Carter v. BNSF Railway Co., No. 1 CA-CV 23-0164 (App. Div. I, June 25, 2024) (J.Cattani)) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2024/1%20CA-CV%2023-0164.pdf

LOCOMOTIVE PARKED ON SIDERAIL AWAITING REPAIRS IS NOT “IN USE” TO CREATE STRICT LIABILITY FOR INJURY AGAINST RAILWAY COMPANY UNDER FEDERAL LOCOMOTIVE INSPECTION ACT

 Plaintiff was a locomotive engineer working for defendant BNSF Railway Company [BNSF]. Plaintiff was moving a locomotive to a sidetrack to assemble a train when he noticed it was leaking oil badly. Because BNSF did not have a repair or maintenance facility in the area, he moved to the locomotive to a spot on the track known as “Bad Order Spot” to await inspection and repair.  As plaintiff exited the locomotive, onto the catwalk, he slipped on oil and injured his knee.

Plaintiff sued BNSF under the Federal Employers' Liability Act claiming BNSF was strictly liable for his injury under the federal Locomotive Inspection Act [LIA] in violation of safety regulations. Plaintiff also sued for simply negligence. BNSF moved for partial summary judgment on the LIA claim asserting the locomotive was not “in use” at the time of the injury, an admitted prerequisite or liability under the LIA. The trial court granted the motion and certified the judgment as appealable under Ariz. R. Civ. P. 54(b).  The Arizona Court of Appeals affirmed the trial court.

The rule is that a train car that has reached a “place of repair” is not “in use.” Here, while the locomotive was originally in use, when plaintiff observed the oil leak he moved it to the Bad Order Spot where  he parked it for inspection and any necessary repair. As such it was not “in use” at the time of his injury and BNSF was properly granted partial summary judgment on this theory.