United States District Court, C.D. Illinois, Peoria Division
SHERYL JOHNSON, Administrator of the Estate of Chris Johnson, Deceased, Plaintiff,
DECATUR JUNCTION RAILWAY, CO., Defendant.
BYRON G. CUDMORE, Magistrate Judge.
This matter comes before the Court on Plaintiff's Motion for Partial Summary Judgment (d/e 36) (Motion). The parties consented to have this case heard before this Court. Consent to the Exercise of Jurisdiction by a United States Magistrate Judge and Reference Order entered March 23, 2012 (d/e 13). The parties have thoroughly briefed this matter. Therefore, Defendant Decatur Junction Railway, Co.'s (DJR) request for oral argument is denied. For the reasons set forth below, the Motion is DENIED.
On November 2, 2011, Chris Johnson filed this action against DJR, alleging a claim under the Federal Employer's Liability Act, 45 U.S.C. § 51 (FELA). Complaint (d/e 1). Chris Johnson alleged that on September 23, 2010, his hearing was injured while he was employed by DJR to repair a railroad locomotive operated by DJR. Chris Johnson subsequently died during the pendency of this case, and Plaintiff Sheryl Johnson (Johnson), Administrator of the Estate of Chris Johnson, deceased, was substituted in as Plaintiff. Text Order entered July 30, 2013.
Johnson moves for partial summary judgment on the grounds that DJR violated safety regulations for protection of employees' hearing promulgated by the Federal Railroad Administration (FRA), 49 C.F.R. § 227.101(b). Part 227 of the FRA regulations set forth rules for conserving the hearing of train employees. Section 227.101(a) provides that Part 227 applies only to "train employees, " as defined in that subsection. 49 C.F.R. § 227.101(a). Section 227.101(b) provides:
(b) Occupational noise exposure and hearing conservation for employees not covered by this subpart is governed by the appropriate occupational noise exposure regulation of the U.S. Department of Labor, Occupational Safety and Health Administration located at 29 CFR 1910.95. 49 C.F.R. § 227.101(b). The parties agree that Chris Johnson was not a train employee subject to Part 227 on September 23, 2010. Thus, Chris Johnson was covered by the noise exposure and hearing conservation regulations promulgated by the U.S. Department of Labor, Occupational Safety and Health Administration (OSHA). Johnson presents evidence that DJR violated these regulations. See Motion, Statement of Undisputed Fact, ¶¶ 30-39.
Based on this evidence and applicable law, Johnson asks the Court to find that DJR was negligent per se and that DJR is barred from asserting contributory negligence as a defense. Under FELA, a railroad common carrier employer's violation of certain safety regulations is negligence per se. Coffey v. Northeast Illinois Regional Commuter R. Corp. (METRA) , 479 F.3d 472, 477 (7th Cir. 2007). Furthermore, the employer is barred from asserting contributory negligence as a defense. 45 U.S.C. § 53. Johnson asks this Court to determine as a matter of law that DJR's violation of applicable noise exposure and hearing conservation regulations constituted negligence per se and precludes DJR from asserting contributory negligence as an affirmative defense.
Resolution of the Motion depends on whether DJR violated OSHA regulations or FRA safety regulations. If the applicable regulations promulgated under FRA's authority to regulate railroad safety, then a violation of the noise regulations would be negligence per se and would preclude the affirmative defense of contributory negligence. See e.g., Crane v. Cedar Rapids & I. C. Ry. Co , 395 U.S. 164, 166 (1969); Coffey , 479 F.3d at 477; Ries v. National R.R. Passenger Corp. , 960 F.2d 1156, 1159 (3d Cir. 1992).
If the applicable regulations are promulgated under OSHA's authority to regulate workplace safety generally, then the Court must address whether a violation of those regulations triggers the FELA rules of negligence per se and preclusion of a contributory negligence defense. The Circuit Courts of Appeals have split on the effect of violations of OSHA regulations in FELA cases. See Practico v. Portland Terminal Co. , 783 F.2d 555, 263 (1st Cir. 1985) (OSHA regulation violation triggers negligence per se and no contributory negligence defense rule in FELA cases); but see Jones v. Spentonbush-Red Star Co. , 155 F.3d 587, 596 (2d Cir. 1998) (OSHA regulation violation does not trigger negligence per se and no contributory negligence defense rule in FELA cases); Robertson v. Burlington Northern R. Co. , 32 F.3d 408, 410 (9th Cir. 1994) (same); Ries , 960 F.2d at 1164-65 (same); Albrecht v. Baltimore & Ohio R. Co. , 808 F.2d 329, 332-33 (4th Cir. 1987) (same). The Seventh Circuit has not ruled on the matter.
The applicable regulations in this case were promulgated under OSHA's authority to regulate workplace safety generally and not under the FRA's authority to regulate railroads, including railroad safety. Congress established OSHA to regulate workplace safety throughout the economy. See 29 U.S.C. § 651. Congress, however, also established certain agencies to regulate specific industries. The FRA is one such agency. The FRA is authorized to regulate railroads, including workplace safety. 49 U.S.C. § 20103(a); 49 C.F.R. § 1.89. Congress recognized that conflicts could arise between OSHA standards and safety regulations promulgated by agencies such as FRA. Congress provided if agencies such as FRA "exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health, " then such regulations preempt the general OSHA regulations. 29 U.S.C. § 653(b)(1); see Association of American Railroads v. Department of Transp. , 38 F.3d 582, 587 (D.C. Cir. 1994).
The FRA initially attempted to promulgate safety regulations under a "territorial approach" that would govern all aspects of the railroad industry. In 1978, FRA terminated this rulemaking. Railroad Occupational Safety and Health Standards; Termination, 42 Fed. Reg. 10583 (March 14, 1978). The FRA determined that it lacked the resources to regulate all aspects employee workplace safety. In doing so, FRA issued a Policy Statement setting forth the relationship between FRA safety regulations and OSHA safety regulations. The FRA explained that it decided to exercise its regulatory authority to regulate workplace safety only in the area of railroad operations:
As is reflected by the termination notice set forth above, FRA has decided to focus its resources and energies for the immediate future on the safety of railroad operations. As used herein, "railroad operations" refers to the movement of equipment over the rails.
42 Fed. Reg. at 10585. The FRA explained that it would not preempt OSHA's jurisdiction over workplace safety in other parts of the railroad industry:
As noted above, FRA has determined that a territorial approach to the exercise of its statutory jurisdiction over railroad safety... would deplete energies and resources better devoted to the safety of railroad operations. If FRA were to address all occupational safety and health issues which arise in the railroad yards, shops, and associated offices, the agency would be forced to develop a staff and field capability which, to an extent, would duplicate the capability already possessed by OSHA. In view of this situation, FRA recognizes that OSHA currently is not precluded from exercising jurisdiction with respect to conditions not rooted in ...