Little v. Budd Company, Inc.

Filing 61

MEMORANDUM AND ORDER denying 22 Motion for Judgment on the Pleadings. Signed by District Judge Daniel D. Crabtree on 01/12/2018. (mig)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
NANCY LITTLE, individually and as
personal representative of the estate of
ROBERT L. RABE,
Plaintiff,
v.
Case No. 16-4170-DDC-KGG
THE BUDD COMPANY,
Defendant.
_____________________________________
MEMORANDUM AND ORDER
Plaintiff Nancy Little brings this action individually and as the personal representative of
the estate of her father, Robert L. Rabe, against defendant The Budd Company. Plaintiff alleges
that her father was exposed to asbestos-containing pipe insulation while working as a Pipefitter
for the Atchison Topeka & Santa Fe Railroad (“ATSF”) from 1951 into the mid-to-late 1970s.
She contends that this exposure caused her father to develop asbestos-related malignant
mesothelioma, causing his death on December 28, 2012.
Defendant allegedly manufactured passenger rail cars and sold them to ATSF. Plaintiff
contends that defendant placed asbestos and asbestos-containing products into its railcars,
thereby exposing her father to asbestos during his employment with ATSF. Plaintiff asserts
Kansas state law claims for negligence, strict product liability/design defect, and strict product
liability/warning defect. Alternatively, plaintiff asserts a state law claim against defendant for
negligence per se based on defendant’s alleged violation of two federal statutes: (1) the
Locomotive Inspection Act (“LIA”), and (2) the Federal Safety Appliance Act (“SAA”).

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Defendant has filed a Motion for Judgment on the Pleadings under Fed. R. Civ. P. 12(c).
Doc. 22. Defendant asks the court to dismiss plaintiff’s state law claims because, it contends,
Congress’s enactment of the LIA and SAA preempt plaintiff from asserting state law claims
based on alleged exposure to asbestos contained in train equipment. Defendant also seeks
dismissal of the claim plaintiff pleads in the alternative—i.e., the negligence per se claim based
on alleged LIA and SAA violations. Defendant argues that these federal statutes confer no
private right of action on plaintiff and apply only to “railroad carriers.” Defendant also argues
that plaintiff’s Complaint never alleges that defendant violated a specific statutory standard.
Thus, defendant contends, plaintiff’s alternative claim fails to state a claim for relief against
defendant.
After considering the parties’ arguments, the court denies defendant’s Motion for
Judgment on the Pleadings. The court explains why below.
I.

Procedural Background
On July 27, 2016, plaintiff Nancy Little, individually and as personal representative of

the Estate of Robert L. Rabe, deceased, filed this action against defendant The Budd Company in
the District Court of Shawnee County, Kansas. Doc. 1-1. On October 6, 2016, plaintiff filed a
“First Amended Original Petition.” Doc. 1-4. On November 2, 2016, defendant removed the
action to our court, asserting diversity jurisdiction under 28 U.S.C. § 1332.
The court agrees that diversity jurisdiction exists here. Plaintiff alleges that she is a
Kansas citizen. Doc. 1-4 ¶ 1. She also asserts that her father was a life-long resident of Topeka,
Kansas. Doc. 31 at 7. Plaintiff thus is a citizen of Kansas for diversity jurisdiction purposes.
See 28 U.S.C. § 1332(c)(2) (“[T]he legal representative of the estate of a decedent shall be
deemed to be a citizen only of the same State as the decedent[.]”). Defendant is a Michigan

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corporation with its principal place of business in Illinois. Doc. 1 at 2. Defendant thus is a
citizen of Michigan and Illinois. See 28 U.S.C. § 1332(c)(1) (“[A] corporation shall be deemed
to be a citizen of every State and foreign state by which it has been incorporated and of the State
or foreign state where it has its principal place of business[.]”). Diversity of citizenship is
present here.
The amount in controversy also exceeds the $75,000 jurisdictional requirement.
Although plaintiff never asserts an amount in controversy in either of her state court pleadings,
defendant has established that the amount in controversy is satisfied based on plaintiff’s alleged
injuries and requested relief.1 See McPhail v. Deer & Co., 529 F.3d 947, 955 (10th Cir. 2008)
(“A complaint that presents a combination of facts and theories of recovery that may support a
claim in excess of $75,000 can support removal.”). Here, plaintiff alleges that defendant caused
plaintiff’s father “to suffer severe and permanent injury to his person, to wit; asbestos-related
malignant mesothelioma resulting in his death . . . .” Doc. 1-4 ¶ 3; see also id. ¶¶ 11, 13, 19, 21,
28, and 30. Plaintiff seeks general and special damages “including but not limited to, damages
for survival and wrongful death claims that Plaintiff sustained both in her individual capacity and
as heir to [her father’s] estate.” Id. ¶ 38. And, plaintiff seeks punitive damages, costs, and “all
other and further relief permitted by law.” Id. ¶ 38 and “Prayer for Relief.” Based on these
allegations and demands for relief, the court finds that the $75,000 amount in controversy
requirement is satisfied. See McPhail, 529 F.3d at 957 (holding that defendant established the
requisite amount in controversy because, even though plaintiff never pleaded a specific amount
of damages, plaintiff’s allegations of wrongful death and the nature of the damages sought
supported a claim in excess of $75,000).

1
Plaintiff never disputes that defendant has satisfied its burden to establish that the amount in
controversy exceeds $75,000.

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Because the parties are diverse and the amount in controversy exceeds $75,000, the court
has jurisdiction over this action under 28 U.S.C. § 1332.
II.

Factual Background
The following facts are taken from plaintiff’s “First Amended Original Petition” (Doc. 1-

4),2 accepted as true, and viewed in the light most favorable to her. Ramirez v. Dep’t of Corr.,
222 F.3d 1238, 1240 (10th Cir. 2000) (explaining that, on a motion for judgment on the
pleadings, the court must “accept the well-pleaded allegations of the complaint as true and
construe them in the light most favorable to the plaintiff” (citation omitted)).
From 1951 until his retirement in 1979, Robert L. Rabe worked for the ATSF in Shawnee
County, Kansas, as a Pipefitter and in other related capacities. As part of his job duties for
ATSF, Mr. Rabe was required to work with and around asbestos-containing pipe insulation that
defendant had incorporated into passenger railcars it manufactured and sold to ATSF. Mr.
Rabe’s exposure to asbestos caused him to sustain severe and permanent injury to his body and
respiratory system. The asbestos exposure eventually caused Mr. Rabe to develop malignant
mesothelioma, resulting in his death on December 29, 2012.
III.

Legal Standard
A party may move for judgment on the pleadings under Fed. R. Civ. P. 12(c) after the

pleadings are closed but early enough not to delay trial. Fed. R. Civ. P. 12(c). Courts evaluate a
Rule 12(c) motion under the same standard that governs a Rule 12(b)(6) motion to dismiss.
Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 n.2 (10th Cir. 2002) (citing Atl. Richfield Co.
v. Farm Credit Bank, 226 F.3d 1138, 1160 (10th Cir. 2000)).

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Plaintiff’s “First Amended Original Petition” is the last pleading plaintiff filed before defendant
removed the case to federal court. Plaintiff never has amended her pleading in federal court. Thus,
plaintiffs’ “First Amended Original Petition” is the operative pleading that the court considers when
deciding defendant’s Motion for Judgment on the Pleadings. For simplicity, the rest of this Order refers
to this pleading as plaintiff’s Complaint.

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The court will grant a motion for judgment on the pleadings only when the factual
allegations in the Complaint fail to “state a claim to relief that is plausible on its face,” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007), or when an issue of law is dispositive, Neitzke v.
Williams, 490 U.S. 319, 326 (1989). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550
U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for
more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550
U.S. at 556); see also Christy Sports, LLC v. Deer Valley Resort Co., Ltd., 555 F.3d 1188, 1192
(10th Cir. 2009) (“The question is whether, if the allegations are true, it is plausible and not
merely possible that the plaintiff is entitled to relief under the relevant law.” (citation omitted)).
When considering whether a plaintiff has stated a plausible claim, the court must assume
that the factual allegations in the complaint are true. Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 555). But, the court is “‘not bound to accept as true a legal conclusion couched as a
factual allegation.’” Id. (quoting Twombly, 550 U.S. at 555). “‘Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice’” to state
a claim for relief. Bixler v. Foster, 596 F.3d 751, 756 (10th Cir. 2010) (quoting Iqbal, 556 U.S.
at 678). Also, the complaint’s “[f]actual allegations must be enough to raise a right to relief
above the speculative level.” Twombly, 550 U.S. at 555 (citations omitted).
IV.

Analysis
Defendant seeks dismissal of plaintiff’s state law tort claims based on a preemption

theory. Defendant argues that the LIA and SAA preempt all regulation of train equipment under
state law, including common law tort claims. So, defendant contends, these federal statutes

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preclude plaintiff’s claims under Kansas law asserting negligence, strict product liability/design
defect, and strict product liability/warning defect.
Defendant next argues that plaintiff’s alternative state law claim—one asserting
negligence per se based on defendant’s alleged violation of the LIA and SAA—fails to state a
claim for relief. The court addresses each of defendant’s arguments, in turn, below.
A. Does Federal Law Preempt Plaintiff’s State Law Tort Claims?
Defendant asserts that the LIA and SAA preempt the entire field of state regulation over
train equipment. Defendant thus contends that federal preemption bars plaintiff’s state law tort
claims because plaintiff bases these claims on her father’s alleged exposure to asbestos in
passenger railcars manufactured by defendant.
The Supremacy Clause of the United States Constitution confers on Congress the power
to preempt state law. U.S. Const. Art. VI, cl. 2. The clause provides that federal law is “the
supreme Law of the Land . . . any Thing in the Constitution or Laws of any state to the Contrary
notwithstanding.” Id. “Pre-emption of state law thus occurs through the ‘direct operation of the
Supremacy Clause.’” Kurns v. R.R. Friction Prods. Corp., 565 U.S. 625, 630 (2012) (quoting
Brown v. Hotel Emps., 468 U.S. 491, 501 (1984)). The Supreme Court has explained that
“Congress may, of course, expressly pre-empt state law, but ‘[e]ven without an express provision
for preemption, we have found that state law must yield to a congressional Act in at least two
circumstances.’” Id. (quoting Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372
(2000)). “First, ‘state law is naturally preempted to the extent of any conflict with a federal
statute.’” Id. (quoting Crosby, 530 U.S. at 372). Second, state law is pre-empted “‘when the
scope of a [federal] statute indicates that Congress intended federal law to occupy a field
exclusively.’” Id. at 630–31 (quoting Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995)).

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The court’s analysis here deals with the second type of preemption—field preemption.
Defendant argues that Congress intended to occupy the entire field of train equipment regulation
when it enacted the LIA and SAA. The court disagrees. Neither of these two acts broadly
preempts the entire field of train equipment regulation. The court explains its reasoning below,
beginning with a description of the two federal acts’ history and then turning to discuss each of
the two statutes separately.
1. The History of the SAA and LIA
The Third Circuit recently summarized the history of these two federal statutes. In re
Asbestos Prods. Liability Litig. (No. VI), 822 F.3d 125, 128–29 (3d Cir. 2016). In this case, the
Third Circuit explained:
Toward the end of the nineteenth century, the rapid growth of the railroad
industry in the United States brought with it numerous accidents and deaths. See,
e.g., Charles W. McDonald, Federal Railroad Administration, The Federal
Railroad Safety Program 2–6 (Aug. 1993). In response to these safety concerns
and because of the variety of state laws regulating the industry, Congress in 1893
passed the Safety Appliance Act (SAA). Act of Mar. 2, 1893, ch. 196, 27 Stat.
531–32, amended by Act of Mar. 2, 1903, ch. 976, 32 Stat. 943, and Act of Apr.
14, 1910, ch. 160, 36 Stat. 298; see also Lorenzo S. Coffin, Safety Appliances on
the Railroads, 5 Annals of Iowa 561, 569–80 (1903). Full implementation of the
SAA, which required railroads to equip trains with automatic couplers and power
brakes, was delayed until 1900. See Note, The Federal Safety Appliance Act as a
Regulation of Interstate Commerce, 3 Mich. L. Rev. 387, 388 (1905).
Id. at 128.
The LIA’s enactment came next:
Eleven years [after the SAA], Congress began regulating locomotive steam
boilers through the Boiler Inspection Act (BIA). Act of Feb. 17, 1911, ch. 103, §
2, 36 Stat. 913–14. Soon thereafter, the BIA was amended to cover the entire
locomotive as well as its “parts and appurtenances.” Act of Mar. 4, 1915, ch. 169,
38 Stat. 1192. The statute as amended has since been known as the Locomotive
Boiler Inspection Act, or simply the Locomotive Inspection Act (LIA).
Id. (footnote omitted).

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The Third Circuit then explained how this “increased federal regulation of the locomotive
industry resulted in conflicts with various state laws.” Id. at 129. This conflict eventually
presented constitutional challenges to specific state laws and required the Supreme Court to
decide whether “Congress intended ‘to occupy the entire field of regulating locomotive
equipment.’” Id. (quoting Napier v. Atl. Coast Line R.R. Co., 272 U.S. 605, 611 (1926)). The
Third Circuit described the Supreme Court’s holding in Napier in this fashion:
The Court noted that the SAA, which included specific requirements, and the
BIA, which regulated only boilers, did not preempt the field. [Napier, 272 U.S. at
611.] As amended in 1915, however, the LIA included a “general” power that
“extend[ed] to the design, the construction, and the material of every part of the
locomotive and tender and of all appurtenances.” 272 U.S. at 611, 47 S. Ct. 207.
The “broad scope” of this “general” authority led the Court to conclude that
Congress, in enacting the LIA, had “occupied the field of regulating locomotive
equipment.” Id. at 607, 613, 47 S. Ct. 207. For that reason, “[b]ecause the
standard set by the [Interstate Commerce] Commission must prevail, requirements
by the states are precluded, however commendable or different their purpose.” Id.
at 613, 47 S. Ct. 207.
Id. (footnote omitted).
More recently, “the Supreme Court revisited the LIA’s preemptive scope in Kurns v.
Railroad Friction Products Corp., [565 U.S. 625] (2012).” Id. The Third Circuit described
Kurns in this fashion:
Unlike Napier—which involved the preemption of state statutes—Kurns
considered whether the LIA preempted state causes of action. The plaintiffs in
Kurns asserted state law defective-design and failure-to-warn claims against the
manufacturers of locomotive brake shoes and locomotive engine valves that
contained asbestos. [565 U.S. at 630.] Underscoring that “Napier defined the
field pre-empted by the LIA on the basis of the physical elements regulated,” the
Court held that the state law claims were preempted because they were “directed
at the equipment of locomotives.” [565 U.S. at 636] (emphasis added); see also
id. at [638] (Kagan, J., concurring) (“According to Napier, the scope of the
agency’s power under the [LIA] determines the boundaries of the preempted
field.”).
Id.

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Thus, in Kurns, the Supreme Court “rejected the distinction between common law claims
and positive law enacted through state legislation or regulation, holding that Napier’s
‘categorical conclusion admits of no exception for state common-law duties and standards of
care . . . [because] state regulation can be . . . effectively exerted through an award of damages.’”
Id. (quoting Kurns, 565 U.S. at 637 (further citation and internal quotation marks omitted)).
“And by holding the plaintiffs’ failure-to-warn claims preempted, the Court also precluded the
attachment of state law duties or conditions to locomotive equipment because such legal
requirements would “‘inevitably influence a manufacturer’s choice whether to use that particular
design.’” Id. (quoting Kurns, 565 U.S. at 635 n.4).
With this summary of the law governing field preemption, the court turns to consider
whether the LIA and SAA preempt the state law tort claims plaintiff asserts in this action.
2. The LIA
Plaintiff asserts that the LIA does not preempt her state law tort claims because the
federal statute only prohibits state regulation over the “design, the construction, and the material
of every part of the locomotive and tender and of all appurtenances.” Napier, 272 U.S. at 611;
see also Kurns, 565 U.S. at 631 (quoting Napier, 272 U.S. at 611). In contrast, plaintiff
contends, the LIA does not preempt claims, like the ones here, involving non-motorized
passenger railcars.
The LIA provides:
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;

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(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.
49 U.S.C. § 20701 (emphasis added).
Like the issue presented here, the Third Circuit analyzed whether the LIA preempted a
plaintiff’s state law tort claims against railcar manufacturers arising from exposure to asbestosinsulated steam pipes on passenger rail cars in In re Asbestos Products Liability Litigation (No.
VI). The Third Circuit observed that “Napier and Kurns establish that field preemption under the
LIA turns on one fundamental question: is the state regulation or cause of action ‘directed at the
equipment of locomotives’?” 822 F.3d at 131 (quoting Kurns, 565 U.S. at 635). “If it is, the
regulation or cause of action is preempted because it falls within the regulatory space assigned
by the statute to the Federal Railroad Administration.” Id. at 131–32.
The Third Circuit recognized that neither Napier nor Kurns required the court to decide
whether the regulation or cause of action was directed at equipment of locomotives “because the
answer was obvious in both cases.” Id. at 132 (explaining that Napier involved state statutes
“requiring railroads to install cab curtains and automatic doors in locomotives” and Kurns
involved state standards of care governing “locomotive brake shoes and engine valves”). Thus,
neither Napier nor Kurns “had to confront the distinction between locomotive equipment and
equipment belonging to some other railroad apparatus” like in the Third Circuit’s case which
involved “passenger railcars.” Id. The Third Circuit also did not know “of any other federal
court of appeals’ decision that has had to squarely confront this distinction.” Id.
The Third Circuit recognized that “[i]n the absence of clear guidance on the issue” the
district court had relied on Southern Railway Co. v. Lunsford, 297 U.S. 398 (1936). Although
not a preemption case, Lunsford construed the term “parts and appurtenances” under the LIA to
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include “[w]hatever in fact is an integral and essential part of a completed locomotive, and all
parts or attachments definitely prescribed by lawful order of the [Federal Railroad
Administration].” 297 U.S. at 402. The Third Circuit expressed no opinion whether Lunsford
appropriately defines the scope of field preemption under the LIA. 822 F.3d at 132 n.5. But, it
held, the district court had erred by granting defendant’s motion to dismiss under Fed. R. Civ. P.
12(b)(6) because it concluded that the asbestos-insulated steam pipes on passenger rail cars
“were joined to create a system of pipes that connect the railcars and locomotives, and that this
system was an essential and integral part of the completed locomotive under Lunsford.” Id. at
132. The Circuit found that the district court’s conclusion “cannot be squared with [plaintiff’s]
amended complaint” because the pleading was “devoid . . . of any facts establishing a ‘system of
pipes’ connecting the railcars to the locomotive.” Id. at 133. Indeed, “the word ‘locomotive’
never even appear[ed] in [plaintiff’s] amended complaint.” Id. The Circuit thus concluded that
the district court had erred by relying on evidence extrinsic to the pleadings to decide a motion to
dismiss under Rule 12(b)(6). Id.
The Circuit also concluded that the current record precluded the district court from
granting summary judgment against plaintiff’s claims under Rule 56. Id. at 135–36. But, it took
“no position” whether “summary judgment might be warranted on a different record after further
discovery.” Id. at 136 n.11. The Third Circuit thus vacated the district court’s dismissal and
remanded the case for further proceedings. Id. at 136.3

3
The case remains pending in the Eastern District of Pennsylvania. See Hassell v. The Budd Co.,
No. 2:09-cv-90863-ER (E.D. Pa.). The parties represent that they have briefed some of the same issues
pending here in summary judgment motions filed in the Hassell case. To date, the Eastern District of
Pennsylvania has not ruled the pending summary judgment motions in Hassell. See Motions for
Summary Judgment, Hassell v. The Budd Co., No. 2:09-cv-90863-ER (E.D. Pa. Jan. 20, 2017), ECF Nos.
110, 111.

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Likewise, the court must determine here whether plaintiff’s Complaint states viable state
law tort claims based on the decedent’s alleged exposure to asbestos-containing pipes found in
passenger rail cars or, instead, whether the LIA preempts such claims. Because the LIA only
preempts state regulation over the “design, the construction, and the material of every part of the
locomotive and tender and of all appurtenances,” Napier, 272 U.S. at 611; see also Kurns, 565
U.S. at 631, the court frames the question the same way the Third Circuit did: Are plaintiff’s
state law causes of action “‘directed at the equipment of locomotives?’”, In re Asbestos Prods.
Liability Litig. (No. VI), 822 F.3d at 131 (quoting Kurns, 565 U.S. at 635).
Here, plaintiff contends that the passenger cars that Mr. Rabe worked on were not
locomotives, and thus, the LIA’s regulation of locomotives does not preempt plaintiff’s claims.
The LIA’s regulations define a locomotive as “a piece of on-track equipment . . . (1) With one or
more propelling motors designed for moving other equipment; (2) With one or more propelling
motors designed to carry freight or passenger traffic or both; or (3) Without propelling motors
but with one or more control stands.” 49 C.F.R. § 229.5. Plaintiff’s Complaint does not contain
sufficient allegations for the court to conclude, as a matter of law, that plaintiff’s state law
claims—ones involving passenger rail cars manufactured and sold by defendant—are directed at
the equipment of locomotives. Indeed, plaintiff’s Complaint describes defendant’s railcars as
“conventional, non-motorized rail cars and coaches, for the carriage of passengers.” Doc. 1-4 ¶
5. And it includes no other allegations that would allow a factfinder to infer that the passenger
cars relied on by plaintiff’s cause of action are “locomotives” as the LIA’s regulation defines that
term.
Also, assuming that Lunsford applies, the court cannot square Lunsford’s definition of
locomotive “parts and appurtenances” with the Complaint’s allegations. As explained above,

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Lunsford defined a locomotive’s “parts and appurtenances” to include “[w]hatever in fact is an
integral and essential part of a completed locomotive, and all parts or attachments definitely
prescribed by lawful order of the [Federal Railroad Administration].” 297 U.S. at 402. Here,
plaintiff’s Complaint never alleges facts capable of supporting an inference that pipe insulation
in passenger rail cars is an “integral and essential part of a completed locomotive.” Also, the
regulations promulgated by the Federal Railroad Administration governing a locomotive’s parts
and attachments never address pipe insulation in passenger railcars. See 229 C.F.R. § 229.1, et
seq.
The court recognizes that the summary judgment facts, when established, could call for a
different analysis. But on the record here—viewing the Complaint’s allegations in the light most
favorable to plaintiff—the court cannot conclude, as a matter of law, that plaintiff’s claims are
directed at the equipment of locomotives. The court thus declines to grant judgment on the
pleadings on the theory that the LIA preempts plaintiff’s state law tort claims.
3. The SAA
The SAA requires railroad carriers to use railcars that are equipped with certain “safety
appliances.” 49 U.S.C. § 20301, et seq. Such safety equipment includes, for example, automatic
couplers, secure sill steps and hand brakes, grab irons and handholds, and drawbars at specified
heights. 49 U.S.C. § 20302; see also Jordan v. S. Ry. Co., 970 F.2d 1350, 1352 (4th Cir. 1992)
(recognizing, in an action brought under the Federal Employers’ Liability Act (“FELA”), that
that the SAA “contains a strikingly specific laundry list of equipment a railroad must have on
each type of car: ladders, brakes, automatic couplers, hand holds, running boards, etc.”).
Plaintiff argues that the SAA does not preempt her state law claims because that federal
statute applies to a specific list of “safety appliances” but it does not reach pipe insulation

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installed in passenger rail cars—the equipment at issue in this case. In contrast, defendant argues
that the SAA preempts the entire field of railway equipment—including pipe insulation in
passenger railcars—thus preempting plaintiff’s claims.
In 1914, the Supreme Court considered the SAA’s preemptive effect in Atlantic Coast
Line Railroad Co. v. Georgia, 234 U.S. 280 (1914). In that case, the Supreme Court held that
neither the original LIA nor the SAA preempted a Georgia statute requiring the use of headlights
on locomotives. Id. at 287, 293–94. The Court recognized “Congress [had] acted” by enacting
federal statutes governing certain locomotive equipment and providing for the investigation and
report “on the need of any appliances or systems intended to promote the safety of railway
operations.” Id. at 293. But, according to the Supreme Court, “it [did] not appear . . . either that
Congress [had] acted, or that the Commission, under the authority of Congress, [had] established
any regulation so far as headlights are concerned.” Id. at 293. So, because “the situation [had]
not been altered by any exertion of Federal power,” the SAA did not preempt the Georgia statute.
Id. at 293–94.
Defendant contends that Atlantic Coast Line does not apply here because that case
involved the SAA’s preemptive effect over locomotive equipment and not railway equipment—
the equipment at issue here. Defendant argues, instead, that the Supreme Court reached that
question a year later in Southern Railway Co. v. Railroad Commission of Indiana, 236 U.S. 439
(1915). This case involved an Indiana statute requiring railway companies “to place secure grab
irons and hand holds on the sides or ends of every railroad car.” Id. at 444. The Court held that
the SAA preempted the Indiana statute because the federal legislation “extended to the whole
subject of equipping cars with appliances intended for the protection of employees.” Id. at 446.
So, after Congress passed the SAA, states “could not legislate so as to require greater or less or

14

different equipment; nor could they punish by imposing greater or less or different penalties.”
Id.
Defendant argues that with this holding, the Supreme Court broadly preempted the field
of railway equipment. But the court does not read the Supreme Court’s holding so expansively.
The Court held that the SAA preempted “the subject of equipping cars with appliances intended
for the protection of employees.” Id. at 446 (emphasis added). Later in the Southern Railway
opinion, the Court expressed its conclusion another way: “[I]t is sufficient here to say that
Congress has so far occupied the field of legislation relating to the equipment of freight cars with
safety appliances as to supersede existing and prevent further legislation on that subject. The
principle is too well established to require argument.” Id. at 447 (emphasis added).
Here, the court cannot conclude from the facts alleged in plaintiff’s Complaint that pipe
insulation in passenger railcars is, as a matter of law, an “appliance intended for the protection of
employees” or a “safety appliance” that falls under the SAA, and thus preempts plaintiff’s state
law claims. Indeed, if the Supreme Court had intended a result as broad as the one defendant
advocates here, Southern Railway could have expressly held that the SAA preempted the entire
field of railway equipment. But it doesn’t. Instead, the opinion limits the preemptive effect of
the SAA to “safety appliances.” Id. at 447.
Notably, our court previously has refused to hold that the SAA preempts the entire field
of railway equipment. In Garay v. Missouri Pacific Railroad Co., the decedent’s heirs brought a
products liability action against a railroad car manufacturer and the railroad company who
owned the car after the decedent was killed unloading beans from a hopper car. 38 F. Supp. 2d
892, 896–97 (D. Kan. 1999). Defendants moved for summary judgment against plaintiffs’
claims, asserting that the SAA preempted them. Id. at 897. Judge Brown disagreed. He first

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recognized that cases applying SAA preemption “involved state regulations of safety equipment
actually mentioned in federal regulations.” Id. at 898. But, “[i]n other cases, the Supreme Court
has suggested that the preemptive effect of the [SAA] extends only to the types of equipment
listed in the statute.” Id. For example, “[i]n Atlantic Coast Line Railroad Co. v. State of
Georgia, 234 U.S. 280 (1914), the Supreme Court held that a Georgia statute requiring
headlights on locomotives was not preempted by the [SAA] because the act did not ‘provide
regulations for locomotive headlights.’” Id. (quoting Atl. Coast Line, 234 U.S. at 293; then
citing Napier v. Atlantic Coast Line R. Co., 272 U.S. 605, 611 (1926) (“Does the legislation of
Congress manifest the intention to occupy the entire field of regulating locomotive equipment?
Obviously it did not do so by the Safety Appliance Act, since its requirements are specific.”)).
Judge Brown also noted that “[t]he [SAA] and its regulations do not provide a definition
of ‘safety appliance,’ but rather contain ‘a strikingly specific laundry list’ of required equipment
for each type of rail car.” Id. (quoting Jordan v. Southern Ry. Co., 970 F.2d 1350, 1352 (4th Cir.
1992)). And, “[a]lthough the Act applies to these specific types of equipment, ‘[n]o other
device, however necessary for safety, falls within its reach.’” Id. (quoting Jordan, 970 F.2d at
1353). Judge Brown thus concluded “that the [SAA] does not subsume the entire field of
devices which could be deemed safety equipment, but only the subject of those devices which
are listed in the statute.” Id. And, because the SAA did not include the devices at issue in
Garay, Judge Brown held that the SAA did not preempt plaintiff’s products liability claims. Id.
Defendant contends that Judge Brown was wrong and thus Garay provides no persuasive
authority. Defendant criticizes Garay because it relied on Jordan—a FELA case—to define the
scope of SAA preemption and never cited Southern Railway, thus “miss[ing] the on-point,
controlling decision.” Doc. 34 at 12. While defendant’s bare proposition is right—Garay is not

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controlling precedent—the court rejects defendant’s argument that Judge Brown was wrong.
Although Garay never cited Southern Railway, its holding does not change Garay’s result. As
already explained, Southern Railway held that the SAA “occupied the field of legislation relating
to the equipment of freight cars with safety appliances as to supersede existing and prevent
further legislation on that subject.” 236 U.S. 447 (emphasis added). This holding is perfectly
consistent with Judge Brown’s conclusion that the SAA did not preempt the Garay plaintiff’s
claims because none of the equipment at issue there was a “safety appliance” under the SAA.
Garay, 38 F. Supp. 2d at 897.
Likewise, here, the court cannot conclude that the facts alleged in plaintiff’s Complaint
establish, as a matter of law, that the pipe insulation found in defendant’s passenger railcars is a
“safety appliance” under the SAA. The court thus declines to grant judgment on the pleadings
on the theory that the SAA preempts plaintiff’s state law claims.
4. No Preemption Based the Two Federal Statutes “Jointly”
Defendant also asserts that the LIA and SAA “jointly preempt” state regulation of train
equipment, including common-law tort actions. Doc. 23 at 12. Defendant argues that
“[t]ogether, [the LIA and SAA] preempt the field of State regulation over locomotives and
railcars” thus preempting “the field of State regulation over train equipment.” Id. at 15. This
argument theorizes that adding the two acts together achieves a result that neither act, by itself,
can achieve. Defendant cites no case law that has reached such a sweeping conclusion. Indeed,
the Third Circuit recently declined a dissenting judge’s invitation to “take the next logical step
on the path Kurns has laid out” and “hold that the LIA preempts all state law claims in the field
of railroad safety.” Del. & Hudson Ry. Co., Inc. v. Knoedler Mfrs., Inc., 781 F.3d 656, 669 (3d
Cir. 2015) (Hardiman, J., dissenting). Instead, the majority held that it was “faithfully applying

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the holding of Kurns, instead of unnecessarily and, in our view, unwisely expanding its language
to cover the situation at issue here, as the dissent would do.” Id. at 664 n.12; see also id. at 661–
68 (holding that the LIA did not preempt a railroad’s indemnification, contribution, and breach
of contract claims against an equipment supplier and maintenance service provider based on
defective train seats).
Nevertheless, defendant argues that the court should combine the Supreme Court cases
governing preemption under the LIA and SAA to conclude that the current law requires
preemption of the entire field of train equipment regulation. See Doc. 23 at 13 (arguing that
“[r]eading the Napier and Southern Railway lines of cases together with Kurns, Congress has
placed train equipment beyond the reach of State regulation of any kind, even the common-law
tort system.”). The existing case law does not support this result.
As discussed above, the court finds that neither the LIA nor SAA, separately, preempts
the entire field of state regulation over train equipment. True, the case law holds that the LIA
preempts the field of state regulation of locomotives. And the SAA preempts the field of state
regulation of safety appliances for railcars. But, none of the case law supports defendant’s
sweeping proposition that these “two statutes operate in tandem to preempt State regulation of
[all] train equipment.” Doc. 34 at 18. The court thus rejects defendant’s preemption argument.
B. Does Plaintiff’s Alternative Claim Asserting Negligence Per Se Based on
Defendant’s Alleged Violation of Two Federal Statutes State a Claim for
Relief?
Alternatively, plaintiff asserts a negligence per se claim under Kansas law, alleging that
defendant violated the standards promulgated by the LIA and SAA. Plaintiff’s Complaint
specifically denies that these two federal statutes preempt her state law claims. Doc. 1-4 ¶ 31.
But, if the court determines that either or both of these two federal statutes preempt her claims,

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plaintiff seeks to assert an alternative state law cause of action based on defendant’s alleged
violation of the LIA and SAA. Id. Plaintiff also explains in her Opposition to defendant’s
motion that if “the Court finds no preemption of Plaintiff’s first three common law causes of
action, then her alternative fourth cause of action for statutory violation becomes moot.” Doc. 31
at 33. This is so “because . . . no relevant federal standard of care under [the] LIA [or] SAA
[would exist] to violate.” Id.
The Federal Rules specifically allow litigants to plead alternative theories of recovery.
See Fed. R. Civ. P. 8(a)(3) (authorizing a party to plead “relief in the alternative or different
types of relief”). The Rules also contemplate inconsistent and even hypothetical statements of a
party’s claim or defense. See also Fed. R. Civ. P. 8(d)(2) (allowing a party to “set out 2 or more
statements of a claim or defense alternatively or hypothetically, either in a single count or
defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if
any one of them is sufficient.”); see also Fed. R. Civ. P. 8(d)(3) (“A party may state as many
separate claims or defenses as it has, regardless of consistency. If a party makes alternative
statements, the pleading is sufficient if any one of them is sufficient.”).
Our Circuit has held that a plaintiff may use evidence of an SAA violation to support a
common law negligence claim. See Miller v. Union Pac. R.R. Co., 900 F.2d 223, 224–25 (10th
Cir. 1990) (affirming trial court’s decision to allow jury to consider defendant’s violation of the
SAA as evidence supporting a common law negligence claim); see also Armstrong v. Kansas
City S. Ry. Co., No. 91-2465-V, 1992 WL 105063, at *2 (D. Kan. Apr. 22, 1992) (holding that “a
cause of action for common law negligence alleging a violation of the Safety Appliance Act—a
negligence per se claim” stated a viable claim for relief). And, although the court has found no
Tenth Circuit authority on this point for the LIA, other courts have concluded that a plaintiff may

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assert state law claims premised on violations of the LIA. See, e.g., Del. & Hudson Ry. Co. v.
Knoedler Mfrs., Inc., 781 F.3d 656, 662 (3d Cir. 2015), cert. denied 136 S. Ct. 54 (2015)
(holding that the LIA does not preempt a state claim “that is premised on a violation of the duties
and standards of care stemming from the LIA itself”); BNSF Ry. Co. v. Seats, Inc., 349 P.3d
1096, 1099–1100 (Ariz. Ct. App. 2015) (holding that the LIA did not preempt a railroad’s statelaw claims alleging that a locomotive seat manufacturer failed to comply with the federal
standard of care established in LIA); Engvall v. Soo Line R.R. Co., 632 N.W.2d 560, 570–71
(Minn. 2001) (holding that “the field preempted by the LIA does not include state common law
actions based on a violation of the LIA” because when applying the federal standard of care in
the LIA “there is no danger of undermining the goal of nationwide uniformity of railroad
operating standards, the primary rationale for holding state law claims preempted.”). The court
finds these cases persuasive.
Defendant asserts three reasons why, it contends, plaintiff cannot assert her alternative
cause of action.4 First, defendant argues that neither the LIA nor the SAA creates a private right
of action. This argument misunderstands plaintiff’s claim. Plaintiff is not asserting a direct
claim against defendant for allegedly violating these federal statutes. Instead, plaintiff asserts a
state law tort claim, alleging negligence per se, based on defendant’s alleged violation of the LIA
and SAA. These claims are cognizable for reasons already explained.

4
Defendant asserts these arguments in its Memorandum Supporting its Motion for Judgment on
the Pleadings. Doc. 23. But defendant’s Reply never responds to plaintiff’s arguments that she has stated
a viable claim based on an alternative theory of relief. Arguably, defendant’s failure to address these
arguments amounts to a waiver of this issue. See In re FCC 11-161, 753 F.3d 1015, 1100–01 (10th Cir.
2014) (rejecting petitioners’ argument because their reply brief was silent on an issue and made no
attempt to rebut the respondents’ argument); see also Cayetano-Castillo v. Lynch, 630 F. App’x 788, 794
(10th Cir. 2015) (holding that an appellant, who does not respond to an argument in its reply brief,
“‘waives, as a practical matter anyway, any objections not obvious to the court to specific points urged by
the appellee’” because the court is not “required to do his work for him and dissect [the appellee’s]
plausible argument” (quoting Hardy v. City Optical, Inc., 39 F.3d 765, 771 (7th Cir. 1994)).
Nevertheless, the court addresses them above.

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Second, defendant argues that plaintiff cannot state a claim based on LIA or SAA
violations because those statutes apply only to “railroad carriers” and not to a supplier or
manufacturer of passenger railcars like defendant. See 49 U.S.C. § 20701 (LIA); 49 U.S.C. §
20302(a) (SAA). But, plaintiff argues, the LIA and SAA share a common penalty provision that
allows the imposition of fines up to $100,000 on any “person” who violates the acts. 49 U.S.C. §
21301(a). And, the governing regulations provide that the statute’s use of “person” includes
“any . . . manufacturer” of railroad equipment who is subject to penalties for violating the acts.
49 C.F.R. § 229.7 (LIA); 49 C.F.R. § 231.0(f) (SAA).
Third, defendant contends that plaintiff’s exclusive remedy is found in FELA. But that
statute imposes liability on the decedent’s employer. 45 U.S.C. § 51 (imposing liability on
“[e]very common carrier by railroad” for injuries to “any person . . . employed by such carrier”
caused by negligence). Here, the decedent’s employer was ATSF, not defendant. And, as
plaintiff explains, litigants commonly add or implead non-employer third parties to FELA
actions to assert state law claims against them. See, e.g., Vanskike v. ACF Indus., Inc., 665 F.2d
188, 194 (8th Cir. 1981) (affirming the trial court’s liability findings against the manufacturer
and the owner of a trailer hitch based on a strict liability theory and against an employer based on
a FELA claim arising from an accident that occurred when plaintiff was unloading a semi-trailer
secured to a railroad flatcar by the trailer hitch); Rucker v. Norfolk & W. Ry. Co., 396 N.E.2d
534, 535 (Ill. 1979) (explaining that the case—one arising from a tank car explosion that killed
an employee—involved strict liability claims against the manufacturer and the lessor of a
petroleum gas tank car and a FELA claim against the employer).
Finally, defendant contends that plaintiff’s Complaint fails to allege that defendant
violated a specific statutory standard. Plaintiff’s alternative claim alleges that defendant violated

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the standard of care promulgated by the LIA and SAA. As explained above, other courts have
determined that these statutes may provide a standard of care to support a common law
negligence claim. The court thus concludes that plaintiff’s alternative claim states a claim for
relief sufficient to survive defendant’s Motion for Judgment on the Pleadings.
In sum, the court concludes that none of defendant’s arguments preclude plaintiff’s
alternative claim for relief. The court thus denies defendant’s Motion for Judgment on the
Pleadings against this alternative claim.
V.

Conclusion
For reasons explained above, the court denies defendant’s Motion for Judgment on the

Pleadings under Fed. R. Civ. P. 12(c).
IT IS THEREFORE ORDERED BY THE COURT THAT defendants’ Motion for
Judgment on the Pleadings (Doc. 22) is denied
IT IS SO ORDERED.
Dated this 12th day of January, 2018, at Topeka, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

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