Opinion
CIVIL ACTION NO: 02-1485, SECTION: "A" (4)
October 3, 2003
ORDER AND REASONS
Before the Court are two motions for summary judgment filed by Defendant National Railroad Passenger Corporation (Rec. Doc. 29) and Defendants Canadian National/Illinois Central Company (Rec. Doc. 30). Plaintiffs oppose the motions which were originally set for hearing on July 16, 2003 and were continued without date.
BACKGROUND
On August 5, 2000, plaintiff Joseph Miciotto (hereinafter "Miciotto")was employed by National Railroad Passenger Corporation (hereinafter "Amtrak"). He was the Engineer and the sole operator and occupant of a locomotive owned by Amtrak that was pulling a passenger train from Louisiana to Mississippi. As he approached Hammond, Louisiana, on a track owned by defendant Canadian National/Illinois Central Railroad Company (hereinafter "CN/IC"), he saw a tractor-trailer on the track at the Old Covington Road Crossing. The tractor-trailer, owned by defendant National Guard and driven by defendant Michael Brown (hereinafter "Brown"), had stalled on the track prior to the time it became visible to Miciotto. The tractor-trailer was being pushed off of the track by Brown and his passenger, but before they could move it clear of the track, the train entered the crossing and struck the trailer just behind the rear axle, spinning the tractor-trailer around. Both Brown and his passenger escaped injury, and no passenger or ocher crew member aboard the Amtrak train was injured. However, Miciotto alleges that the accident caused him to suffer severe and permanently disabling injuries.
Miciotto and his wife originally filed suit against the United States defendants under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), 2671-2680 and subsequently supplemented and amended their complaint to include Amtrak and CN/IC under the Federal Employers Liability Act, 45 U.S.C. § 51 et seq. ("FELA").
SUMMARY JUDGMENT
Summary judgment is appropriate if the record discloses "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." A court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." The moving party bears the burden of establishing that there are no genuine issues of material fact. However, the mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. In determining whether a party is entitled to summary judgment, the court views the evidence in the light most favorable to the non-moving party. The moving party bears the burden, as an initial matter, of showing the district court that there is an absence of evidence to support the nonmoving party's claim. If the dispositive issue is one for which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. The burden then shifts to the nonmoving party, who may not rest upon the pleadings, but must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists for trial.
Fed.R.Civ.P. 56(c) and Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552 (1986).
Lavespere v. Niagra Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202, 212 (1986)).
Id.
Littlefield v. Forney Indep. School Dist., 268 F.3d 275, 282 (5th Cir. 2001), citing Smith v. Brencettsy, 158 F.3d 908, 911 (5th Cir. 1998).
Id. (citing Celotex, 477 U.S. at 325, 106 S.Ct. at 2548.)
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1996).
In deciding a motion for summary judgment, the trial court must determine whether the evidence presented by the party opposed to the summary judgment is such that a reasonable jury might find in favor of that party at trial.
The inquiry performed is the threshold inquiry of determining whether there is a need for a trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.
[T] his standard mirrors the standard for a directed verdict under Federal Rule of Procedure 509(a), which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202, 212 (1986).
Although Miciotto argues to the contrary, the standard for summary judgment pursuant to Federal Rule of Civil Procedure 56 does not differ in a case brought under the FELA. A motion for summary judgment in a FELA claim, as in any claim, requires a showing that there is no genuine issue of material fact. What is "material" is determined by the governing substantive law. The plaintiff still has the burden at trial of establishing the railroad's negligence and on summary judgment must still produce sufficient evidence to show that his workplace was unsafe.
DISCUSSION
I. AMTRAK'S MOTION FOR SUMMARY JUDGMENT
At all relevant times, Miciotto was an engineer employed by defendant Amtrak. He filed suit against Amtrak under the Federal Employers Liability Act, 45 U.S.C. § 51 et seq. ("FELA"). FELA provides the exclusive remedy for a railroad employee injured as a result of his employer's negligence and makes common carrier railroads liable in damages to employees who suffer work-related injuries caused "in whole or in part" by the railroad's negligence.
Norfolk Western Railroad Company v. Ayers, 123 So. Ct 1210 (2003).
To prevail under FELA, a plaintiff must prove that: (1) the defendant is a common carrier by railroad engaged in interstate commerce; (2) he was employed by the defendant with duties advancing such commerce; (3) his injuries were sustained while he was so employed; and (4) his injuries resulted from the defendant's negligence."
Smith v. Medical and Surgical Clinic Ass'n, 118 F.3d 416, 419 (5th Cir. 1997) (citing Fowler v. Seaboard Coastline R.R. Co., 638 F.2d 17, 19 (5th Cir. Unit B February 1981)), cert. denied, 522 U.S. 1107, 118 S.Ct. 1034, 140 L.Ed.2d 102 (1998).
The first three prongs of this test are uncontested. At the outset the Court notes that "What constitutes negligence for [FELA's] purposes is a federal question, not varying in accordance with the differing conceptions of negligence applicable under state and local laws for other purposes. Federal decisional law formulating and applying the concept governs." A cause of action brought pursuant to the FELA must demonstrate the common law principles of negligence.
Weaver v. Missouri Pacific Railroad Company, 152 F.3d 427 (5th Cir. 1998) (citing Urie v. Thompson, 337 U.S. 163, 174 69 S.Ct. 1018, 93 L.Ed. 1282 (1949)).
The Court also notes that the 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." Miciotto's arguments to the contrary, when FELA claims are made, the Fifth Circuit has explicitly found that "nothing in the text or structure of the FELA-Jones Act legislation suggests that the standard of care to be attributed to either (emphasis added) an employer or an employee is anything different than ordinary prudence under the circumstances." Miciotto's argument that, "[I]n FELA cases, the employer is held to a higher standard of care than the general duty of reasonable care imposed under state tort law" (Miciotto's Brief, P.8) is clearly not the law in the Fifth Circuit.
Ellis v. Union Pac. R.R., 329 U.S. 649, 653, 67 S.Ct. 598, 91 L.Ed. 572 (1947).
Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 338 (5th Cir. 1997) (citing Fashauer v. New Jersey Transit Rail Operations, Inc., 57 F.3d 1269, 1283 (3d Cir. 1995).
Miciotto's complaint alleges that Amtrak was negligent in failing to provide him with a reasonably safe place to work, in violation of FELA, in the following respects: (1) Amtrak failed to inspect, maintain, find and warn him of a dangerous condition; (2) Amtrak failed to issue appropriate warnings prior to his accident; (3) Amtrak failed to adhere to its non-delegable duty to insure that the tracks, roadbeds, crossings and signals were properly operating and in a reasonably safe condition; and (4) Amtrak failed to provide safe equipment, including safety restraints, padding, and an overall crashworthy cabin in its locomotive. In his opposition brief, Miciotto rephrases Amtrak's failure to provide a reasonably safe workplace as: (1) Amtrak's failure to adhere to its non-delegable duty to inspect and insure that the railroad crossing at Old Covington Road adhered to applicable regulations and standards; (2) Amtrak's failure to instruct and train its locomotive engineers and specifically, Miciotto, on how to react and protect himself in emergency situations; (3) Amtrak's failure to provide a locomotive in a reasonably safe condition with sufficient safety restraints and padding; and (4) Amtrak's violation of the Locomotive Inspection Act, 49 U.S.C. § 20701.
A. Amtrak's Duty Under FELA to Provide Safe Tracks, Roadbeds, Crossings and Signals
The first question to be resolved is whether or not Amtrak had a duty to provide safe track, roadbeds, crossings and signals. This Court's ruling on the determination of the existence of a legal duty is a question of lav;. Miciotto's assertion that Amtrak breached a non-delegable duty as a common carrier for deficiencies in the tracks, roadbeds, crossings and signals is without merit. Undisputedly, Amtrak has never owned or operated the tracks, roadbed, crossing or signals involved in this accident. Neither party has cited nor can this Court find any case or statute that imposes upon a common carrier any duty, particularly a non-delegable duty, to ensure the safety of a route over which it runs but which it does not own or operate. Any claims against Amtrak that attempt to impose such a duty with regard to the tracks, roadbeds, crossings or signals are legally insufficient and without merit.
Coumou v. United States, 107 F.3d 290, 295 (5th Cir. 1997).
See Seaboard System R.R. v. Coffee, 565 So.2d 35 (Ala.), cert, denied, 498 U.S. 898, 111 S.Ct. 253, 112 L.Ed.2d 211 (1990) and In re Amtrak "Sunset Limited" Train Crash in Bayou Canoed, 188 F. Supp.2d 1341 (S.D. Ala. 2000).
Even assuming, arguendo, that there existed such a duty, which there was not, the sworn testimony of Miciotto himself and of Brown, the driver of the tractor-trailer, affirmatively exonerates the crossing, tracks, roadbeds and signals from any causative role in the accident. Both testified that the tracks, roadbeds, signals and crossings were free of malfunctions and visibility was not hampered along the track line. In short, everything was in proper working order and the testimony and evidence submitted to the Court support this finding.
B. Amtrak'S Duty to Instruct and Train its Locomotive Engineers on How to React and Protect Themselves in Emergency Situations
Miciotto next contends that the FELA imposes a duty upon Amtrak to train him to react and protect himself in emergency situations. Miciotto argues that Amtrak's failure to do so resulted in his injuries. He has offered no evidence or testimony as to what training Amtrak was required to provide that would or could have avoided his injuries. Amtrak's supervisor, Richard Williams, identified the entire cab as a "safety zone." Miciotto offers no evidence to refute this statement. Williams admitted that no training or instructions are provided to locomotive engineers on how to protect themselves. However, in testifying that each collision is different, Williams could not give any examples when it would be safer to stay in the locomotive seat, get on the floor or even jump from the train when faced with a collision. As noted by the 6 th Circuit Court of Appeals,
Rail crossing accidents come in many varieties, from accidents with school buses, fuel trucks, trailer trucks, cars, farm equipment, individuals, animals and many other obstructions. In dealing with impending accidents the locomotive engineer must act with common sense in an emergency situation. In this case we see no particular form of training that Conrail should have provided that would have avoided the situation here. The plaintiff does not claim that Conrail was negligent because the whistle handle broke or because Conrail did not provide a locomotive with a safer design, cab, or driving system. He simply claims that Conrail should have trained him to avoid panic and falling after the whistle handle broke. We do not believe Conrail had a legal duty to offer training of this kind. We do not know what training Conrail could have offered that would be likely to avoid the situation here. We conclude that Conrail did not breach any legal duty that it owed to plaintiff.
Dent v. Consolidated Rail Corp., 187 F.3d 635 (Table) (6th Cir. 1999), cert. denied.
This Court declines to find that Amtrak breached any duty to "train" its engineers when such training would have to vary exponentially depending upon the peculiar circumstances of any given collision. Further, Miciotto has offered no evidence whatsoever, nor in this Court's opinion could he, as to any particular form of training that Amtrak could or should have provided that would have avoided the situation here.
C. Amtrak's Violation of the Locomotive Inspection Act, 49 U.S.C. § 20701 and Its Failure to Provide Sufficient Safety Restraints and Padding
Miciotto also alleges that Amtrak violated the Locomotive Inspection Act, 49 U.S.C. § 20701. 49 U.S.C. § 20701 provides: § 20701. Requirements for use
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.
Pursuant to the LIA, the Federal Railroad Administration
promulgated 49 C.F.R. § 229.119 which pertains to cabs and cab equipment:
§ 229.119 Cabs, floors, and passageways
(a) Cab seats shall be securely mounted and braced. Cab doors shall be equipped with a secure and operable latching device.
(b) 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.
(c) Floors of cabs, passageways, and compartments shall be kept free from oil, water, waste, or any obstruction that creates a slipping, tripping, or fire hazard. Floors shall be properly treated to provide secure footing.
(d) The cab shall be provided with proper ventilation and with a heating arrangement chat maintains a temperature of at least 50 degrees Fahrenheit 6 inches above the center of each seat in the cab.
There is not one scintilla of evidence presented by Miciotto to demonstrate that the Amtrak locomotive failed to comply with the LIA and 49 C.F.R. § 229.119. In fact, Miciotto does not even argue this point in his brief.
Although the above regulations address certain aspects of a locomotive cab's environment such as windows and ventilation, neither they nor any other regulations promulgated by the Federal Railroad Administration require safety restraints and/or padding. It is not the function of this Court to attempt to supersede the FRA's regulations by requiring common carriers to equip their locomotives with safety devices and padding. That impetus for change, should it come, should come from legislative bodies intimately familiar with the issues involved v/with locomotive safety.
Miciotto also seeks for this Court to hold Amtrak negligent under the FELA in its failure to equip the locomotive with devices that are not required by the LIA but would ostensibly make the locomotive cab crashworthy.
This claim not does not involve a question of federal preemption of a state-law claim. This claim addresses the interaction of two federal statutes, namely, the FELA and the Locomotive Inspection Act (LIA), 49 U.S.C. § 20701 et seq. Specifically, it involves the interaction of the FELA's requirement that common carriers provide their employees with a reasonably safe place to work and the LIA'S lack of a requirement for safety restraints and padding in locomotive cabs.
In Weaver v. Missouri Pacific Railroad Company, 152 F.3d 427 (5th Cir. 1998), the Fifth Circuit held that a railroad's compliance with the LIA and regulations promulgated thereto under which the railroad was not required to equip its locomotives with air conditioning or protective window screens did not preclude a finding under FELA that a railroad was negligent in failing to equip its locomotives with air conditioning or protective screens. The railroad argued that the LIA and its regulations regarding locomotive cabin temperature and ventilation conditions "totally occup[y]" the field of locomotive safety, pretermitting liability under FELA for not installing the air conditioners and/or protective screens. The LIA does not require air conditioning or protective screens; just as here, the LIA does not require safety restraints or padding. However, under the facts presented in Weaver, the Fifth Circuit found that the LIA and accompanying regulations do not totally occupy the field regarding locomotive safety.
Weaver v. Missouri Pacific Railroad Company, 152 F.3d 427, 429 (5th Cir. 1998).
The Court distinguishes this case from Weaver on the facts. In Weaver, the plaintiff presented evidence at trial that during the period 1992-1996, there were 698 reported (emphasis added) shootings or stonings of Union Pacific Railroad locomotives. In other words, the Weaver court was dealing with known dangers presented at trial and supported by evidence. In this case, Miciotto has submitted no expert reports or affidavits or testimony of any nature to support his FELA claim that restraints and/or padding would have prevented his damages. He simply concludes that "Common sense and looking at our own lives and sports such as driving an automobile, NASCAR races and riding in airplanes show how safety has evolved over the years and that the use of safety restraints has been required and is successful." These conclusory allegations are unsubstantiated. This Court cannot equate the effect of the use of a safety restraint in a race car versus a twenty-ton locomotive. Nor has Miciotto offered any evidence to support this equation. His allegations and conclusions, without any supporting expert testimony, are simply insufficient to avoid summary judgment.
Miciotto's Brief at p. 16.
Miciotto submitted the affidavit of John Eldridge, an Amtrak engineer and foreman. This affidavit contains Mr. Eldridge's general opinions and unsubstantiated accounts of complaints and acts of other persons. He is not an expert in the field of locomotive safety.
Accordingly, for the reasons stated herein, Amtrak's motion for summary judgment should be and is hereby Granted.
II. CN/IC'S MOTION FOR SUMMARY JUDGMENT
Miciotto alleges that CN/IC was negligent in the following respects: (1) CN/IC improperly inspected, maintained and operated its track, roadbed, crossing signal and equipment; (2) CN/IC's track was dangerously configured and contained excessive vegetation in violation of Federal Railroad Safety Act (FRSA), 49 U.S.C. § 20101 et seq.; (3) CN/IC failed to warn Miciotto of the potential consequences of working on the Amtrak train which was forced to use CN/IC's negligently maintained track, roadbeds, crossing and signals; and (4) CN/IC failed to provide adequate warnings to motorists at crossings and, specifically, did not provide sufficient crossbucks, signal, and/or crossarms at the crossing. Additionally, he prefaces these allegations with the statement that they are brought under the theory of negligence and/or strict liability pursuant to Louisiana state law. To the extent that any of these claims are made under some theory of state tort law, they are preempted by the FRSA.
Miciotto does not dispute that federal law preempts any issue of the design of the crossing and the warnings at the crossing. He in fact admits that the crossing had advanced warning protection in the form of yellow railroad crossing signs and crossbucks, as well as electronic warning bells, flashing signal lights and cantilever gates, all operating as designed at the time of the accident. This is extensively supported by Miciotto's own testimony and the testimony of Brown, the tractor-trailer driver.
In his opposition, Miciotto argues a new defense to the motion: that an emergency notification sign at the crossing failed to comply with the Manual on Uniform Traffic Control Devices (MUTCD) and this violation caused the truck to remain stalled on the railroad crossing resulting in the collision. This argument is without merit.
The Secretary of Transportation, under the authority of the Highway Safety Act of 1966, decreed that traffic-control devices on streets and highways open to public travel in accordance with 23 U.S.C. § 109(d) and 402(a) in each state must be in substantial conformity with standards issued and endorsed by the Department of Transportation, Federal Highway Administration("FHWA"). These standards apply to railroad grade crossings. The FHWA issued these standards in the Manual on Uniform Traffic Control Devices (MUTCD). The MUTCD is recognized as the national standard for traffic-control devices on all public roads. The most recent MUTCD, named MUTCD 2000-Millennium Edition, had an effective date of January 17, 2001. The MUTCD 2000 includes a nonmandatory "guidance" on emergency notification signs at railroad crossings:
See http://mutcd.fhwa.dot.gov/
Section 8 B.09 Emergency Notification Sign (113 or I-13a) Guidance: Emergency Notification Sign (1-13 or I-13a) should be posted at all highway-rail grade crossings to provide for emergency notification. The sign should have a white message on a blue background.
A "guidance" is "a statement of recommended, but not mandatory, practice in typical situations, with deviations allowed if engineering judgment or engineering study indicates the deviation to be appropriate . . ." The previous 1988 edition of the MUTCD, in effect at the time of this accident, does not even mention the posting of emergency notification signs at railroad crossings. Miciotto's argument that the MUTCD requires a sign is incorrect. The 1988 MUTCD had no such requirement and the 2000 MUTCD lists it only as a nonmandatory guidance. Therefore, All arguments made by Miciotto with reference to the emergency notification sign are legally insufficient.
Accordingly, for the reasons stated herein, CN/IC's motion for summary judgment should be and is hereby Granted.
IT IS ORDERED that Defendants' Amtrak and CN/IC motions for summary judgment should be and are hereby GRANTED and plaintiff's claims against these defendants are dismissed with prejudice.
New Orleans, Louisiana, this 3 rd day of October, 2003.