Opinion
02-CV-4140 (DRH) (ARL).
December 15, 2004
Steven L. Kantor, Esq., Law Offices of Steven L. Kantor, PLLC, Williamsville, NY, Attorney for Plaintiff.
William J. Blumenschein, Esq., The Long Island Rail Road Company Law Department, Jamaica, NY, Attorney for Defendant.
ORDER
INTRODUCTION
Plaintiff Edward Jackson II allegedly incurred severe back injuries while working on a Long Island Railroad Company (LIRR) train. Jackson brought suit against the LIRR pursuant to the Federal Employees' Liability Act and the Federal Locomotive Inspection Act, and has moved for summary judgment on the issue of the LIRR's liability under both statutes. As explained more fully below, because the LIRR's liability depends on resolution of factual questions more properly entrusted to a jury, Jackson's motion is DENIED.
BACKGROUND
Because this is an unopposed summary judgment motion against a non-pro se opponent, the facts alleged in Jackson's Rule 56.1 Statement and supporting affidavits are accepted as true, where supported by evidence in the record. See Local Rule 56.1; McPherson v. Coombe, 174 F.3d 276, 281 (2d Cir. 1999); and Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004).
Jackson was a locomotive engineer for the LIRR. On September 12, 1999, while piloting an LIRR train in Long Beach, N.Y., Jackson attempted to close a window in the cab that was stuck in an open position. This window had apparently previously been reported as defective or non-working at least twice, and on both occasions was reported to have been "fixed." After applying enough force to close the window, Jackson reported feeling a "sharp pain or twinge" in his back that worsened during the course of his shift "from the motion of the train." Jackson did not return to work until January 2001. According to an LIRR internal report, the window defect "result[ed] in Mr. Jackson's incident." A neurosurgeon hired to treat Jackson has opined "within a reasonable degree of medical certainty that Mr. Jackson sustained injury to his back while closing the window," and as a result, "he has undergone extensive medical treatment including facet blocks and an insertion of a spinal cord stimulator . . . with expected treatment for the foreseeable future." Since resuming work in January 2001, Jackson reports having been absent on at least some occasions because of back pain. Jackson cannot recall having had any back problems prior to the incident at issue.
Jackson emphasizes the fact that subsequent to his injury, the locomotive involved was "taken out of service while the window was replaced . . . and repaired properly in the manner it should have been when the defect was originally reported nearly a month before the date of Mr. Jackson's accident." This evidence appears completely inadmissible under the "subsequent repair doctrine," which instructs that remedial measures taken subsequent to a lawsuit are generally inadmissible as evidence of the defendant's prior negligence. See Smyth v. Upjohn Co., 529 F.2d 803-05 (2d Cir. 1975). Federal Rule of Evidence 407 similarly states, in relevant part: "When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence [or] culpable conduct." Jackson offers no authority suggesting that FELA somehow cancels or counteracts the subsequent repair doctrine, and the First Circuit has clearly indicated that F.R.E. 407 applies to evidence supporting FELA claims. See Stevens v. Bangor Aroostook R.R. Co., 97 F.3d 594, 598-99 (1st Cir. 1996). Accordingly, any evidence that LIRR repaired or replaced the window in question after Jackson's injury will not be considered.
Jackson filed suit against the LIRR on July 18, 2002, pursuant to the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51 et seq., and the Federal Locomotive Inspection Act ("LIA"), 49 U.S.C. § 20701, et seq. Jackson is requesting monetary damages for what he describes as "severe, permanent, personal and painful physical and emotional injuries, mental anguish, embarrassment, humiliation, disability, denial of social pleasure and enjoyments, change of lifestyle," and the loss of employment and other costs of his injury. LIRR timely answered, denying or professing ignorance as to all of the allegations in Jackson's complaint. Following discovery proceedings, Jackson filed the present motion for summary judgment. Although LIRR was notified of, and served with, Jackson's motion, it has not offered any submissions in opposition, or otherwise responded.
DISCUSSION
I. Legal Standard for Granting a Plaintiff's Unopposed Summary Judgment MotionSummary judgment is appropriate when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party has the burden of showing that no genuine factual dispute exists, and the court must resolve all ambiguities and draw all reasonable inferences in his opponent's favor. Vermont Teddy Bear Co., 373 F.3d at 244.
Federal Rule of Civil Procedure 56 provides that if a non-moving party fails to oppose a summary judgment motion, judgment shall be entered against that party "if appropriate." Fed.R.Civ.P. 56(e). The Second Circuit has warned, however, that a district court may not grant an unopposed summary judgment motion if the movant's submissions fail to demonstrate that there is no disputed issue of material fact, or if the movant fails to show that he is entitled to judgment as a matter of law. Vermont Teddy Bear Co., 373 F.3d at 244.
When determining whether a genuinely disputed factual issue exists, "a trial judge must bear in mind the actual quantum and quality of proof necessary to support liability," or "the substantive evidentiary standards that apply to the case." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-55 (1986). In FELA cases such as this, the plaintiff has the burden of proving by a preponderance of the evidence that the defendant was negligent. Persinger v. Norfolk Western Ry. Co., 920 F.2d 1185, 1188 (4th Cir. 1990).
II. Summary Judgment Under the Federal Employers' Liability Act is Inappropriate.
The Federal Employers' Liability Act states in relevant part:
Every common carrier by railroad while engaging in commerce between any of the several States . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances . . . or other equipment.45 U.S.C. § 51. FELA thus provides railroad workers with a federal remedy for personal injuries they suffered as a result of the negligence of their employers. Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 542 (1994).
To recover under FELA, a plaintiff must prove (1) that he was injured (2) while employed by a railroad carrier engaged in interstate commerce, (3) and that the railroad's negligence (4) played a role in the injury. Marchica v. Long Island R.R. Co., 31 F.3d 1197, 1202 (2d Cir. 1994). At issue in the present case are the latter two considerations: whether the LIRR's negligence played any role in Jackson's injury. The determination of negligence for FELA purposes "generally turns on principles of common law." Gottshall, 512 U.S. at 543. Thus a FELA plaintiff must prove the traditional common law elements of negligence: duty, breach, damages, causation, and foreseeability. Sinclair v. Long Island R.R. Co., 985 F.2d 74, 77 (2d Cir. 1993) (citing Robert v. Consolidated Rail Corp., 832 F.2d 3, 6 (1st Cir. 1987)). "Specifically, the employee must show that his employer breached its duty to maintain a safe workplace, that he was harmed by that breach, and that the harm was foreseeable." Stevens v. Bangor Aroostook R.R. Co., 97 F.3d 594, 598 (1st Cir. 1996). "The employer's duty to maintain a safe workplace does not require all dangers to be eradicated, but it does demand the elimination of those that can reasonably be avoided in light of the normal requirements of the job." Id.
Although FELA liability requires a finding of negligence, "negligence" under FELA is liberally construed to effectuate the statute's broadly remedial intended function. Goldwater v. Metro-North Commuter R.R., 101 F.3d 296, 298 (2d Cir. 1996). "In order to further FELA's humanitarian purposes, Congress did away with several common-law tort defenses that had effectively barred recovery by injured workers," including the fellow servant rule, the doctrine of contributory negligence (the statute mandates comparative negligence instead, see 45 U.S.C. § 53), contractual exemptions, and assumption of the risk. Gottshall, 512 U.S. at 542-43. Accordingly, the Second Circuit construes FELA "as creating a relaxed standard for negligence." Ulfik v. Metro-North Commuter R.R., 77 F.3d 54, 58 n. 1 (2d Cir. 1996).
The Supreme Court has cautioned, however, that FELA's liberal construction "does not mean that it is a workers' compensation statute" that "make[s] the employer the insurer of the safety of his employees while they are on duty." Gottshall, 512 U.S. at 543. Nor does it impose absolute liability on employers. Moody v. Boston Maine Corp., 921 F.2d 1, 3 (1st Cir. 1990). The basis of employer liability under FELA is still negligence, not the mere fact that injuries occur.
Also, it has been repeatedly held that under FELA "the right of the jury to pass upon the question of fault and causality" and to determine all other factual issues, must be "most liberally viewed." Williams v. Long Island R.R. Co., 196 F.3d 402, 406-07 (2d Cir. 1999) (internal quotations and citations omitted). See also Gallose v. Long Island R.R. Co., 878 F.2d 80, 85 (2d Cir. 1989) ("Because of the `myriad of factors' involved, whether [a] railroad used reasonable care in furnishing its employees a safe place to work is normally a question for the jury.") (citing Ragsdell v. S. Pac. Transp. Co., 688 F.2d 1281, 1283 (9th Cir. 1982)); and O'Hara v. Long Island R.R. Co., 665 F.2d 8, 9 (2d Cir. 1981) (noting that "there is a strong federal policy in favor of letting juries decide FELA cases"). "Only in instances where reasonable jurors could reach only one conclusion may the court take the determination from the jury and decide the question as a matter of law." Gallose, 878 F.2d at 85. This rule is commonly cited to defeat or reverse summary judgment for a railroad defendant in FELA cases. See, e.g., Marchica v. Long Island R.R. Co., 31 F.3d 1197, 1207 (2d Cir. 1994). But it applies with equal force to the present, and less common situation, where a FELA plaintiff moves for summary judgment. See, e.g., Martinez v. Burlington N. Santa Fe Rwy. Co., 276 F. Supp.2d 920, 926 (N.D. Ill. 2003); Traylor v. Metro-North Commuter R.R., No. 01 Civ. 1237, 2002 WL 31319923, at *1-2 (S.D.N.Y. Oct. 16, 2002). Jackson asserts that if "employer negligence played any part, even the slightest, in producing the [plaintiff's] injury," a defendant railroad will be held liable. In fact, the cases Jackson cites for this proposition instead show that where the employer's negligence played even the slightest part in causing an injury, the case should be resolvedby a jury. See Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 543 (1994), and Webb v. Ill. Cent. R.R. Co., 352 U.S. 512, 513, 516-17 (1957).
In the present case, there is apparently no question that the LIRR is a railroad within the scope of FELA's mandate, that Jackson was an employee of the LIRR, and that he was on the job when the incident in question occurred. There can thus be no doubt that the LIRR had a nondelegable duty under FELA to provide Jackson with a reasonably safe workplace. See Shenker v. Baltimore Ohio R.R. Co., 374 U.S. 1, 7 (1963). In light of LIRR's failure to counter Jackson's factual assertions, there likewise seems to be no question that Jackson was injured, that his attempts to close the train window at least partially caused his injury, and that he suffered some damage as a result of the injury. The crucial uncertain issues are therefore only whether LIRR breached its duty to Jackson, and whether the resultant harm was reasonably foreseeable.
A railroad breaches its duty under FELA if it knows or should know of a potential workplace hazard, yet fails to exercise reasonable care to inform and protect its employees. Williams v. Long Island R.R. Co., 196 F.3d 402, 406 (2d Cir. 1999). That is, the overall standard of care, and the definition of a breach of that standard of care, are no different than in ordinary negligence tort cases. Tiller v. Atl. Coast Line R.R. Co., 318 U.S. 54, 67 (1943); see also Gautreax v. Scurlock Marine, Inc., 107 F.3d 331, 338 (5th Cir. 1997) (internal citations omitted). A breach of duty under FELA may accordingly be defined as "the lack of due care under the circumstances; or the failure to do what a reasonable and prudent man would ordinarily have done under the circumstances of the situation." Tiller, 318 U.S. at 67. Phrased differently, "[i]n determining whether a course of conduct is reasonable, the probability and gravity of injury must be balanced against the ease of taking effective preventive measures." Eaton v. Long Island R.R. Co., 398 F.2d 738, 742 (2d Cir. 1968). Inherently cabined in this analysis (under the "probability" factor) is the issue of foreseeability. The Supreme Court has stated that "reasonable foreseeability of harm is an essential ingredient of Federal Employers' Liability Act negligence." Gallick v. Baltimore Ohio R.R. Co., 372 U.S. 108, 117 (1963).
Considering the above standards, it would be inappropriate at this juncture to determine whether the LIRR should have foreseen the potential for Jackson's injury, and whether it accordingly breached its duty of due care by failing to adequately repair the window. It need hardly be stated that the reasonable foreseeability that a stuck window will cause severe back injuries is a factual question for a jury to resolve after a trial, and not for a court to resolve as a matter of law. And the record indicates that the LIRR twice repaired, or attempted to repair, the window in question. Whether a reasonably prudent man would view the probability and gravity of Jackson's injury as meriting the devotion of additional resources to fix or replace the window is clearly a jury question as well. For this reason, it is unclear whether the LIRR was negligent in failing to adequately repair the window, and summary judgment on Jackson's FELA claim is improper.
II. Summary Judgment on Jackson's L.I.A. Claim is Also Inappropriate.
The Locomotive Inspection Act, ("LIA") 49 U.S.C. § 20701, et seq., (formerly the Boiler Inspection Act, 45 U.S.C. § 23) imposes upon railroad carriers "an absolute duty to maintain their locomotives in safe and proper condition." Lilly v. Grand Trunk W.R.R. Co., 317 U.S. 481, 485 (1946). The first part of the LIA (Section 20701) states:
A railroad carrier may use or allow to be used a locomotive or tender on its railroad line only when the locomotive or tender and its parts and appurtenances
(1) are in proper condition and safe to operate without unnecessary danger of personal injury;
(2) have been inspected as required under this chapter and regulations prescribed by the Secretary of Transportation under this chapter; and
(3) can withstand every test prescribed by the Secretary under this chapter.
As the plain language of this provision suggests, a railroad may violate the LIA in one of two ways: by failing to comply with specific regulations promulgated by the Federal Railroad Administration, or by failing more generally to keep the "parts and appurtenances" of its locomotives "in proper condition and safe to operate." See Mosco v. Baltimore Ohio R.R., 817 F.2d 1088, 1091 (4th Cir. 1987). Railroad employees injured by either sort of employer violation may bring suit under FELA charging a violation of the LIA. Lilly v. Grand Trunk W.R.R. Co., 317 U.S. 481, 485 (1946).
There is little under the LIA or federal regulations specifically pertaining to locomotive windows. One regulation states: "Cab windows of the lead locomotive shall provide an undistorted view of the right-of-way for the crew from their normal position in the cab." 49 CFR § 229.119(b). Another provides requirements for window glazing materials, "in order to protect railroad employees and railroad passengers from injury as a result of objects striking the windows of locomotives, caboose and passenger cars." 49 C.F.R. § 223.1. It seems fair to say, however, that locomotive windows are among the many integral "parts and appurtenances" of a locomotive that the LIA more generally requires be kept "in proper condition and safe to operate." The question is whether Jackson has sufficiently demonstrated a violation of the latter provision to merit summary judgment.
The Supreme Court has explained that the LIA and the closely related Safety Appliance Act "are substantively if not in form amendments to [FELA]. They dispense, for purposes of employees' suits, with the necessity of proving that violations of the safety statutes constitute negligence; and making proof of such violations is effective to show negligence as a matter of law." Urie v. Thompson, 337 U.S. 163, 189 (1949). The Supreme Court has stated that in FELA cases based on the LIA or similar statutes, "a violation . . . creates liability under FELA if the resulting defect or insufficiency in equipment contributes in fact to the death or injury in suit, without regard to whether the injury flowing from the breach was the injury the statute sought to prevent." Kernan v. Am. Dredging Co., 355 U.S. 426, 432-33 (1958). And the LIA, like FELA, "is a safety statute which is to be liberally construed to afford protection to railroad employees. Oglesby v. S. Pac. Transp. Co., 6 F.3d 603, 606 (9th Cir. 1993).
Nevertheless, even under the LIA, a plaintiff must show that the defendant employer actually breached the statute, and "that such breach was the proximate cause of petitioner's injury." See Urie v. Thompson, 337 U.S. at 195; Oglesby, 6 F.3d at 610 (defective railroad equipment does not establish LIA violation absent showing that defect itself created a safety hazard). And as under FELA, the emphasis under LIA seems to be getting the case before a jury, not simply resolving it in the plaintiff's favor. See Gregory v. Missouri Pac. R.R. Co., 32 F.3d 160, 162 n. 6 (5th Cir. 1994) (listing some of the "numerous cases" implying that generally, "whether a condition presents an `unnecessary peril to life and limb' [the language used in an older version of the LIA] is an issue of fact for the jury."). Thus, in Oglesby v. Southern Pacific Transport Company, 6 F.3d 603, 606 (9th Cir. 1993), an employee who injured his back trying to adjust a defective engineer's seat that was "secured in a fashion he did not expect," was found to have offered a sufficient showing of causation to submit his LIA claim to a jury. And in Gregory v. Missouri Pacific Railroad Company, the Fifth Circuit held that an employee who slipped on oil spilled on a locomotive walkway could not automatically recover under the LIA, even though a federal regulation explicitly instructs that "[f]loors of cabs, passageways, and compartments shall be kept free from oil . . . that creates a slipping, tripping or fire hazard." 32 F.3d at 162-65. The court held that the plaintiff could not recover without the jury first finding that the presence of oil presented an actual and unnecessarily dangerous slipping hazard. Id.
A previous case in the Southern District with very similar facts is persuasive on this issue. In Traylor v. Metro-North Commuter Railroad, No. 01 Civ. 1237, 2002 WL 31319923 (S.D.N.Y. Oct. 16, 2002), the plaintiff was working as an engineer on the defendant's train, when he attempted to open a window in order to "spot" other railroad employees who had left the train. Id. at *1. According to the defendant's own injury report, the window "got stuck" while Traylor was attempting to open it, and he reported suffering back and shoulder pains. Id. Assuming that the window in that case was defective, Magistrate Judge Maas held that the plaintiff had still not shown the absence of any genuine issue of material fact as to whether the window itself had been unsafe to operate or that its defect had rendered the entire operation of the locomotive unsafe. Id. at *2.
Also persuasive is Breault v. Burlington Northern Railroad Company, a case based on the Federal Safety Appliance Act, 49 U.S.C. §§ 20301- 20306, a statute similar to the LIA and having an analogous relationship with FELA. See No. 96 Civ. 2069, 1996 WL 707103, at *1 (D. Kan. Nov. 19, 1996). In that case, the plaintiff fell from the outside of the defendant's railroad car, allegedly because of a defectively bent handhold. Noting evidence that the handhold was only slightly bent at one end, the court stated that "the question of whether the handhold was unsafe and therefore constituted a violation of the SAA is properly reserved for resolution by the trier of fact." The court accordingly denied the plaintiff's motion for summary judgment on the issue. Id. at *4.
In light of the precedents discussed above, it simply cannot be said that Jackson has so convincingly demonstrated that the stuck window in his cab presented such a danger to the operation of his train that no reasonable jury could help but find LIRR liable for violating the LIA. Summary judgment for Jackson on the this issue as well would therefore be inappropriate.
CONCLUSION
For all of the reasons stated above, the Plaintiff's motion for summary judgment is DENIED.