William R. Fletcher v. Chicago Rail Link, L.l.c.

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1609
WILLIAM R. FLETCHER,
Plaintiff-Appellee,
v.
CHICAGO RAIL LINK, L.L.C.,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 C 842—Matthew F. Kennelly, Judge.
ARGUED OCTOBER 29, 2008—DECIDED MAY 28, 2009
Before POSNER, MANION, and KANNE, Circuit Judges.
POSNER, Circuit Judge. The plaintiff, a railroad employee
whose job required him to drive a utility vehicle that
transports equipment for use in a railroad yard, was
injured in a collision with another vehicle (driven by a
person having no connection with the railroad) on a street
in the yard. He sued the railroad under the Federal Em-
ployers Liability Act, 45 U.S.C. §§ 51 et seq., claiming
that the accident had been caused by the railroad’s fail-
ure to maintain the SUV in a safe condition or warn him
that it was unsafe.

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2 No. 08-1609
The jury awarded him damages in excess of $700,000,
but also found that his own negligence made him
50 percent responsible for the accident. That finding would
have cut his damages in half unless a violation by his
employer “of any statute enacted for the safety of em-
ployees” had contributed to the accident. 45 U.S.C. § 53;
see also § 54. The judge found the exception satisfied and
so awarded the plaintiff his full damages. The railroad, the
judge ruled, had violated a regulation issued by the Illinois
Commerce Commission that requires that company motor
vehicles used by railroad workers in their work be main-
tained in a safe condition. 92 Ill. Admin. Code § 1550.40.
A regulation is not a statute, and a state statute is not a
federal statute, and the Supreme Court has held that “any
statute” in 45 U.S.C. § 53 means any federal statute
designed to promote railroad safety. Seaboard Air Line Ry.
v. Horton, 233 U.S. 492, 503 (1914); see also Pratico v.
Portland Terminal Co., 783 F.2d 255, 267-68 (1st Cir. 1985);
Chicago Great Western Ry. Co. v. Peeler, 140 F.2d 865, 869 (8th
Cir. 1944); Columbia & P.S.R. Co. v. Sauter, 223 F. 604, 610
(9th Cir. 1915). But in 1970, in section 208(d) of the Federal
Railroad Safety Act, Pub. L. 91-458, 84 Stat. 971-94 (1970),
Congress provided that “any statute” in section 53
includes “rules, regulations, standards, and requirements
in force, or prescribed or issued . . . by any State agency
which is participating in investigative and surveillance
activities pursuant to” 49 U.S.C. § 20105. Section 208(d),
first codified as 45 U.S.C. § 437(c), is now codified as 45
U.S.C. § 54a. The current language is slightly different from
the original language (the current language is that “a
regulation, standard, or requirement in force, or prescribed

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No. 08-1609 3
by . . . a State agency that is participating in investigative
and surveillance activities under section 20105 of Title 49
is deemed to be a statute under sections 53 and 54 of this
title”). But the meaning is unchanged. H.R. Rep. No. 180,
103d Cong., 1st Sess. 1, 5, 492 (1993).
So we go to section 20105(a) and discover that it pro-
vides that the Secretary of Transportation “may prescribe
investigative and surveillance activities necessary to
enforce . . . [his] safety regulations” and that a “State
may participate in those activities when the safety
practices . . . are regulated by a State authority.” Illinois is
a participant. “State Railroad Safety Technical Training
Funding Agreement” between the Illinois Rail Safety
Program Administrator and the Associate Administra-
tion for Safety of the Federal Railroad Administration,
Feb. 14, 2005; “State Rail Safety Program Man-
agers,”www.fra.dot.gov/downloads/safety/StateManager
s2009.pdf (visited Apr. 28, 2009). The district judge ruled
that any regulation of railroad worker safety (such as the
vehicular-safety provision of the Illinois Administrative
Code) issued by a state that participates in the investiga-
tive and surveillance activities specified in section 20105,
as Illinois does, is a safety statute encompassed by
45 U.S.C. § 54a.
The railroad argues that only state regulations (stan-
dards, requirements, etc.) that enforce “federal railroad
safety laws,” a term defined in a regulation issued by
the Department of Transportation, 49 C.F.R. § 212.3(d),
qualify under section 54a; and the plaintiff points to no
such law that regulates the use of motor vehicles by

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4 No. 08-1609
railroad workers. The railroad’s interpretation is
plausible, but we need not adopt (or for that matter
reject) it in order to decide the case.
Section 54a of Title 45 and section 20105(a) of Title 49,
when they are read together, make clear that state reg-
ulations, requirements, etc., are deemed federal safety
regulations only when they make the state a participant
in the enforcement of such regulations. The district judge
disregarded this limitation because the Illinois regula-
tion in question had been in force when the original of
section 54a was enacted and he thought that therefore it
did not have to relate to any federal regulation. But on
that view, Congress gave the force of federal law to all
state railroad safety regulations in existence then even if
they did not further federal goals, and this is neither a
plausible interpretation nor one compelled by the
language of the statute or its legislative history. See H.R.
Rep. No. 1194, 91st Cong., 2d Sess. 22 (1970); S. Rep. No.
619, 91st Cong., 1st Sess. 12, 25 (1969). Section 54a requires
treating state regulations that support or implement
federal safety norms as if they were federal regulations,
but there is no basis for thinking that the statute
goes further than that. Why would Congress want the
federal courts to enforce state safety regulations (in this
case, by doubling a damages award on the basis of such
a regulation) unrelated to any safety concerns of federal
law?
The district judge’s interpretation would lead to irratio-
nal disparities in the enforcement of section 54a. Sup-
pose Indiana unlike Illinois does not participate in the

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No. 08-1609 5
section 20105 program (in fact, as far as we can deter-
mine, it does not, “State Rail Safety Program Managers,”
w w w . f r a . d o t . g o v / d o w n l o a d s / s a f e t y / S t a t e
Managers2009.pdf (visited Apr. 28, 2009)). Then if it had a
vehicular-safety regulation identical to section 1550.40 of
the Illinois Administrative Code, that regulation would not
be treated as a safety statute under the FELA, though
Illinois’s would be. The difference in treatment, which
would affect damages awards in FELA cases, would make
no sense. The FELA would mean one thing in Illinois and
another thing in Indiana even with regard to identical
accidents in two states that had identical safety regulations.
This would be contrary to Congress’s determination that
“laws, regulations, and orders related to railroad
safety . . . shall be nationally uniform to the extent practica-
ble.” 49 U.S.C. § 20106(a)(1); see also H.R. Rep. No. 1194,
supra, at 11-12.
This anomaly would disappear if by virtue of Illinois’s
participation in the section 20105 program the violation
of a federal railroad safety regulation was less likely in
Illinois because Illinois engaged in investigative and
surveillance activities in support of a federal regulation.
Federal law regulates the carriage by rail of materials that
could be hazardous to workers, and Illinois, as part of its
participation in the section 20105 program, requires reports
concerning such materials in order to assist state and
federal safety inspectors in assuring compliance with
the federal standard. “Inspections Program,” Illinois
Commerce Commission, available at http://www.
icc.illinois.gov/railroad/InspectionsProgram.aspx (visited
Apr. 28, 2009); see 49 U.S.C. § 20105(b)(1)(B). That require-

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6 No. 08-1609
ment, which we assume is not duplicated in all states,
nevertheless does not create a disuniformity in federal
railroad worker safety standards, whether substantive or
(as in this case) remedial, across states. It just means that
some states are aiding in the enforcement of a federal
standard, and others not.
Illinois’s participation in a reporting program is not the
best example of a safety regulation that if violated would
increase a plaintiff’s damages, 45 U.S.C. §§ 53, 54, 54a,
because it is unlikely that violating a reporting require-
ment would contribute to an accident—though it could,
if as a result of the failure to file a report on some hazard-
ous material the hazard was not discovered until a
worker had been injured by it. We haven’t found better
examples, however, and the reason seems to be the com-
prehensiveness of the federal regulation of railroad safety.
The state of Washington, for example, is like Illinois a
participant in the section 20105 program, “State Rail Safety
Program Managers,” www.fra.dot.gov/downloads/
safety/StateManagers2009.pdf (visited Apr. 28, 2009), but
it has been content to adopt by reference federal railroad
safety regulations, and then—in order to discharge its
duty of investigation and surveillance—to provide that all
violations of the incorporated safety provisions “will be
submitted to the Federal Railroad Administration for
enforcement action pursuant to” the state’s participation
in the federal program. E.g., Wash. Admin. Code § 480-62-
200(l)(3).
The railroad also quarrels with some of the expert
evidence presented at the trial of this case, but we do not

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No. 08-1609 7
think that the district judge abused his discretion in
allowing the jury to consider that evidence. So the deter-
mination of liability is affirmed, but the damages must
be halved.
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED WITH DIRECTIONS.
5-28-2009

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