DELAWARE & HUDSON RAILWAY COMPANY, INC. doing business as Canadian Pacific Railway; Soo Line Railroad Company doing business as Canadian Pacific Railway; Canadian Pacific Railway Limited, Appellants, v. KNOEDLER MANUFACTURERS, INC.; Durham Industrial Sales, Inc.
No. 13-3678
United States Court of Appeals, Third Circuit
Argued Sept. 9, 2014. Filed: Jan. 9, 2015.
781 F.3d 656
For the foregoing reasons, we will affirm the judgment of the District Court. The Torres’ motion to strike Liberty‘s brief for untimely service is denied.
Am. Bankers Ins. Co. of Fla., No. 1:12-cv-022, 2013 U.S. Dist. LEXIS 183163 (D.N.D. Mar. 18, 2013), rev‘d on other grounds, 739 F.3d 397 (8th Cir. 2014). In that case, the Court concluded that the provision does indeed cover the removal of non-owned debris from the land. See id. at *18-22. The Court in Dickson did not address Keating, however, and it provided very little reasoning and no legal support for its conclusion. For these reasons and those explained above, Dickson is not persuasive on this point.
Matthew R. Planey, Esq., (Argued), Crabbe, Brown & James, Columbus, OH, Stuart H. Sostmann, Esq., Marshall, Dennehey, Warner, Coleman & Goggin, Pittsburgh, PA, for Appellee, Knoedler Manufacturers Inc.
George T. McCool, Jr., Esq., (Argued), Wright & O‘Donnell, Conshohocken, PA, for Appellee, Durham Industrial Sales Inc.
Before: FISHER, JORDAN, and HARDIMAN, Circuit Judges.
OPINION OF THE COURT
JORDAN, Circuit Judge.
This case requires us to determine the scope of federal preemption under the Locomotive Inspection Act (“LIA“),
I. BACKGROUND
A. Statutory and Regulatory Background
The LIA provides that “a locomotive and its parts and appurtenances” must be “in proper condition and safe to operate without unnecessary danger of personal injury.”1
Once an employer has been found liable in a FELA action, “it accords with the FELA‘s overarching purpose to require the employer to bear the burden of identifying other responsible parties and demonstrating that some of the costs of the injury should be spread to them.” Norfolk & W. Ry. Co. v. Ayers, 538 U.S. 135, 165 (2003); see also Ellison v. Shell Oil Co., 882 F.2d 349, 353 (9th Cir. 1989) (“FELA‘s purpose of providing recovery for injured workers is not defeated by permitting an employer to recoup its losses in part or in full from a third party, when the circumstances and state law permit.“).
B. Factual History2
General Electric (“GE“) built and maintained the locomotives at issue in this case, under a contract it had with Canadian Pacific. Pursuant to that agreement, Canadian Pacific directed GE to install seats purchased from Knoedler. GE complied, and Knoedler “agreed to provide seats of suitable quality to prevent seat failures, and suitable for use in Canadian Pacific‘s locomotives, in the future.” (App. at 50.)
In the late 1990s and early 2000s, GE and Canadian Pacific became aware of problems with seat safety and identified defects that were causing the seats to break. GE discussed the nature of the defects and the repair process with Knoedler but grew concerned that Knoedler would be unable to make the necessary repairs. To allay that concern, Knoedler introduced GE to Durham and “promised that Durham had the expertise and capacity to repair the seats on Knoedler‘s behalf.” (Appellant‘s Opening Br. at 6-7.)
GE and Durham subsequently entered into a contract under which “Durham agreed to refurbish the Knoedler Seats in such a way as to prevent future seat failures.” (App. at 51.) Despite those repair efforts, the seats continued to break and, as a consequence, four Canadian Pacific employees were injured. The railroad eventually settled with its employees for a total of approximately $2.7 million. Thereafter, it sought to recoup its losses from Knoedler and Durham.
Canadian Pacific filed this action against Knoedler and Durham on December 16, 2011, asserting claims for indemnification, contribution, breach of contract (with Canadian Pacific claiming the rights of a third-party beneficiary), product liability, and negligence under Pennsylvania law. On March 9, 2012, Knoedler filed a motion to dismiss the complaint. In response, the railroad filed its First Amended Complaint on March 30, 2012, reasserting the same claims but clarifying that the claims were based on the Appellees’ violations of the LIA and their breach of contractual promises to provide LIA-compliant seats.3 Shortly thereafter, Durham and Knoedler filed their motions to dismiss the First Amended Complaint.
On February 12, 2013, the District Court issued an Order and Memorandum Opinion dismissing Canadian Pacific‘s indemnification and contribution claims with prejudice,4 concluding that they were preempted by the LIA. The Court also dismissed the breach-of-contract claims, saying that the company had not adequately pled its status as a third-party beneficiary. The Court did, however, allow Canadian Pacific to amend its contract claims, and it did so, providing additional details about its standing as a third-party beneficiary of the contracts. On August 1, 2013, the Court issued a second Order and Memorandum Opinion dismissing the breach-of-contract claims, concluding that they were also preempted under the LIA. Canadian Pacific timely appealed both of the District Court‘s Orders.
II. DISCUSSION5
Canadian Pacific raises two arguments on appeal: first, that its indemnification and contribution claims are not preempted by the LIA because they are premised on a violation of federal standards set by the LIA and accompanying regulations, and, second, that its breach-of-contract claims are not preempted by the LIA because they are premised on a violation of express contractual duties. We address those arguments in turn.
A. Preemption of Canadian Pacific‘s Indemnification and Contribution Claim
Congressional power to preempt state law derives from the Supremacy Clause of the Constitution, which provides that federal law “shall be the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
The Supreme Court recently revisited the preemptive effect of the LIA in Kurns, in which it affirmed our decision upholding the dismissal of an action for injuries from defective locomotive parts. 132 S. Ct. at 1270. The plaintiffs in Kurns asserted design-defect and failure-to-warn claims against locomotive equipment manufacturers. Specifically, the plaintiffs argued that, under Pennsylvania law, the equipment was defectively designed because it contained asbestos and that the manufacturers failed to warn them about dangers posed by asbestos exposure. Id. at 1264-65. The Supreme Court rejected those claims, recognizing that they were “directed at the equipment of locomotives,” id. at 1269, and “f[e]ll within the [preempted] field ... defined in Napier,” id. at 1270. In so ruling, the Kurns Court also rejected the plaintiffs’ argument that “the LIA‘s pre-emptive scope does not extend to state common-law claims, as opposed to state legislation or regulation.” Id. at 1269.
Knoedler and Durham incorrectly read Napier and Kurns to say that all state claims regarding the design and manufacture of locomotive equipment are preempted by the LIA. But those decisions did not speak so broadly. They were explicit in holding, and only holding, that a state may not impose its own duties and standards of care on the manufacture and maintenance of locomotive equipment. See Kurns, 132 S. Ct. at 1269 (“We therefore conclude that state common-law duties and standards of care directed to the subject of locomotive equipment are pre-empted by the LIA.“); Napier, 272 U.S. at 613 (“[R]equirements by the states [regarding locomotive equipment] are precluded, however commendable or however different their purpose.“). The question left unanswered by Napier and Kurns is whether the LIA preempts a state claim that is premised on a violation of the duties and standards of care stemming from the LIA itself; in other words, whether a state claim based on a federal standard of care is preempted. We conclude that it is not.
While there is no Supreme Court authority exactly on point, there are plenty of strong hints that such an avenue to relief is not foreclosed. The Court has held in other statutory contexts that violations of federal law can be redressed through state common-law claims. See, e.g., Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 258 (1984) (concluding that a state-law remedy based on a violation of the Atomic Energy Act was not preempted); see also Abdullah v. Am. Airlines, Inc., 181 F.3d 363, 367 (3d Cir. 1999) (noting that “[f]ederal preemption of the standards of care can coexist with state and territorial tort remedies” and holding that state law remedies for a violation of the Federal Aviation Act were not preempted).7 More particularly, in the context of railroad safety laws, state-law claims have been permitted as a means to redress federal violations. For example, in Crane v. Cedar Rapids & Iowa City Railway Co., the Supreme Court stated that a railroad employee can enforce a violation of the Safety Appliance Acts
Those cases are particularly relevant here, as the SAAs are analogous to the LIA in many important respects. The SAAs, like the LIA, regulate locomotive equipment.9
With respect to preemption, both the LIA and the SAAs have broad preemptive scope. See Kurns, 132 S. Ct. at 1267 (“Congress, in enacting the LIA, ‘manifest[ed] the intention to occupy the entire field of regulating locomotive equipment.‘” (alteration in original) (quoting Napier, 272 U.S. at 611)); Gilvary v. Cuyahoga Valley Ry. Co., 292 U.S. 57, 60-61 (1934) (“So far as the safety equipment of [railroad] vehicles is concerned, [the SAAs] operate to exclude state regulation whether consistent, complementary, additional, or otherwise.“). It is true that Napier suggested that the scope of the SAAs’ preemption is
Furthermore, congressional intent—which is “the ultimate touchstone of preemption analysis,” Abdullah, 181 F.3d at 365 (citation and internal quotation marks omitted)—suggests that state law remedies are not preempted under the LIA. Congress‘s silence with respect to state-law remedies “takes on added significance in light of [its] failure to provide any federal remedy” for LIA violations. Silkwood, 464 U.S. at 251 (analyzing Congressional intent regarding the scope of preemption under the Atomic Energy Act). If we were to hold that state law claims asserting a violation of the LIA are preempted, railroads would be left with no remedy, no matter how obvious or egregious the liability of an equipment supplier.13 We are not commenting on
There are other railroad-related cases in which the Supreme Court has approved, in fact encouraged, the use of state-law claims to redress violations of federal law. For example, in Norfolk & Western Railway Co. v. Ayers, the Court declined to allow the defendant railroad to have FELA damages apportioned to third-party tortfeasors who contributed to plaintiffs’ asbestos-related injuries. 538 U.S. at 143. The problem was not with making the third-party tortfeasors share the load. The problem was with making that sharing a matter of dispute in the FELA action, so that the injured employee had to engage in the fight over apportioning fault. The Supreme Court stated that “[o]nce an employer has been adjudged negligent ... it accords with the FELA‘s overarching purpose to require the employer to bear the burden of identifying other responsible parties and demonstrating that some of the costs of the injury should be spread to them.” Id. at 165. In so concluding, the Court relied on the “numerous FELA decisions ... recognizing that FELA defendants may bring indemnification and contribution actions against third parties under otherwise applicable state or federal law.” Id. at 162.
One of those FELA decisions was Engvall v. Soo Line Railroad Co., in which the Supreme Court of Minnesota held that, in circumstances nearly identical to those here, state-law claims redressing violations of the LIA are not preempted. See 632 N.W.2d 560, 571 (Minn. 2001) (holding that a railroad‘s third-party complaint seeking contribution and/or indemnification from an equipment manufacturer to recoup FELA losses was not preempted because the railroad‘s claims were based on violations of the LIA, not state standards). The District Court rejected Engvall, noting that it has been criticized by other courts.15 But the one Court we must attend to most carefully, the Supreme Court,
Furthermore, the policy behind preemption does not support excluding the state-law claims at issue here. The primary rationale for federal preemption in the field of railroad safety regulation is national uniformity. Preemption allows railroad carriers to abide by a single set of national equipment regulations, instead of having to meet different standards and, potentially, to change equipment when a train crosses state lines. Kurns, 620 F.3d at 398 (“The goal of the LIA is to prevent the paralyzing effect on railroads from prescription by each state of the safety devices obligatory on locomotives that would pass through many of them.” (citation and internal quotation marks omitted)). It is therefore clear why Napier and Kurns did not allow states to impose their own standards of care—either through state regulations or through state tort liability—with respect to locomotive equipment. But the enforcement under state law of a federal standard of care does not undermine national uniformity because it does not impose conflicting regulations that a railroad must heed during interstate travel.
Congress itself has indicated that the goal of uniform railroad operating standards is not undermined when state-law claims are used to enforce federal law. For example, Congress explicitly stated in the Federal Railroad Safety Act that state law claims seeking damages for federal violations are not preempted.
B. Preemption of Canadian Pacific‘s Breach-of-Contract Claims
Canadian Pacific‘s breach-of-contract claims also should have survived the motions to dismiss. As noted earlier, the railroad argues that both Knoedler and Durham breached their contractual obligations to supply GE with LIA-compliant seats. Claiming the status of a third-party beneficiary to those contracts, Canadian Pacific seeks relief for those breaches.
Much of the analysis described above with respect to the indemnification and contribution claims also applies to the breach-of-contract claims. Just as there is room for state tort remedies, there is room for state contract remedies associated with the federal standards embodied in the LIA. The breach-of-contract claims do not require Knoedler or Durham to comply with a state duty or standard of care. Instead, Canadian Pacific seeks to enforce contractual provisions that call for compliance with federal law. Enforcing the contracts would therefore not detrimentally affect national uniformity of railroad operating standards. Uniformity is to be expected because it is in the interest of the contracting parties. Having one set of national regulations to follow is important both to railroads and to equipment suppliers for the obvious reason that neither wants to deal with a multiplicity of possibly conflicting state standards. Therefore, in delineating their duties under a contract, the railroads and their suppliers will be fully motivated to ensure that all provisions regarding equipment design and manufacture are based on a uniform federal standard of care.
But even if the LIA did preempt Canadian Pacific‘s indemnification and contribution claims, it would not follow that the LIA preempts the breach-of-contract claims, because breach-of-contract claims involve voluntarily assumed duties as opposed to duties imposed by state law.17 “[W]hen a party to a contract voluntarily assumes an obligation to proceed under certain state laws, traditional preemption doctrine does not apply to shield a party from liability for breach of that agreement.” Epps v. JP Morgan Chase Bank, N.A., 675 F.3d 315, 326 (4th Cir. 2012). There is a salutary “you‘ve made your own bed, now lie in it” quality to several cases from the Supreme Court that emphasize the importance of voluntarily assumed contractual obligations. See Am. Airlines, Inc. v. Wolens, 513 U.S. 219, 228 (1995) (“We do not read the [Airline Deregulation Act]‘s preemption clause ... to shelter airlines from suits alleging no violation of state-imposed obligations, but seeking recovery solely for the airline‘s alleged breach of its own, self-imposed undertakings.“); Cipollone, 505 U.S. at 526 (plurality opinion) (holding that a breach-of-warranty claim was not preempted by the Federal Cigarette Labeling and Advertising Act because “a common-law remedy for a contractual commitment voluntarily undertaken should not be regarded as a requirement ... imposed under State law” (alteration in original) (internal quotation marks omitted)); see also Nw., Inc. v. Ginsberg, 572 U.S. 273, 134 S. Ct. 1422, 1432-33 (2014) (holding that the Airline Deregulation Act preempted claims alleging breach of an implied covenant because, under the controlling state law, parties could not contract out of such covenants—and thus they were “regarded as state-imposed“—but noting that if a state permitted parties to voluntarily surrender protections from covenants, then those claims would “escape preemption“).
To hold that the LIA preempts all breach-of-contract claims would allow, and perhaps encourage, manufacturers to make grand contractual promises to obtain a deal and then breach their duties with impunity. Knoedler‘s and Durham‘s only response to the perverse incentives inherent in their arguments is a shoulder shrug. “Let the market sort things out,” they say. As counsel for Durham put it at oral argument, “the people who are being put upon by this lack of remedy are not your average consumers; they are railroads, in this case a huge railroad, with incredible economic power to buy or not buy from various people.” (Oral Arg. at 23:2543.) But even the rich and powerful are entitled to the rule of law, and we see no reason to believe that Congress meant for Darwinian attrition to replace legal remedies.
V. CONCLUSION
Canadian Pacific‘s state law claims of indemnification and contribution based on the LIA are not preempted, nor are its breach-of-contract claims. We will therefore vacate the District Court‘s Orders dismissing the First and Second Amended Complaints and remand for further proceedings consistent with this opinion.
HARDIMAN, Circuit Judge, dissenting.
This is a field preemption case arising under the Locomotive Inspection Act (LIA). Just two years ago the Supreme Court had occasion to consider and clarify the LIA‘s preemptive scope in Kurns v. Railroad Friction Products Corp., 565 U.S. 625, 132 S. Ct. 1261 (2012). There, the Court held that state common law tort claims related to railroad safety are preempted by the LIA. This appeal requires us to decide whether the LIA‘s broad preemptive scope extends to state law tort and breach of contract claims based on federal standards. The question defies an easy answer, but on balance, I read Kurns to indicate that the LIA preempts all state law causes of action, even those based on federal standards of care. Accordingly, I respectfully dissent.
I
Our decision turns largely on how we read Kurns, which teaches that the LIA preempts a large swath of state law claims related to railroad safety (all those based on duties derived from state common law). Should we, in this case, take the next logical step on the path Kurns has laid out and hold that the LIA preempts all state law claims related to railroad safety, re-
I would take the next logical step and hold that the LIA preempts all state law claims in the field of railroad safety, including those at issue in this appeal, for three reasons. First, doing so is consistent with the LIA‘s simple but important purpose—protecting railroad workers. Second, neither Kurns nor the case upon which it principally relies, (Napier v. Atlantic Coast Line Railroad, 272 U.S. 605 (1926)), suggests that there is an exception to the LIA‘s otherwise broad preemptive scope for state law causes of action based on federal standards of care. Finally, the majority‘s decision to the contrary strips Kurns of much of its practical significance while simultaneously threatening national uniformity in railroad law.
A
Congressional purpose suggests that state law causes of action based on federal locomotive safety standards are within the field preempted by the LIA. “[T]he prime purpose of the [LIA] was the protection of railroad employees and perhaps also of passengers and the public at large from injury due to industrial accident.” Urie v. Thompson, 337 U.S. 163, 191 (1949) (internal citation omitted). And whatever ancillary purposes the LIA is intended to serve, one thing is crystal clear: protecting railroads from lawsuits isn‘t one of them. In fact, Congress intended to protect employees and other vulnerable parties from railroads and their potentially subpar safety measures. Thus, unlike my colleagues, see Maj. Typescript at 664, I‘m neither surprised nor troubled by the notion that the
In addition, Congress knew when it enacted the LIA (originally known as the Boiler Inspection Act) that the Federal Employers’ Liability Act (FELA),
Second, Kurns and Napier in no way suggest that the LIA‘s broad preemptive scope includes a tacit exception for railroads to recoup FELA damages in state law causes of action based on federal standards of care. Instead, Napier held merely that the LIA “was intended to occupy the field,” citing the “broad scope of the authority conferred upon the [regulatory body charged with promulgating regulations under the LIA]” as evidence of that preemption. 272 U.S. at 613. And Kurns teaches that there is “no exception” in that preempted field for state standards of care. 132 S. Ct. at 1269. Neither case provides any reason to believe that a remedy lies outside of FELA for non-employees injured as a result of LIA violations.
Finally, I disagree with my colleagues that the primary goal of preemption—national uniformity—would not be undermined by allowing state law causes of action using standards of care derived from the LIA. See Maj. Typescript at 666-67. Instead, I am convinced that allowing such causes of action would threaten uniformity significantly while at the same time undercutting the Court‘s decision in Kurns. To understand why, consider the text of the LIA, under which locomotives and locomotive parts and appurtenances must be “in proper condition and safe to operate without unnecessary danger of personal injury.”
These are the types of legal interpretations that state courts make every day in evaluating causes of action in various factual contexts. Negligence, for example, is a failure to “exercise reasonable care under all the circumstances.” Restatement (Third) of Torts: Physical & Emotional Harm § 3 (2010). This standard, like the standard of care in the LIA, is general by design. To ascertain its meaning in a given context, trial courts consider a variety of factors, not the least of which may include “countervailing principle[s] or pol-ic[ies].” Id. at § 7. State courts must and will construe the LIA‘s required duties just as they normally would construe standards of care in other state law contexts—that is, by considering ordinary state policy concerns.
In doing so, state courts will necessarily inject state law policies into what is, according to the majority, an LIA-derived duty. This is exactly what Kurns prohibits. Kurns‘s ban on state law standards of care is uncontroverted, yet actions based on those standards will implicitly be permitted under our decision today, which strips Kurns of much (if not all) of its effect. It does so because the LIA‘s federal standard of care is so broad that most state law claimants who would otherwise be barred by Kurns will be able to avoid that bar by cloaking their state law claims in the garb of the LIA. Kurns should not be gutted in this manner.4
II
After giving short shrift to Kurns, a recent Supreme Court decision that arises under the LIA, the majority relies on older cases that arise under other federal laws. See Maj. Typescript at 662-64. Although these decisions have some relevance to this appeal, they involve laws that differ in meaningful ways from the LIA. Perhaps even more significant is the fact that they were decided before Kurns, so they are devoid of the Court‘s reasoning in its most recent exposition of LIA preemption.
First, the majority leans on Abdullah v. Am. Airlines, Inc., 181 F.3d 363 (3d Cir. 1999), and Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984), for the proposition that “in other statutory contexts ... violations of federal law can be redressed through state common-law claims.” Maj. Typescript at 662. My colleagues are correct that in some contexts the Supreme Court has allowed violations of federal law to be redressed through state law causes of action. But there are critical differences between those contexts and the LIA, and Abdullah evinces a prominent difference. The law interpreted in that case, the Federal Aviation Act (FAA), preempted the field of aviation safety but also included a savings clause that explicitly preserved “other remedies provided by law,” including state law claims. Abdullah, 181 F.3d at 374-75. The LIA doesn‘t have a savings clause. The majority suggests that the savings clause is unimportant, because Abdullah “stands for the larger premise ... that even when Congress has occupied a particular field, state-law claims to remedy federal violations are not necessarily preempted.” Maj. Typescript at 662-63 n. 7. But if state law claims were permissible in any event, why did the FAA include a savings clause? Because the savings clause does no work under this interpretation, the majority violates the canon against superfluity, see Clark v. Rameker, 573 U.S. 122, 134 S. Ct. 2242, 2248 (2014); United States v. Menasche, 348 U.S. 528, 538-39 (1955). The better view is that the LIA‘s lack of a savings clause is a meaningful difference between it and the FAA.
Silkwood involves the Atomic Energy Act, a federal law that, unlike the LIA, is not accompanied by a comprehensive federal remedial scheme. 464 U.S. at 241. As the majority recognizes, even in the absence of a savings clause in the Atomic Energy Act, Congress indicated that it assumed state tort remedies would remain available within the preempted field. As the Court noted, “there [was] no indication that Congress even seriously considered precluding the use of such remedies” in passing the law. Id. at 251. In contrast, the LIA evidences no desire by Congress to permit state law remedies to remain avail-
does not extend even to cases in which railroad workers sue non-employers—let alone cases, like this one, in which railroads sue under the LIA.
The Silkwood Court‘s assumption that Congress would not leave persons injured by violations of the Atomic Energy Act without a remedy is consistent with that Act‘s purpose of protecting the public from an emerging and potentially dangerous form of energy while at the same time promoting the development of the atomic energy industry. See
The cases dealing with the Safety Appliance Acts (Appliance Acts)—Crane v. Cedar Rapids & Iowa City Railway Co., 395 U.S. 164 (1969); Breisch v. Central Railroad of New Jersey, 312 U.S. 484 (1941); and Tipton v. Atchison, Topeka & Santa Fe Railway Co., 298 U.S. 141 (1936)—are more germane to this appeal because there are some superficial similarities between the Appliance Acts and the LIA. As the majority points out, both the Appliance Acts and the LIA regulate locomotive equipment, and neither provides for private enforcement—instead, injured employees must seek a remedy under FELA, and there is no statutory remedy for non-employees. Maj. Typescript at 663. And, as with the LIA, the Appliance Acts preempt their field of regulation and Congress gave no explicit indication that state law causes of action should remain available under them, yet non-employees may seek redress for violations of the Appliance Acts via common law causes of action. Crane, 395 U.S. at 166.
But rote application of these precedents to this appeal overlooks the importance of the Supreme Court‘s more recent and more relevant decision in Kurns. The effect of the Appliance Acts cases on the LIA is at least questionable after Kurns. Crane, decided 45 years ago, held that the defense of contributory negligence in an Appliance Act suit was not preempted. 395 U.S. at 167. Contributory negligence, a standard feature of common law negligence actions, is defined by state common law. Yet Kurns prohibits the use of a state law standard of care in a case related to railroad safety. Kurns, 132 S. Ct. at 1269. Given the Court‘s clear statement that state law has no place in defining duties in the field of railroad safety, I think it unlikely the Court would
Breisch and Tipton, the other Appliance Acts cases cited by the majority, raise a similar concern. Both cases recognize that the Appliance Acts “leave the genesis and regulation of [rights of action based on breach of the Appliance Acts] to the law of the states.” Tipton, 298 U.S. at 148; accord Breisch, 312 U.S. at 486. As Tipton noted, the Appliance Acts created an “absolute duty” for employers—if employers fall below that statutory standard of care, they are negligent under state law. 298 U.S. at 146. But under Tipton, state law standards of care may still play a significant (and, under Kurns, prohibited) role: although a railroad‘s violation of the Appliance Acts means that it is negligent, a railroad‘s compliance with the Appliance Acts does not mean that it is not negligent. See Restatement (Third) of Torts: Physical & Emotional Harm § 16 (2010) (“[C]ompliance with a pertinent statute, while evidence of non-negligence, does not preclude a finding that the actor is negligent... for failing to adopt precautions in addition to those mandated by the statute.“). Thus, under Tipton and Breisch, a particularly safety-conscious state could hold railroads to a more stringent standard of care than that mandated in the Appliance Acts—a “potent method of governing conduct and controlling policy,” that Kurns plainly precludes. Kurns, 132 S. Ct. at 1269 (quoting San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 247 (1959)). Here again, although the Appliance Acts and the LIA share some traits, Kurns illustrates that cases construing the Appliance Acts do not necessarily apply in the LIA context.
Aside from the lack of a case analogous to Kurns that arises under the Appliance Acts, those Acts differ from the LIA in another critical way. As the majority acknowledges, the Appliance Acts contain some very specific requirements for railroads—“certain safety equipment [must] be used on railroad carriers, such as automatic couplers, efficient hand brakes, secure ladders with handholds or grab irons, and power brakes sufficient to stop the train.” Maj. Typescript at 663 n. 9 (citing
III
The LIA‘s preemptive scope is broad—perhaps unusually broad, given recent Supreme Court preemption cases. See Kurns, 132 S. Ct. at 1270 (Kagan, J., concurring) (“Viewed through the lens of modern preemption law, Napier is an anachronism.“). But we must follow the law as it specifically pertains to the LIA, and Kurns is the most germane pronounce-
In re LEMINGTON HOME FOR THE AGED.
Official Committee of Unsecured Creditors, On Behalf of the Estate of Lemington Home for the Aged v. Arthur BALDWIN; Linda Cobb; Jerome Bullock; Angela Ford; Joanne Andiorio; J.W. Wallace; Twyla Johnson; Nicole Gaines; William Thompkins; Roy Penner; Melody Causey; James Shealey; Eugene Downing; George Calloway; B.J. Leber; Reverend Ronald Peters, Appellants.
No. 13-2707.
United States Court of Appeals, Third Circuit.
Feb. 23, 2015.
Robert S. Bernstein, Esq., Kirk B. Burkley, Esq., Nicholas D. Krawec, Esq., Shawn P. McClure, Esq., Arthur W. Zamosky, Esq., Bernstein-Burkley, Pittsburgh, PA, for Official Committee of Unsecured Creditors of Lemington Home for the Aged.
Michael J. Bowe, Esq., Jennifer S. Recine, Esq., Kasowitz, Benson, Torres & Friedman, New York, NY, John R. Gotaskie, Jr., Esq., Fox Rothschild, Pittsburgh, PA, Mark R. Hamilton, Esq., Rebecca S. Izsak, Esq., Philip J. Sbrolla, Esq., Cipriani & Werner, Pittsburgh, PA, For Arthur Baldwin, Jerome Bullock, Angela Ford, Joanne Marie Andiorio, J. W. Wallace, Twyla Johnson, Nicole Gaines, William Thompkins, Roy Penner, Melody Causey, James Shealey, Eugene Downing, George Calloway, B. J. Leber, and Ronald Peters.
Present: McKEE, Chief Judge, RENDELL, AMBRO, FUENTES, SMITH, FISHER, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR., VANASKIE, SHWARTZ, and KRAUSE, Circuit Judges.
SUR PETITION FOR REHEARING
THOMAS I. VANASKIE, Circuit Judge.
The petition for rehearing filed by Appellants in the above-entitled case having been submitted to the judges who participated in the decision of this Court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the judges of the circuit in regular service not having voted for rehearing, the petition for rehearing by the panel and the Court en banc, is denied.
Judge FISHER would have granted the petition for rehearing en banc.
Notes
A railroad carrier may use or allow to be used a locomotive or tender on its railroad line only when the locomotive or tender and its parts and appurtenances—
(1) are in proper condition and safe to operate without unnecessary danger of personal injury;
(2) have been inspected as required under this chapter and regulations prescribed by the Secretary of Transportation under this chapter; and
(3) can withstand every test prescribed by the Secretary under this chapter.