Frastaci v. Vapor Corporation
Filed December 21, 2007, First
District, Div. Four
Cite as 2008 SOS 393

State claims on asbestos-related injuries preempted by the Locomotive Boiler Inspection Act

The decedent, Enio Frastaci worked for the Wheeling and Lake Erie Railroad for several years. His job was locomotive repairperson. At some point, Frastaci was diagnosed to be ill with mesothelioma, a cancer of the outer lung lining caused by asbestos. On September 29, 2004, he died due to the disease.

A few months later, on March 28, 2005, Frastaci's wife and children brought up a wrongful death action and survival action against several defendants, among them Vapor Corporation, a locomotive manufacturer. The plaintiffs seek compensation for the decedent's asbestos-related injuries and the loss of consortium of his wife. They also sought punitive damages.

According to the plaintiffs, the decedent had been exposed to asbestos through direct and secondary contact.

Various causes of action were alleged against Vapor:

• negligence


• strict liability


• false representation

Furthermore, the plaintiff complaint also alleged various causes of action against railroad companies for violating the Federal Employers Liability Act (45 U.S.C. § 51 et seq.; hereafter FELA) and the Locomotive Boiler Inspection Act (BIA).

Defendant, Vapor demurred to the complaints because the Locomotive Boiler Inspection Act preempts railroad employees' state law actions against manufacturers of locomotives. The Court agreed to the defendant's demurrer and dismissed the state law claims made brought by the plaintiffs.

The plaintiffs then filed an appeal to the California Court of Appeal, First Appellate District seeking to overturn the court's dismissal judgment of their state tort claims.

Upon discussion, the Court explained that Federal preemptions' primary objective is uniformity. Moreover, it is fundamentally a question of Congressional Intent, as to whether this situation occurs.

This intent may be explicit in a statute or it can also be implied where the federal laws would thoroughly occupy a legislative field on a topic. In the case, the Locomotive Boiler Inspection Act imposes an absolute duty on railroad carriers to ensure that their locomotives are maintained properly and that they can be operated safely.

Eighty years ago, the United States Supreme Court concluded in the case of Napier v. Atlantic Coast Line, "the Locomotive Boiler Inspection Act occupies the field of locomotive equipment, preempting all state claims within that field."

According to the Court, given the broad scope of authority that is conferred under such act, to regulate the design, construction and material of every part of the locomotive, the Act, was intended to occupy the field and preempted any state laws.

The California Supreme Court confirmed in Sheiding v. General Motors (2000) 22 Cal. 4th 471, 473.) the Locomotive Boiler Inspection Act also preempts that State law causes of action against locomotive manufacturers for asbestos-related injuries.

Here, the Court explained that imposing tort liability on railroad locomotive manufacturers for asbestos-related injuries, clearly would have affected the design, construction and the material of locomotives. This would place regulation of these requirements in the hands of the State juries undermining the Secretary of Transportation's regulatory authority in the first place.

Here, the plaintiffs attempted to raise an argument claiming that the Sheiding case was not controlling because the trains that the decedent used were not in use on the railroad lines were in the repair shops at that time.

The Court held that even with this distinction, did not change the result. The preemptive scope of the Act extends to the design, the construction and the material of every part of the locomotive and tender, and all appurtenances. There is no indication that Congress intended that the Act's broad scope would be circumscribed to the location of the locomotive at the time the injuries occurred.

The assertion being made by the plaintiffs that the states may have authority of the design regulation of the train parts, offline would require the locomotive manufacturers to meet conflicting state standards often, online. They may even have to meet the most stringent state regulations. The national uniformity's goal would have been considerably impaired, either way.

"Through the BIA, the federal government has established a comprehensive, national regime of locomotive regulation" (Law, supra, 114 F.3d at p. 912, fn. omitted.)

The plaintiff's asbestos-related claims still fall squarely within the Locomotive Boiler Inspection Act's preemptive field, the trial court was in fact correct in sustaining the defendant's demur to the complaint.