Lupia v. New Jersey Transit Rail Operations, Inc. In the

23-657-cv
Lupia v. New Jersey Transit Rail Operations, Inc.
In the 1
United States Court of Appeals 2
for the Second Circuit 3
4
5
6
A UGUST TERM 2023 7
8
No. 23-657-cv 9
10
S COTT L UPIA, 11
Plaintiff-Appellee, 12
13
v. 14
15
NEW JERSEY TRANSIT R AIL OPERATIONS , INC., 16
Defendant-Appellant. 17
18
19
On Appeal from the United States District Court for the Southern 20
District of New York 21
22
23
A RGUED: FEBRUARY 27, 2024 24
D ECIDED: A UGUST 1, 2024 25
26
27
Before: C ALABRESI, CABRANES , and L OHIER , Circuit Judges. 28
29

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2
The Locomotive Inspection Act (“LIA”) makes it unlawful to use a 1
locomotive on a railroad carrier’s railroad line when the “parts and 2
appurtenances” of the locomotive are not “in proper condition and 3
safe to operate without unnecessary danger of personal injury.” 49 4
U.S.C. § 20701. The principal question on appeal is whether an air 5
conditioning (“A/C”) unit may qualify as one of the “parts and 6
appurtenances” of a locomotive under the LIA. The United States 7
District Court for the Southern District of New York (Lewis J. Liman, 8
Judge) held that a temperature control system is one of the “parts and 9
appurtenances” of a locomotive. Further, if a carrier creates a 10
temperature control system based on an A/C unit, then the LIA 11
requires that the carrier maintain that system in “proper condition and 12
safe to operate without unnecessary danger of personal injury.” We 13
agree. 14
The judgment of the District Court is AFFIRMED. 15
16
S TEPHEN J. F ITZGERALD, Garrison, Levin- 17
Epstein, Fitzgerald & Pirrotti, P.C., New 18
Haven, CT (Joshua R. Goldbaum, Garrison, 19
Levin-Epstein, Fitzgerald & Pirrotti, P.C., 20
New Haven, CT; Charles C. Goetsch, 21
Charles Goetsch Law Offices, LLC, New 22
Haven, CT, on the brief), for Plaintiff-Appellee. 23

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3
B RIAN R. TIPTON, Florio Perrucci Steinhardt 1
Cappelli Tipton & Taylor, LLC, Easton, PA, 2
for Defendant-Appellant. 3
4
JOSÉ A. C ABRANES , Circuit Judge: 5
This appeal arises from Plaintiff-Appellee Scott Lupia’s claim 6
under the Federal Employers’ Liability Act (“FELA”) against 7
Defendant-Appellant New Jersey Transit Rail Operations, Inc. 8
(“NJT”). Lupia, formerly an engineer for NJT, was injured when his 9
cab overheated due to a faulty air conditioning (“A/C”) unit. Lupia 10
alleged that NJT violated FELA by failing to provide him with a 11
locomotive with all of its “parts and appurtenances” safe to operate in 12
violation of the Locomotive Inspection Act (“LIA”), 49 U.S.C. § 20701. 13
We are asked whether an A/C unit may qualify as one of the “parts 14
and appurtenances” of a locomotive under the LIA. The United States 15
District Court for the Southern District of New York (Lewis J. Liman, 16
Judge) determined that a temperature control system is “one of the 17
parts and appurtenances” of a locomotive. Further, if a carrier creates 18
a temperature control system based on an A/C unit, then the LIA 19
requires that the carrier maintain that system in “proper condition and 20

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4
safe to operate without unnecessary danger of personal injury.”1 We 1
agree. 2
The judgment of the District Court is AFFIRMED. 3
BACKGROUND 4
At the time of the events in question, NJT employed Plaintiff- 5
Appellee Scott Lupia as a locomotive engineer in NJT’s Hoboken 6
Division. On July 21, 2020, Lupia entered the cab of his assigned 7
locomotive at Penn Station to discover that the cab’s A/C unit was not 8
working. Lupia notified his supervisors, who measured the cab’s 9
temperature at 114 degrees Fahrenheit. Lupia was nonetheless 10
ordered to operate the train as scheduled. Approximately forty 11
minutes after departing from Penn Station, Lupia collapsed from heat 12
exhaustion, suffering head and neck injuries which resulted in 13
permanent, career-ending disabilities. 14
Lupia initiated this action against his former employer alleging that 15
NJT violated the Federal Employers’ Liability Act (“FELA”).2 Lupia’s 16
principal theory of liability is that NJT violated FELA by failing to 17
1 49 U.S.C. § 20701.
2 45 U.S.C. § 51. Section 51 provides that “[e]very common carrier by railroad while
engaging in [interstate or foreign] commerce . . . shall be liable in damages to any
person suffering injury while he is employed by such carrier in such commerce.”

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provide him with a locomotive with all of its “parts and 1
appurtenances” safe to operate as required by the Locomotive 2
Inspection Act (“LIA”), 49 U.S.C. § 20701, and that as a result of such 3
violation, Lupia was injured. 4
NJT moved for summary judgment on Lupia’s claim under the LIA, 5
arguing that the A/C unit was not one of the “parts and 6
appurtenances” of the locomotive. The District Court denied NJT’s 7
motion, holding that a “temperature control system” was one of the 8
“parts and appurtenances” of a locomotive, and the evidence at 9
summary judgment demonstrated that NJT had elected to control cab 10
temperature by A/C unit.3 The District Court further held that Lupia 11
had adduced sufficient evidence that NJT’s “temperature control 12
system was not in a proper condition and safe to operate without 13
unnecessary danger of personal injury.”4 Lupia thus proceeded to trial 14
on the LIA claim. 15
During the cross-examination of one of NJT’s witnesses, the District 16
Court permitted Lupia to introduce a Rail Asset Management Systems 17
(“RAMS”) report prepared by NJT mechanical staff to impeach NJT’s 18
3 Lupia v. New Jersey Transit Rail Operations, Inc., No. 21-CV-11077, 2022 WL
17904551, at *7 (S.D.N.Y. Dec. 23, 2022).
4 Id. at *8.

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witness.5 The District Court observed that “[t]here was testimony on 1
direct examination about the standard of care” exercised by NJT and 2
that it was “perfectly appropriate on cross examination for counsel to 3
inquire into that” by introducing the RAMS report, which showed that 4
the A/C unit in Lupia’s cab remained broken five days after Lupia’s 5
collapse.6 6
Before summations and over NJT’s objections, the District Court 7
permitted Lupia “to argue to the jury that a fair measure of the 8
noneconomic damages is a multiple of two or three or more of what 9
[Lupia had] argued is . . . the economic damages.”7 The District Court 10
noted that “[t]he Second Circuit has repeatedly cautioned against 11
allowing counsel to mention a specific dollar amount for pain and 12
suffering, but also has left it to the discretion of the district judge 13
whether to permit such arguments, [] to impose reasonable limits,” or 14
include cautionary jury instructions.8 15
5 Joint Appendix (“JA”) 538-39.
6 Id. at 536.
7 Id. at 654. The District Court also instructed the jury that “[a]ny dollar figure
suggested by plaintiff’s counsel as appropriate relief in this case is only a
comment on the evidence or a suggestion. Such a suggestion is not evidence, and
you are free to disregard it.” Id. at 701.
8 JA 661-62 (citing Consorti v. Armstrong World Indus., Inc., 72 F.3d 1003, 1016 (2d.
Cir. 1995), vacated on other grounds sub nom., Consorti v. Owens-Corning Fiberglas

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The jury returned a verdict in favor of Lupia and awarded Lupia 1
$450,000 for past lost earnings, $3,667,189 for future impairment to 2
earning capacity, $900,000 for past pain and suffering, and $6,600,940 3
for future pain and suffering. NJT timely appealed. 4
5
DISCUSSION9 6
The principal question presented is whether the District Court 7
erred in denying, in part, NJT’s motion for summary judgment. NJT 8
argued that a faulty A/C unit does not violate § 20701 of the LIA and, 9
by extension, does not establish strict liability under FELA. 10
Section 20701 of the LIA provides that a railroad carrier may 11
operate a locomotive “only when the locomotive . . . and its parts and 12
appurtenances . . . are in proper condition and safe to operate without 13
unnecessary danger of personal injury.”10 “[F]ailure to violate a 14
Corp., 518 U.S. 1031 (1996)); Mileski v. Long Island R. Co., 499 F.2d 1169, 1174 (2d Cir.
1974)).
9 Our review is de novo. See Power Auth. v. M/V Ellen S. Bouchard, 968 F.3d 165, 170
(2d Cir. 2020) (“We review a grant of summary judgment de novo; specifically,
where the disposition presents only a legal issue of statutory interpretation, as here,
we review de novo whether the district court correctly interpreted the statute.”
(quotation marks omitted)).
10 49 U.S.C. § 20701 (emphasis added).

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specific federal regulation [does not] immunize[] [a carrier] from 1
liability.”11 That is, NJT may still violate the LIA if the “parts and 2
appurtenances” of its locomotive are unsafe. 3
In Southern Railway Co. v. Lunsford, the Supreme Court held that an 4
experimental braking device was not one of the “parts and 5
appurtenances” of a locomotive for the purposes of the Boiler 6
Inspection Act (“BIA”), the LIA’s predecessor statute.12 The Court 7
explained that “mere experimen[t]al devices which do not increase the 8
peril, but may prove helpful in an emergency,” were not “parts and 9
appurtenances” for the purposes of the BIA.13 By contrast, “[w]hatever 10
in fact is an integral or essential part of a completed locomotive . . . [was] 11
within the statute.”14 12
We agree with the District Court that a temperature control system 13
is an integral or essential part of a completed locomotive. NJT does not 14
dispute this. After all, a locomotive cannot operate safely if its engineer 15
11 Whelan v. Penn Cent. Co., 503 F.2d 886, 890 (2d Cir. 1974).
12 297 U.S. 398, 402 (1936).
13 Id.
14 Id. (emphasis added).

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is incapacitated from exposure to extreme heat.15 We also agree that if 1
a carrier bases its temperature control system on an A/C unit, then the 2
LIA requires that the carrier maintain that A/C unit in proper 3
condition and safe to operate without unnecessary danger of personal 4
injury. Accordingly, the District Court properly denied, in part, NJT’s 5
motion for summary judgment. 6
The Supreme Court observed that although the LIA’s predecessor 7
statute “required a condition which would permit use of the 8
locomotive without unnecessary danger,” it often “left to the carrier 9
the choice of means to be employed to effect that result.”16 Here, there 10
was a range of options available for NJT to limit employee heat 11
exposure. According to the FRA, these included: 12
isolation from heat sources such as the prime 13
mover; reduced emissivity of hot surfaces; 14
insulation from hot or cold ambient 15
environments; heat radiation shielding 16
including reflective shields, absorptive 17
shielding, transparent shielding, and flexible 18
shielding; localized workstation heating or 19
cooling; general and spot (fan) ventilation; 20
15 The Federal Railroad Administration (FRA) observes that human performance
decreases “when temperatures increase above 80°F, and that performance
decreases to an even greater extent when the temperature increases above 90°F.”
Locomotive Safety Standards, 77 Fed. Reg. 21312-01, 21319 (Apr. 9, 2012).
16 Baltimore & O. R. Co. v. Groeger, 266 U.S. 521, 530 (1925).

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evaporative cooling; [and] chilled coil 1
cooling systems.17 2
3
We assume for present purposes that an A/C unit is not essential or 4
integral to a completed locomotive if the same or similar effect is 5
achieved by one or more other temperature-regulating options. 6
However, once NJT chose—from among the options available—to 7
base its temperature control system on an A/C unit, the A/C unit 8
became one of the essential “parts and appurtenances” of the 9
locomotive.18 NJT was thus obligated to maintain the A/C unit in 10
proper condition and safe to operate without unnecessary danger of 11
personal injury. 12
17 77 Fed. Reg. at 21319.
18 NJT’s opening brief argues that the A/C unit was not one of the essential “parts
and appurtenances” of the locomotive because Lupia “had the ability to open the
windows of the cab, which was properly ventilated notwithstanding the presence
of a functioning air conditioning unit.” Appellant’s Br. 20. NJT also claims that
the A/C unit was merely “one component of the temperature control system” of
the train cab. Id. at 6. To the extent that NJT purports to challenge the District
Court’s factual determination at summary judgment that NJT “chose to use an
A/C” unit as its “temperature control system,” or that it was the “A/C system that
allowed the locomotive to have a functioning system to control cab temperature,”
Lupia v. New Jersey Transit Rail Operations, Inc., 2022 WL 17904551, at *7, we reject
the argument as barred by NJT’s failure to make a Rule 50 motion below. See
Dupree v. Younger, 598 U.S. 729, 734 (2023) (“[A] party must raise a sufficiency-of-
the-evidence claim in a post-trial motion to preserve it for appeal.”).

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We have considered NJT’s remaining challenges to the District 1
Court’s rulings and find them to be without merit.19 2
II. CONCLUSION 3
For the foregoing reasons, we AFFIRM the judgment of the District 4
Court. 5
19 As to NJT’s arguments that the District Court erred in allowing Lupia’s counsel
to make remarks at trial regarding the calculation of pain and suffering and that the
District Court erred in admitting the locomotive safety report (RAMS report) for
impeachment purposes at trial, we review these rulings for “abuse of discretion.”
See United States v. Fazio, 770 F.3d 160, 165 (2d Cir. 2014) (“We review a district
court’s rulings on the admissibility of trial evidence for abuse of discretion.”);
Lightfoot v. Union Carbide Corp., 110 F.3d 898, 912 (2d Cir. 1997) (declining to “adopt
a per se rule prohibiting counsel from suggesting a specific sum as [noneconomic]
damages” and endorsing “a more flexible approach” which leaves the issue “to the
discretion of the trial judge”), abrogated on other grounds by Nat’l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101 (2002). Finding no “abuse of discretion” in the District
Court’s decisions, we affirm for substantially the reasons given by Judge Liman. See
text accompanying notes 5-8, ante.

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