Opinion
04-22-00732-CV
08-23-2023
Ana Marie Mendez ESPINOZA, Individually and as Personal Representative of the Estate of Juan Manuel Espinoza, Jr.; Janice Janet Espinoza; Jonathan Espinoza; and Juliza Espinoza, Appellants v. THE KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellee
From the 406th Judicial District Court, Webb County, Texas Trial Court No. 2020CVF001385D4 Honorable Oscar J. Hale, Jr., Judge Presiding
Sitting: Beth Watkins, Justice, Lori I. Valenzuela, Justice, Sandee Bryan Marion, Chief Justice (Ret.)
The Honorable Sandee Bryan Marion, Chief Justice (Retired) of the Fourth Court of Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See Tex. Gov't Code §§ 74.003, 75.002, 75.003.
MEMORANDUM OPINION
Lori I. Valenzuela, Justice.
The underlying action is a wrongful death suit brought by appellants, Ana Maria Mendez Espinoza, Individually and as Personal Representative of the Estate of Juan Manuel Espinoza, Jr.; Janice Janet Espinoza; Jonathan Espinoza; and Juliza Espinoza against appellee, The Kansas City Southern Railway Company ("KCSR"). Appellants appeal the trial court's order granting summary judgment in favor of KCSR on all their claims. We affirm.
Ana Maria Mendez Espinoza was Juan's wife. Janice Janet Espinoza, Jonathan Espinoza, and Juliza Espinoza were his children.
The factual allegations and arguments are taken from appellants' response to KCSR's motion for summary judgment. With few exceptions, KCSR did not dispute appellants' factual allegations.
At approximately 6:00 p.m. on September 20, 2017, Juan Espinoza ("Juan") began his shift at KCSR's Laredo yard shifting rail cars from one track to another. Juan, a railroad conductor, was part of a crew with Manuel Chaires and Juan Hinojosa. At the time, Javier Herrera was the KCSR Trainmaster and Frank Dovalina was the KCSR Assistant Trainmaster.
According to appellants, Juan reported he did not feel well at the start of his shift. He told his co-workers he was experiencing what he thought was heartburn and he told Chaires he needed, "like more Cokes, like 50 more of these to burp more." About the same time, Juan also told his co-workers that he had fallen asleep in the restroom. Chaires and Hinojosa both recognized Juan falling asleep on the job was atypical behavior. Herrera gave Juan a Nexium for heartburn, and later in his shift another co-worker gave him a Tums for his heartburn symptoms.
Around 3:00 a.m., Juan, Chaires, and Hinojosa drove to the west end of the yard. Juan drove a Kubota utility vehicle. Juan and Chaires performed their work and switched about ten rail cars. At approximately 4:00 a.m., Chaires saw the Kubota roll backwards and contact Juan, who collapsed and lay on the ground screaming loudly. Juan was conscious but was making noises like he was "having a bad dream." Chaires told Hinojosa to call the yard office and tell them Juan had fallen. Instead, Hinojosa exited the train and made his way to Chaires and Espinoza. He did not contact the yard office using the locomotive radio as requested because he did not know how. Ultimately, Chaires radioed the yard office and spoke to Dovalina to advise him that Espinoza had fallen and was not getting up. Dovalina responded, "okay let me try to get a ride."
At about 4:05 a.m., Dovalina notified Herrera that Espinoza "had fallen down and was not responsive." Approximately six more minutes passed before Dovalina called 9-1-1. Another employee, Juan Vasquez, overheard the distress call over the radio. Vasquez ran to find a Kubota ATV to get to Espinoza, but none were available. Vasquez instead asked Dovalina if he wanted to head to the west end of the yard in his personal vehicle and Dovalina agreed.
When Vasquez and Dovalina arrived on the scene, Espinoza was lying on his left side. The men turned him onto his back, but he was not breathing. Vasquez attempted CPR to no avail. At 4:33 a.m., Webb County EMS arrived at the KCSR office-the only location they had been given. The Webb County Sheriff's Office was dispatched to KCSR's yard located at 604 Serrano Road for a deceased person report. Juan had died of a heart attack.
Procedural History
On August 7, 2020, appellants sued KCSR under the Federal Employers' Liability Act ("FELA") alleging KCSR was negligent and seeking recovery for wrongful death, survival, and personal injuries. Appellants argued KCSR was negligent based on "a duty to assist [Juan] when [KCSR's] employees saw [Juan] showing signs of illness and chest pain." Appellants contended that had KCSR provided Juan with transport to an emergency room for emergency evaluation when he reported severe heartburn and falling asleep in the bathroom, more likely than not, Juan's chance for survival was greater than ninety percent.
Among the experts retained by appellants were Brandon Ogden (on liability) and Paul Dlabal, M.D. (on causation). KCSR moved to exclude Ogden and Dlabal's opinions. KCSR also filed both traditional and no-evidence motions for summary judgment on appellants' claims arguing, in part, that it did not have a duty to (1) take preventive measures in anticipation of an employee's cardiac arrest, (2) intervene with medical assistance, or (3) supply automated external defibrillators ("AEDs") or train employees in their use. Appellants filed a response, and KCSR replied.
On September 9, 2022, the trial court granted all three of KCSR's motions. In five issues on appeal that that can be narrowed into two categories, appellants assert the trial court erred (1) in rendering summary judgment in favor of KCSR and (2) granting KCSR's motions to exclude the opinions of Ogden and Dlabal.
Standard of Review
To prevail on a traditional summary judgment motion, KCSR had to establish that no genuine issues of material fact exist and that it was entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c). A traditional motion for summary judgment must stand or fall on its own merits, and a summary judgment may only be granted or affirmed on grounds expressly presented in the motion itself. See, e.g., Weekley Homes, LLC v. Paniagua, 646 S.W.3d 821, 826 (Tex. 2022) (per curiam); Hardaway v. Nixon, 544 S.W.3d 402, 412 (Tex. App.-San Antonio 2017, pet. denied). "A defendant who conclusively negates at least one of the essential elements of a cause of action or conclusively establishes an affirmative defense is entitled to summary judgment." Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010).
We review the evidence presented by the motion and response in the light most favorable to the non-movant, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Id. (no-evidence); Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005) (traditional). When, as here, the trial court grants summary judgment without specifying its grounds, we must uphold the trial court's judgment if any of the asserted grounds are meritorious. Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.-Houston [1st Dist.] 2005, pet. denied).
Federal Employers' Liability Act
In their first issue on appeal, appellants assert that once an employer undertakes to provide medical care, it must do so in a non-negligent manner, and they contend there is more than a scintilla of evidence that KCSR took on a duty to provide medical care beyond that required by law.
Applicable Law
"With respect to providing compensation for workplace injuries, the obligations of railroads differ from those of the majority of other employers in the United States." Sells v. CSX Transp., Inc., 170 So.3d 27, 32-33 (Fla. Dist. Ct. App. 2015). "The workers' compensation laws that cover virtually all other industries provide compensation to injured employees on a no-fault basis." Id. "However, under FELA, being injured on the job does not automatically entitle an employee of a railroad to compensation; instead, compensation is awarded only if the employer's negligence caused the injury, and compensation must be reduced to the extent of the employee's own negligence." Id. (citing to 45 U.S.C. §§ 51, 53). FELA makes any railroad engaged in interstate commerce liable in damages for an injury to or death of an employee sustained while employed by the railroad if the injury or death resulted in whole or in part from the negligence of the railroad's employees or by reason of any defect or insufficiency in its equipment due to its negligence. See 45 U.S.C.A. § 51 ("Liability of common carriers by railroad, in interstate or foreign commerce, for injuries to employees from negligence; employee defined"); Union Pac. R.R. v. Williams, 85 S.W.3d 162, 165 (Tex. 2002).
To prevail on a FELA claim, a plaintiff must establish the traditional common-law elements of negligence: duty, breach, foreseeability, and cause-in-fact. See Tufariello v. Long Island R.R., 458 F.3d 80, 87 (2d. Cir. 2006); Fulk v. Ill. Cent. R.R., 22 F.3d 120, 124 (7th Cir. 1994); Moody v. Boston & Maine Corp., 921 F.2d 1, 3 (1st Cir. 1990); Abraham v. Union Pac. R.R., 233 S.W.3d 13, 17 (Tex. App.-Houston [14th Dist.] 2007, pet. denied). "More specifically, to prove a claim that the railroad failed to provide an employee with a safe workplace, 'the worker must establish that he became ill at work, that without prompt medical treatment he faced death or serious bodily harm, that the employer had notice of his illness, that the employer failed to furnish prompt medical attention, and that his death or injury resulted in whole or in part from the employer's delay in response.'" Sells, 170 So.3d at 32-33 (quoting Pulley v. Norfolk S. Ry. Co., Inc., 821 So.2d 1008, 1014-15 (Ala. Civ. App. 2001)). Because FELA is a federal statute, "FELA cases adjudicated in state courts are subject to state procedural rules, but the substantive law governing them is federal." St. Louis Sw. Ry. Co. v. Dickerson, 470 U.S. 409, 411 (1985); BNSF Ry. Co. v. Phillips, 485 S.W.3d 908, 910 (Tex. 2015).
FELA is a remedial statute with a lower burden of proof such that an employee is entitled to a jury trial if he has adduced any evidence sufficient to "justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought." Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500, 506 (1957). In other words, this is "a relaxed standard of causation." Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 543 (1994). However, FELA is not a workers' compensation statute and, "[t]his lowered threshold . . . does not mean that an employer is responsible for any injury that occurs in the course of employment." Ruark v. Union Pac. R.R. Co., 916 F.3d 619, 625 (7th Cir. 2019); see also In re Amtrak Sunset Ltd. Train Crash in Bayou Canot, Alabama, on September 22, 1993, 188 F.Supp.2d 1341, 1348 (S.D. Ala. 1999) ("FELA is not a strict liability statute, and it 'does not make the [railroad] employer the insurer of the safety of his employees while they are on duty.'").
"As light as this burden is, the plaintiff must still present some evidence of negligence in order to survive a motion for summary judgment." Green v. CSX Transp., Inc., 414 F.3d 758, 766 (7th Cir. 2005). "Specifically, the plaintiff must offer evidence creating a genuine issue of fact on the common law elements of negligence, including duty, breach, foreseeability, and causation." Id.; see also Gray v. Alabama Great S. R.R. Co., 960 F.3d 212, 215 (5th Cir. 2020) ("This standard leaves in place, though, the plaintiff's burden to provide evidence of 'all the same elements as are found in a common law negligence action.'"); Amtrak, 188 F.Supp.2d at 1348 ("FELA claims are subject to summary judgment due to pre-emption, lack of a duty, and/or lack of expert testimony.").
Duty is an essential element of negligence, and the determination of any question of duty- that is, whether the law imposed upon the defendant the obligation to protect the plaintiff against the consequences which occurred-is a question of law. Fulk, 22 F.3d at 125. "Thus, while a jury does indeed determine whether a defendant has breached a duty, the question of whether a duty exists in the first place remains with the court." Id.
"Under FELA, an employer has a duty to exercise reasonable care in providing a reasonably safe workplace, reasonably safe conditions in which to work, and reasonably safe tools and equipment." Sells, 170 So.3d at 33. "As part of the duty to provide a safe workplace, the employer is required to procure medical aid and assistance for an employee when, to the employer's knowledge, the employee becomes seriously ill and unable to care for himself." Id.; see also S. Pac. Co. v. Hendricks, 339 P.2d 731, 733 (Ariz. 1959); Szabo v. Penn. R.R. Co., 40 A.2d 562, 563 (N.J. 1945).
In Sells, a railroad employee suffered cardiac arrest after getting off a train to operate a switch. Id. at 31. A co-worker found him about two minutes later. Id. Because of the railroad's inability to communicate the employee's exact location, emergency personnel took over half an hour to reach the employee and could not save his life. Id. The employee's widow filed a FELA claim alleging, among other things, that the railroad was negligent in failing to equip its trains with AEDs and to train its employees in CPR and AED use. Id. The employee's surviving spouse had to show that the railroad failed to provide a safe workplace by establishing that the employee became ill at work, that he was at risk of death or serious bodily injury without prompt medical treatment, that the railroad was aware of his illness but failed to furnish prompt medical attention, and that the delay caused in whole or in part his death or injury. Id. at 33.
"[T]he duty arises out of strict necessity and urgent exigency. It arises with the emergency and expires with it." Hendricks, 339 P.2d at 733 (citing Szabo, 40 A.2d at 563); Randall v. Reading Co., 344 F.Supp. 879, 884 (M.D. Pa. 1972) (holding that whether the railroad had a duty to render emergency medical aid turned on whether the railroad knew or should have known that the employee had been seriously injured). "An employer is not required to take preventive actions in anticipation of an employee falling ill or becoming injured." Sells, 170 So.3d at 33; see also Wilke v. Chicago Great W. Ry. Co., 251 N.W. 11, 13 (Minn. 1933) (holding that an employer is not required to anticipate that the physical health and ability of an employee to care for himself while performing his work duties would suddenly cease).
Analysis
On appeal, appellants assert KCSR voluntarily assumed higher duties than established under FELA through the adoption of manuals, policies, and plans regarding the health and safety of its workers. Therefore, our analysis turns on a review of KCSR's manuals, policies, and plans.
KCSR's safety improvement guides state that their purpose is "to raise awareness and general knowledge of safe work practices." The guides are intended to provide training for a non-exhaustive variety of hazards that may arise at work. Although they do not contain complete texts of all regulations or railroad rules, they are designed to be "consistent with FRA, OSHA, and EPA regulations addressing workplace safety," and to "summarize safe and effective work practices." In other words, the safety improvement guides are explicitly designed to comply with federal law-including FELA's requirements to provide a reasonably safe workplace-not to exceed the requirements of federal law.
One of the guides addresses emergency preparedness, including medical emergencies. That guide requires each major location to have a written "Emergency Preparedness Plan" addressing possible emergencies at that location, including medical problems. The Laredo Yard's local emergency preparedness plan is included in the summary judgment record. There are two pages applicable to medical emergencies. One page includes local emergency numbers for various types of emergencies; the number applicable for a medical emergency is 9-1-1. The second page includes general instructions on contacting 9-1-1 and reporting emergency medical issues to the company. That page concludes, "If properly trained, start applying emergency first aid until the Local Emergency Medical Responders arrive. If not properly trained in emergency first aid, use the radio or telephone to locate someone that is trained. First Aid kits are provided in all buildings."
The "STAR [Safety Through Awareness and Responsibility] Safety Statement," reads:
Always take the safe course. I am my brother or sister's keeper. Follow me, I'll lead you through the day safely.
No task needs to be completed before it can be done safely. Compliance with safety and operating rules is required and essential to our own safety and that of others.
With the Safety Vision of KCS becoming the safest railroad in North America, Safety Through Awareness and Responsibility (STAR) has been created to establish a clear set of safety rules and recommended work practices. It recognizes that safety is of the utmost importance in the performance of duties. The rules and work practices are designed to be consistent with all local, state, and federal rules and regulations. They are also a product of the knowledge and wisdom of KCS railroad professionals on how to work safely and efficiently.
This book encourages change for improvement's sake and values your safety and health both on and off the job. It supports the application of knowledge, encourages thinking, and promotes learning from one another. Because safety is everyone's job, we have to promote safe job practices and protect fellow employees from daily job hazards.
Where no specific rules or procedure applies, we must rely on good judgment, following the safest course available. We may have to contact a co-worker, supervisor, or other resources for guidance. No action should be taken until we are fully aware of the hazards involved and have a plan to proceed safely.
This book was created in a joint effort of craft and management to provide a safe environment for all employees. We encourage everyone to continue this partnership as we use STAR to work safely. [Bold emphasis added throughout.]
After a thorough review of the manuals and policies included in the summary judgment record, we conclude they constitute no evidence establishing a higher duty than required under FELA: to provide a reasonably safe workplace, reasonably safe conditions in which to work, and reasonably safe tools and equipment. See, e.g., Sells, 170 So.3d at 33. We likewise reject appellants' argument that the statement "I am my brother or sister's keeper" in the safety statement gives rise to a higher duty than required under FELA. Neither KCSR's manuals, policies, and plans nor FELA "make the employer the insurer of the safety of his employees while they are on duty." Ellis v. Union Pac. R.R. Co., 329 U.S. 649, 653 (1947).
Because we have determined KCSR conclusively established that it owed no duty to provide additional care to Juan, we overrule appellants' first issue on appeal. We need not reach the remainder of appellants' issues because they are contingent upon the existence of a duty. See Tex. R. App. P. 47.1.
Conclusion
We affirm the judgment of the trial court.