Kurns v. Railroad Friction Products Corp. (2012)

(Slip Opinion)

OCTOBER TERM, 2011

1

Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES
Syllabus

KURNS, EXECUTRIX OF THE ESTATE OF CORSON,

DECEASED, ET AL. v. RAILROAD FRICTION

PRODUCTS CORP. ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
No. 10–879.

Argued November 9, 2011—Decided February 29, 2012

George Corson worked as a welder and machinist for a railroad carrier.
After retirement, Corson was diagnosed with mesothelioma. He and
his wife, a petitioner here, sued respondents Railroad Friction Products Corporation and Viad Corp in state court, claiming injury from
Corson’s exposure to asbestos in locomotives and locomotive parts
distributed by respondents. The Corsons alleged state-law claims of
defective design and failure to warn of the dangers posed by asbestos.
After Corson died, petitioner Kurns, executrix of his estate, was substituted as a party. Respondents removed the case to the Federal
District Court, which granted them summary judgment, ruling that
the state-law claims were pre-empted by the Locomotive Inspection
Act (LIA), 49 U. S. C. §20701 et seq. The Third Circuit affirmed.
Held: Petitioners’ state-law design-defect and failure-to-warn claims
fall within the field of locomotive equipment regulation pre-empted
by the LIA, as that field was defined in Napier v. Atlantic Coast Line
R. Co., 272 U. S. 605. Pp. 2−11.
(a) The LIA provides that 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 or appurtenances are in proper condition
and safe to operate without unnecessary danger of personal injury,
have been inspected as required by the LIA and regulations prescribed thereunder by the Secretary of Transportation, and can withstand every test prescribed under the LIA by the Secretary. See
§20701. Pp. 2–3.
(b) Congress may expressly pre-empt state law. But even without

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KURNS v. RAILROAD FRICTION PRODUCTS CORP.
Syllabus
an express pre-emption provision, state law must yield to a congressional Act to the extent of any conflict with a federal statute, see
Crosby v. National Foreign Trade Council, 530 U. S. 363, 372, or
when the federal statute’s scope indicates that Congress intended
federal law to occupy a field exclusively, see Freightliner Corp. v. Myrick, 514 U. S. 280, 287. This case involves only the latter, so-called
“field pre-emption.” Pp. 3–4.
(c) In Napier, this Court held two state laws prescribing the use of
locomotive equipment pre-empted by the LIA, concluding that the
broad power conferred by the LIA on the Interstate Commerce Commission (the agency then vested with authority to carry out the LIA’s
requirements) was a “general one” that “extends to the design, the
construction and the material of every part of the locomotive and
tender and of all appurtenances.” 272 U. S., at 611. The Court rejected the States’ contention that the scope of the pre-empted field
was to “be determined by the object sought through legislation, rather than the physical elements affected by it,” id., at 612, and found
it dispositive that “[t]he federal and state statutes are directed to the
same subject―the equipment of locomotives.” Ibid. Pp. 4−5.
(d) The Federal Railroad Safety Act of 1970 (FRSA) did not alter
the LIA’s pre-emptive scope. By its terms, the FRSA—which instructs that “[t]he Secretary of Transportation . . . shall prescribe
regulations and issue orders for every area of railroad safety supplementing laws and regulations in effect on October 16, 1970,” 49
U. S. C. §20103(a)—does not alter pre-existing federal railroad safety
statutes. Rather, it leaves those statutes intact and authorizes the
Secretary to fill interstitial areas of railroad safety with supplemental regulation. Because the LIA was already in effect when the
FRSA was enacted, the FRSA left the LIA, and its pre-emptive scope
as defined by Napier, intact. P. 6.
(e) Petitioners do not argue that Napier should be overruled. Instead, petitioners contend that their claims fall outside the LIA’s
pre-empted field, as it was defined in Napier. Petitioners’ arguments
are unpersuasive. First, the argument that the pre-empted field
does not extend to state-law claims arising from the repair or
maintenance of locomotives is inconsistent with Napier’s holding
that Congress, in enacting the LIA, “manifest[ed] the intention to occupy the entire field of regulating locomotive equipment.” 272 U. S.,
at 611. Second, the argument that petitioners’ failure-to-warn
claims are not pre-empted because they do not base liability on the
design or manufacture of a product ignores that a failure-to-warn
claim alleges that the product itself is defective unless accompanied
by sufficient warnings or instructions. Because petitioners’ failureto-warn claims are therefore directed at the equipment of locomo-

Cite as: 565 U. S. ____ (2012)

3

Syllabus
tives, they fall within the pre-empted field defined by Napier. Third,
the argument that petitioners’ claims are not pre-empted because
manufacturers were not regulated under the LIA when Corson was
exposed to asbestos is inconsistent with Napier, which defined the
pre-empted field on the basis of the physical elements regulated, not
on the basis of the entity directly subject to regulation. Finally, contrary to petitioners’ argument, the LIA’s pre-emptive scope is not limited to state legislation or regulation but extends to state commonlaw duties and standards of care directed to the subject of locomotive
equipment. Pp. 6−11.
620 F. 3d 392, affirmed.
THOMAS, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, ALITO, and KAGAN, JJ., joined. KAGAN, J.,
filed a concurring opinion. SOTOMAYOR, J., filed an opinion concurring
in part and dissenting in part, in which GINSBURG and BREYER, JJ.,
joined.

Cite as: 565 U. S. ____ (2012)

1

Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 10–879
_________________

GLORIA GAIL KURNS, EXECUTRIX OF THE ESTATE


OF GEORGE M. CORSON, DECEASED, ET AL.,

PETITIONERS v. RAILROAD FRICTION

PRODUCTS CORPORATION ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT


[February 29, 2012]



JUSTICE THOMAS delivered the opinion of the Court.
This case requires us to determine whether petitioners’
state-law tort claims for defective design and failure to
warn are pre-empted by the Locomotive Inspection Act
(LIA), 49 U. S. C. §20701 et seq. The United States Court
of Appeals for the Third Circuit determined that petition­
ers’ claims fall within the field pre-empted by that Act, as
that field was defined by this Court’s decision in Napier v.
Atlantic Coast Line R. Co., 272 U. S. 605 (1926). We
agree.
I
George Corson was employed as a welder and machinist
by the Chicago, Milwaukee, St. Paul & Pacific Railroad
from 1947 until 1974. Corson worked in locomotive repair
and maintenance facilities, where his duties included
installing brakeshoes on locomotives and stripping insula­
tion from locomotive boilers. In 2005, Corson was diag­
nosed with malignant mesothelioma.
In 2007, Corson and his wife filed suit in Pennsylvania

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KURNS v. RAILROAD FRICTION PRODUCTS CORP.
Opinion of the Court

state court against 59 defendants, including respondents
Railroad Friction Products Corporation (RFPC) and Viad
Corp (Viad). According to the complaint, RFPC distribut­
ed locomotive brakeshoes containing asbestos, and Viad
was the successor-in-interest to a company that manufac­
tured and sold locomotives and locomotive engine valves
containing asbestos. Corson alleged that he handled this
equipment and that he was injured by exposure to asbes­
tos. The complaint asserted state-law claims that the
equipment was defectively designed because it contained
asbestos, and that respondents failed to warn of the dan­
gers of asbestos or to provide instructions regarding its
safe use. After the complaint was filed, Corson passed
away, and the executrix of his estate, Gloria Kurns, was
substituted as a party. Corson’s widow and the executrix
are petitioners here.
Respondents removed the case to the United States
District Court for the Eastern District of Pennsylvania
and moved for summary judgment. Respondents argued
that petitioners’ state-law claims were pre-empted by the
LIA. The District Court agreed and granted summary
judgment for respondents. See Kurns v. A. W. Chesterton,
Civ. Action No. 08–2216 (ED Pa., Feb. 3, 2009), App. to
Pet. for Cert. 39a. The Third Circuit affirmed. See Kurns
v. A. W. Chesterton, Inc., 620 F. 3d 392 (2010). We granted
certiorari. 563 U. S. ___ (2011).
II
Congress enacted the predecessor to the LIA, the Boiler
Inspection Act (BIA), in 1911. The BIA made it unlawful
to use a steam locomotive “unless the boiler of said loco­
motive and appurtenances thereof are in proper condition
and safe to operate . . . without unnecessary peril to life or
limb.” Act of Feb. 17, 1911, ch. 103, §2, 36 Stat. 913–914.
In 1915, Congress amended the BIA to apply to “the entire
locomotive and tender and all parts and appurtenances

Cite as: 565 U. S. ____ (2012)

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Opinion of the Court

thereof.”1 Act of Mar. 4, 1915, ch. 169, §1, 38 Stat. 1192.
The BIA as amended became commonly known as the
Locomotive Inspection Act. As relevant here, 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 operate
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 Sec­
retary under this chapter.” 49 U. S. C. §20701.2
The issue presented in this case is whether the LIA pre­
empts petitioners’ state-law claims that respondents
defectively designed locomotive parts and failed to warn
Corson of dangers associated with those parts. In light of
this Court’s prior decision in Napier, supra, we conclude
that petitioners’ claims are pre-empted.
III


A

The Supremacy Clause provides that federal law “shall
be the supreme Law of the Land . . . any Thing in the
Constitution or Laws of any State to the Contrary not­
withstanding.” U. S. Const., Art. VI, cl. 2. Pre-emption of
——————
1 A “tender” is a “[a] car attached to a locomotive, for carrying a sup­
ply of fuel and water.” Webster’s New International Dictionary of the
English Language 2126 (1917).
2 At the time of Corson’s employment, this provision of the LIA was
worded somewhat differently. See 45 U. S. C. §23 (1946 ed.). Petition­
ers do not argue that the change in statutory language makes any
difference in this case.

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KURNS v. RAILROAD FRICTION PRODUCTS CORP.
Opinion of the Court

state law thus occurs through the “direct operation of the
Supremacy Clause.” Brown v. Hotel Employees, 468 U. S.
491, 501 (1984). Congress may, of course, expressly pre­
empt state law, but “[e]ven without an express provision
for preemption, we have found that state law must yield to
a congressional Act in at least two circumstances.” Crosby
v. National Foreign Trade Council, 530 U. S. 363, 372
(2000). First, “state law is naturally preempted to the
extent of any conflict with a federal statute.” Ibid. Se­
cond, we have deemed state law pre-empted “when the
scope of a [federal] statute indicates that Congress intend­
ed federal law to occupy a field exclusively.” Freightliner
Corp. v. Myrick, 514 U. S. 280, 287 (1995). We deal here
only with the latter, so-called field pre-emption.
B
We do not, however, address the LIA’s pre-emptive effect on a clean slate, because this Court addressed that
issue 85 years ago in Napier. In that case, railroads chal­
lenged two state laws that “prohibit[ed] use within the
State of locomotives not equipped with” certain prescribed
devices, on the ground that the Interstate Commerce
Commission (ICC), the agency then vested with the au­
thority to carry out the LIA’s requirements, had not re­
quired the devices in question.3 272 U. S., at 607, 609. In
response, the States argued that their requirements were
not pre-empted because they were directed at a different
objective than the LIA. Id., at 612. According to the
States, their regulations were intended to protect railroad
workers from sickness and disease, whereas “the federal
regulation endeavors solely to prevent accidental injury in
——————
3 Act

of Feb. 17, 1911, §6, 36 Stat. 915. That authority has since
been transferred to the Secretary of Transportation. Department of
Transportation Act, §§6(e)(1)(E) and (F), 80 Stat. 939; see 49 U. S. C.
§§20701–20702.

Cite as: 565 U. S. ____ (2012)

5

Opinion of the Court

the operation of trains.” Ibid.
To determine whether the state requirements were pre­
empted, this Court asked whether the LIA “manifest[s]
the intention to occupy the entire field of regulating loco­
motive equipment[.]” Id., at 611. The Court answered
that question in the affirmative, stating that “[t]he broad
scope of the authority conferred upon the [ICC]” by Con­
gress in the LIA led to that conclusion. Id., at 613. The
power delegated to the ICC, the Court explained, was a
“general one” that “extends to the design, the construction
and the material of every part of the locomotive and ten­
der and of all appurtenances.” Id., at 611.
The Court rejected the States’ contention that the scope
of the pre-empted field was to “be determined by the object
sought through the legislation, rather than the physical
elements affected by it.” Id., at 612. The Court found it
dispositive that “[t]he federal and the state statutes are
directed to the same subject—the equipment of locomo­
tives.” Ibid. Because the States’ requirements operated
upon the same physical elements as the LIA, the Court
held that the state laws, “however commendable or how­
ever different their purpose,” id., at 613, fell within the
LIA’s pre-empted field.
IV
Against the backdrop of Napier, petitioners advance two
arguments in support of their position that their state-law
claims related to the use of asbestos in locomotive equip­
ment do not fall within the LIA’s pre-empted field. Peti­
tioners first contend that Napier no longer defines the
scope of the LIA’s pre-empted field because that field has
been narrowed by a subsequently enacted federal statute.
Alternatively, petitioners argue that their claims do not
fall within the LIA’s pre-empted field, even as that field
was defined by Napier. We address each of petitioners’
arguments in turn.

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KURNS v. RAILROAD FRICTION PRODUCTS CORP.
Opinion of the Court

A
First, petitioners suggest that the Federal Railroad
Safety Act of 1970 (FRSA), 84 Stat. 971 (codified at 49
U. S. C. §20102 et seq.), altered the LIA’s pre-emptive
scope. The FRSA grants the Secretary of Transportation
broad regulatory authority over railroad safety. See
§20103(a). Petitioners point to the FRSA’s pre-emption
provision, which provides in part that “[a] State may adopt
or continue in force a law, regulation, or order related to
railroad safety . . . until the Secretary of Transportation
. . . prescribes a regulation or issues an order covering the
subject matter of the State requirement.” §20106(a)(2)
(2006 ed., Supp. III). According to petitioners, the FRSA’s
pre-emption provision supplanted the LIA’s pre-emption of
the field, with the result that petitioners’ claims are not
pre-empted because the Secretary has not issued a regula­
tion or order addressing the use of asbestos in locomotives
or locomotive parts.
Petitioners’ reliance on the FRSA is misplaced. The
FRSA instructs that “[t]he Secretary of Transportation,
as necessary, shall prescribe regulations and issue orders
for every area of railroad safety supplementing laws and
regulations in effect on October 16, 1970.” §20103(a) (2006
ed.) (emphasis added). By its terms, the FRSA does
not alter pre-existing federal statutes on railroad safety.
“Rather, it leaves existing statutes intact, . . . and author­
izes the Secretary to fill interstitial areas of railroad safety
with supplemental regulation.” Marshall v. Burlington
Northern, Inc., 720 F. 2d 1149, 1152–1153 (CA9 1983)
(Kennedy, J.). Because the LIA was already in effect
when the FRSA was enacted, we conclude that the FRSA
left the LIA, and its pre-emptive scope as defined by Napier, intact.
B
Since the LIA’s pre-emptive scope remains unaltered,

Cite as: 565 U. S. ____ (2012)

7

Opinion of the Court

petitioners must contend with Napier. Petitioners do not
ask us to overrule Napier and thus do not seek to over­
come the presumption of stare decisis that attaches to this
85-year-old precedent. See Global-Tech Appliances, Inc. v.
SEB S. A., 563 U. S. ___, ___ (2011) (slip op., at 9) (noting
the “special force of the doctrine of stare decisis with re­
gard to questions of statutory interpretation” (internal
quotation marks omitted)). Instead, petitioners advance
several arguments aimed at demonstrating that their
claims fall outside of the field pre-empted by the LIA, as it
was defined in Napier. Each is unpersuasive.
1
Petitioners, along with the Solicitor General as amicus
curiae, first argue that petitioners’ claims do not fall with­
in the LIA’s pre-empted field because the claims arise out
of the repair and maintenance of locomotives, rather than
the use of locomotives on a railroad line. Specifically, they
contend that the scope of the field pre-empted by the LIA
is coextensive with the scope of the Federal Government’s
regulatory authority under the LIA, which, they argue,
does not extend to the regulation of hazards arising from
the repair or maintenance of locomotives. Therefore, the
argument goes, state-law claims arising from repair or
maintenance—as opposed to claims arising from use on
the line—do not fall within the pre-empted field.
We reject this attempt to redefine the pre-empted field.
In Napier, the Court held that Congress, in enacting the
LIA, “manifest[ed] the intention to occupy the entire field
of regulating locomotive equipment,” and the Court did
not distinguish between hazards arising from repair and
maintenance as opposed to those arising from use on the
line. 272 U. S., at 611. The pre-empted field as defined
by Napier plainly encompasses the claims at issue here.
Petitioners’ common-law claims for defective design and
failure to warn are aimed at the equipment of locomotives.

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KURNS v. RAILROAD FRICTION PRODUCTS CORP.
Opinion of the Court

Because those claims “are directed to the same subject” as
the LIA, Napier dictates that they fall within the pre­
empted field. Id., at 612.
2
Petitioners further argue that, even if their design­
defect claims are pre-empted, their failure-to-warn claims
do not suffer the same fate. In their complaint, petitioners
alleged in closely related claims (1) that respondents
negligently failed to warn of the risks associated with
asbestos and to provide instructions concerning safe­
guards for working with asbestos; and (2) that the asbestoscontaining products were defective because respondents
failed to give sufficient warnings or instructions con­
cerning the “risks, dangers, and harm inherent in said
asbestos products.” See App. 20–27 (¶¶7–10, 12), 42 (¶8);
see also Brief for Petitioners 11. According to petitioners,
these claims do not fall within the LIA’s pre-empted field
because “[t]he basis of liability for failure to warn . . . is
not the ‘design’ or ‘manufacture’ of a product,” but is in­
stead “the failure to provide adequate warnings regarding
the product’s risks.” Reply Brief for Petitioners 16.
We disagree. A failure-to-warn claim alleges that the
product itself is unlawfully dangerous unless accompanied
by sufficient warnings or instructions.
Restatement
(Third) of Torts: Products Liability §2(c) (1997) (A failure­
to-warn claim alleges that a product is defective “when the
foreseeable risks of harm posed by the product could have
been reduced or avoided by the provision of reasonable
instructions or warnings by the seller or other distribu­
tor, . . . and the omission of the instructions or warnings
renders the product not reasonably safe”); see also id.,
Comment l, at 33 (“Reasonable designs and instructions
or warnings both play important roles in the production
and distribution of reasonably safe products”). Thus, the
“gravamen” of petitioners’ failure-to-warn claims “is still

Cite as: 565 U. S. ____ (2012)

9

Opinion of the Court

that [Corson] suffered harmful consequences as a result of
his exposure to asbestos contained in locomotive parts and
appurtenances.” 620 F. 3d, at 398, n. 8. Because petition­
ers’ failure-to-warn claims are therefore directed at the
equipment of locomotives, they fall within the pre-empted
field defined by Napier. 272 U. S., at 612.4
3
Petitioners also contend that their state-law claims
against manufacturers of locomotives and locomotive parts
fall outside of the LIA’s pre-empted field because manufac­
turers were not regulated under the LIA at the time that
Corson was allegedly exposed to asbestos. Petitioners
point out that the LIA, as originally enacted in the BIA,
subjected only common carriers to civil penalties. Act of
Feb. 17, 1911, §9, 36 Stat. 916. It was not until 1988, well
after the events of this case, that the LIA’s penalty provi­
sion was revised to apply to “[a]ny person” violating the
LIA. Rail Safety Improvement Act of 1988, §14(7)(A), 102
Stat. 633; see also §14(7)(B) (amending penalty provision
to provide that “an act by an individual that causes
a railroad to be in violation . . . shall be deemed a
violation”).
——————
4 JUSTICE SOTOMAYOR apparently agrees that petitioners’ failure-to­
warn claims are directed at the equipment of locomotives. Post, at 5
(opinion concurring in part and dissenting in part). Yet, she argues,
those claims affect locomotive equipment only “ ‘tangentially.’ ” Ibid.
(quoting English v. General Elec. Co., 496 U. S. 72, 85 (1990)). Not
so. A failure-to-warn claim imposes liability on a particular design of
locomotive equipment unless warnings deemed sufficient under state
law are given. This duty to warn and the accompanying threat of
liability will inevitably influence a manufacturer’s choice whether to
use that particular design. By influencing design decisions in that
manner, failure-to-warn liability has a “ ‘direct and substantial effect’ ”
on the “physical elements” of a locomotive. Post, at 5 (quoting English,
supra, at 85).

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KURNS v. RAILROAD FRICTION PRODUCTS CORP.
Opinion of the Court

This argument fails for the same reason as the two
preceding arguments: It is inconsistent with Napier.
Napier defined the field pre-empted by the LIA on the
basis of the physical elements regulated—“the equipment
of locomotives”—not on the basis of the entity directly
subject to regulation. 272 U. S., at 612. Because petition­
ers’ claims are directed at the equipment of locomotives,
they fall within the pre-empted field.
Petitioners’ proposed rule is also contrary to common
sense. Under petitioners’ approach, a State could not
require railroads to equip their locomotives with parts
meeting state-imposed specifications, but could require
manufacturers of locomotive parts to produce only parts
meeting those state-imposed specifications. We rejected a
similar approach in an express pre-emption context in
Engine Mfrs. Assn. v. South Coast Air Quality Management Dist., 541 U. S. 246 (2004). There, a state entity
argued that its rules prohibiting the purchase or lease of
vehicles that failed to meet stringent emissions require­
ments were not pre-empted by the Clean Air Act, 42
U. S. C. §7543(a), because the rules in question were
aimed at the purchase of vehicles, rather than their manu­
facture or sale. 541 U. S., at 248. We observed, however,
that “treating sales restrictions and purchase restrictions
differently for pre-emption purposes would make no
sense,” because the “manufacturer’s right to sell federally
approved vehicles is meaningless in the absence of a pur­
chaser’s right to buy them.” Id., at 255. Similarly, a
railroad’s ability to equip its fleet of locomotives in compli­
ance with federal standards is meaningless if manufactur­
ers are not allowed to produce locomotives and locomotive
parts that meet those standards. Petitioners’ claims thus
do not avoid pre-emption simply because they are aimed at
the manufacturers of locomotives and locomotive parts.

Cite as: 565 U. S. ____ (2012)

11

Opinion of the Court

4
Finally, petitioners contend that the LIA’s pre-emptive
scope does not extend to state common-law claims, as
opposed to state legislation or regulation. Petitioners note
that “a preempted field does not necessarily include state
common law.” Brief for Petitioners 38–39 (citing Silkwood
v. Kerr-McGee Corp., 464 U. S. 238 (1984); Sprietsma v.
Mercury Marine, 537 U. S. 51 (2002)). Napier, however,
held that the LIA “occup[ied] the entire field of regulating
locomotive equipment” to the exclusion of state regulation.
272 U. S., at 611–612. That categorical conclusion admits
of no exception for state common-law duties and standards
of care. As we have recognized, state “regulation can be
. . . effectively exerted through an award of damages,” and
“[t]he obligation to pay compensation can be, indeed is
designed to be, a potent method of governing conduct and
controlling policy.” San Diego Building Trades Council v.
Garmon, 359 U. S. 236, 247 (1959). Cf. Riegel v. Medtronic, Inc., 552 U. S. 312, 324 (2008) (“Absent other indication, reference to a State’s ‘requirements’ [in a federal
express pre-emption provision] includes its common-law
duties”). We therefore conclude that state common-law
duties and standards of care directed to the subject of
locomotive equipment are pre-empted by the LIA.
*
*
*
For the foregoing reasons, we hold that petitioners’
state-law design-defect and failure-to-warn claims fall
within the field of locomotive equipment regulation pre­
empted by the LIA, as that field was defined in Napier.
Accordingly, the judgment of the Court of Appeals is
affirmed.
It is so ordered.

Cite as: 565 U. S. ____ (2012)

1

KAGAN, J., concurring

SUPREME COURT OF THE UNITED STATES
_________________

No. 10–879
_________________

GLORIA GAIL KURNS, EXECUTRIX OF THE ESTATE


OF GEORGE M. CORSON, DECEASED, ET AL.,

PETITIONERS v. RAILROAD FRICTION

PRODUCTS CORPORATION ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT


[February 29, 2012]



JUSTICE KAGAN, concurring.
Like JUSTICE SOTOMAYOR, post, at 1 (opinion concurring
in part and dissenting in part), I doubt this Court would
decide Napier v. Atlantic Coast Line R. Co., 272 U. S. 605
(1926), in the same way today. The Napier Court concluded that Congress had “manifest[ed] the intention to occupy
the entire field of regulating locomotive equipment,” based
on nothing more than a statute granting regulatory authority over that subject matter to a federal agency. Id.,
at 611. Under our more recent cases, Congress must do
much more to oust all of state law from a field. See, e.g.,
New York State Dept. of Social Servs. v. Dublino, 413 U. S.
405, 415 (1973) (rejecting preemption even though Congress had enacted a “detailed” and “comprehensive” regulatory scheme). Viewed through the lens of modern
preemption law, Napier is an anachronism.
But Napier governs so long as Congress lets it—and
that decision provides a straightforward way to determine
whether state laws relating to locomotive equipment are
preempted. According to Napier, the scope of the agency’s
power under the Locomotive Inspection Act (LIA) determines the boundaries of the preempted field. See 272
U. S., at 611 (state regulations were preempted because

2

KURNS v. RAILROAD FRICTION PRODUCTS CORP.
KAGAN, J., concurring

they fell “within the scope of the authority delegated to the
Commission”); see also ante, at 5 (the “ ‘broad scope of the
authority’ ” given to the agency “led to [Napier’s] conclusion”); post, at 7–8 (“[T]he pre-empted field is congruent
with the regulated field”). And under that test, none of
the state-law claims at issue here can survive.
All of us agree that the petitioners’ defective-design
claims are preempted. Napier recognized the federal
agency’s delegated authority over “the design, the construction and the material of every part of the locomotive.”
272 U. S., at 611. In doing so, Napier did not distinguish
between “hazards arising from repair and maintenance” of
the parts and hazards stemming from their “use on the
line.” Ante, at 7. The agency thus has authority to regulate the design of locomotive equipment—like the asbetoscontaining brakeshoes here—to prevent either danger.
And that fact resolves the preemption question. Because
the agency could have banned use of the brakeshoes as
designed, the petitioners’ defective-design claims—which
would effectively accomplish the identical result—fall
within the preempted field.
So too the petitioners’ failure-to-warn claims, and for
the same reason. Napier did not specifically address
warnings, because the case in no way involved them. But
if an agency has the power to prohibit the use of locomotive equipment, it also has the power to condition the use
of that equipment on proper warnings. (And that is so,
contrary to JUSTICE SOTOMAYOR’s view, see post, at 8, n. 3,
whether the warning is engraved into the part itself or
posted on the workshop wall.) Here, for example, the
agency need not have chosen between banning asbestoscontaining brakeshoes and leaving them entirely unregulated. It could instead have required a warning about how
to handle those brakeshoes safely. If, say, a mask would
have protected a worker from risk, then the agency could
have demanded a notice to that effect. See, e.g., Law v.

Cite as: 565 U. S. ____ (2012)

3

KAGAN, J., concurring

General Motors Corp., 114 F. 3d 908, 911 (CA9 1997) (“As
for warning requirements, these too are within the scope
of the [agency’s] authority”); Scheiding v. General Motors
Corp., 22 Cal. 4th 471, 484, 993 P. 2d 996, 1004 (2000)
(same).* And because the agency could have required
warnings about the equipment’s use, the petitioners’
failure-to-warn claims, no less than their defective-design
claims, are preempted under Napier.
I understand these views to comport with the Court’s
opinion in this case, and I accordingly join it in full.

——————
* JUSTICE SOTOMAYOR argues that “preserving petitioners’ failure-towarn claims coheres with the LIA’s regulatory regime” because the
agency disclaims authority over locomotive repair and maintenance.
Post, at 7. But that claim conflates two separate distinctions. The
agency draws a line not between mandating design changes and mandating warnings, but between regulating equipment that is hazardous
to repair and regulating equipment that is hazardous to use on the
railroad line. In keeping with that analysis, the agency contends that
the petitioners’ design-defect claims also fall outside the preempted
field because the alleged defect in the brakeshoes rendered dangerous
only their repair, and not their on-line use. See Brief for United States
as Amicus Curiae 12–13. The agency’s understanding of its authority therefore does not support JUSTICE SOTOMAYOR’s position. As the
agency agrees, the petitioners’ claims must stand or fall together if
viewed through the lens of the agency’s regulatory authority. In my
view, they fall because the Court rightly rejects the agency’s proffered
distinction between regulating the dangers of repairing equipment and
regulating the dangers of using that equipment on line. See supra,
at 2.

Cite as: 565 U. S. ____ (2012)

1

Opinion of SOTOMAYOR, J.

SUPREME COURT OF THE UNITED STATES
_________________

No. 10–879
_________________

GLORIA GAIL KURNS, EXECUTRIX OF THE ESTATE


OF GEORGE M. CORSON, DECEASED, ET AL.,

PETITIONERS v. RAILROAD FRICTION

PRODUCTS CORPORATION ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF


APPEALS FOR THE THIRD CIRCUIT


[February 29, 2012]



JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG
and JUSTICE BREYER join, concurring in part and dissent­
ing in part.
I concur in the Court’s holding that the Locomotive
Inspection Act (LIA), 49 U. S. C. §20701 et seq., pre-empts
petitioners’ tort claims for defective design, but I respect­
fully dissent from the Court’s holding that the same is
true of petitioners’ claims for failure to warn. In my view,
the latter escape pre-emption because they impose no
state-law requirements in the field reserved for federal
regulation: “the equipment of locomotives.” Napier v.
Atlantic Coast Line R. Co., 272 U. S. 605, 612 (1926).
I
Statutory stare decisis compels me to agree that the LIA
occupies “the field of regulating locomotive equipment
used on a highway of interstate commerce.” Id., at 607.
Perhaps this Court might decide Napier differently today.
The LIA lacks an express pre-emption clause, and “our
recent cases have frequently rejected field pre-emption in
the absence of statutory language expressly requiring it.”
Camps Newfound/Owatonna, Inc. v. Town of Harrison,
520 U. S. 564, 617 (1997) (THOMAS, J., dissenting). The

2

KURNS v. RAILROAD FRICTION PRODUCTS CORP.
Opinion of SOTOMAYOR, J.

LIA contains no substantive regulations, let alone a
“scheme of federal regulation . . . so pervasive as to make
reasonable the inference that Congress left no room for the
States to supplement it.” Rice v. Santa Fe Elevator Corp.,
331 U. S. 218, 230 (1947). Instead of relying on such
indications of Congress’ intent to oust state law, Napier
implied field pre-emption from the LIA’s mere delegation
of regulatory authority to the Interstate Commerce Com­
mission. Compare 272 U. S., at 612–613, with, e.g., Hillsborough County v. Automated Medical Laboratories, Inc.,
471 U. S. 707, 717 (1985), and New York State Dept. of
Social Servs. v. Dublino, 413 U. S. 405, 415 (1973). None­
theless, Napier’s construction of the LIA has been settled
law for 85 years, and “ ‘[c]onsiderations of stare decisis
have special force in the area of statutory interpretation.’ ”
Hilton v. South Carolina Public Railways Comm’n, 502
U. S. 197, 202 (1991).
Consistent with the values served by statutory stare
decisis, however, it is important to be precise about what
Napier held: Napier defined the pre-empted field as the
physical composition of locomotive equipment. See 272
U. S., at 611 (“[T]he power delegated . . . by the [LIA] . . .
extends to the design, the construction, and the material
of every part of the locomotive and tender and of all ap­
purtenances”); id., at 612 (“The federal and the state
statutes are directed to the same subject—the equipment
of locomotives. They operate upon the same object”); see
also Act of June 7, 1924, §2, 43 Stat. 659 (making the
LIA’s standard of care applicable to the “locomotive, its
boiler, tender, and all parts and appurtenances thereof ”).
Petitioners’ defective-design claims fall within the pre­
empted field because they would impose state-law re­
quirements on a locomotive’s physical makeup. See ante,
at 7–8.

Cite as: 565 U. S. ____ (2012)

3

Opinion of SOTOMAYOR, J.

II
Petitioners’ failure-to-warn claims, by contrast, proceed
on a fundamentally different theory of tort liability that
does not implicate a product’s physical composition at all.
A failure-to-warn claim asks nothing of a product’s design, but requires instead that a manufacturer caution of
nonobvious dangers and provide instructions for safe use.
Indeed, a product may be flawlessly designed and still
subject its manufacturer or seller to liability for lack of
adequate instructions or warnings. See, e.g., Madden, The
Duty To Warn in Products Liability: Contours and Criti­
cism, 89 W. Va. L. Rev. 221 (1987) (“Although a product is
unerringly designed, manufactured and assembled, injury
or damage occasioned by its intended or reasonably fore­
seeable use may subject the seller to liability. Such liabil­
ity may be found if the product has a potential for injury
that is not readily apparent to the user” (cited in Restate­
ment (Third) of Torts: Products Liability §2, Reporter’s
Note, Comment i, n. 1 (1997) (hereinafter Restatement));
see also Madden, 89 W. Va. L. Rev., at 221, n. 1 (collecting
cases). Petitioners’ complaint embodies just this concep­
tual distinction. Compare App. 22–23, ¶¶10(c)–(e), (g),
with id., at 25, ¶10(p).1
In the jurisdictions relevant to this suit, failure to warn
is “a distinct cause of action under the theory of strict
products liability.” Riley v. American Honda Motor Co.,
259 Mont. 128, 132, 856 P. 2d 196, 198 (1993). Thus, “ ‘a
failure to warn of an injury[-]causing risk associated with
the use of a technically pure and fit product can render
such product unreasonably dangerous.’ ” Ibid.; see also,
e.g., Jahnig v. Coisman, 283 N. W. 2d 557, 560 (S. D. 1979)
——————
1 Nor

do petitioners’ failure-to-warn claims allege that respondents’
locomotive parts should have been altered, for example, by affixing
warnings to the products themselves. See App. 22–23, ¶¶10(c)–(e), (g);
id., at 27, ¶12(d).

4

KURNS v. RAILROAD FRICTION PRODUCTS CORP.
Opinion of SOTOMAYOR, J.

(“In products liability suits based upon strict liability, . . .
the product itself need not be defective. Where a manufac­
turer or seller has reason to anticipate that danger may
result from a particular use of his product, and he fails to
give adequate warning of such a danger, the product sold
without such warning is in a defective condition within
the strict liability doctrine”); Greiner v. Volkswagenwerk
Aktiengeselleschaft, 540 F. 2d 85, 92–93 (CA3 1976) (find­
ing that “failure to adequately warn of inherent or latent
limitations in a product, which do not necessarily amount
to a design defect” is “an independent basis of liability”
under Pennsylvania law).2
Similarly, this Court has explained that a failure-to­
warn claim is “narrower” than a claim that alleges a defect
in the underlying product. Wyeth v. Levine, 555 U. S. 555,
565 (2009). Thus in Wyeth, this Court affirmed a state
damages award based on a drug manufacturer’s failure to
provide sufficient warnings to clinicians against intrave­
nous administration of the drug, but noted that it was
unnecessary to decide “whether a state rule proscribing
intravenous administration would be pre-empted.” Ibid.
Cf. Bates v. Dow Agrosciences LLC, 544 U. S. 431, 444
(2005) (“Rules that require manufacturers to design rea­
sonably safe products . . . plainly do not qualify as re­
quirements for ‘labeling or packaging.’ None of these
common-law rules requires that manufacturers label or
package their products in any particular way”).
The majority treats defective-design and failure-to-warn
claims as congruent, reasoning that each asserts a product
defect. See ante, at 8–9 (citing Restatement §2(c) and
——————
2 Petitioners brought suit in Pennsylvania, but alleged that their
decedent, George Corson, was exposed to asbestos at railroad mainte­
nance and repair shops in Montana and South Dakota. Id., at 42, ¶¶6–
7. Because the District Court granted summary judgment on the issue
of pre-emption, it performed no choice-of-law analysis to identify the
applicable substantive state law. See App. to Pet. for Cert. 22a–39a.

Cite as: 565 U. S. ____ (2012)

5

Opinion of SOTOMAYOR, J.

Comment l). That may be true at a high level of generality, but “[d]esign and failure-to-warn claims . . . rest on
different factual allegations and distinct legal concepts.”
Restatement §2, at 35, Comment n. For example, a manu­
facturer or seller cannot escape liability for an unreasona­
bly unsafe design merely by issuing a warning. See id., at
33, Comment l (“Warnings are not . . . a substitute for the
provision of a reasonably safe design”). In a fundamental
sense, therefore, a failure-to-warn claim proceeds by tak­
ing a product’s physical design as a given. A failure-to­
warn claim alleges a “defect” by asserting that a product,
as designed, is safe for use only when accompanied by a
warning—not that a product must be designed differently.
The majority further conflates defective-design and
failure-to-warn claims by noting that each is “directed at”
locomotive equipment. Ante, at 9. That is insufficient.
Not every state law that “could be said to affect tangen­
tially” matters within the regulated field is pre-empted.
English v. General Elec. Co., 496 U. S. 72, 85 (1990).
Rather, “for a state law to fall within the pre-empted zone,
it must have some direct and substantial effect” on the
primary conduct of entities subject to federal regulation.
Ibid. As explained above, the LIA regulates the physical
equipment of locomotives. But petitioners’ failure-to-warn
claims, if successful, would have no necessary effect on the
physical equipment of locomotives at all, as respondents
themselves acknowledge. See Brief for Respondents 55
(petitioners’ failure-to-warn claims “may not themselves
literally mandate physical alteration of the locomotive’s
design or construction”).
In the majority’s view, a “duty to warn and the accom­
panying threat of liability will inevitably influence” a
manufacturer’s design choices. Ante, at 9, n. 4. But an
“influence” is not the same as an “effect,” and not every
state law with some imaginable impact on matters within
a federally regulated field is, for that reason alone, pre­

6

KURNS v. RAILROAD FRICTION PRODUCTS CORP.
Opinion of SOTOMAYOR, J.

empted. See English, 496 U. S., at 85–86; Silkwood v.
Kerr-McGee Corp., 464 U. S. 238, 256 (1984). Indeed, the
majority elides the distinction between indirect and direct
regulation, even though this Court has explained that
the two are not equivalent for pre-emption purposes. See
Goodyear Atomic Corp. v. Miller, 486 U. S. 174, 186 (1988)
(“Congress may reasonably determine that incidental regulatory pressure is acceptable, whereas direct regulatory
authority is not”). State wage-and-hour laws, workplace safety standards, or tax credits for green technology,
for example, could all “influence” the means and materials
of locomotive equipment manufacture without imposing
direct obligations. Nor does the majority substantiate its
assertion that the “influence” exerted by a duty to warn
need be “inevitabl[e]” or “substantial.” Ante, at 9, n. 4. To
the contrary, the requirements imposed by such a duty
could be light, and the corresponding liability negligible,
in comparison to the commercial value of retaining an
existing design.
Respondents could have complied with state-law duties
to warn by providing instructions for the safe maintenance
of asbestos-containing locomotive parts in equipment man­
uals. See, e.g., Baldwin-Lima-Hamilton Corp., Engine
Manual for 600 Series Diesel Engines (1951), online at
http://www.rr-fallenflags.org/manual/blh-6em.html
(last
visited Feb. 27, 2012, and available in Clerk of Court’s
case file). Or respondents could have ensured that repair
shops posted signs. See Restatement §2, at 29–30, Com­
ment i (duty to warn “may require that instructions and
warnings be given not only to purchasers, users, and
consumers, but also to others who a reasonable seller
should know will be in a position to reduce or avoid the
risk of harm”); see also, e.g., Patch v. Hillerich & Bradsby
Co., 361 Mont. 241, 246, 257 P. 3d 383, 388 (2011) (“While
placing a warning directly on a product is one method of
warning, other methods of warning exist, including, but

Cite as: 565 U. S. ____ (2012)

7

Opinion of SOTOMAYOR, J.

not limited to, issuing oral warnings and placing warnings
in advertisements, posters, and media releases”). Neither
step would encroach on the pre-empted field of locomo­
tives’ “physical elements.” Napier, 272 U. S., at 612. The
majority is therefore wrong to say that “the ‘gravamen’ of
petitioners’ failure-to-warn claims ‘is still that [Corson]
suffered harmful consequences as a result of his exposure
to asbestos contained in locomotive parts and appurte­
nances.’ ” Ante, at 8–9 (quoting Kurns v. A. W. Chesteron,
Inc., 620 F. 3d 392, 398, n. 8 (CA3 2010)). Rather, the
“gravamen” of these claims is that petitioners’ decedent
George Corson could have avoided the harmful conse­
quences of exposure to asbestos while repairing precisely
the same locomotive parts had respondents cautioned him,
for example, to wear a mask.
Finally, preserving petitioners’ failure-to-warn claims
coheres with the LIA’s regulatory regime. Neither the
Interstate Commerce Commission, to which Congress first
delegated authority under the LIA, nor the Federal Rail­
road Administration (FRA), to whom that authority now
belongs, has ever regulated locomotive repair and mainte­
nance. To the contrary, the FRA takes the position that it
lacks power under the LIA to regulate within locomotive
maintenance and repair facilities. Brief for United States
as Amicus Curiae in John Crane, Inc. v. Atwell, O. T.
2010, No. 10–272, p. 10 (“[T]he field covered by the LIA
does not include requirements concerning the repair of
locomotives that are not in use”); Brief for United States
as Amicus Curiae 13 (“The preempted field . . . does not
include tort claims based on injuries arising when locomo­
tives are not in use”). The FRA has determined that the
Occupational Safety and Health Administration, not itself,
bears primary responsibility for workplace safety, includ­
ing with respect to hazardous materials. 43 Fed. Reg.
10583–10590 (1978); cf., e.g., English, 496 U. S., at 83, and
n. 6. And the FRA has not promulgated regulations that

8

KURNS v. RAILROAD FRICTION PRODUCTS CORP.
Opinion of SOTOMAYOR, J.

address warnings specific to maintenance and repair.
Because the pre-empted field is congruent with the regu­
lated field, see, e.g., United States v. Locke, 529 U. S. 89,
112 (2000), the majority’s decision sweeps far too broadly.3
*
*
*
In short, the majority affords the LIA field-pre-emptive
effect well beyond what Napier requires, leaving petition­
ers without a remedy for what they allege was fatal ex­
posure to asbestos in repair facilities. “It is difficult to
believe that Congress would, without comment, remove all
means of judicial recourse for those injured by illegal
conduct.” Silkwood, 464 U. S., at 251. That is doubly true
in light of the LIA’s “purpose . . . of facilitating employee
recovery, not of restricting such recovery or making it
impossible.” Urie v. Thompson, 337 U. S. 163, 189 (1949).
I therefore concur in part and dissent in part.

——————
3 Disagreeing with the agency’s interpretation, JUSTICE KAGAN con­
cludes that the LIA empowers the FRA to require warnings as an
incident of the authority to prescribe locomotive design. Compare ante,
2–3 (concurring opinion), with, e.g., Tr. of Oral Arg. 22–23. Such power,
if it exists, must be limited to warnings that impose direct require­
ments on the physical composition of locomotive equipment. Cf. n. 1,
supra; 49 CFR §§229.85, 229.113 (2010). That may be a formal line,
but it is the line that this Court drew in describing the scope of the
authority conferred by the LIA, and therefore the pre-empted field. See
Napier v. Atlantic Coast Line R. Co., 272 U. S. 605, 611–612 (1926).
And it is the line that separates petitioners’ design-defect claims from
their claims for failure to warn.