Huntsinger v. BNSF Railway Co.286 Or App 84 (2017)

Under 49 U.S.C. § 20701, “when a railroad carrier’s customary processes for preparing an outbound locomotive for departure are complete, and the locomotive will not undergo further comprehensive inspections, it is appropriate to regard the railroad carrier as having allowed the locomotive to be put ‘in use.’”

Plaintiff, a railroad employee (Employee), appealed the trial court’s grant of summary judgment in favor of Defendant, BNSF Railroad Company (Employer), dismissing Employee’s negligence claims based on Employer’s alleged violations of the Locomotive Inspection Act, 49 U.S.C. §§ 20701-20703, and associated federal regulations.  Employee assigned error to the trial court’s determination that the locomotive that injured Employee was not “in use” at the time of the Employee’s injuries. See 49 U.S.C. § 20701. Under 49 U.S.C. § 20701, fact that a locomotive has been removed from regular service for repairs does not mean that the locomotive is not "in use," as required to establish liability under the Locomotive Inspection Act. “The focus of the ‘in use’ inquiry must be to determine whether, in effect, the railroad carrier had released into a service a locomotive that it has deemed to be ‘in proper condition and safe to operate,’ see 49 U.S.C. § 20701, regardless of whether further predeparture activities were required before the train as a whole was ready to depart.” The Court of Appeals held that “when a railroad carrier’s customary processes for preparing an outbound locomotive for departure are complete, and the locomotive will not undergo further comprehensive inspections, it is appropriate to regard the railroad carrier as having allowed the locomotive to be put ‘in use.’” 49 U.S.C. § 20701. Therefore, the trial court erred in granting summary judgment in favor of Employer because the Court Remanded for further proceedings.