                                                       FIRST DIVISION
                                                       April 19, 2010




No. 1-09-1291


WILLIAM HARDLANNERT,               )   Appeal from the
                                   )   Circuit Court of
          Plaintiff-Appellee,      )   Cook County.
                                   )
          v.                       )   No. 06 L 4660
                                   )
ILLINOIS CENTRAL RAILROAD COMPANY, )   The Honorable
                                   )   Eileen Mary Brewer,
          Defendant-Appellant.     )   Judge Presiding.


     JUSTICE GARCIA delivered the opinion of the court.

     The plaintiff, William Hardlannert, filed this suit under

the Federal Employer's Liability Act (FELA) (45 U.S.C. §51

through 60 (2000)) and the Federal Safety Appliance Act (FSAA)

(49 U.S.C. §20301 et seq. (2000)) after he sustained a back

injury while working on defendant Illinois Central Railroad

Company's switching tracks.   Hardlannert, a railroad conductor,

injured his back while attempting to open an allegedly defective

train knuckle, the device that allows railcars to be coupled.

Following discovery, Hardlannert moved for partial summary

judgment on liability under the FSAA; Judge Eileen Mary Brewer

entered an order granting the motion and finding no just reason

to delay appeal.   Illinois Central appeals, contending that
1-09-1291


whether Hardlannert's injury was caused solely by his own

negligence is an open question of material fact that precludes

summary judgment.    Illinois Central also contends that as a point

of law, the railcar Hardlannert was working on was not "in use"

under the FSAA, to trigger its application.   Based on the record

evidence, no conclusion could reasonably be drawn other than

Illinois Central's violation of the FSAA played a causal role in

Hardlannert's injury.   We also find that as an issue of law, the

railcar involved was "in use" under the statute.   We affirm.

                             BACKGROUND

     In April 1999, Illinois Central hired Hardlannert as a

railroad conductor, a position he continuously held during his

employment.   On October 10, 2005, Hardlannert was working at

Illinois Central's Glen Yard on the switching tracks, where

railcars are assembled with locomotives to form trains for

movement.   His first task that day was to switch certain railcars

out of track 4.

     According to his deposition, upon arriving at track 4

Hardlannert successfully coupled railcar WC 84867 to the

locomotive.   He then walked to the next railcar he needed to

couple and opened its knuckle.   To do so, he pulled on the handle

of the pin lifter, which unlocks the knuckle so that it can be

manually opened.    He then noticed that the connecting knuckle on

                                  2
1-09-1291


railcar WC 84867 was closed.    Hardlannert approached that knuckle

and attempted to open it; he testified that "it's best to have

both knuckles open to ensure a successful coupling because what

sometimes will happen is if one knuckle is closed and one knuckle

is open, [the two knuckles] will hit and close both knuckles

without a tie."

     According to Hardlannert, he stood facing the knuckle on

railcar WC 84867 with his left foot outside the outer track and

his right foot between the tracks.    He then pulled on the pin

lifter handle with his left hand while using his right hand to

push open the knuckle.    Hardlannert "was taught" to open knuckles

in this fashion.   When Hardlannert pulled on the pin lifter, it

"stopped suddenly" and he "felt a jolt."    Hardlannert testified

that it was a common occurrence for a pin lifter to suddenly stop

when pulled, so he attempted to lift the pin lifter a second

time.   However, on the second attempt the handle to the pin

lifter "snapped off" in his hand, and the rest of the pin lifter

fell to the ground.    Hardlannert testified that during the second

attempt, he "felt a pain in [his] back that [he] hadn't felt

before."    Hardlannert was never able to open the knuckle, but was

nonetheless able to couple railcar WC 84867 with the adjacent

railcar with the use of the locomotive by forcing the two

railcars together.    Although Hardlannert continued working for

                                  3
1-09-1291


approximately two hours, he was forced to report the injury when

the back pain started to radiate down his legs.   Hardlannert

testified that at that point he "was in tears" from the severe

pain.   He was unable to perform his duties as a conductor after

the incident and was dismissed 19 days later on October 29, 2005.

     Anthony Schweitzer, Illinois Central's former senior

mechanical manager, indicated at his deposition that if a pin

lifter abruptly stops when pulled, it is not necessarily

defective.   However, Schweitzer admitted that based on the

physical evidence, the lock lift of the pin lifter, which unlocks

the knuckle, was likely cracked prior to the incident,

constituting a defective piece of equipment.

     Professor Ralph Barnett, a professor of mechanical and

aerospace engineering at the Illinois Institute of Technology,

signed an affidavit as Illinois Central's expert.   Professor

Barnett averred that the stance Hardlannert used in his effort to

open railcar WC 84867's connecting knuckle was a violation of

Illinois Central's safety regulations, which required employees

to "keep [their] feet clear of the area under the coupler in case

the knuckle should fall."   Barnett believed that Hardlannert's

practice of opening train knuckles in this fashion "compromised

his back."   Barnett noted that the two railcars could have been

coupled even with only one of the two knuckles open, as occurred

                                 4
1-09-1291


here.   He also noted that the "lock lift hook," which is attached

to the end of the pin lifter, was fractured, but concluded that

"the fracture of the [lock lift] hook was not a proximate cause

of [Hardlannert's] back injury."

     Hardlannert filed a complaint on May 4, 2006, alleging a

violation of the FSAA (49 U.S.C. §20301 et seq. (2000)), for his

claim under the FELA (45 U.S.C. §51 through 60 (2000)).       On March

3, 2009, Hardlannert filed a motion for partial summary judgment

on liability.   On May 7, 2009, Judge Brewer entered an order

granting Hardlannert's motion and finding no just reason for

delay of this appeal.

                             ANALYSIS

     Summary judgment is warranted when "the pleadings,

depositions, and admissions on file, together with any

affidavits, when viewed in the light most favorable to the

nonmovant, reveal there is no genuine issue of material fact and

that the movant is entitled to judgment as a matter of law."

Midwest Trust Services, Inc. v. Catholic Health Partners

Services, 392 Ill. App. 3d 204, 209, 910 N.E.2d 638 (2009),

citing 735 ILCS 5/2-1005(c) (West 2000).       Our review of a grant

of summary judgment is de novo.        DeSaga v. West Bend Mutual

Insurance Co., 391 Ill. App. 3d 1062, 1066, 910 N.E.2d 159

(2009).

                                   5
1-09-1291


                             Causation

     Illinois Central first contends that the circuit court erred

in granting summary judgment on liability because whether

Hardlannert's own negligence was the sole cause of his injuries

remains an open question.   Illinois Central contends a jury could

find Hardlannert's own negligence to be the sole cause of his

injuries, notwithstanding Illinois Central's concession in its

response to Hardlannert's motion for summary judgment that the

defective condition of the knuckle on railcar WC 84867 violated

the FSAA and the regulations promulgated by the Secretary of

Transportation for the administration of the FSAA.   49 U.S.C.

§20302 (2000); 49 C.F.R. §215.123 (2009) (prohibiting railroad

carriers from equipping railcars with defective couplers or

inoperative lock lifts); see also Taluzek v. Illinois Central

Gulf R.R. Co., 255 Ill. App. 3d 72, 80, 626 N.E.2d 1367 (1993)

(describing the regulatory powers of the Secretary of

Transportation under the FSAA).

     Employees alleging injuries resulting from violations of the

FSAA may maintain a private right of action under the FELA.

DeBiasio v. Illinois Central R.R., 52 F.3d 678, 683 (7th Cir.

1995), citing Crane v. Cedar Rapids & Iowa City Ry. Co., 395 U.S.

164, 166, 23 L. Ed. 2d 176, 179, 89 S. Ct. 1706, 1708 (1969).    In

such an action, the defendant railroad "is deprived of the

                                  6
1-09-1291


defenses of contributory negligence and assumption of risk."

Crane, 395 U.S. at 166, 23 L. Ed. 2d at 180, 89 S. Ct. at 1708.

However, the defendant is not liable if the plaintiff's

negligence was the sole cause of his injuries (Baker v. CSX

Transportation, Inc., 221 Ill. App. 3d 121, 130, 581 N.E.2d 770

(1991)), because that "eliminates the possibility that the

regulatory violation contributed in whole or part to the injury"

(Walden v. Illinois Central Gulf R.R., 975 F.2d 361, 364 (7th

Cir. 1992)).   Thus, to succeed on this theory the defendant

railroad would need to prove (1) that the plaintiff was

negligent, in that he acted "without the degree of care that a

reasonably prudent person would have used for his or her own

safety under like circumstances" (Coole v. Central Area

Recycling, 384 Ill. App. 3d 390, 396, 893 N.E.2d 303 (2008)), and

(2) that the plaintiff's negligence was, "by itself, the direct

and immediate cause of the injury, or *** a cause which so

entirely supersedes the operation of the defendant's [FSAA

violation] that it alone, without the defendant's [violation]

contributing thereto in the slightest degree, produces the

injury" (Baker, 221 Ill. App. 3d at 130).   "[The] defendant's

liability is still absolute in [FELA] cases if [the] plaintiff

establishes a violation of the [FSAA] and a causative

relationship between the violation and his injuries."     Baker, 221

                                 7
1-09-1291


Ill. App. 3d at 134.

     Illinois Central argues that Hardlannert's "conduct in

deciding to open the [connecting] knuckle" on railcar WC 84867

was negligent and a jury could find it to be the sole cause of

his injury.   Illinois Central does not explain how Hardlannert's

"conduct" in attempting to open the knuckle was negligent.    We

can only surmise, without the benefit of an explanation, that

Hardlannert's very decision to use the pin lifter to open the

knuckle is deemed negligent conduct by Illinois Central.    We fail

to see how Hardlannert's attempt to open the knuckle by way of

the pin lifter constituted negligence of any sort.   The very

presence of a handle on the pin lifter suggests this is a

commonly accepted method of unlocking the knuckle on a railcar,

which is precisely what Hardlannert attempted in order to couple

the second railcar with railcar WC 84867.   It is disingenuous for

Illinois Central to suggest that using the handle on the pin

lifter to open the knuckle on railcar WC 84867 made Hardlannert

completely responsible for his injury without also calling into

question Hardlannert's use of the handle to open the knuckle on

the adjacent railcar.

     We reject Illinois Central's suggestion that once one

knuckle was open, Hardlannert was barred from attempting to open

the knuckle on railcar WC 84867 by the same method, even though

                                 8
1-09-1291


the handle worked without a hitch in opening the knuckle of the

railcar to be coupled.    That the railcars could have been (and in

fact were) coupled with a single knuckle being open does not mean

that Hardlannert had to believe there was danger in opening both

knuckles with the pin lifter; no trains were in motion at the

time, and the knuckle on railcar WC 84867 appeared to be in

working order.   In fact, an attempt to open the knuckle with the

equivalent of a pin lifter after an attempt to force the coupling

of railcars with only one knuckle open does not preclude summary

judgment on liability against the railroad.    See Romero v. CSX

Transportation, Inc., No. 06-1783, slip op. at 9 (D.N.J. December

9, 2008) (summary judgment on liability granted to railroad

employee injured when railcars failed to couple automatically

"upon impact," causing employee to attempt to open coupling

knuckle manually).    That Hardlannert did not first attempt to

couple the railcars by impact cannot transform prudent conduct of

attempting to open the knuckle with the pin lifter into negligent

conduct, such that said conduct can be found to be the sole cause

of his injury.

     Illinois Central also argues that the "negligent" stance

Hardlannert used in opening the knuckle was the sole cause of his

injury because the stance violated a safety regulation.      Once

again, we disagree.    See Romero, slip op. at 9 (railroad

                                  9
1-09-1291


employee's alleged violation of safety rule did not preclude

summary judgment on liability against railroad because "[t]he

risk of an employee going between railcars when they fail to

couple upon impact is foreseeable").   It is not clear that

Hardlannert even violated the safety regulation that required he

"keep [his] feet clear of the area under the coupler in case the

knuckle should fall."   Hardlannert testified that he was taught

to open knuckles in the fashion he used.   His stance while

opening the knuckle, with his left foot outside the outer track

and his right foot between the tracks, was not a clear violation

of an Illinois Central safety regulation designed to protect

employees from injury should the knuckle fall.     Nor is there any

suggestion by Illinois Central that the safety regulation that

prohibits having one foot inside the tracks contemplates

protecting employees against back injuries.   Even if it did, the

violation of a safety regulation or statute itself does not

establish negligence until that violation is shown to be a cause

of the injury.   Coole, 384 Ill. App. 3d at 397.    It is undisputed

that Hardlannert was not injured until the pin lifter handle

broke in his left hand; the knuckle did not fall.    Thus, Illinois

Central is unable to remove its own violation of the FSAA from

the causal chain that resulted in Hardlannert's back injury.    No

reasonable fact finder could conclude that Illinois Central's

                                10
1-09-1291


faulty equipment was causally unrelated to the accident in order

to find Hardlannert solely responsible for his injury.

     Illinois Central's reliance upon the Seventh Circuit's

Walden decision is misplaced.   In that case, a jury found against

the plaintiff in his claim for injuries he sustained while

walking to his cabin seat when the train suddenly stopped during

a coupling procedure.   Walden, 975 F.2d at 363.   Radio

communications were interrupted during the coupling procedure;

because the coupling procedure continued for some time without

radio communications, the procedure violated the Federal Railroad

Administration Radio Standards.    Walden, 975 F.2d at 363, citing

49 C.F.R. §220.49.   However, the court held that the jury could

reasonably find the plaintiff was in an area where he knew he

could not appropriately brace himself during the coupling

procedure, which exposed him to possible injury should the train

suddenly stop.   Critical to the determination that the jury could

find against the plaintiff on causation was the inescapable

conclusion that the plaintiff exposed himself to the same risk of

injury had the train stopped immediately when radio

communications were interrupted, as required by the radio

standards.   In other words, the violation of the radio standards

had no causal relationship to the injury the plaintiff sustained,

given that the risk the plaintiff faced would have been the same.

                                  11
1-09-1291


The plaintiff should never have been in a place where he knew he

could not brace himself if a sudden stop should occur.     Walden,

975 F.2d at 364-65.     Because a jury could find the plaintiff's

actions were the sole cause of his injury, the court upheld the

verdict in the defendant railroad's favor.     Walden, 975 F.2d at

365.

       The facts of this case bear no similarities to those in

Walden.     In order for this case to be similar to Walden, Illinois

Central had to marshal evidence that Hardlannert would have

sustained the back injury even if the handle to the pin lifter

had not "snapped off" while he was attempting to open the knuckle

by use of the pin lifter.     Similar to Walden, Illinois Central

could then argue that the defective piece of equipment, which

violated the FSAA, had no causal relationship to the injury

Hardlannert sustained.     Of course, no such evidence was ever

adduced by Illinois Central.1

       We conclude that the record evidence, at the conclusion of



       1
           We reject any suggestion by Illinois Central that

Professor Barnett, whose expertise is engineering, is qualified

to give an opinion that Hardlannert's physical actions, including

his stance, entitled it to go before a jury on the otherwise

unsupported claim that Hardlannert solely caused his back injury.

                                  12
1-09-1291


discovery, established as a matter of law, even when viewed in

the light most favorable to Illinois Central, that Hardlannert's

injuries were at least in part caused by Illinois Central's

violation of the FSAA.   The connecting knuckle of railcar WC

84867 was defective; Schweitzer testified that the lock lift

portion of the pin lifter, which actually unlocks the knuckle,

was likely cracked prior to the incident.   Illinois Central does

not dispute this fact.   That the lock lift was cracked is

consistent with Hardlannert's testimony that the pin lifter

handle broke while he attempted to pull the stuck pin lifter a

second time.   Although Professor Barnett's affidavit sets out an

opinion that "the fracture of the [lock lift] hook was not a

proximate cause of [Hardlannert's] back injury," Hardlannert was

"not required to prove common-law proximate causation but only

that his injury resulted 'in whole or in part' from the

railroad's violation of the [FSAA] [citations]."    Crane, 395 U.S.

at 166, 23 L. Ed. 2d at 180, 89 S. Ct. at 1708.    Under the FELA,

liability of a railroad is established if its "negligence played

any part, even the slightest, in producing the injury or death

for which damages are sought."   Rogers v. Missouri Pacific R.R.

Co., 352 U.S. 500, 506, 1 L. Ed. 2d 493, 499, 77 S. Ct. 443, 448

(1957).   We find it indisputable that a defect in Illinois

Central's equipment had at least some "causative relationship"

                                 13
1-09-1291


with Hardlannert's back injury.    Baker, 221 Ill. App. 3d at 134.

     The record evidence foreclosed Illinois Central's defense

that Hardlannert was completely responsible for his injury.        To

the contrary, we find as a matter of law that Hardlannert's

injury was at least partially, if not wholly, caused by Illinois

Central's violation of the FSAA.       Hence, the circuit court

properly granted his motion for summary judgment on the liability

issue.

                            "In Use"

     Illinois Central next contends that as a point of federal

law, the FSAA did not apply to railcar WC 84867 because it was

not "in use" under the statute when the incident occurred.

Illinois Central argues that a railcar is not in use when engaged

in switching operations such as those Hardlannert was performing.

This presents an issue of first impression in Illinois.       We

conclude Illinois Central misreads the FSAA in its attempt to

apply the "switching operations exception" developed in federal

case law to circumstances involving a single railcar.       To the

extent certain federal cases apply the exception pertaining to

the unit of equipment of a "train" to the unit of equipment of a

"vehicle," we decline to follow those cases.

     By its terms, the FSAA only limits what "a railroad carrier

may use or allow to be used in any of its railroad lines" (49

                                  14
1-09-1291


U.S.C. §20302(a) (2000)) and, thus, only applies when the

equipment it describes is "in use" (Brady v. Terminal R.R. Ass'n,

303 U.S. 10, 13, 82 L. Ed. 614, 617, 58 S. Ct. 426, 428 (1938)).

To determine whether a unit of equipment is "in use," courts

consider a number of factors, including primarily its "locat[ion]

at the time of the accident and the activity of the injured

party."    Deans v. CSX Transportation, Inc., 152 F.3d 326, 329

(4th Cir. 1998).    However, different units of equipment are

regulated by different sections of the FSAA, and, for reasons

that become clear when considering the statute overall, whether

railroad equipment is "in use" depends on the unit of equipment

the section at issue regulates.

     An outline of the units of equipment regulated by the FSAA

is helpful.    Sections 20302(a)(1) to (a)(3) regulate the use of

"vehicles," defined as "a car, locomotive, tender, or similar

vehicle" (49 U.S.C. §20302(a) (2000)); an exemplary regulation is

section 20302(a)(1)(A), which requires that vehicles be equipped

with "couplers coupling automatically by impact, and capable of

being uncoupled, without the necessity of individuals going

between the ends of the vehicles" (49 U.S.C. §20302(a)(1)(A)

(2000)).    Section 20302(a)(4) applies more specifically to one

type of vehicle, "locomotives."    49 U.S.C. §20302(a)(4) (2000).

However, section 20302(a)(5) applies more broadly to "trains";

                                  15
1-09-1291


that section makes clear that a train is composed of multiple

"vehicles."   It requires that certain proportions of "the

vehicles in the train [be] equipped with" specific types of

brakes.   49 U.S.C. §20302(a)(5) (2000).

     Because the various units of equipment which the FSAA's

provisions regulate are "used" in different ways, the application

of a safety provision turns on the unit of equipment in use.    For

instance, it is apparent that a train, which as the statute makes

clear is composed of multiple "vehicles," cannot be "in use"

until the vehicles in the train have been coupled together in

preparation for movement as a train.    Prior to the completion of

the coupling procedure, no train exists.    A train is not "in use"

while the various vehicles that constitute the unit of a "train"

are being coupled.   Thus, an exception to the FSAA's provisions

regarding trains applies during switching operations, the very

procedure through which a train is assembled.

     In contrast, and more germane to this case, an individual

"vehicle," be it "a car, locomotive, tender, or similar vehicle"

(49 U.S.C. §20301(a) (2000)), implicates different safety rules

pertaining to vehicles "in use."     The regulations regarding the

coupling requirements of a vehicle would make little sense

otherwise; it is in the very process of coupling railcars during

switching operations that couplers perform an essential function.

                                16
1-09-1291


Thus, vehicles are "in use" during switching operations designed

to form a train, while a train is not formed until the coupling

procedure is completed.      The differing sections pertaining to the

different units of equipment concern safety features that come

into play when the various units of equipment are "in use,"

trains versus vehicles.

     A careful reading of federal case law highlights this

distinction.    As early as its decision in United States v. Erie

R.R. Co., 237 U.S. 402, 59 L. Ed. 1019, 35 S. Ct. 621 (1915), the

Supreme Court recognized that the applicability of the FSAA

turned on the unit of equipment at issue:

                    "It will be perceived that the air-brake

            provision deals with running a train, while

            the other requirements relate to hauling or

            using a car.    In one a train is the unit and

            in the other a car.    As the context shows, a

            train in the sense intended consists of an

            engine and cars which have been assembled and

            coupled together for a run or trip along the

            road.    When a train is thus made up and is

            proceeding on its journey it is within the

            operation of the air-brake provision.     But it

            is otherwise with the various movements in

                                    17
1-09-1291


            railroad yards whereby cars are assembled and

            coupled into outgoing trains, and whereby

            incoming trains which have completed their

            run are broken up.   These are not train

            movements, but mere switching operations, and

            so are not within the air-brake provision.

            The other provisions calling for automatic

            couplers and grab irons are of broader

            application and embrace switching operations

            as well as train movements, for both involve

            a hauling or using of cars."    Erie R.R. Co.,

            237 U.S. at 407-08, 59 L. Ed. at 1023, 35 S.

            Ct. at 624.

Thus, the Erie Court recognized that while a train is not in use

during switching operations because the purpose of the switching

operation is to assemble the unit of equipment termed a "train,"

individual railcars are in use during such operations.       During

switching operations, the provisions applicable to a railcar and

another vehicle come into play because that unit of equipment is

"in use" during switching operations.      See, e.g., O'Donnell v.

Elgin, Joliet & Eastern Ry. Co., 338 U.S. 384, 394, 94 L. Ed.

187, 194, 70 S. Ct. 200, 206 (1949) ("the plaintiff was entitled

to a peremptory instruction that to equip a car with a coupler

                                  18
1-09-1291


which broke in the switching operation was a violation of the

Act"); Robb v. Burlington Northern & Santa Fe Ry. Co., 100 F.

Supp. 2d 867, 869-70 (N.D. Ill. 2000) (noting that the "switching

exclusion" applies only to "a worker who was injured on a

'completed train,' " not a worker "injured on a car that was not

part of a completed train"); Williams v. Norfolk Southern Ry.

Co., 126 F. Supp. 2d 986, 991-92 (W.D. Va. 2000).

       Illinois Central's argument that railcar WC 84867 was not

"in use" under the FSAA is founded entirely on Phillips v. CSX

Transportation, Inc., 190 F.3d 289 (4th Cir. 1999) (per curiam).

We find the analysis employed in Phillips inapplicable by its

very language to this case.

       In Phillips, the plaintiff injured his back while connecting

several railcars into a train when the handrail he was using to

climb into one of the railcars gave way.      Phillips, 190 F.3d at

287.    The plaintiff filed suit under the FSAA and the FELA,

alleging that the handrail failure amounted to a violation of the

FSAA.    Phillips, 190 F.3d at 287.    The district court granted the

plaintiff's partial summary judgment motion on liability, and the

defendant appealed.    Phillips, 190 F.3d at 287.    The Fourth

Circuit reversed, noting that the key issue in the case was

determining "the point at which switching operations end and a

train becomes 'in use.' "     Phillips, 190 F.3d at 289.   By its

                                  19
1-09-1291


very language, it appears the Fourth Circuit's framework of its

analysis concerns a train as the unit of equipment.      Ultimately,

the Phillips court concluded that "the train upon which [the

plaintiff] was injured was not 'in use' at the time of his

injury."2   Phillips, 190 F.3d at 290.

     The issue in this case is whether a vehicle, a singular

railcar, was in use.    As discussed above, railcars themselves are

not outside the realm of the FSAA during switching operations.

Williams, 126 F. Supp. 2d at 992.      Holding otherwise would

nullify the FSAA during switching operations, contrary to

provisions in the FSAA enacted by Congress specifically to

promote "safety in the yard during switching operations" such as

those regarding train couplers.     Robb, 100 F. Supp. 2d at 870.

Although the Phillips court found the "train" upon which the



     2
         In Phillips, the plaintiff's claim was founded on a

violation of the handrail provision of the FSAA (49 U.S.C.

§20302(a)(2) (2000)).    Although the handrail provision also

appears to regulate the use of "vehicles," we have no occasion to

consider that provision here.   We reject any implicit suggestion

by Illinois Central that the Phillips decision should guide our

analysis of the coupler provision of the FSAA such that it is

only applicable when a "train" is in use.

                                  20
1-09-1291


plaintiff was injured was not in use, the railcar that caused

Hardlannert's injury was in use during switching operations.

Thus, the FSAA applied to the defective condition on railcar WC

84867 as a matter of law; accordingly, Hardlannert was entitled

to judgment on liability.

                            CONCLUSION

     The circuit court properly granted partial summary judgment

in favor of Hardlannert on Illinois Central's liability under the

FSAA.   On the record evidence, no question of material fact is

raised that Hardlannert acted negligently while attempting to

open the connecting knuckle of railcar WC 84867, which the

physical evidence revealed to be in a defective condition.    The

defective condition of the connecting knuckle constituted a

violation of the FSAA by Illinois Central; even if Hardlannert

could be found to have acted negligently in attempting to open

both knuckles of the railcars to be coupled, no reasonable jury

could find his negligence to be the sole cause of his back injury

because the defective condition of the pin lifter to the knuckle

of railcar WC 84867 is causally related to Hardlannert's injury.

Further, because the coupling provision of the FSAA applies to

the unit of equipment at issue in this case, an individual

railcar, railcar WC 84867 was "in use" at the time of the

incident.

                                21
1-09-1291


    Affirmed.

    HALL, P.J., and PATTI, J., concur.




                              22
1-09-1291


           REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
_______________________________________________________________________
                  WILLIAM HARDLANNERT,

                                Plaintiff-Appellee,

                                v.

                   ILLINOIS CENTRAL RAILROAD COMPANY,

                                Defendant-Appellant.

________________________________________________________________

                                     No. 1-09-1291

                              Appellate Court of Illinois
                             First District, First Division

                             Filed: April 19, 2010
      _________________________________________________________________

                 JUSTICE GARCIA delivered the opinion of the court.

                         HALL, P.J., and PATTI, J., concur.

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                   Appeal from the Circuit Court of Cook County
                  Honorable Eileen Mary Brewer, Judge Presiding
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For PLAINTIFF-           Steven J. Scott
APPELLEE                 MacCabe & McGuire
                         77 West Wacker Dr., Suite 3333
                         Chicago, Illinois 60601

For DEFENDANT-           Ryan Brennan
APPELLANT                The Brennan Law Firm, P.C.
                         19 Bronze Pointe
                         Belleville, Illinois 62226

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1-09-1291


            William B. Kohn
            150 North Walker, Suite 1400
            Chicago, Illinois 60606




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