by ignoring reports that the handbrake
was in poor condition and in need of repairs. The Court agrees that Keane has raised a genuine
issue of fact on this point as well.

Keane argues that Metra knew the handbrake on NIRC #1 was defective prior to
November 1, 2000 but did nothing to fix it. Specifically, on October 6, 2000, a Metra mechanic
performed a Federal Railroad Administration-mandated Annual Inspection of the locomotive and
reported 30% wear on the handbrake chain. On October 28, 29 and 30, 2000, Metra performed

Daily Inspections and noted that the brake condition was “poor.” And on November 1, 2000, the

1 Metra also argues that Keane caused his own injury by attempting to force the
handbrake to release in violation of Metra procedures. Def. Mem. 411. At best, this raises either
a question of contributory negligence, which is not a valid defense to claims for violation of the
FSAA and LIA, see Robb, 100 F. Supp. 2d at 871 n.3 (rejecting argument that plaintiff’s injury
was caused by his violation of safety rules as opposed to a defective handbrake; “defendant
cannot get around [the FSAA’s rule of absolute duty] by presenting what is for all practical
purposes a contributory negligence defense as a causation argument”), or a question of fact as to
whether Keane was the sole cause of his injury. See Walden v. Illinois Central Gulf Railroad,
975 F.2d 361, 364 (7" Cir. 1992) (“[p]roof that the employee’s own negligence was the sole
cause of his or her injury is a valid defense because it eliminates the possibility that the
regulatory violation contributed in whole or part to the injury”). Either way, this argument
provides no basis to grant summary judgment to Metra.

6


Norfolk Southern Railway Co., 126 F. Supp. 2d 986, 993 (W.D. Va. 2000) (“[s]tuck hand brakes
qualify as ‘inefficient’ under the FSAA”).

Metra denies Keane’s account of events, emphasizing that he was the only witness to the
alleged problem with the handbrake. Def. Reply, pp. 1,7. Keane’s own testimony, however, is
sufficient to create a genuine issue of fact. Metra also notes that the handbrake was functioning
properly before and after November 1, 2000. Def. Mem. 13; Def. Reply, p. 6. But this does not
demonstrate as a matter of law that the handbrake was working in its normal, natural and usual
manner at the time Keane was injured. See Richardson, 17 F.3d at 217 (defendant “would be
liable if the hand brake did not properly function at the time of the incident, regardless of whether
it worked properly before and after”); Meyer, 331 U.S. at 483. If the handbrake was not working
in its usual manner, Metra is liable for Keane’s injury, assuming that he can establish causation.
Crane, 395 US. at 166 (plaintiff “is not required to prove common-law proximate causation but
only that his injury resulted ‘in whole or in part’ from the railroad’s violation of the [FSAA]”);
DeBiasio, 52 F.3d at 683 (“[o]nce the violation is established, only causal relation is in issue”);
Robb y. Burlington Northern and Santa Fe Railway Co., 100 F. Supp. 2d 867, 871 (N.D. Ill.

2000). On that point, Metra expressly concedes that there is an issue of fact as to “the cause of


11. But this argument, which is more properly characterized as a contributory negligence
defense, also raises a jury question. See, e.g., Taylor v. Burlington Northern Railroad Co., 787
F.2d 1309, 1314 (9" Cir. 1986) (“[tJhe question of how much of the injury is attributable to the
employee’s own actions and lack of due care for his own condition is to be decided by the jury if
there is any evidence at all of contributory negligence”). Moreover, the FELA is a comparative
negligence statute, so even if Keane was somehow negligent in forcing the handbrake, that would
only serve to reduce the amount of his damages. See Williams, 161 F.3d at 1061; Bomboir v.
National Railroad Passenger Corp., 902 F. Supp. 160, 162 (N.D. Ill. 1995); Consolidated Rail
Corp. v. Gottshall, 512 U.S. 532, 542 (1994); 45 U.S.C. §53.

Metra also contends that it is entitled to summary judgment on Keane’s FELA claim
because he failed to report the problem with the handbrake in a prompt manner and, as a result, it
was not tested and inspected at the time of the alleged incident. Def. Reply, pp. 8-9. It is not
clear how this argument, if true, would warrant a judgment in Metra’s favor. If anything, it raises
additional questions as to the condition of the handbrake at the time of Keane’s injury. The mere
fact that Metra did not learn about the incident at the moment it occurred does not address
whether the railroad had prior notice of a potential defect in the handbrake, nor does it establish
that the handbrake was functioning properly. Keane’s alleged delay in reporting the incident may
cast some doubt on his version of events, but his credibility is a jury question. Ritchie v. Glidden
Co., 242 F.3d 713, 722 (7" Cir. 2001) (“[c]redibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of
a judge, whether he is ruling on a motion for summary judgment or for a directed verdict”)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).


‘Minute Order Form (06/97), .

United States District Court, Northern District of Illinois

lame me Sitting Jus if Other
wengr Magistrate Judge Matthew F. Kennelly than Assigned Judge
CASE NUMBER 01C 43 DATE 8/6/2002
CASE Keane vs. METRA
TITLE

MOTION: of the motion being presented.}

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

DOCKET ENTRY:

(1) Oo Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) Oo Answer brief to motion due . Reply to answer briefdue___.

(4) go Ruling/Hearing on setfor____at

(5) Qo Status hearing[held/continued to] [set for/re-set for]on__setfor___at.

(6) oO Pretrial conference[held/contimued to] [set for/re-set for]on__—ssetfor__—— ss at__
(7) Oo Trial[set for/re-set for]on at

(8) im [Bench/Jury trial] [Hearing] held/continued toa

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) (General Rule21 CFRCP41{a)(1) [1 FRCP41(a)(2).

Judge Schenkier for the purpose of conducting a settlement conference.

(il) ff [For further detail see order attached to the original minute order.]

(0) xf [Other docket entry] For the reasons stated on the attached Memorandum Opinion and Order, the
Court denies defendant’s motion for summary judgment (15-1) as to Counts i and 2, but grants the motion
as to Count 3. The final pretrial order date is extended to 10/31/02. The case is referred to Magistrate

No notices required, advised in open court.

No notices required.

umber of notices

Document
Number

Notices mailed by judge’s staff, AUG 1 2 2002

Notified counsel by telephone.

date docketed

v | Docketing to mail notices.

Mail AO 450 form.

docketing deputy pritiats

; aeqeo Lapesia st
Copy to judge/magistrate judge. ‘ sn

courtroom
OR deputy’s
initials

oD

Saat ees Office sailing deputy initials

MH



day of Keane’s injury, the brakes and brake rigging were again described as being in poor
condition. Throughout this time, Metra made no repairs to the handbrake or any of its parts.

Metra denies that the reports demonstrate any defect with respect to the handbrake and
argues that it had no actual or constructive knowledge of the alleged problem. Def. Mem. §7-
10. According to Metra, the chain showing 30% wear on October 6, 2000, was unrelated to the
mechanism involved in releasing the handbrake. However, the Annual Inspection report, which
was apparently completed by mechanics Jim Jones, Doug Wagner and Ed Greer, does not clearly
identify which handbrake chain is at issue. And the only testimony on this point is from
Locomotive Shop Superintendent Sajdak and machinist Michael Kowalski, neither of whom was
involved in preparing the reports, and both of whom speculate as to which chain the three
mechanics meant. Kowalski Dep., pp. 36-37; Sajdak Dep., pp. 84-86; PX. B.

Metra does not dispute that the Daily Inspections all indicate that the condition of the
brakes and brake rigging was poor, but argues that none of the reports identifies any specific
problem with the handbrake; to the contrary, the reports indicate that the carman signed off on
the boxes for “renew brake shoes and adjust rigging where needed,” and “operation of horn-bell-
sanders, window wipers, handbrake, air brakes, air compressor operation.” Def. Reply, p. 4.
Nevertheless, this arguable inconsistency in the stated condition of the handbrake raises a
question of fact for a jury to resolve. Compare Williams, 161 F.3d at 1063 (defendant had no

_ actual or constructive knowledge of defect in railroad car door because plaintiff failed to show
that the door was in need of repair, or that defendant could have discovered and fixed the defect).

Metra next suggests that Keane “was the sole and proximate cause of his alleged injury”

because he tried to force the handbrake to release in violation of Metra procedures. Def. Mem.


DISCUSSION
A. The Statutory Framework

Under the FELA, “[e]very common carrier by railroad . . . shall be liable in damages to
any person suffering injury while he is employed . . . 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
USS.C. §51. The intent of the FELA is to provide broad remedial measures for railroad
employees. Lisek v. Norfolk and Western Railway Co., 30 F.3d 823, 831 (7th Cir. 1994). In an
FELA action, the railroad will be held liable if the employer’s “negligence played any part, even
the slightest, in producing the injury.” Jd. at 832 (internal quotations and citations omitted).
Although the plaintiffs burden is significantly lighter than in an ordinary negligence case,
evidence of the defendant’s negligence must be presented in order to survive a motion for
summary judgment. Id.

The FELA is a general negligence statute and as such, it neither prohibits nor requires
specific conduct by a railroad. Waymire v. Norfolk and Western Railway Co., 218 F.3d 773, 775
(7" Cir. 2000). By contrast, the FSAA and LIA impose absolute duties to provide safe
equipment. DeBiasio v. Illinois Central Railroad, 52 F.3d 678, 683 (7" Cir. 1995) (FSAA);
Richardson v. Consolidated Rail Corp., 17 F.3d 213, 216 (7" Cir. 1994) (BIA, also known as
LIA). The FSAA and LIA do not themselves create private rights of action, but employees
alleging injury resulting from a violation of these statutes may sue under the FELA. Crane v.
Cedar Rapids & Iowa City Railway Co., 395 U.S. 164, 166 (1969). Thus, an employee may

recover under the FELA for injuries resulting in whole or in part from a railroad carrier’s


handbrake on Metra locomotive No. 1 (“NIRC #1”) by turning the handle/wheel in a clockwise
direction. Keane made three attempts to release the handbrake, without success. On his fourth
attempt, the brake released, but he felt a shooting pain in the center of his neck. Keane wrote up
a report describing the defective condition of the handbrake and left it on the locomotive, as
required by Metra. Keane did not immediately notify his supervisor about the problem with the
handbrake or his injury, but he did fill out a Metra Employee Incidental Injury/Illness Report
before leaving work. Later that evening around 11:30 p.m., Keane called Metra headquarters to
report the incident to a Trainmaster, but no one was available at that hour. Keane apparently
asked for a second Employee Incidental Injury/IIIness Report, which he completed and faxed to
Metra headquarters sometime thereafter.

Metra claims that notwithstanding Keane’s written reports, it first learned of the incident
with the handbrake on the afternoon of November 2, 2000. The following morning, Richard
Pickens, a foreman in Metra’s Mechanical Department, applied and released the handbrake on
NIRC #1 five times without any problem. Keane worked on November 4 and 5, 2000 and did
not report any difficulty with the handbrake on either day. On November 7, Robert Sajdak,
Locomotive Shop Superintendent of the Rock Island District, and Mechanical Foreman John
Montgomery both applied and released the handbrake ten times without any problem.

The parties dispute whether the handbrake had a defect which caused it to malfunction on
November 1, 2000. They also dispute whether Keane’s surgery on April 23, 2001 was

necessitated by the alleged incident with the handbrake.


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS\

EASTERN DIVISION
RAYMOND KEANE, )
)
Plaintiff, )
)
vs. ) Case No. 01 C 43
)
NORTHEAST ILLINOIS COMMUTER )
RAILROAD CORPORATION, d/b/a )
METRA - METROPOLITAN RAIL, ) SOCKETED
)
Defendant. y AUG 12 2002

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Plaintiff Raymond Keane filed suit against defendant Northeast Illinois Commuter
Railroad Corporation, d/b/a Metra - Metropolitan Rail (“Metra”) alleging that Metra is liable
under the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. §51 et seq., for an injury he
sustained at work. Count 1 arises under the Federal Safety Appliance Act (“FSAA”), 45 U.S.C.
§20301 et seg.; Count 2 arises under the Locomotive Inspection Act (“LIA”), also known as the
Boiler Inspection Act (“BIA”), 49 U.S.C. §20701 et seq.; and Count 3 arises under the Railroad
Safety Act (“RSA”), 49 U.S.C. §20101 et seg. Metra has moved for entry of summary judgment
in its favor on all counts. For the reasons set forth below, the motion is denied with respect to
Counts 1 and 2, but granted with respect to Count 3.

FACTUAL BACKGROUND
Keane works for Metra as a locomotive engineer. On November 1, 2000, he began his

shift at 6:00 p.m. at Metra’s Blue Island facility. One of his first tasks was to release the

od