Opinion
Civil Action No. 02-2637
April 3, 2003
MINUTE ENTRY
Before the Court is a Motion for Summary Judgment filed by Herbert W. Kimball, Jr. ("Kimball") seeking summary judgment against Union Pacific Railroad Company ("Union Pacific") on the issue of liability. Having reviewed the memoranda, exhibits, deposition testimony and the relevant law, the Court finds the motion to be meritorious.
Background
Plaintiff alleges that on September 25, 2002, he was employed as a switchman for Union Pacific. He was injured on that date in the Union Pacific yard in Avondale, Louisiana when he tripped and fell over broken cross ties in its yard between Track No. 500 and Track No. 733. (Plaintiffs Ex 1, Accident Report of September 25, 2001; Ex. 2 Dep. of Kimball, pp. 13, 23; Ex. 3 Affidavit of Dennis Wayne Hymel). Dennis Hymel, a fellow employee heard Kimball scream and went to Kimball's assistance. (Plaintiffs Exh. 3 Hymel's affidavit). Kimball injured his right leg and ankle when he stepped on a cross tie which was 8 inches in length and approximately 3 inches in diameter. David Clifton, an engineer, got off the engine to see what had happened, and he radioed the yard master and Scott David, the manager of yard operations. Kimball was taken to the hospital in extreme pain. Upon his return to the yard for drug testing, David required Kimball to fill out an accident report. In the accident report Kimball states specifically that debris on the ground and poor lighting was the cause of the accident and that the debris was broken pieces of cross ties.
On August 27, 2002, the instant suit was filed based on the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. and diversity of citizenship. Plaintiff contends that Union Pacific was negligent in its failure to provide plaintiff with a reasonably safe place in which to perform his job duties, failure to provide plaintiff with safe and suitable equipment to perform his job duties; failure to inspect and maintain their yard and equipment; and failure to warn plaintiff of the presence of defects in defendant's yard and equipment and/or failed to remove said equipment from service.
Evidence presented in the instant motion also shows that T.G. Boudreaux, the Louisiana State Legislative Director for the United Transportation Union, which organization represents plaintiff and other union workers at the yard in Avondale, had observed debris in the area where the accident subsequently occurred and called the Union Pacific hotline to report same. Records of Union Pacific support this contention; the record reflects that Boudreaux indeed called and provided information synopsized as follows: "Throughout the north yard between all tracks there is debris in the toe paths, such as broken crossties, tie plate. and etc. Correction will inspect 8/24 and correct A.S.A.P. per Leroy Coleman." In its opposition Union Pacific presented no evidence that this inspection and correction ever occurred. Instead the self-serving affidavit of E.J. Darington, Manager of Terminal Operations, was presented stating that "from time to time debris such as spikes, pieces of cross ties, tie plate, etc. are found in the walkways" and that Mr. Kimball in essence was contributorily negligent.
Analysis
As stated by another district court:
In order to establish a claim under the FELA, plaintiff is required to prove the traditional common law elements of a negligence action, namely: negligence on the part of the employer, causation and damages. Armstrong v. Kansas City Southern R. Co., 752 F.2d 1110, 1113 (5th Cir. 1985). The employer's duty to its employees under the FELA is to use reasonable care and prudence so that the work place and appliances furnished are reasonably suitable and safe for the purpose and in the circumstances in which they are to be used."Seymore v. Illinois Central R.R. Co., 25 F. Supp.2d 734, 738 (S.D.Miss. 1997). These elements are further explained in the Fifth Circuit Pattern Jury Instructions (1999) (West Group) ("Pattern Instructions"):
Negligence is the failure to use reasonable care. Reasonable care is that degree of care that a reasonably careful person would use under like circumstances. Negligence may consist either in doing something that a reasonably careful person would not do under like circumstances, or in failing to do something that a reasonably careful person would do under like circumstances.
Negligence is a legal cause of damage if it played any part, no matter how small, in bringing about or actually causing the injury or damage. If you find that the defendant was negligent and that the defendant's negligence contributed in any way toward any injury or damage suffered by the plaintiff, you must find that such injury or damage was legally caused by the defendant's act or omission. Negligence may be a legal cause of damage even though it operates in combination with the act of another, or some natural cause or some other cause, if the negligence payed any part, no matter how small, in causing the damage.
Pattern Instruction § 5.1 at 62.
Another circuit court explained that a plaintiff must prove the common-law elements of negligence, i.e., duty, breach, foreseeability, causation, and damages. Adams v. CSX Transp. Co., 899 F.2d 536 (6th Cir. 1990).
A railway employer breaches its duty to the employee "if [the employer] knows or should have known of a potential hazard in the workplace, and yet failed to exercise reasonable care to inform and protect its employees." Peyton v. St. Louis Southwestern Ry., 962 F.2d 832, 833 (8th Cir. 1992). To establish reasonable foreseeability in FELA cases, the plaintiff must offer proof that the Defendant had actual or constructive knowledge of the defect that caused the injury. See Barger v. CSX Transportation, Inc., 110 F. Supp.2d 648 (S.D.Ohio 2000); Gallose v. Long island R.R.Co., 878 F.2d 80, 85 (2nd Cir. 1989).Richards v. Consolidated Rail Corp., 2001 WL 168107 (S.D. Ohio Sept. 2001). Indeed, one court has found specifically that an inference of negligence may be drawn from the fact that debris (a brick or clinker) on which a plaintiff sprained his ankle was found in the walkway between the tracks where members of train crews would be expect to step on and off trains during switching operations. Marcades v. New Orleans Terminal Co., 111 F. Supp. 650, 652 (E.D. La. 1953).
In the case at bar, the evidence is overwhelming that the plaintiff tripped on a broken cross tie, the evidence is likewise overwhelming that Union Pacific was aware of the condition (indeed found it to be normal), and that it had knowledge of such a condition. Union Pacific provided no evidence that it did anything to try and remedy the situation. Indeed, no legal argument of any kind was offered by Union Pacific in opposition to this motion. Instead, discrepancies in testimony and self-serving, conclusory affidavits were presented which do not create a material question of fact. Mere conclusory allegations are not competent summary judgment evidence, and they are therefore insufficient to defeat or support a motion for summary judgment. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992). Union Pacific's negligence played a part in the injury and resulting damages; it is up to a jury to determine by what amount. The motion must be granted. Accordingly,
IT IS ORDERED that plaintiffs Motion for Summary Judgment (Doc. 17) on the sole issue of the liability of Union Pacific is GRANTED.