Ronald Ward v. Soo Line Railroad Company , 901 F.3d 868 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2150
RONALD WARD,
Plaintiff-Appellant,
v.
SOO LINE RAILROAD COMPANY,
doing business as CANADIAN PACIFIC, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 14-CV-00001 — Rudy Lozano, Judge.
____________________
ARGUED MAY 16, 2018 — DECIDED AUGUST 27, 2018
____________________
Before FLAUM, SYKES, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Ronald Ward injured his shoul-
der and back when his seat collapsed in the train he was op-
erating. Ward is a U.S. resident who is employed by a U.S.
railroad. Normally, these facts could give rise to a lawsuit un-
der the Federal Employers’ Liability Act (FELA), 45 U.S.C.
§ 51 et seq. Because Ward’s seat collapsed across the border in
Ontario, however, the FELA does not apply. Instead, Ward
2 No. 17-2150
pursued his tort claims under state common law. Ruling on
the defendants’ motions to dismiss and for judgment on the
pleadings for failure to state a claim, the district court rejected
Ward’s claims by holding that another federal law, the Loco-
motive Boiler Inspection Act (LIA), 49 U.S.C. § 20701 et seq.,
preempted all state tort law remedies for injuries caused by
locomotive equipment.
We see the case differently on the merits of the preemption
defense, but we ultimately affirm the judgment. The federal
railroad-safety statutes left plaintiff one path that is viable and
not preempted: He could assert state-law tort claims against
the defendants that borrow the applicable standards of care
from the federal LIA and its regulations governing the safety
of locomotive equipment. This is a well-established path for
fitting state and federal law together. See Delaware & Hudson
Railway Co., Inc. v. Knoedler Manufacturers, Inc., 781 F.3d 656,
662 (3d Cir. 2015) (LIA does not preempt state common-law
claims seeking to redress violations of federal standard of care
mandated by LIA and its regulations). Plaintiff pursued this
viable theory in the district court, but in pursuing his appeal,
he has waived any claim based on this theory.
The district court dismissed Ward’s claims on the plead-
ings, so we review its decisions de novo, giving Ward the ben-
efit of all well-pleaded factual allegations in his complaints
and reasonable inferences from them. See, e.g., Matrix IV, Inc.
v. American Nat’l Bank and Trust Co. of Chicago, 649 F.3d 539,
547 (7th Cir. 2011). To explain our decision, we examine in
Part I the relevant federal statutes and the precedents govern-
ing their relationships with state tort law. In Part II, we turn
to the merits of the district court’s judgment, explaining why
the court erred in part on the scope of the preemption defense
No. 17-2150 3
and why plaintiffs in Ward’s position should be allowed to
pursue the one viable path open to them. Finally, in Part III,
we turn to the procedural history of this lawsuit and address
defendants’ arguments that Ward waived that one viable
path.
I. Remedies for Injured Railroad Workers
A. The Common Law Before the Federal Statutes
Before Congress passed the FELA in 1908, injured railroad
workers brought common-law tort actions in state or federal
courts to recover for their injuries. See, e.g., Texas & Pacific
Railway Co. v. Cox, 145 U.S. 593, 604–06 (1892) (recognizing
ability of Texas courts to provide relief under Louisiana’s
wrongful death statute for an injury occurring in Louisiana);
Dennick v. Railroad Co. of New Jersey, 103 U.S. 11, 18 (1880) (rec-
ognizing that “[a] party legally liable [for a transitory tort] in
New Jersey cannot escape that liability by going to New
York”).
Under principles prevailing at the time, the Supreme
Court required federal courts hearing these common-law tort
cases to apply the rule of lex loci delicti, meaning that the sub-
stantive law applied in any given case was the law of the state
where the plaintiff’s injury occurred. Slater v. Mexican Nat’l
Railroad Co., 194 U.S. 120, 126 (1904). Given the interstate and
international nature of railroad employment, the nineteenth-
century laws of different states—not to mention the laws of
Canada and Mexico—posed obstacles not only for litigants
but also for courts determining which law to apply and how
to apply it. These problems landed on the Supreme Court
docket with some regularity, so the Court developed a gen-
eral federal common law on these matters in the era predating
4 No. 17-2150
Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), which elimi-
nated the federal general common law and instructed federal
courts hearing state law claims to apply state law as deter-
mined by the relevant state courts. See Slater, 194 U.S. at 121
(choice of law between Texas and Mexico); Stewart v. Baltimore
& Ohio Railroad Co., 168 U.S. 445, 448-49 (1897) (between Mar-
yland and District of Columbia); Texas & Pacific Railway Co.,
145 U.S. at 603 (between Texas and Louisiana); Dennick, 103
U.S. at 18 (between New York and New Jersey).
B. The Federal Employers’ Liability Act (FELA)
In 1908, Congress enacted the FELA, 45 U.S.C. § 51 et seq.,
which created a uniform law to govern injuries to railroad
workers in the United States. Under the FELA, all railroad in-
juries are treated as negligence actions that apply a federal
standard of care. § 51; New York Central Railroad Co. v. Winfield,
244 U.S. 147, 150–51 (1917). The FELA also replaced or abol-
ished certain defenses that might bar recovery under the com-
mon law. For example, the FELA allows recovery for wrong-
ful death, which previously had been recognized only hap-
hazardly under a patchwork of common-law rules and stat-
utes. See Dennick, 103 U.S. at 21 (“The right to recover for an
injury to the person, resulting in death, is of very recent
origin, and depends wholly upon statutes of the different
States.”).
Among its substantive changes to tort law, the FELA also
bars employers from asserting as an absolute defense that the
employee-plaintiff “assumed the risks of his employment,”
§ 54, or that an employer should not be held liable for injuries
resulting from the negligence of an injured employee-plain-
tiff’s co-workers, §§ 51, 52. The FELA also replaces contribu-
tory negligence as an absolute defense with a comparative
No. 17-2150 5
negligence regime under which a plaintiff-employee’s dam-
ages are reduced “in proportion to the amount of negligence
attributable to such employee.” § 53. And the FELA provides
even greater protection where the plaintiff proves that a rail-
road company’s violation of any statute or regulation “en-
acted for the safety of employees contributed to the injury or
death.” Id. In those cases, the company is liable for the full
amount of loss, notwithstanding the injured worker’s negli-
gence. §§ 53, 54.
To enforce the FELA, Congress relied upon both state and
federal courts, granting concurrent jurisdiction to both. Two
years after enacting the FELA, Congress mandated that a
plaintiff’s choice of forum would control. Congress amended
the FELA to bar removal of FELA actions from state court to
federal court. FELA Amendments, Pub. L. No. 117, 36 Stat.
291 (1910). The substance of that removal bar is now codified
in 28 U.S.C. § 1445(a).
From the beginning of the FELA era, then, Congress envi-
sioned a robust role for the states and their courts in vindicat-
ing the federal rights of injured railroad workers. Since the
FELA did not mandate specific procedural rules, state courts
hearing FELA actions may follow their own rules of proce-
dure but must take care that these requirements do not bur-
den a plaintiff’s federal rights under the Act. See, e.g., Dice v.
Akron, Canton & Youngstown Railroad Co., 342 U.S. 359, 363
(1952) (“the right to trial by jury is too substantial a part of the
rights accorded by the Act to permit it to be classified as a
mere ‘local rule of procedure’”); Brown v. Western Railway of
Alabama, 338 U.S. 294, 298 (1949) (“Strict local rules of plead-
ing cannot be used to impose unnecessary burdens upon
rights of recovery authorized by federal laws.”); Minneapolis
6 No. 17-2150
& St. Louis Railroad Co. v. Bombolis, 241 U.S. 211, 218 (1916)
(recognizing the “concurrent power and duty of both Federal
and state courts to administer the rights conferred by the stat-
ute in accordance with the modes of procedure prevailing in
such courts”).
C. The Locomotive Boiler Inspection Act (LIA)
In 1911, Congress followed the FELA by passing the Loco-
motive Boiler Inspection Act (LIA), 49 U.S.C. § 20701 et seq.,
which regulates the safety of locomotive equipment. Like the
FELA, the LIA provided a national solution to a legal problem
posed by railroads—this time displacing states’ haphazard
safety regulations of locomotive equipment with a uniform
federal law. The LIA provides:
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 oper-
ate 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.
49 U.S.C. § 20701. The LIA “imposes upon the carrier a higher
degree of duty than theretofore existed” at common law, re-
quiring the railroad to ensure locomotive equipment is “in
No. 17-2150 7
proper condition and safe to operate.” Baltimore & Ohio Rail-
road Co. v. Groeger, 266 U.S. 521, 523, 527 (1925).
This federal duty of care preempts all comparable state
law standards of care in the field of locomotive safety. In Na-
pier v. Atlantic Coast Line Railroad Co., the Supreme Court held
that Congress meant for the LIA to “occupy the field” for
“regulating locomotive equipment … so as to preclude state
legislation.” 272 U.S. 605, 613, 607 (1926). In 2012, the Court
followed Napier, affirming that “state common-law duties and
standards of care directed to the subject of locomotive equip-
ment are pre-empted by the LIA.” Kurns v. Railroad Friction
Products Corp., 565 U.S. 625, 637 (2012) (holding state-law
claims of defective design and failure to warn preempted un-
der LIA). Under Napier and Kurns, then, state regulation of lo-
comotive equipment cannot diverge from the standards of
care mandated by the LIA, and state courts must take care to
prevent independent state policy from interfering with fed-
eral policy on the regulation of locomotive equipment. See id.
The LIA, coming as it did on the heels of the FELA, “was
passed to promote the safety of employees and is to be read
and applied with the Federal Employers’ Liability Act.”
Groeger, 266 U.S. at 528. The LIA’s standards are enforced by
the Secretary of Transportation through regulatory actions, as
well as through private negligence lawsuits. In most circum-
stances, these lawsuits are FELA actions alleging negligence
per se in state or federal courts because the LIA is exactly the
type of statute “enacted for the safety of employees” contem-
plated by sections 53 and 54 of FELA. See Lilly v. Grand Trunk
Western Railroad Co., 317 U.S. 481, 485–86 (1943) (applying
Boiler Inspection Act, which addressed matters now covered
8 No. 17-2150
by LIA); Southern Railway Co. v. Lunsford, 297 U.S. 398, 401
(1936).
In this case, the FELA does not apply because the accident
occurred in Canada, and the FELA has long been held not to
apply to accidents outside the United States. New York Central
Railroad Co. v. Chisholm, 268 U.S. 29, 32 (1925). But that limit
on the civil remedy under the FELA does not bar a plaintiff
who is not covered by the FELA from relying on the LIA to
establish the standard of care that applied to the defendants
as part of a state-law tort claim. This situation seems to arise
far less often than FELA claims by railroad employees, but
this use of the LIA in state-law tort claims where the FELA
does not apply is an established one.
For example, in Scott v. Chicago, Rock Island & Pacific Rail-
road Co., 197 F.2d 259 (8th Cir. 1952), the Eighth Circuit con-
sidered the LIA’s relevance in a state-law negligence suit by
the passenger of a vehicle who was injured after being hit by
a locomotive. A warning device on the locomotive was in dis-
repair “such as to show a violation of the Locomotive Boiler
Inspection Act,” which was “undisputed evidence of defend-
ant’s negligence.” Id. at 261. The plaintiff could not bring a
FELA action, of course, since she was not employed by the
railroad. The Eighth Circuit held that the railroad could be
held liable in negligence for violating the federal standard of
care imposed by the LIA, noting that the “this Act has been
held not merely for the protection of railroad employees but
also to promote the safety of passengers and the public gen-
erally.” Id. (ordering new trial for plaintiff with claim under
Iowa tort law where district court erred in holding plaintiff
contributorily negligent).
No. 17-2150 9
More recently, the Third Circuit similarly held that Penn-
sylvania state tort law provided a vehicle for vindicating the
LIA’s standard of care in Delaware & Hudson Railway Co., Inc.
v. Knoedler Manufacturers, Inc., 781 F.3d 656 (2015). That case
considered essentially the same preemption defense we con-
front here and concerned similar facts, including even defec-
tive locomotive seats made by the same manufacturer sued in
this case. In Delaware & Hudson, the railroad had settled law-
suits brought by its employees who had been injured by de-
fective seats. Id. at 658. To help pay those settlements, the rail-
road sued the manufacturer of the seats and another company
it had paid to repair the defective seats. Id. at 659. The plaintiff
railroad sued under a variety of state-law theories, including
contribution. Id. at 660. As here, the defendants argued under
Kurns and Napier that the railroad’s claims based on allega-
tions of negligence were preempted by the LIA.
The Third Circuit disagreed, pointing to a variety of con-
texts where the Supreme Court has held “that violations of
federal law can be redressed through state common-law
claims.” Id. Judge Jordan’s opinion for the court pointed con-
vincingly to the Safety Appliance Acts, statutes passed years
before the LIA and FELA to promote safety in the railroad in-
dustry by mandating the installation of certain safety equip-
ment on locomotives. The court quoted Supreme Court deci-
sions interpreting those Acts and stating that a person who
was injured by violations of the Acts but who could not seek
a remedy under the FELA “must look for his remedy to a com-
mon law action in tort, which is to say he must sue in a state
court, in the absence of diversity, to implement a state cause
of action,” since the Acts “do not give a right of action for their
breach, but leave the genesis and regulation of such action to
the law of the states.” Id. at 663, quoting first Crane v. Cedar
10 No. 17-2150
Rapids & Iowa City Railway Co., 395 U.S. 164, 166 (1969), and
then Tipton v. Atchison, Topeka & Santa Fe Railway Co., 298 U.S.
141, 147–48 (1936).
The Third Circuit also drew on the Supreme Court’s par-
allel recognition of state law claims for violations of the
Atomic Energy Act in Silkwood v. Kerr-McGee Corp., 464 U.S.
238 (1984). Delaware & Hudson, 781 F.3d at 662. That same logic
applies to the use of state tort law to vindicate duties imposed
by the federal Medical Device Amendments of 1976 and the
Federal Cigarette Labeling and Advertising Act of 1965. See
Medtronic, Inc. v. Lohr, 518 U.S. 470, 486-91 (1996); Cipollone v.
Liggett Group, Inc., 505 U.S. 504, 524-30 (1992). The list, no
doubt, could go on to encompass other fields where federal
law sets standards for health and safety, but does not provide
a private right of action under federal law itself.
II. Applying the Law to This Case
A. Current Preemption Doctrine Under the FELA & LIA
As this historical overview suggests, Congress imposed
duties under the LIA and the FELA that both state and federal
courts can enforce. By the FELA’s express terms, Congress en-
trusted state courts with the power to vindicate federal policy,
including the LIA, through negligence actions. Although
those statutes are silent on the ability to enforce the LIA’s
standards of care outside an FELA action, the use of state-law
causes of action to enforce federal safety standards is a famil-
iar feature of tort law in our federal system and in Indiana
law.
The Supreme Court explained this point in Grable & Sons
Metal Products, Inc. v. Darue Engineering & Manufacturing, 545
U.S. 308 (2005). The Court said that “garden variety state tort
No. 17-2150 11
law” claims that borrow standards of care from federal law
are so numerous that they cannot be deemed subject to federal
question jurisdiction: “The violation of federal statutes and
regulations is commonly given negligence per se effect in state
tort proceedings.” Id. at 318–19, quoting Restatement (Third)
of Torts § 14 cmt. a (Tent. Draft No. 1, March 28, 2001), and
citing W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser
and Keeton on Law of Torts § 36, p. 221, n.9 (5th ed. 1984)
(“the breach of a federal statute may support a negligence per
se claim as a matter of state law”); see also Restatement
(Third) of Torts: Prod. Liab. § 4 (1998) (“In connection with
liability for defective design or inadequate instructions or
warnings: (a) a product’s noncompliance with an applicable
product safety statute or administrative regulation renders
the product defective with respect to the risks sought to be
reduced by the statute or regulation. . . .”).
State courts often take this approach. In Indiana, for exam-
ple, see Erwin v. Roe, 928 N.E.2d 609, 620 (Ind. App. 2010)
(“[W]e hold that … violation of the [Residential Lead-based
Paint Reduction Act] is given negligence per se effect in Indi-
ana tort proceedings.”); Santini v. Consolidated Rail Corp., 505
N.E.2d 832, 838 n.4 (Ind. App. 1987) (holding that local ordi-
nances regulating speed of trains are preempted, but recog-
nizing ability of injured plaintiffs to “allege[] that violation of
a federal speed regulation” for locomotives “was negligence
per se”).
The LIA’s enforcement scheme fits well with modern
preemption jurisprudence that acknowledges a role for state
law causes of action to vindicate federal policy in statutes
such as the Atomic Energy Act and the Medical Device
Amendments. See Riegel v. Medtronic, Inc., 552 U.S. 312, 330
12 No. 17-2150
(2008) (federal preemption under the Medical Device Amend-
ments “does not prevent a State from providing a damages
remedy for claims premised on a violation of FDA regula-
tions”); Silkwood, 464 U.S. at 256 (“Congress assumed that
state-law remedies … were available to those injured by nu-
clear incidents. This was so even though it was well aware of
the NRC’s exclusive authority to regulate safety matters.”);
see also Engvall v. Soo Line Railroad Co., 632 N.W.2d 560, 569–
70 (Minn. 2001) (allowing Soo Line to pursue state-law cause
of action based on violation of federal safety standard in LIA).
There is, however, a critical line that states cannot cross where
federal safety standards of care preempt state law: states may
borrow federal standards of care, but they may not substitute
or add their own standards of care.
This same line of reasoning is evident in the Supreme
Court’s decisions applying the federal Safety Appliance Acts,
which also regulate train safety. 49 U.S.C. § 20301 et seq. In
Tipton v. Atchison, Topeka & Santa Fe Railway Co., the Supreme
Court held that although “the Safety Appliance Acts do not
give a right of action for their breach,” the states were “at lib-
erty to afford any appropriate remedy for breach of the duty
imposed by the Safety Appliance Acts.” 298 U.S. at 147-48.
The Court had previously recognized in Moore v. Chesapeake
& Ohio Railway Co., that the Safety Appliance Acts “prescribed
duties” from which “injured employees are entitled to recover
for injuries sustained through the breach of these duties,” but
that this “right to recover damages sustained by the injured
employee through the breach of duty sprang from the princi-
ple of the common law[.]” 291 U.S. 205, 214-15 (1934); see also
Breisch v. Central Railroad of New Jersey, 312 U.S. 484, 486 (1941)
(recognizing again that state law allowed a railroad employee
No. 17-2150 13
to sue under state law for violations of the Safety Appliance
Acts).
We see no reason to depart from these general principles
or the specific applications under the LIA by the Third Circuit
in Delaware & Hudson and the Eighth Circuit in Scott. Nor do
we see a good reason to conclude that the LIA creates an odd
exception to enforcement regimes that have vindicated fed-
eral policy in various fields of safety and health regulation,
recognizing a robust role for state law in remedying the
breach of federal safety policies, including those for railroads.
In this case, the defendants argued, and the district court
concluded, that state courts can apply the LIA standards of
care only in FELA actions. The mistaken logic runs like this:
Napier and Kurns both determined that the LIA occupies the
field of locomotive regulation, preempting any state regula-
tion in this area. Napier, 272 U.S. at 613; Kurns, 565 U.S. at 637.
In Chisholm, the Court held that the FELA does not apply ex-
traterritorially, to injuries that occur outside the nation’s bor-
ders. 268 U.S. at 32. In Urie v. Thompson, the Court recognized
that the LIA does not create a private right of action arising
under federal law. 337 U.S. 163, 188 (1949). Extrapolating from
Urie, the defendants argued and the district court concluded
that the LIA can be enforced only through federal agency ac-
tion or through the FELA. Ward v. Soo Line R.R. Co., No. 2:14-
CV-00001, 2016 WL 3402772, at *4 (N.D. Ind. June 21, 2016).
Without the FELA, the argument goes, state courts lack the
authority to apply the LIA and cannot apply their own stand-
ards of care for injuries resulting from locomotive defects. Id.
This reasoning runs contrary to both the clear language of
the Supreme Court’s cases under the railroad statutes and the
14 No. 17-2150
parallel reasoning underlying the other federal safety statutes
and regulations cited above.
In reaching this conclusion, we note the Court’s language
in Kurns: “state common-law duties and standards of care di-
rected to the subject of locomotive equipment are preempted
by the LIA.” 565 U.S. at 637. Notably, the reference to “duties
and standards of care” says nothing about preempting state
law causes of action that borrow and enforce federal duties and
standards of care, despite the Kurns defendants’ explicit argu-
ments against the use of state-law causes of action based on
LIA violations. See Brief for Respondents at 9, Kurns, No. 10-
879, 2011 WL 4590847 (Oct. 3, 2011). Kurns did not expressly
authorize state-law causes of action borrowing standards of
care from the LIA, but the facts in Kurns did not present the
Supreme Court any opportunity to address the issue or to re-
consider the cases and reasoning we rely upon here that en-
dorse the ability of state law to borrow duties and standards
of care from the LIA, the Safety Appliance Acts, and other
similar federal safety statutes. We should not expand Kurns
beyond its clear terms, particularly when the law has “long
presumed that Congress does not cavalierly pre-empt state-
law causes of action” “because the States are independent
sovereigns in our federal system.” Medtronic, 518 U.S. at 485.
The reasoning of Kurns and Napier thus does not support
preemption of state law causes of action based on violations
of federal standards. Both cases were limited to claims that
defendants violated state-law standards of care. In Kurns, as in
so many other cases involving LIA preemption, the plaintiff
claimed that the defendants had been negligent by violating
non-federal standards of care tied to the presence of, and lack
of warning regarding, asbestos in locomotives—standards
No. 17-2150 15
that would have imposed additional duties on the defend-
ants. 1 Napier also involved state law standards of care sepa-
rate from and in addition to those imposed by federal law. In
that case, the plaintiff’s claims were based on two state regu-
lations that mandated automatic doors to train fireboxes and
cab curtains to protect engineers and firemen from the ele-
ments during the winter. Napier, 272 U.S. at 609–10. These reg-
ulations added to the requirements of the LIA and agency reg-
ulations concerning locomotives.
The Court determined, first in Napier and again in Kurns,
that Congress meant to occupy the field of locomotive equip-
ment regulation with the LIA so that railroads would not have
to adjust their locomotive equipment every time they crossed
a state boundary. See id. at 613. The appellate cases defend-
ants rely upon here also involved similar preempted attempts
to use state tort law to impose state regulation through stand-
ards of care different from and in addition to the LIA’s duties.
See Oglesby v. Delaware & Hudson Railway Co. 180 F.3d 458, 462
(2d Cir. 1999) (plaintiff claimed cab seat was designed defec-
tively because it lacked warnings or instructional signs not re-
quired by LIA); Law v. General Motors Corp., 114 F.3d 908,911
(9th Cir. 1997) (plaintiff argued that noise protection should
have been provided beyond what was required under LIA
and its regulations); Forrester v. American Dieselelectric, Inc.,
255 F.3d 1205, 1206–07 (9th Cir. 2001) (plaintiff claimed crane
1 Although Kurns previously had brought an FELA claim based on a
claimed violation of the LIA’s standard of care, that claim was no longer
part of the case by the time it reached the Supreme Court. See Brief of Pe-
titioners at 12, Kurns, No. 10-879, 2011 WL 3608729 (Aug. 12, 2011).
16 No. 17-2150
needed additional audible warning system not required un-
der LIA).
In contrast to those cases, Ward should need to establish
here only that the defendants violated the LIA or its regula-
tions and that he suffered injury as a proximate result. That is
just what his complaint alleged. Paragraphs 9 and 10 of Count
Two of the Second Amended Complaint alleged that defend-
ant Soo Line violated LIA regulations, 49 C.F.R. §§ 229.119(a)
and 229.45, by failing to provide a securely mounted and
braced cab seat. Dkt. 28 at 7. Paragraph 11 alleged that the de-
fective condition of the locomotive directly and proximately
caused Ward’s injury. Id. at 8. (Those allegations were con-
tained in a count labeled “The Locomotive Inspection Act” ra-
ther than state law, but plaintiffs are not required to plead le-
gal theories in their complaints. See Dkt. 28 at 7–8.) Ward’s
state-law cause of action proceeding under a negligence per se
theory mirrored an FELA action in all respects important to
maintaining uniform federal regulation. It differed only in
that defendants might be able to use certain defenses that
would be barred under the FELA. The presence of these de-
fenses does not alter the duties and standards of care that ap-
ply to the defendants under the LIA. Under these circum-
stances, no harm to uniform federal locomotive regulation
would arise through this case that would not already be pre-
sent under a non-removable FELA lawsuit in state court.2
From the outset of the FELA era, the Supreme Court has
made clear its expectation that tort suits under state law
2Ward’s complaint also spoke at times about state-law standards of
care. The LIA preempts Ward’s claims based on state rather than federal
standards of care.
No. 17-2150 17
would provide relief for injured people who are unable to
pursue claims under the FELA itself. Concluding that the
FELA had no extraterritorial application, the Supreme Court
in Chisholm reasoned from its prior cases involving state-law
enforcement of duties imposed by laws foreign to the forum
state. 268 U.S. 31–32. The facts in Chisholm resemble those
here. In that case, a railroad worker was injured (and ulti-
mately killed) just north of the Canadian border. Id. at 30. In
concluding that the FELA did not apply to the case, the Su-
preme Court drew on two long-established common-law
principles, and the Court took for granted that these princi-
ples charted an alternative path to recovery under state or for-
eign law for railroad workers injured in locations beyond the
reach of the FELA. Id. at 32.
The first principle was that persons and businesses were
bound only by the duties and standards of care created by the
jurisdiction in which they were located at any given time. This
principle reinforced both the presumption against extraterri-
toriality as well as the traditional conflict-of-laws lex loci delicti
rule, which directs courts to apply the substantive tort law of
the place where an injury occurred. In Chisholm, the Court
held that the “carrier was subject only to such obligations as
were imposed by the laws and statutes where the alleged act
of negligence occurred. . . .” Id. The Chisholm Court followed
Slater v. Mexican Nat’l Railroad Co., 194 U.S. 120 (1904), a pre-
FELA, pre-Erie Railroad action brought in federal court after a
U.S. citizen who worked for a U.S. railroad was injured in
Mexico. In Slater, the Supreme Court acknowledged the abil-
ity of a federal court to adjudicate the case, but it restricted the
action to apply only the Mexican-law standard of care.
Chisholm quoted this language from Slater:
18 No. 17-2150
[W]hen such a liability is enforced in a jurisdic-
tion foreign to the place of the wrongful act, ob-
viously that does not mean that the act in any
degree is subject to the lex fori, with regard to
either its quality or its consequences. On the
other hand, it equally little means that the law
of the place of the act is operative outside its
own territory. The theory of the foreign suit is
that although the act complained of was subject
to no law having force in the forum, it gave rise
to an obligation, an obligatio, which, like other
obligations, follows the person and may be en-
forced wherever the person may be found. …
But as the only source of this obligation is the
law of the place of the act, it follows that the law
determines not merely the existence of the obli-
gation, … but equally determines its extent.
268 U.S. at 32, quoting Slater, 194 U.S. at 126 (citation omitted).
This principle buttressed Chisholm’s statutory interpretation,
but it also assumed the availability of the “foreign suit” for an
injured worker not able to file FELA suits because the injury
occurred in another nation: “The carrier was subject only to
such obligations as were imposed by the laws and statutes of
the country where the alleged act of negligence occurred . . . .”
Id. at 32.
The Court’s discussion of foreign obligations pointed to
the second common-law principle in Chisholm—the “transi-
tory torts” doctrine, which has its roots in English common
law. Explicitly a rule of venue, this doctrine permitted any
court in England to try suits arising from harms that were
transitory in nature rather than tied to the locality where they
No. 17-2150 19
occurred. The main difference between transitory and local
torts is that a harm to person or personal property is transi-
tory in nature, so the locale of the occurrence is incidental to
the injury, while harm to real property is tied to its locale.
McKenna v. Fisk, 42 U.S. (1 How.) 241, 248-49 (1843) (explain-
ing the distinction). Personal injuries counted as transitory
torts and could be tried anywhere in the realm. Trespasses to
land and other real-property suits were local and had to be
heard in the venue where the property was located. See id. at
248.
Through the transitory torts doctrine, the common law
also recognized a court’s ability to hear transitory tort cases
arising in the land of a foreign sovereign. In Mostyn v. Fabri-
gas, 1 Cowp. 161, 177 (1774), Lord Mansfield observed that
“all actions of a transitory nature that arise abroad may be laid
as happening in an English county.” Our Supreme Court has
long recognized this principle, dating back to McKenna in
1843, 42 U.S. (1 How.) at 249 (“the courts in England have
been open in cases of trespass other than trespass upon real
property … for trespasses committed within the realm and
out of the realm”), and continuing through Kiobel v. Royal
Dutch Petroleum Co., 569 U.S. 108, 118 (2013) (explaining why
the transitory torts doctrine, a creature of the common law,
does not apply to the Alien Tort Statute); see generally 14D
Charles Alan Wright & Arthur R. Miller, et al., Federal Prac-
tice and Procedure § 3822 (4th ed. 2013) (discussing doctrine
and 2011 amendment to 28 U.S.C. § 1391(a) abolishing lo-
cal/transitory distinction for federal civil venue).
We see nothing in Supreme Court precedent or in the rail-
road statutes themselves suggesting congressional intent to
abolish the ability of state courts to hear tort cases arising
20 No. 17-2150
from injuries in foreign jurisdictions. Instead, the transitory
torts doctrine directs courts to take care in adjudicating tran-
sitory torts cases to ensure that they apply the appropriate
standard of care. To the extent the issue has been raised, the
Court’s opinion in Chisholm assumes the doctrine’s continued
viability. And “trespass to the person” was “always held to be
transitory.” Dennick, 103 U.S. at 18.
B. Choice of Law
Although the Supreme Court adopted lex loci delicti as the
law governing railroad accidents outside the nation’s borders
in Chisholm and Slater, that rule did not survive the sea change
in federal courts’ application of general common law wrought
by Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), and Klaxon
Co. v. Stentor Manufacturing. Co., Inc., 313 U.S. 487 (1941),
which applied Erie to choice-of-law issues. As a pre-Erie deci-
sion, Slater makes sense as an adoption of the lex loci delicti
rule as a matter of general common law in the federal courts.
Since Erie was decided in 1938, however, federal courts cannot
apply general common law principles as federal common
law. Instead, federal courts must apply the applicable state
common law, except in narrow circumstances not applicable
here. See Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S.
630, 640 (1981) (describing the few exceptions for federal com-
mon law).
In Klaxon, the Supreme Court held that Erie “extends to the
field of conflict of laws” so that a federal district court must
apply the choice-of-law rules of the forum state in which it
sits. 313 U.S. at 496. In the intervening decades, the common
law has evolved in many states, including Indiana, to recog-
nize that in some tort cases, the law of the place of injury does
not apply. Hubbard Mfg. Co. v. Greeson, 515 N.E.2d 1071, 1074
No. 17-2150 21
(Ind. 1987), adopting Restatement (Second) of Conflicts of
Laws § 145(1) (Am. Law. Inst. 1971) (endorsing most-signifi-
cant-relationship approach to choice of law in tort cases).
We need not worry further here about a choice among the
laws of Indiana, Ontario, or any other jurisdiction. The choice-
of-law issue is waived if a party fails to raise it. McCoy v.
Iberdrola Renewables, Inc., 760 F.3d 674, 684 (7th Cir. 2014). That
is surely the case here because neither side has argued that
Canadian law applies. Both sides in this case instead battled
over whether the LIA preempts Ward’s claims under Indi-
ana’s common law. As we have explained, the LIA preempts
the state’s common-law standards of care, but not the state’s
cause of action for damages resulting from violations of fed-
eral policy.
In short, where the FELA does not apply and Congress has
provided no independent private right to sue for LIA viola-
tions in federal court, the states may still borrow the federal
standard of care from the LIA so “that violations of federal
law can be redressed through state common-law claims.” Del-
aware & Hudson, 781 F.3d at 662. Allowing such claims apply-
ing uniform federal standards of care does not threaten rail-
roads with conflicting standards of care, and certainly not any
more than does the FELA, under which state courts apply the
standards of the LIA and its regulations. See id. at 666 & n.16.
C. Waiver
1. District Court
The defendants argue that even if they are wrong about
the scope of LIA preemption, they should still prevail because
the plaintiff waived in the district court all of his claims other
than state-law failure-to-warn claims that are clearly
22 No. 17-2150
preempted under Kurns. The defendants argue that plaintiff
waived the (viable) claims under state law based on violations
of the LIA and its regulations by failing to repeat, in his re-
sponse to a second motion to dismiss, valid arguments that
the district court had already definitively rejected in granting
the first motion to dismiss. This waiver argument, which was
accepted by the district court, is contrary to our precedent. If
we accepted this argument, we would require plaintiffs to re-
peat at each later stage of litigation arguments and claims that
the district court had already rejected at earlier stages. This
would impose an unnecessary and annoying burden on par-
ties and district courts. To explain why plaintiff Ward did not
waive his viable claim in the district court, we need to trace in
some detail the procedural path his case took in the district
court.
After his injury, Ward filed two lawsuits. In the first, he
sued Soo Line in federal court in Indiana asserting FELA and
common-law negligence claims. See Dkt. 28. In the second, he
sued Soo Line, General Electric, and other defendants in state
court in Illinois for negligence and strict product liability. See
Dkt. 44-1. Soo Line removed that suit to federal court, where
it was transferred to the Northern District of Indiana and con-
solidated with Ward’s first suit. Prior to the consolidation, the
district court dismissed Ward’s FELA claims because the stat-
ute has no extraterritorial effect, leaving only the negligence
claim in the first complaint against Soo Line.
General Electric and the other manufacturer defendants
moved for summary judgment on all claims against them, as-
serting that the LIA preempted state-law tort claims. With this
motion pending, Ward moved to amend his state-law claims
against all defendants to clarify that he pursued state-law
No. 17-2150 23
causes of action for violations of federal standards of care
mandated by the LIA. Dkt. 51. Ward’s motion provided ex-
actly the right reasoning and correctly cited the Third Cir-
cuit’s Delaware & Hudson Railway Co. v. Knoedler Manufactur-
ers, 781 F.3d 656 (3d Cir. 2015), which explains why this theory
should offer Ward a path to relief. The magistrate judge de-
nied this motion to amend but said that Ward could make this
same argument in response to the pending motion to dismiss.
Ward followed this advice in his response to the defendants’
motion to dismiss, asserting that his “claim in the instant case
is effectively premised on a violation of the duties and stand-
ards of care stemming from the LIA itself.” Dkt. 65 at 11. He
again cited the Third Circuit’s decision in Delaware & Hudson.
The district court rejected this argument and dismissed all
claims against General Electric and the other manufacturer
defendants, leaving only the state-law causes of action against
Soo Line pending.
After the court issued this erroneous ruling, Soo Line
moved for judgment on the pleadings for the remaining neg-
ligence counts against it based solely on the district court’s
prior ruling for the manufacturer defendants. In response to
this motion, Ward sought to draw the court’s attention to his
failure-to-warn claim against the railroad by emphasizing
deposition testimony from the engineer who operated the
train prior to Ward. He had noticed the seat was loose but did
not alert Ward. Dkt. 105-1 at 2. Having already failed to con-
vince the district court that he could use a state-law cause of
action to vindicate federal standards of care under the LIA,
Ward pivoted away from his previous argument. He argued
then that the LIA “preempts state law claims as to design, con-
struction, maintenance, [and] installation of locomotive seats”
but “does not preempt state law claims for failure to warn an
24 No. 17-2150
employee of a dangerous, unsafe condition of an engineer’s
seat.” Id. at 1.
That argument was wrong on the merits of preemption for
reasons we have already explained. But the district court took
this statement to mean that Ward “concedes that the LIA
preempts state law claims” and rejected his contention that
the failure-to-warn claim could survive LIA preemption. Ward
v. Soo Line Railroad Co., 2017 WL 1836900, at *5 (N.D. Ind. May
8, 2017). On appeal, the defendants use this statement of the
district court to argue that Ward conceded entirely his general
negligence claims against the defendant and preserved for ap-
pellate review only the doomed (because preempted) failure-
to-warn claims that were his response to the second motion
for dismissal. The defendants were right about the lack of
merit of those claims, but not about the supposed waiver of
Ward’s viable theory in the district court.
“[A] definitive ruling in limine preserves an issue for ap-
pellate review, without the need for later objection.” Wilson v.
Williams, 182 F.3d 562, 563 (7th Cir. 1999) (en banc). The dis-
trict court ruled definitively against Ward’s viable theory for
recovering under state tort law, borrowing the standard of
care from the federal LIA and its regulations. To preserve his
right to appeal that error, Ward and his lawyers were not re-
quired to keep fighting that fight in the district court. They
were entitled to try other theories. They did, and those have
come to naught, but at that point, they were still entitled to
pursue on appeal the viable theory they raised in the district
court.
We see little value in requiring plaintiffs and their lawyers
to replead and reargue at later steps in the litigation claims or
No. 17-2150 25
arguments that the district court has already definitively re-
jected. See Buechel v. United States, 746 F.3d 753, 763 (7th Cir.
2014) (plaintiff “did not need to replead a claim that was
properly pled”). “It is not waiver—it is prudence and econ-
omy—for parties not to reassert a position that the trial judge
has rejected.” Bastian v. Petren Resources Corp., 892 F.2d 680,
683 (7th Cir. 1990). Requiring the continual repetition of
spurned arguments would not be useful. If Ward had asserted
his state tort law claim again, the district judge likely “would
have dismissed the charge, not only with prejudice but with
annoyance.” Id.; see Wilson, 182 F.3d at 566 (observing that
raising a question the court already decided “may annoy the
judge”). Lawyers and clients need not pursue the persistent
strategies of rebuffed suitors in Victorian courtship novels.
Once rejected, counsel should be able to turn their attention
to alternative arguments without fear that appellate courts
might apply a harsh waiver rule against them. 3
3 See also Knight v. Poritz, 157 Fed. App’x 481, 487 n.3 (3d Cir. 2005)
(finding plaintiff’s argument “preserved” despite “failure to expressly
counter the defense in the second motion to dismiss” because plaintiff’s
“earlier pleadings raised the argument” in district court proceedings); In-
dep. Asset Mgmt. LLC v. Zanger, 538 F. Supp. 2d 704, 709 n.3 (S.D.N.Y. 2008)
(declining to treat plaintiff’s argument in response “to the second motion
to dismiss as waived” because defendant “made the same basic arguments
. . . in both its first and second motions, and [plaintiff] clearly responded
to the first motion.”).
Note that the rule is different for denials of motions to dismiss or mo-
tions for summary judgment. Such denials are not final and definitive, and
a defendant who seeks to pursue a defense rejected in such a denial must
renew it at later stages, such as through a Rule 50 motion at trial. See Ortiz
v. Jordan, 562 U.S. 180, 184 (2011); Empress Casino Joliet Corp. v. Balmoral
26 No. 17-2150
2. Waiver on Appeal
Ward preserved his viable claims in the district court, but
what about on appeal? With new counsel on appeal, his open-
ing brief to this court spent too much time pursuing a frivo-
lous constitutional argument that he had been denied access
to the courts. We reject this argument completely. But the de-
cisive problem is that Ward did not press on appeal his Dela-
ware & Hudson argument for avoiding LIA preemption by bor-
rowing the LIA standard of care. He pursued only an argu-
ment that the defendants failed to provide adequate warnings
of the defective seat. In oral argument, counsel for Ward made
clear, repeatedly, that the only live claims on appeal are those
for failure to warn. Those claims are plainly preempted under
Kurns for reasons we explained above.
In his appellate brief, Ward cited Rogers v. Consolidated Rail
Corp., 948 F.2d 858 (2d Cir. 1991), aff’g 688 F. Supp. 835
(N.D.N.Y. 1988), and Priestman v. Canadian Pacific, Ltd., 782 F.
Supp. 681 (D. Maine 1992), which both allowed railroad work-
ers injured in Canada to pursue remedies under state law.
Neither case addressed LIA preemption, however, and nei-
ther adopted or hinted at the reasoning that could provide
Ward with a viable path to recovery. His reliance on those
cases therefore did not work as a backhand way of raising and
arguing his one viable path to recovery under the reasoning
of Delaware & Hudson, using federal law to supply the stand-
ard of care under state common law. See, e.g., Argyropoulos v.
City of Alton, 539 F.3d 724, 739 (7th Cir. 2008) (finding waiver
of particular argument where brief did not develop argument
Racing Club, Inc., 831 F.3d 815, 823–24 (7th Cir. 2016) (“After trial, the sum-
mary judgment denial [wa]s ancient history and not subject to appeal.”).
No. 17-2150 27
and counsel waived it in oral argument); Duncan v. State of
Wisconsin Dep’t of Health & Family Services, 166 F.3d 930, 934–
35 (7th Cir. 1999) (party waived arguments not developed in
appellate brief); see also Fed. R. App. P 28(a)(8).
Since plaintiff Ward waived on appeal the only viable the-
ory for pursuing relief from these defendants, we cannot re-
vive it for him. The judgment of the district court is
AFFIRMED.