United States District Court, D. Massachusetts
MEMORANDUM AND ORDER RE: MOTIONS IN LIMINE (DOCKET
ENTRY ## 32, 40, 41)
MARIANNE B. BOWLER UNITED STATES MAGISTRATE JUDGE
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.
Section 653(b)(1) Bar
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). 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.
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.
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,
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).
Rolling Stock Exception
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 ...