In the

    United States Court of Appeals
                 For the Seventh Circuit
No. 19-2164

BRADLEY LEDURE,
                                                 Plaintiff-Appellant,

                                 v.


UNION PACIFIC RAILROAD COMPANY,
                                                Defendant-Appellee.


        Appeal from the United States District Court for the
                    Southern District of Illinois.
        No. 3:17-cv-00737-JPG-GCS — J. Phil Gilbert, Judge.



    ARGUED FEBRUARY 12, 2020 — DECIDED JUNE 17, 2020


   Before BAUER, KANNE, and BARRETT, Circuit Judges.
    BAUER, Circuit Judge. Bradley LeDure, a conductor for
Union Pacific Railroad Company, slipped and fell while
preparing a locomotive for departure. LeDure brought suit for
negligence against Union Pacific under the Locomotive
Inspection Act and the Federal Employers’ Liability Act. The
district court granted summary judgment for Union Pacific. It
2                                                 No. 19-2164

found the Locomotive Inspection Act inapplicable and then
determined that LeDure’s injuries were otherwise unforesee-
able because he slipped on a small “slick spot” unknown to
Union Pacific. For the following reasons, we affirm.
                     I. BACKGROUND
    On August 12, 2016, at about 2:10 a.m., LeDure reported to
work at a rail yard in Salem, Illinois. His job was to assemble
a train for a trip to Dexter, Missouri. The first step was to
determine how many locomotives were necessary and tag each
one to indicate whether or not they would operate.
   Three locomotives were coupled together on a sidetrack.
The locomotives arrived at 2:00 a.m. from Chicago, Illinois.
LeDure decided that only one locomotive would be powered
on. LeDure tagged the first locomotive for operation and the
second for non-operation. He moved to the final locomotive,
UP5683, to shut it down and tag it accordingly.
    While on the exterior walkway of UP5683, LeDure slipped
and fell down its steps. LeDure got up and proceeded to power
down and tag the locomotive. He returned to where he fell
and, using a flashlight, bent down to identify a “slick” sub-
stance. LeDure reported the incident to his supervisor. He gave
a written statement before going home. Union Pacific con-
ducted an inspection and reported cleaning a “small amount of
oil” on the walkway.
   LeDure sued Union Pacific for negligence. He alleged
violations of the Locomotive Inspection Act and the Federal
Employers’ Liability Act, arguing that Union Pacific failed to
maintain the walkway free of hazards. Both parties moved for
No. 19-2164                                                        3

summary judgment. The district court agreed with Union
Pacific and dismissed LeDure’s claims with prejudice. The
court found the Locomotive Inspection Act inapplicable since
UP5683 was not “in use” during the incident. It also held
LeDure’s injuries were not reasonably foreseeable because they
resulted from a small “slick spot” unknown to Union Pacific.
LeDure moved to alter or amend the judgment, and the court
denied the motion. LeDure timely appealed.
                        II. DISCUSSION
    We review de novo the grant of summary judgment. Kopplin
v. Wis. Cent. Ltd., 

, 1102 (7th Cir. 2019). Summary
judgment is required if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). A court will grant summary
judgment against a party “who fails to make a showing
sufficient to establish the existence of an element essential to
that party's case, and on which that party will bear the burden
of proof at trial.” Bio v. Fed. Express Corp., 

, 596 (7th
Cir. 2005).
    The Locomotive Inspection Act and the Federal Employers’
Liability Act together provide redress for injured railroad
workers. Specifically, the Locomotive Inspection Act supple-
ments a Federal Employers’ Liability Act negligence claim. The
Locomotive Inspection Act delegates authority to the Secretary
of Transportation to create regulations delineating the safe
“use” of locomotives. 49 U.S.C. § 20701. If the plaintiff shows
a regulatory violation, this establishes negligence per se. The
plaintiff must still show, per the Federal Employers’ Liability
Act, the injury resulted “in whole or in part” from this negli-
4                                                     No. 19-2164

gence. Crane v. Cedar Rapids Iowa City Ry., 

(1969)
(citing 45 U.S.C. § 51).
    The first question for the Locomotive Inspection Act is
whether the locomotive was “in use” at the time of the acci-
dent. Brady v. Terminal Rail Ass’n of St. Louis, 

, 13
(1938); Lyle v. Atchison T. & S.F. Ry. Co., 

, 222 (7th
Cir. 1949). The district court noted the circuit courts’ various
tests. For instance, while the Fourth Circuit created a totality of
the circumstances analysis, the Fifth Circuit has said a locomo-
tive is “in use” if it is assembled and the crew has completed
pre-departure procedures. Deans v. CSX Transportation, Inc., 

, 329 (4th Cir. 1998); Trinidad v. Southern Pacific
Transportation Co., 

, 189 (5th Cir. 1991).
    In determining that UP5683 was not in use, the district court
properly applied Lyle and its holding that “to service an engine
while it is out of use, to put it in readiness for use, is the
antithesis of using it.” 

. LeDure essentially
seeks to limit this holding to say a locomotive is not “in use”
only when it is being repaired, but this is an unduly narrow
reading of Lyle and its progeny. See Tisneros v. Chicago & N.W.
Ry. Co, 

(7th Cir. 1952). The district court reasoned
that UP5683 was stationary, on a sidetrack, and part of a train
needing to be assembled before its use in interstate commerce.
For those reasons, we agree it was not “in use” and that the
Locomotive Inspection Act and its regulations are inapplicable.
   LeDure argues that Union Pacific        is nevertheless liable
because it did not clean up the slick       spot or alternatively
because UP5683’s walkway traction          was not adequately
maintained. For claims about unsafe        work conditions, an
No. 19-2164                                                      5

essential element of a Federal Employers’ Liability Act claim is
foreseeability, or whether there were “circumstances which a
reasonable person would foresee as creating a potential for
harm.” Holbrook v. Norfolk Southern Ry. Co., 

, 742
(7th Cir. 2005) (quoting McGinn v. Burlington N. R.R., 

, 300 (7th Cir. 1996)). The plaintiff “must show that the
employer had actual or constructive notice of those harmful
circumstances.”

v. Nat'l R.R. Passenger Corp.,

, 1063 (7th Cir.1998)).
    The district court correctly held that LeDure failed to
provide evidence sufficient to prove his injuries were reason-
ably foreseeable. Whereas the Holbrook plaintiff identified the
potential source of oil he slipped on, LeDure does not claim
Union Pacific had notice of the slick spot or any hazardous
condition that could have leaked the oil. Instead, he argues that
Union Pacific should have inspected UP5683 and cleaned the
spot beforehand. But, as in Holbrook, there is no evidence that
an earlier inspection would have cured the hazard. This is
problematic when LeDure testified the spot was small, iso-
lated, and without explanation. Under these facts, a jury could
not find Union Pacific knew or should have known about the
oil or its hazard to LeDure.
    Finally, LeDure argues the district court failed to address
his argument that UP5683’s walkway was not adequately
maintained. This is inaccurate. LeDure introduced pictures of
UP5683’s walkway two years after the incident and pictures of
another locomotive walkway that did not use metal studs for
traction. As the district court noted, LeDure presented evidence
to support a design-defect theory but nothing to show negli-
gence. Just as importantly, the cause of his injury was
6                                                No. 19-2164

undisputedly the slick spot and there is no evidence—aside
from LeDure’s lay testimony—to suggest the alternate design
pattern could have prevented his injury.
                    III. CONCLUSION
    We conclude that the Locomotive Inspection Act and its
regulations are inapplicable since UP5683 was not “in use” at
the time of LeDure’s injury. We further hold that LeDure’s
injuries were not reasonably foreseeable under the Federal
Employers’ Liability Act and thus Union Pacific breached no
duty of care. For those reasons, we AFFIRM the grant of
summary judgment for Union Pacific.