Opinion
Case No. 3:03CV7011
April 12, 2004
ORDER
This is an FELA suit by a brakeman/conductor employed by the defendant Norfolk Southern Railway (NS). The plaintiff brakeman claims he injured his knee when he jumped from a railcar that was being moved on property owned by Ford Motor Company (now owned by Ford's successor, Visteon Corporation [Visteon]).
Plaintiff claims that he was forced to jump from the freight car because it was about to collide with a truck owned by defendant Morrice Transportation (Morrice) and operated by defendant Thomas R. Flood. Plaintiff contends that shortly after he jumped from the rail car, the truck struck where he had been riding, and that he might well have been killed had he not jumped. Flood drove by, but did not respond to the presence of a security vehicle owned by Ford and occupied by a Pinkerton employee, third-party defendant Deanna Williams. The vehicle, which had its flashers on, was about fifty to seventy-five feet from the intersection of the drive being traversed by Flood and the sidetrack on which the NS train and the plaintiff brakeman were moving. Aside from the flashers, there was nothing distinctive about the vehicle or its markings or equipment that would have alerted a passing driver to the fact that it was a security vehicle.
Williams claims that she had positioned her vehicle so that it blocked, or at least partially blocked, Flood's driving lane. Flood contends that the vehicle was not parked across his path of travel. According to him, he thought that the vehicle had been had become stuck.
The security vehicle and Ms. Williams at that location to give warning to vehicles of the approach or presence of moving trains. Ms. Williams was in the vehicle as Flood approached and passed by. When asked after the accident where she had been, she said that it was too cold for her to have been outside the vehicle. Flood testified that the accident occurred on a snowy evening, with ice and snow concealing the tracks as they crossed the roadway, and under poor lighting conditions. He did not know that the crossing was there, as he had never been to the Visteon plant before. His view of the sidetrack and the approaching train was obscured by twenty to thirty foot high steel racks located about ten feet from the crossing. He did not see the brakeman's lantern until he was crossing the track.
Pending are motions for summary judgment by: 1) Visteon as to NS's third-party claims against it; 2) Flood and Morrice as to plaintiff's claims for negligence, violations of provisions of the Code of Federal Regulations, and punitive damages; and 3) Williams and Pinkerton as to NS's third-party claims against them.
For the reasons that follow, Viseton's motion shall be denied, without prejudice as indicated; Flood's and Morrice's motion shall be granted in part and denied in part; and Williams' and Pinkerton's motion shall be granted.
1. Visteon's Motion for Summary Judgment
NS seeks to recover against Visteon under an indemnity agreement between it and Visteon. NS also asserts claims based on alleged negligence on Visteon's part, and for unjust enrichment. Pending is Visteon's motion for summary judgment. For the reasons that follow, that motion shall be granted.
In its opposition to the motion for summary judgment, NS relies, to a considerable extent, on the putative negligence of Ms. Williams and Pinkerton, who were responsible for alerting oncoming traffic of the movement of trains on the otherwise unmarked and unguarded crossing.
Visteon's reply cites Michigan cases for the proposition that it cannot be held derivatively liable for the negligence of an independent contractor. Instead, it alleges, any liability under any of NS's claims must be based on a showing of negligence on its part, rather than on the part of someone else.
It is not necessary to resolve Visteon's claims about the reach, or lack thereof, of the indemnity agreement (or its related claim that it cannot be held liable under the indemnification agreement for any loss of consortium suffered by the plaintiff brakeman's wife). This is because NS has alleged sufficient negligence on Visteon's part to overcome the motion for summary judgment: namely, the presence of the tall stacks of racks near the sidetrack. There is no suggestion that someone other than Visteon was responsible for those stacks, and the obstruction of Flood's view that he claims they caused.
I likewise do not resolve Visteon's claim that any indemnification obligation on its part does not include liability based on its failure to provide other markings or warnings about the presence of the tracks or movement of trains on them. Denial of Visteon's motion for summary judgment is without prejudice to its right to renew its claims re. the interpretation of the indemnification agreement.
Thus, even if, as Visteon alleges, any negligence on the part of Williams and Pinkerton cannot result in liability as to it, there is a basis for imposing liability as claimed in NS's complaint. Without reaching the issue of derivative liability, Visteon's motion for summary judgment as to NS's claims can be overruled on the basis that a reasonable trier of fact could find that Visteon negligently obscured the view of the sidetrack, such obstruction proximately contributed to the plaintiff's injuries, and, consequently, Visteon is liable to NS for any damages that it might have to pay to the plaintiff brakeman.
Visteon, in part, bases its motion for summary judgment on the lack of response to its interrogatories and requests for admission. As to such lack of response, Visteon filed a motion to compel discovery. In the meantime, NS has filed its responses, on which it, in part, relies in its response to the motion for summary judgment.
Visteon claims that NS cannot rely on its untimely responses. I disagree: Visteon failed to comply with this Court's Local Civil Rule 37.1, which requires contact with the court to resolve discovery disputes before a motion to compel discovery can be filed or will be heard. Visteon's motion to compel shall be denied on the basis of such failure.
In any event, even apart from the violation of the Local Rule, the motion to compel shall be overruled on the basis that Visteon has not alleged prejudice from NS's late filing of its discovery responses. While NS should have filed those responses in a timely manner, its failure to do so, or to have requested a brief extension of time in which to do so, should not lead to the draconian consequence of withdrawing potentially crucial facts from this Court's and the jury's consideration.
2. Flood's Morrice's Motion for Summary Judgment A. Negligence
Flood and Morrice claim that they are not liable to the plaintiff on his claims for negligence, violations of the Code of Federal Regulations, or punitive damages.Plaintiff points out that there is a disputed issue of fact with regard to whether Flood drove around Williams' vehicle, which she claims blocked his lane of travel, or merely past the vehicle. In addition, plaintiff contends that Flood failed to see a lantern being waved by plaintiff brakeman as the train approached the intersection with the roadway. Plaintiff also contends that the stacked racks did not, as Flood alleges, obstruct his view of the oncoming train.
These allegations suffice to overcome any contention on the part of Flood and Morrice that plaintiff could not show negligence on Flood's part. Their motion for summary judgment as to the negligence claim shall be denied.
B. Code of Federal Regulations
Plaintiff claims these defendants violated the Code of Federal Regulations. In response, defendant contends that, on the basis of undisputed facts, it violated neither of the only two apparently applicable regulations, 49 C.F.R. § 392.11, 392.14. Defendant's reply also argues that plaintiff's proof fails, because he has not submitted an affidavit in support of his claim that the regulations were violated. Section 392.11, provides:
Defendants do not question, and thus I do not reach, the question of whether plaintiff can maintain a private cause of action under any of the applicable regulations.
Plaintiff does not disagree that these are the only two possibly applicable C.F.R. provisions.
I need not reach this contention, though I note that defendants' affidavit comes close to, and may pass over into opinion as to matters of law, as to which no expert is qualified. See generally U.S. v. Bilzerian, 926 F.2d 1285, 1294 (2nd Cir. 1991) ("As a general rule an expert's testimony on issues of law is inadmissable").
Every commercial motor vehicle . . . shall, upon approaching a railroad grade crossing, be driven at a rate of speed which will permit said commercial motor vehicle to be stopped before reaching the nearest rail of such crossing and shall not be driven upon or over such crossing until due caution has been taken to ascertain that the course is clear
I conclude that plaintiff cannot prevail on a claim under this provision. He has not disputed Flood's testimony that he did not know of the presence of a rail crossing as he approached it. He had never been at the plant before, the weather was snowy, the lighting conditions were poor, and the tracks were covered by snow and ice. In view of Flood's actual ignorance of the presence of the crossing, he cannot be held liable under this provision, even if plaintiff has a private cause of action under it.
Section 392.14, provides:
Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely effect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated. Whenever compliance with the foregoing provisions of this rule increases the hazard to passengers, the commercial motor vehicle may be operated to the nearest point at which the safety of passengers is assured.
Again, assuming that this provision gives rise to a private cause of action, I conclude that plaintiff has failed to show that a reasonable jury could find that it was violated. The provision instructs drivers to reduce speed when "such conditions" — i.e., conditions in which snow or ice adversely affect visibility or reduce traction. Flood testified, and his testimony is not disputed, that he experienced no difficulty with traction.
With regard to the effect on visibility from snow, Flood testified that he reduced his speed to five m.p.h. While Williams testified that Flood approached at fifteen m.p.h., even that speed was below the plant speed limit of twenty-five m.p.h. A rational trier of fact could not find that Flood did anything other than what the regulation required.
This is not to say that the jury might not find Flood to have been negligent: I simply conclude that plaintiff has not shown that Flood violated either provision of the C.F.R.
Thus, defendants motion for summary judgment shall be granted with regard to plaintiff's claims that Flood violated the Code of Federal Regulations.
C. Punitive Damages
The defendants seek dismissal of plaintiff's claim for punitive damages. I agree that, at this point, this case does not look as though it would warrant a punitive damage charge as to the claims against Flood and Morrice. But my view of the record is incomplete, and I prefer to wait until trial and development of the record until addressing this issue. For now, the motion shall be denied, without prejudice to renew.
3. Williams' and Pinkerton's Motion for Summary Judgment as to NS's Claim
Williams and Pinkerton contend that they owed no duty to NS, and that, in any event, Williams was not negligent. Visteon hired Pinkerton, who employed Williams. It appears from the circumstances that one of Pinkerton's duties was to protect persons using the roadways on the plant property from injury from trains, and, as well, to protect train equipment from damage and crew members from injury at crossings. Visteon, accordingly, may be deemed as having delegated its duty of care to Pinkerton via its contract with Pinkerton.
But the relationship between Visteon and Pinkerton was contractual. While NS might have contended that it was a third party beneficiary of the Visteon/Pinkerton contract, it has not done so. See Komajda v. Wackenhut Corp., 2002 WL 181765 (Mich.App. Feb. 1, 2002) (employee/homicide victim was a third party beneficiary of a contract for security services). Contrary to NS's contention, Komajda does not stand for the proposition that the security company, by entering into the contract and undertaking to perform its obligations, voluntarily created a duty of care to employee/victim that could give rise to an action in negligence. Indeed, the court, in dictum, indicated that it found the security company's arguments to the contrary as to that issue "persuasive." Id., *7.
NS thus has not shown that any duty of care was owed to it by Williams and Pinkerton, and the motion of Williams and Pinkerton for summary judgment as to NS's claims shall be granted.
Conclusion
In light of the foregoing, it is
ORDERED THAT:
1. The motion of defendant Visteon for summary judgment as to NS's third-party claims against it be, and the same hereby is denied, without prejudice, as indicated;
2. The motion of defendants Flood and Morrice as to plaintiff's claims for negligence, violations of provisions of the Code of Federal Regulations, and punitive damages, be, and the same hereby is granted with regard to the claims under the C.F.R. denied as to the claims for negligence, and overruled, without prejudice to renew, as to the claim for punitive damages; and
3. The motion of the defendants Williams and Pinkerton for summary judgment as to NS's third-party claims against them be, and the same hereby is granted.,
So ordered.