Opinion
Index No. 156861/2018 Motion Seq. Nos. 006 007
01-24-2024
VICTORIA E. BARNES, PERSONAL REPRESENTATIVE FOR THE ESTATE OF ELBERT F. BARNES, Plaintiff, v. THE PENN CENTRAL CORPORATION A/K/A AMERICAN PREMIER UNDERWRITERS, INC., CONSOLIDATED RAIL CORPORATION, NATIONAL RAILROAD PASSENGER CORPORATION Defendants.
Unpublished Opinion
MOTION DATE 07/12/2023.
PRESENT: HON. SABRINA KRAUS, Justice.
DECISION + ORDER ON MOTION
SABRINA KRAUS, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 006) 72, 73, 74, 75, 76, 77, 78, 79, 80, 86, 87, 88, 89, 90, 91,95, 96, 97 were read on this motion to/for JUDGMENT - SUMMARY.
The following e-filed documents, listed by NYSCEF document number (Motion 007) 81, 82, 83, 84, 92, 93, 94 were read on this motion to/for JUDGMENT - SUMMARY.
BACKGROUND
Plaintiff commenced this action, in her capacity as the personal representative for the Estate of Elbert Barnes ("Decedent") against defendants The Penn Central Corporation a/k/a American Premier Underwriters, Inc. ("APU"), Consolidated Rail Corporation ("Conrail"), and National Railroad Passenger Corporation ("AMTRAK" and collectively, "defendants"), asserting causes of action pursuant to the Federal Employers' Liability Act, 45 U.S.C. § 51-60 ("FELA"), the Federal Safety Appliance Act, 49 U.S.C. 20301 ("SAA") and the Locomotive Inspection Act, 49 U.S.C. § 20701, ("LIA") which allegedly resulted in decedent's exposure to toxic chemicals during the course of his employment, causing his lung cancer and ultimately his death.
The statute is referred to as the "Federal Boiler Inspection Act" in the complaint, which is the former name of the statute.
Decedent was employed by the Penn Central Corporation from November 8, 1972 to March 31, 1976; by Conrail from April 1, 1976 to November 30, 1984; and by Amtrak from December 1, 1984 to December 31, 1994. In her Verified Bill of Particulars, plaintiff identified the following allegedly cancer-causing substances and materials that she claims decedent was exposed to on the job: "[d]iesel fumes, diesel exhaust, poly aromatic hydrocarbons (PAHs), asbestos, benzene, creosote, arsenic, herbicides/pesticides, and PCBs [polychlorinated biphenyls]."
The allegations related to asbestos exposure were subsequently withdrawn.
PENDING MOTIONS
On June 29, 2023, Conrail moved for an order pursuant to CPLR § 3212 awarding it summary judgment dismissing the complaint as against it (Mot. Seq. 6).
On June 30, 2023, APU moved for an order pursuant to CPLR § 3212 joining in Conrad's motion and also seeking summary judgment in its favor (Mot. Seq. 7).
The motions are consolidated herein and granted for the reasons set forth below.
RELEVANT FACTS
Plaintiff testified that she worked for Amtrak for 10 or 11 years doing food service on the Boston/Washington line. She later worked for New Jersey transit as a ticket agent. She married decedent in 1981, and that she believed that she met him through work two or three years prior, while she was working for Amtrak and he was working for Conrail as a conductor. She estimated that when they were both working at the railroad, they would be on the same train about five to ten times a year, and that she was not sure whether the trains were diesel or electric. Decedent was based out of New York, Penn Station and held titles including assistant conductor, conductor, trainman, and brakeman. She testified that she had been exposed to diesel fumes at Penn Station, and believed decedent had been as well but could not say definitively, nor whether any of the trains that he worked on were diesel-powered. She also testified that she believed decedent suffered chemical burns on his feet from cleaning up a chemical spill on the job prior to meeting her.
Otis Lang ("Otis"), a co-worker of decedent's, testified that he worked as a conductor from approximately 1970 until he retired. He was originally employed by APU (then known as Penn Central), then Conrail around 1976, then Amtrak around 1983 until his retirement. He would always work on the "northeast corridor" alternatively being based out of New York, Washington D C., and Philadelphia. He believed he met decedent in the early 70's through work, and they would often ride the same trains, with Otis working as a passenger conductor and decedent "deadheading" from one location to another to work on freight trains, and that he would not observe the work decedent was doing. He testified that at some point decedent moved over to passenger rail, although he could not recall when or which railroad he was working for at the time. Thereafter, they would sometimes work together, with Otis as the conductor and decedent as assistant conductor. He testified that they only worked together on passenger trains pulled by a locomotive powered by overhead electric wire, but that freight trains would run on same tracks, and "they had diesel passenger trains," although he could not recall if he ever witnessed decedent in the presence of a diesel train.
DISCUSSION
Contentions
Conrail contends that plaintiff has failed to adduce sufficient evidence that decedent was exposed to toxic substances during the course of his employment, as no fact witness was able to corroborate plaintiff s assertion that decent worked on a diesel-powered locomotive beyond mere speculation. It argues that the LIA and SAA are inapplicable here as a matter of law, as plaintiff has failed to offer evidence that decedent worked on an "in use" locomotive or rail car as defined by the statutes. APU joins and adopts all of Conrad's arguments in support of its motion, additionally noting that neither of plaintiffs witnesses testified that they knew decedent during the period of his employment with Penn Central, thus there is even less evidence as to it.
In opposition, plaintiff argues that it has offered sufficient evidence under the relaxed standards of FELA to raise genuine issues of material fact as to whether decedent worked on diesel trains and was thus exposed to toxic diesel fumes. She argues that for the same reason, there is also an issue of fact as to whether decedent worked on an "in use" railcar or locomotive. It attaches the expert report of Industrial Hygienist Ralph V. Collipi Jr. ("Collipi"), who opines that decedent's work history indicates that he had daily exposure to toxic diesel fumes from 1972 to 2007, which includes the period of decedents employment with both Conrail and APU.
In reply, Conrail contends that the Collipi affidavit mischaracterizes deposition testimony, and thus plaintiffs expert report fails to raise a triable issue of fact. They argue that plaintiff fails to cite a specific defect on an "in use" locomotive or railcar.
Summary Judgment Standard
To prevail on a motion for summary judgment, the movant must establish, prima facie, its entitlement to judgment as a matter of law, providing sufficient evidence demonstrating the absence of any triable issues of fact. CPLR. § 3212(b); Matter of New York City Asbestos Litig., 33 N.Y.3d 20, 25-26 (2019). If this burden is met, the opponent must offer evidence in admissible form demonstrating the existence of factual issues requiring a trial; "conclusions, expressions of hope, or unsubstantiated allegations or assertions are insufficient." Justinian Capital SPC v WestLB AG, 28 N.Y.3d 160, 168 (2016), quoting Gilbert Frank Corp, v Fed. Ins. Co., 70 N.Y.2d 966, 967 (1988). In deciding the motion, the evidence must be viewed in the "light most favorable to the opponent of the motion and [the court] must give that party the benefit of every favorable inference." O 'Brien v Port Auth. of New York and New Jersey, 29 N.Y.3d 27, 37 (2017).
FELA
The Federal Employers' Liability Act (FELA) (45 USC § 51 et seq) provides that operators of interstate railroads shall be liable to their employees for on-the-job injuries resulting from the railroad's negligence. In an action under FELA, "the plaintiff must prove the traditional common-law elements of negligence: duty, breach, damages, causation and foreseeability" (Hyatt v. Metro-North Commuter R.R., 16 A.D.3d 218, 218, 792 N.Y.S.2d 391 [1st Dept. 2005]). However, these elements are "substantially relaxed" and "negligence is liberally construed to effectuate the statute's broadly remedial intended function" (id. at 218-219, 792 N.Y.S.2d 391; see also Foster v. Port Auth. of N.Y. &N.J, 154 A.D.3d 543, 544, 61 N.Y.S.3d 894 [1st Dept. 2017]). A claim under FELA "must be determined by the jury if there is any question as to whether employer negligence played a part, however small, in producing plaintiffs injury" (Hairston v. Metro-North Commuter R.R., 2 A.D.3d 127, 128, 768 N.Y.S.2d 453 [1st Dept. 2003]). "A case is deemed unworthy of submission to a jury only if evidence of negligence is so thin that on a judicial appraisal, the only conclusion that could be drawn is that negligence by the employer could have played no part in an employee's injury" (Pidgeon v. Metro-North Commuter R.R., 248 A.D.2d 318, 319, 670 N.Y.S.2d 833 [1st Dept. 1998]).Stephney v MTA Metro-North R.R., 173 A.D.3d 572, 572 (1st Dept 2019).
"FELA plaintiffs still must demonstrate some causal connection between a defendant's negligence and their injuries." Claar v Burlington Northern R. Co., 29 F.3d 499, 503 (9th Cir 1994). Pure speculation is insufficient to meet plaintiffs burden. See Curley v Consolidated Rail Corp., 81 N.Y.2d 746 (1992); Mazzella v Metro North Commuter R. Co., 213 A.D.2d 254 (1st Dept 1995). Where a FELA claim is based on toxic exposure, there must be, at a minimum, "evidence from which the factfinder can conclude that the plaintiff was exposed to levels of that agent that are known to cause the kind of harm that the plaintiff claims to have suffered." Lancaster v BNSF Railway Co., 75 F4th 967, 970 (8th Cir 2023), quoting Wright v Willamette Indus., Inc., 91 F.3d 1105, 1107 (8th Cir 1996).
Here, Conrail and APU meet their prima facie burden by setting forth plaintiff s failure to adduce evidence of decedent's exposure to diesel fumes on the job beyond mere speculation that he might have encountered them on occasion.
In opposition, Collipi's expert affidavit is insufficient to raise a triable issue of fact as to whether decedent was exposed to whether decedent was exposed to toxic substances on the job even under the lenient evidentiary standards of FELA. While Collipi opines that "Mr. Barnes' work history indicated that he had daily exposure to diesel exhaust" that conclusion appears to lack any foundation based on evidence properly before the court. An expert affidavit that is "speculative, conclusory, and partially based on evidence which is not in the record" is not a sufficient basis to defeat a motion for summary judgment. Kopeloff v Arctic Cat, Inc., 84 Ad3d 890 (2d Dept 2011).
Thus, Conrail and APU's motion for summary judgment is granted as to plaintiff s FELA claim.
LIA and SAA
The LIA "imposes upon the carrier 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. Co. v Lunsford, 297 U.S. 398 (1936). The SAA similarly imposes strict liability on carriers for failure to equip railcars with certain safety features. See Phillips v CSX Transp., Inc., 190 F.3d 285 (4th Cir 1998).
"As a threshold matter, liability will only exist under the [LIA] where the locomotive in question is 'in use' at the time of the accident." Crockett v Long Island RR, 65 F.3d 274, 277 (2d Cir 1995). Similarly, the SAA's protections only apply to railcars that are actually "in use." Hairston v Metro-North Commuter RR, 2 A.D.3d 127, 128 (1st Dept 2003).
Here, as noted above, plaintiff has failed to present a triable issue of fact as to whether decedent was exposed to the toxic substances at issue work, let alone that his injuries stem from work on an "in use" railcar or locomotive. Thus, Conrail and APU's motion for summary judgment is granted as to plaintiffs LIA and SAA claims.
CONCLUSION
Accordingly, it is hereby:
ORDERED, that defendant Consolidated Rail Corporation's motion for summary judgment (mot. seq. 6) is granted, and the complaint is dismissed as against it; and it is further
ORDERED, that defendant The Penn Central Corporation a/k/a American Premier Underwriters, Inc.'s motion for summary judgment (mot. seq. 7) is granted, and the complaint is dismissed as against it; and it is further
ORDERED that, within 20 days from entry of this order, defendants shall serve a copy of this order with notice of entry on the Clerk of the General Clerk's Office (60 Centre Street, Room 119); and it is further
ORDERED that such service upon the Clerk shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh);]; and it is further
ORDERED that any relief not expressly addressed has nonetheless been considered and is hereby denied.
This constitutes the decision and order of this court.