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Engvall v. Soo Line Railroad Company8/2/2001
ity from another cotortfeasor."). Instead, the court in Tolbert "limit the reallocation of loss between joint tortfeasors [in the fourth category] to contribution based upon relative fault." Tolbert, 255 N.W.2d at 367.
In this case, the fourth category would have applied had Tolbert not eliminated it as a basis for indemnity. Of the remaining categories, the second and fifth are clearly inapplicable. Nor does the third appear applicable and, in any event, Soo Line has not alleged that its liability to Engvall arose because GM breached a duty it owed to Soo Line. This leaves the first category, where the one seeking indemnity has only a derivative or vicarious liability for damage caused by the one sought to be charged.
GM argues that Soo Line cannot rely on this first category because Soo Line's liability to Engvall was based, at least in part and perhaps in whole, on Soo Line's own breach of its absolute and non-delegable duty to Engvall. The LIA imposed on Soo Line an "absolute and continuing duty to maintain the locomotive, and all parts and appurtenances thereof, in proper condition, and safe to operate in active service without unnecessary peril to life or limb." S. Ry. v. Lunsford, 297 U.S. 398, 401 (1936). Neither actual nor constructive notice to Soo Line was necessary to establish liability. Groeger, 266 U.S. at 527. If the handbrake did not comply with the LIA, that alone would be sufficient for Engvall to establish that Soo Line violated its duty to him under the FELA and the LIA. " roof of [a violation of the LIA] is effective to show negligence as a matter of law" under the FELA. Urie, 337 U.S. at 189; Engvall I, 605 N.W.2d at 739 n.1. Nor has Soo Line attempted, either in its briefs or at oral argument, to show that its liability to Engvall was only derivative or vicarious.
Nonetheless, it is conceivable that a jury, in weighing the respective fault of GM and Soo Line, could find GM 100% at fault and Soo Line not at fault, despite Soo Line's non-delegable duty. Unless the fact finder does so, indemnity is not available to Soo Line because its liability would not be entirely derivative or vicarious. Because the jury might conceivably allocate to GM 100% of the fault, we conclude that GM is not entitled to summary judgment on Soo Line's indemnity claim.
For the foregoing reasons, we reverse and remand to the district court.
Reversed and remanded.
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