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Higdon v. Keolis Commuter Services, LLC

United States District Court, D. Massachusetts

January 29, 2018

KIMBERLY HIGDON, Plaintiff,
v.
KEOLIS COMMUTER SERVICES, LLC, Defendant.

          MEMORANDUM AND ORDER RE: MOTIONS IN LIMINE (DOCKET ENTRY ## 32, 40, 41)

          MARIANNE B. BOWLER UNITED STATES MAGISTRATE JUDGE

         Pending before this court are the above motions in limine. (Docket Entry ## 32, 40, 41). The motions raise complicated issues of the application of an Occupation Health and Safety Act (“OSHA”) negative preemption statute, 29 U.S.C. § 653(b)(1) (“section 653(b)(1)”); a comparative negligence bar under the Federal Employers' Liability Act (“FELA”) when a safety statute applies, 45 U.S.C. § 53 (“section 53”); and the continued viability in certain respects of the First Circuit's decision in Pratico v. Portland Terminal Co. decision, 783 F.2d 255 (1st Cir. 1985) (“Pratico”). More specifically, the issues include: (1) whether to exclude the aisles and passageways OSHA regulation, 29 C.F.R. § 1910.22(b)(1) (2015), plaintiff Kimberly Higdon (“plaintiff”) cites from evidence as subject to preemption under section 653(b)(1); (2) whether a violation of the regulation constitutes negligence per se or only evidence of negligence on the part of defendant Keolis Commuter Services, LLC (“Keolis”); and (3) whether the regulation is a safety statute under section 53 which precludes any reduction of a recovery based on plaintiff's negligence.

         I. Section 653(b)(1) Bar

         Turning to the first issue, the OSHA regulation applies only if OSHA's so-called “negative preemption” provision in section 653(b)(1) does not oust OSHA of its regulatory authority in the circumstances of this case. See Clark v. Providence and Worcester Railroad Co., Civil Action No. 09-10328-FDS, 2011 WL 3236087 (D. Mass. July 26, 2011).[1] Section 653(b)(1) provides that:

(b)(1) Nothing in this chapter shall apply to working conditions of employees with respect to which other Federal agencies . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

29 U.S.C. § 653. As explained by the First Circuit in PBR, Inc. v. Secretary of Labor, 643 F.2d 890 (1st Cir. 1981), the exemption in section 653:

is activated by statutory authority in another agency and an actual exercise of such authority by the agency. Southern Pacific Transportation Co. v. Usery, 539 F.2d 386, 389 (5th Cir. 1976). The exemption does not oust OSHA of its regulatory authority where such an agency has regulatory authority but has not exercised such authority.

PBR, Inc. v. Secretary of Labor, 643 F.2d 890, 896 (1st Cir. 1981). The twofold inquiry therefore requires: (1) the existence of statutory authority in another agency; and (2) the actual exercise of that authority by the agency. Id.

         As to the first line of inquiry, Keolis aptly points out that the Federal Railway Safety Act, 49 U.S.C. §§ 20101-21311, endowed the Department of Transportation, acting through the Federal Railroad Administration (“FRA”), with broad powers to “‘prescribe regulations and issue orders for every area of railroad safety.'” (Docket Entry # 40) (quoting 49 U.S.C. § 20103). Moreover, as stated in a decision by the Occupational Safety Health Review Commission, “There is no doubt that the FRA has the statutory authority to regulate the safety of employees in the railroad industry.” Consolidated Rail Corp., 10 O.S.H. Cas. (BNA) ¶ 1577 (O.S.H.R.C. Apr. 30, 1982) (“Conrail”); see 49 U.S.C. § 20101. Keolis is therefore correct.

         The second aspect of the inquiry turns upon the existence of the “actual exercise of” FRA's authority. PBR, Inc., 643 F.2d at 896. Keolis submits that a 1978 policy statement (Docket Entry # 40-2) which, to quote the statement, concerns “the relationship between the respective jurisdictions of FRA and OSHA, ” 43 Fed. Reg. 10584 (March 14, 1978), is an actual exercise of FRA's authority. (Docket Entry # 40). Plaintiff maintains that the policy statement was not an exercise of FRA's authority and, relying on Pratico, 783 F.2d at 262, notes there is no FRA regulation “addressing safety on the aisles and passageways around trains in a coach house.” (Docket Entry # 49, p. 2) (Docket Entry # 32, p. 2).

         Overall, the policy statement provides that OSHA regulations apply subject to “three principal exceptions.” 43 Federal Registrar 10587 (March 14, 1978). In pertinent part, the policy statement states that:

OSHA regulations concerning working surfaces deal with such matters as ladders, stairways, platforms, scaffolds and floor openings. Generally, these regulations are applicable in railroad offices, shops, and other fixed work places. There are however three principal exceptions to the rule.

43 Fed. Reg. 10587 (emphasis added). Keolis relies on two of these “three principal exceptions” to the applicability of the OSHA aisles and passageways regulation. (Docket Entry # 40).

         A. Rolling Stock Exception

         First, Keolis cites the exception applicable to “the safe movement of rolling stock through railroad repair shops.” 43 Fed. Reg. 10587. The applicable language in the policy statement provides that:

. . . [A]s the agency which has exercised jurisdiction over railroad operations, FRA is responsible for the safe movement of rolling stock through railroad repair shops. OSHA requirements for general industry are in some respects inconsistent with the optimum safety of employees in this unique environment where hazards from moving equipment predominate. Therefore, OSHA regulations on guarding of open pits, ditches, etc., would not apply to inspection pits in locomotive or car repair facilities. FRA is better equipped to assess proper clearance technology and employee knowledge of existing industry practices as well as the relevance and severity of hazards represented by specific injury occurrence codes in ...

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