Opinion
4:04CV3019.
January 26, 2005
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
On February 19, 2004, the plaintiff, Gregory A. McClure, filed an amended complaint against the defendant, Burlington Northern Santa Fe Railway Company (BNSF), alleging violations of the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51-60; various regulations promulgated by the Federal Railroad Administration; and 49 U.S.C. § 20502(b). (See Am. Compl., filing 7.) Now before me is the defendant's motion for summary judgment. (See filing 37.) For the following reasons, I find that the defendant's motion must be denied.
I. BACKGROUND
Nebraska Civil Rule 56.1(b)(1) states,
The party opposing a motion for summary judgment shall include in its brief a concise response to the moving party's statement of material facts. The response shall address each numbered paragraph in the movant's statement and, in the case of any disagreement, contain pinpoint references to affidavits, pleadings, discovery responses, deposition testimony (by page and line), or other materials upon which the opposing party relies. Properly referenced material facts in the movant's statement will be deemed admitted unless controverted by the opposing party's response.
(Emphasis in original.) The plaintiff has not complied with this rule. Although the plaintiff's brief contains a section titled, "Facts of the Case," this section presents few citations to the record and does not "address each numbered paragraph in the movant's statement." (See filing 48 at 6-7.) However, I note that scattered throughout the "Argument" section of the plaintiff's brief, there are pinpoint references to various exhibits upon which the plaintiff relies. (See generally filing 48.) Though Rule 56.1 is written in "mandatory" terms, I find that deeming all of the defendant's statements of facts "admitted," and thereby disregarding the evidence cited by the plaintiff in his brief, is too harsh a sanction. In the interests of justice, I shall excuse the deficiency in the plaintiff's brief. See NEGenR 1.1(c).
As I noted above, the defendant has provided a statement of material facts in support of its motion for summary judgment. (See filing 41 at 5-9.) However, its statement fails to comply with Nebraska Civil Rule 56.1(a)(2). In particular, I find that many of the defendant's statements of facts are not accompanied by "citations to the exact locations in the record supporting the factual allegations." NECivR. 56.1(a)(2) (emphasis omitted); see also NECivR 7.1(a)(2). Instead, the defendant often cites to entire exhibits — some of which are many pages in length — without identifying the relevant page or pages of those exhibits with particularity. (See, e.g., filing 41 at 5, ¶ 3 (citing, inter alia, "Statement of Steinbach").) As a result, it has been difficult for me to verify the information contained within the defendant's statement.
Furthermore, the defendant's statement of facts relies, in part, upon the unsworn statements of various witnesses. (See, e.g., id.; see also id. at 6, ¶ 7 (citing, inter alia, "Engineer Jackson Statement").) These statements are inadmissible hearsay and do not provide proper support for the defendant's motion for summary judgment. See, e.g., Mays v. Rhodes, 255 F.3d 644, 648 (8th Cir. 2001); Erickson v. Farmland Industries, Inc., 271 F.3d 718, 728 (8th Cir. 2001); Boyer v. KRS Computer Business School, 171 F. Supp. 2d 950, 960 (D. Minn. 2001) (citing cases). Nevertheless, I shall consider these unsworn statements to the extent that they are helpful in summarizing the relevant background — but only insofar as the contents of the statements are not disputed by the plaintiff.
Each party has committed serious violations of the local rules, and these violations have made it difficult to analyze the instant motion efficiently. Counsel should not expect that their failings will be excused routinely, but should strive to conform their filings to the requirements of the rules.
The record, viewed in a light favorable to the plaintiff, establishes the following facts.
The defendant is "engaged in the business of a common carrier by railroad in interstate commerce in Nebraska and other states." (Am. Compl., filing 7, ¶ 1.) At the time of the incident that gave rise to the plaintiff's claims, the plaintiff was employed by the defendant.
On the evening of August 17, 2001, a BNSF train designated M-GALLIN1-17 (hereinafter "Train M") traveled west on the BNSF mainline track near Glenwood, Iowa. At mile post (MP) 472.3, Train M encountered an "intermediate signal" displaying a red aspect. In response to this signal, the train stopped, "whistled off," and proceeded to the next signal at a restricted speed. (See Index of Evid. in Supp. of Def.'s Mot. for Summ. J. (Def.'s Index), filing 38, Aanenson Aff. ¶ 4.) The next signal, which was located at MP 473.5, also displayed a red aspect. The train stopped near the signal and remained motionless for approximately 50 minutes.
As Train M waited near MP 473.5, another BNSF train, designated E-SLCBKM3-25 (hereinafter "Train E"), approached from the rear on the same set of tracks. The two-person crew of Train E consisted of an engineer, Roger C. Jackson, and a conductor, Plaintiff Gregory A. McClure. Both the plaintiff and the engineer noted that the intermediate signal at MP 470 displayed a green aspect, which indicated "clear." Train E continued down the track at about 50 miles per hour until the crew noticed a red aspect displayed on the next signal at MP 472.3. At approximately the same time, the engineer of Train E observed Train M stopped on the tracks ahead. The engineer attempted an emergency stop, but Train E collided with the rear of Train M while traveling at approximately 32 miles per hour. The two engines on Train E and several cars at the rear of Train M were derailed. The plaintiff suffered injuries in the collision. (See Am. Compl., filing 7, ¶ 11.)
The engineer's statement indicates that this signal is located on a curve in the tracks. (See Def.'s Index, filing 38, Seiter Aff. Ex. K at 13.)
The Federal Railroad Administration directed an investigation of the accident. Specific attention was given to the green aspect displayed on the signal at MP 470, which was described as a "false proceed signal." The investigation uncovered evidence of an "ineffective joint due to shorted joint coupler" on the north rail at the signal. (Pl.'s Index of Evid. in Response to Def.'s Mot. for Summ. J. (Pl.'s Index), filing 49, Ex. 4, Dep. Ex. 14.) When a hard-wire "shunt" was placed around the insulated joint on the south rail, investigators were able to create "jumbled codes" that affected the signal. (See id., Ex. 4, Pester Dep. at 43:8-15). These jumbled codes "allowed the signal to display a less restrictive signal than intended . . . [(]green instead of yellow[)] . . . for short periods of time." (Id., Ex. 4, Pester Dep. at 43:19-21.) More specifically, conditions were such that by shunting the joint on the south rail, investigators could cause the signal at MP 470 to display improperly a green aspect for as long as twenty seconds "at intermittent intervals of between 10 to 15 minutes." (Id. at 43:22-23.) There is evidence that, as a general matter, a shunt or bypass of an insulated joint could be created by maintenance crews "grinding the rail," which in turn creates fillings that "stick to the insulated joint and sometimes bypass [it]." (Pl.'s Index, filing 49, Ex. 4, Pester Dep. at 45:4-20.) However, the FRA investigation could "neither prove nor disprove" that the insulated joint on the south rail was shunted at the time of the accident. (Id. at 40:21-41:2.) Also, the control center log reports do not indicate any "erratic operation" of the track circuits or signal devices, (Def.'s Index, filing 38, Aanenson Aff. ¶ 18B), and the defendant submits that tests of the relevant equipment were completed successfully sometime prior to August 18, 2001, (see id. ¶¶ 19-22, 27).
There appears to be no dispute that the signal should not have displayed a green aspect under the circumstances.
There is evidence that the polarity was the same on both sides of the insulated joint at the relevant location. (See Pl.'s Index, filing 49, Ex. 4, Pester Dep. at 43:7-15.) Ordinarily the polarities would be "swapped," such that the polarity on one side of the insulated joint would be positive and the other negative. (See id. at 48:7-15.)
On February 19, 2004, the plaintiff filed his amended complaint against the defendant, seeking damages stemming from the injuries he suffered during the collision of Train E and Train M. The amended complaint sets forth three "claims for relief." The first is based upon FELA, 45 U.S.C. §§ 51-60; the second cites various regulations promulgated by the Federal Railroad Administration, (see Am. Compl., filing 7, ¶ 18 (citing 49 C.F.R. §§ 236.0, 236.2, 236.8, 236.11, 236.23(d)(2), 236.24, 236.51, 236.59, 236.102(b), and 236.201)); and the third cites 49 U.S.C. § 20502(b). Although the amended complaint frames these three "claims for relief" as three separate causes of action, the plaintiff's brief suggests the theory that the plaintiff's right to recover is based upon FELA, and the regulatory and statutory violations alleged in claims two and three will, if established, relieve the plaintiff of the burden of proving the standard elements of a negligence claim. (See filing 48 at 8-9, 11-12.)
The defendant has moved for summary judgment, arguing that the plaintiff's FELA claim is preempted by the Federal Railroad Safety Act of 1970 (FRSA), as amended, 49 U.S.C. § 20101 et seq., and the Locomotive Inspection Act (LIA), 49 U.S.C. § 20701 et seq., (see filing 41 at 12-19); alternately, the defendant argues that "there is insufficient evidence to establish negligence and causation under [FELA]," (id. at 19). My analysis of the defendant's motion follows.
II. STANDARD OF REVIEW A. Summary Judgment
A motion for summary judgment shall be granted by the court 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). A "material" fact is one "that might affect the outcome of the suit under the governing law. . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists when there is sufficient evidence favoring the party opposing the motion for a jury to return a verdict for that party. Id. In determining whether a genuine issue of material fact exists, the evidence is to be taken in the light most favorable to the nonmoving party. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). If the moving party meets the initial burden of establishing the nonexistence of a genuine issue, then the burden shifts to the nonmoving party to produce evidence of the existence of a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The nonmoving party "must present affirmative evidence in order to defeat a properly supported motion for summary judgment," Anderson, 477 U.S. at 257, and "may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial," id. at 256 (citing Federal Rule of Civil Procedure 56(e)).
B. FELA
FELA provides,
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 . . . 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, machinery, track, roadbed, works, boats, wharves, or other equipment.45 U.S.C. § 51. Thus, "Under FELA, an employer has a duty to provide its employees with a reasonably safe workplace, including safe equipment."Peyton v. St. Louis Southwestern Railway Co., 962 F.2d 832, 833 (8th Cir. 1992). The elements of a plaintiff's cause of action under FELA are similar to those of a common-law negligence action, with certain important qualifications. See Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 542-44 (1994). For example, a "relaxed standard of causation applies under FELA." Id. at 543. Specifically, "If an employee is injured because of an unsafe condition, the employer is liable `if its negligence played any part, even the slightest, in producing the employee's injury.'" Peyton, 962 F.2d at 833 (quoting Davis v. Burlington Northern, Inc., 541 F.2d 182, 185 (8th Cir. 1976)); see also Gottshall, 512 U.S. at 543 (quoting Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 506 (1957)). In addition, the Supreme Court has "extended the reach of the principle of negligence per se to cover injuries suffered by employees as a result of their employers' statutory violations, even if the injuries sustained were not of a type that the relevant statute sought to prevent." Gottshall, 512 U.S. at 543 (citing Kernan v. American Dredging Co., 355 U.S. 426, 432-36 (1958)).
The Second and Seventh Circuits have stated that the principle of negligence per se also reaches injuries resulting from employers'regulatory violations. See Morant v. Long Island Railroad, 66 F.3d 518, 523 (2nd Cir. 1995); Walden v. Illinois Central Gulf Railroad, 975 F.2d 361, 364 (7th Cir. 1992).
Despite these qualifications, FELA is not a "workers' compensation statute"; an employer's liability under FELA is based upon its negligence. Gottshall, 512 U.S. at 543. "[A]n employer is not liable if it had no reasonable way of knowing about the hazard that caused the employee's injury." Peyton, 962 F.2d at 833. "FELA does not require an employer to exercise the highest degree of care, but only the same degree of care as an ordinary, reasonable person would exercise in similar circumstances." Martinez v. Union Pacific Railroad Co., 82 F.3d 223, 228 (8th Cir. 1996) (citing Peyton, 962 F.2d at 833). But see Ackley v. Chicago and North Western Transportation Co., 820 F.2d 263, 267 n. 6 (8th Cir. 1987) (indicating that an employer's duty under FELA to provide a reasonably safe place to work is broader than a "general duty of due care").
III. ANALYSIS A. Preemption
The defendant argues first that it is entitled to summary judgment because the plaintiff's FELA claim is preempted by the FRSA and the LIA. (See filing 41 at 12-19.) The defendant begins with the observation that state laws, regulations, and orders relating to railroad safety may be preempted when federal regulations cover the same subject matter. (See id. at 12-13.) The plaintiff's claims are brought under FELA, rather than state law; however, the defendant argues that "[p]reemption is also appropriate where an FELA claim has been asserted, premised upon a subject area that has been subsumed by federal regulation." (Id. at 14 (citations omitted).) However, as I shall explain below, it seems to me that the plaintiff's FELA claim is not subject to preemption.The defendant argues that the "comprehensive federal standards with regard to all areas of railroad safety" established by the FRSA "define the standard of care that a railroad must exercise." (Filing 41 at 17.) In other words, the defendant submits that if its conduct complied with all applicable regulations, it cannot be found negligent under FELA. The defendant finds support for this rule in several cases, including In re Amtrak "Sunset Limited" Train Crash in Bayou Canot, Alabama on September 22, 1993, 188 F. Supp. 2d 1341, 1349 (S.D. Ala. 2000) (Like common law negligence claims, FELA negligence claims may not be used to impose duties beyond those imposed by Congress or the FRA — that is, FELA claims may, indeed, be subject to pre-emption."); Waymire v. Norfolk and Western Railway Co., 218 F.3d 773, 775 (7th Cir. 2000) (holding that a railroad company cannot be liable in a FELA negligence action claiming unsafe speed and inadequate warning devices when the complained of conduct complies with the FRSA and its regulations); Rice v. Cincinnati, New Orleans Pacific Railway Co., 955 F. Supp. 739, 741 (E.D. Ky. 1997); Lane V.R.A. Sims, Jr., Inc., 241 F.3d 439, 442 (5th Cir. 2001);Thirkill v. J.B. Hunt Transport, Inc., 950 F. Supp 1105, 1107 (N.D. Ala. 1996); Major v. CSX Transportation, 278 F. Supp. 2d 597, 607-10 (D. Md. 2003).
The plaintiff does not dispute the correctness of this rule, and he acknowledges that there are safety regulations that apply to his claim. (See filing 48 at 20-21.) However, he argues that he does not seek to "impose duties beyond those imposed by Congress or the FRA," and that the defendant's violations of the applicable safety regulations establish that the defendant was negligent per se. (See id.)
As I understand it, the defendant's position is not that the plaintiff is seeking to impose improperly duties beyond those imposed by the FRSA. (See filing 41 at 18 ("Defendant contends that in the matter currently before this Court, plaintiff has ostensibly relied upon the comprehensive scope of coverage via federal regulation concerning railroad signal systems under the authority of the FRA.").) Rather, the defendant claims that it is entitled to summary judgment because it conformed its conduct to the requirements of the relevant regulations. In support of its position, the defendant refers me to the affidavit of its expert witness, Robin Aanenson. (See filing 41 at 18 (citing Def.'s Index, filing 38, Aanenson Aff. ¶¶ 19-29).) Aanenson stated,
Based upon my review of the pertinent report and supporting documents as well as my site inspection and investigation, it is my opinion that the signal system in place at the time of the accident involved herein may be and was operated safely and without unnecessary risk of personal injury and had been inspected and was able to meet any test prescribed by law.
(Def.'s Index, filing 38, Aanenson Aff. ¶ 29.) However, there is a genuine issue as to whether the signal at MP 470 displayed improperly a green aspect, and the defendant has not argued that even if the signal is found to have displayed improperly a green aspect, there has been no violation of railroad safety regulations. On the contrary, Aanenson's affidavit suggests that if the signal system was performing according to its design, the signal at MP 470 should not have displayed a green aspect when Train E approached. (See id. ¶¶ 23-25.)
The defendant's argument might have merit if there were no evidence that the signal at MP 470 displayed a green aspect to the crew of Train E. See, e.g., Major v. CSX Transportation, 278 F. Supp. 2d 597, 611-12 (D. Md. 2003). However, since there is a genuine issue as to the aspect displayed by the signal, and since the defendant has not argued that the signal's display of a green aspect would have been consistent with its duty under FELA to provide a reasonably safe workplace, I find that the defendant's motion for summary judgment cannot be granted based upon the preemption theory.
Parenthetically, I note that the defendant identifies a "vague, stand-alone allegation" found in paragraph 9.c of the amended complaint, and argues that this claim is preempted by the LIA. (See filing 41 at 18-19.) The plaintiff has not responded to the defendant's argument; however, neither has the defendant persuaded me that this "vague" allegation must be preempted. I conclude that this claim also shall remain to be resolved at trial.
B. The Sufficiency of the Evidence Supporting the Plaintiff's Claim
The defendant argues too that it is entitled to summary judgment on the plaintiff's FELA claim because "there is insufficient evidence to establish negligence and causation under the Act." (See filing 41 at 19-20.) Specifically, the defendant argues that the plaintiff cannot show "by direct or circumstantial evidence that (1) an officer, employee or agent of the railroad was responsible, through negligence, for the presence of the unsafe condition; or (2) at least one of such persons had actual knowledge of its presence before the accident; or (3) the unsafe condition had continued for a sufficient length of time to justify the inference that failure to know about it and remove it was due to want of proper care." (Filing 41 at 23 (quoting Brown v. Cedar Rapids and Iowa City Railway Co., 650 F.2d 159, 161 (8th Cir. 1981). The plaintiff responds that there is evidence that the shorted joint coupler could have been discovered by a signal maintainer. (See filing 48 at 23 (citing Pl.'s Index, filing 49, Ex. 4, Pester Dep. at 97:21-98:2.) There is also evidence suggesting that the irregular track polarity, which also could have contributed to the display of a "false clear" signal, (see id. at 48:3-12), could have been identified by testing required by the BNSF control systems instruction manual, (see id. at 93:17-96:10). In view of this evidence, it seems to me that there is a genuine issue as to whether the defendant had a "reasonable way of knowing about the hazard" that may have caused, or at least played a slight part, in producing the plaintiff's injuries. Peyton v. St. Louis Southwestern Railway Co., 962 F.2d 832, 833 (8th Cir. 1992). There also remains a genuine issue as to whether there were any violations of railroad safety regulations or statutes, such that the defendant was negligent per se. In sum, I am not persuaded that the evidence is insufficient to support the plaintiff's FELA claim. IT IS ORDERED that the defendant's motion for summary judgment, filing 37, is denied.