Opinion
Cause No. 1:00-CV-480
July 12, 2002
MEMORANDUM OF DECISION AND ORDER
Currently before the Court are cross-motions for summary judgment filed by the plaintiff, Neil Pepple (hereinafter "Pepple") and the defendant, CSX Transportation, Inc. (hereinafter "CSXT"). Pepple's complaint, alleging negligence and negligence per se, was brought pursuant to the Federal Employer's Liability Act (hereinafter "FELA"), 45 U.S.C. § 51 et seq. The suit, originally filed in the Northern District of Illinois, was transferred to this Court on December 29, 2000. On November 15, 2001, CSXT filed its motion for summary judgment on all of Pepple's claims. Pepple responded on December 12, 2001, and filed his own cross-motion for partial summary judgment on his negligence per se claims. On January 2, 2002, CSXT filed a "Combined Reply Memorandum" in support of its own motion for summary judgment and in opposition to Pepple's motion for partial summary judgment. Pepple made his final reply on January 4, 2002. Defendant CSXT has also moved for oral argument on the pending summary judgment motions and to strike the affidavit testimony of Pepple and William Bogett.
On February 19, 2002, this Court held a telephone status conference regarding the pending motions. During that status conference, the Court took the pending motions under advisement to give the parties additional time to complete medical discovery and to pursue the possibility of settling the case through mediation. At this time, the parties indicate that their settlement negotiations are at an impasse and that medical discovery has been completed. Accordingly, this decision is being rendered today, though briefing was completed six months ago.
For the following reasons, Pepple's motion for partial summary judgment will be DENIED. CSXT's motion for summary judgment will be GRANTED in part and DENIED in part. CSXT's motion for oral argument will be DENIED and CSXT's motion to strike will be DENIED as moot.
FACTUAL BACKGROUND
On October 4, 2000, plaintiff Pepple was the engineer of CSXT train Q15703 which was proceeding west from Cleveland, Ohio to Garrett, Indiana. (Pepple Dep. at 25, 30). Heading the train were two locomotives, CSXT 9013 and CSXT 7749. The lead locomotive, CSXT 9013, was facing west and the trailing locomotive, CSXT 7749, was facing east. (Pepple Dep. at 54). At some point, while crossing between two sets of tracks, the engines stopped loading power and the train began coasting. (Pepple Dep. at 31-32). Pepple applied the train's independent brake, (Pepple Dep. at 42) and the train came to a stop, partially resting on a railroad bridge. The lead locomotive, CSXT 9013, was entirely west of the bridge with the rear portion of the trailing locomotive, CSXT 7749, remaining on the bridge. (Bogett Dep. at 47-48).
In this Order, the depositions of Neil Pepple, William Bogett, and David Deamer will be referred to as "Pepple Dep.," "Bogett Dep.," and "Deamer Dep.," respectively.
After reporting the train's status to the CSXT dispatcher, Pepple was transferred to CSXT's "mechanical desk" for help. (Pepple Dep. at 52-53, 54). Pepple received instructions to disconnect the jumper cable between the two engines and load each locomotive separately in order to determine which locomotive was failing to load power. (Pepple Dep. at 54-55).
Pepple exited the lead locomotive, CSXT 9013, and proceeded to the back of the unit. (Pepple Dep. at 58-59). Although he had a flashlight in his back pocket, Pepple did not use it on the catwalk toward the back of the engine or as he dismounted from the engine as he felt the lighting was sufficient to allow him to see where he was going. (Pepple Dep. at 70-72). Pepple dismounted the locomotive in compliance with CSXT's three-point rule, Rule 24(e) of CSXT's Safe Way and Safe Job Procedures. (Pepple Dep. at 63-64). Rule 24(e) requires individuals dismounting from engines to "Always have three points of contact, two hands and one foot, or two feet and one hand." (Pepple Dep. at 96). The reason for this rule is to assure that an individual does not let go of the grab irons until he or she can determine that there is firm footing below. (Pepple Dep. at 64).
After dismounting CSXT 9013, Pepple disconnected the jumper cable between CSXT 9013 and CSXT 7749. (Pepple Dep. 69-70). Pepple then returned to the cab of CSXT 9013 and attempted to load power, as instructed by CSXT personnel the mechanical desk. This procedure, however, failed to restore the train's power. (Pepple Dep. at 73).
CSXT personnel then instructed Pepple to attempt the same procedure with the leading locomotive, CSXT 7749. (Pepple Dep. at 77). Again, Pepple did not use the flashlight in his back pocket. (Pepple Dep. at 90, 92). In the process of dismounting CSXT 7749 after disconnecting the jumper cables, Pepple stepped off the ladder "into thin air," landing in a creek bed about twenty feet below. (Pepple Dep. at 91). Pepple admits that he violated Rule 24(e) by not maintaining three points of contact when he made his final dismount. (Pepple Dep. at 97). Pepple also concedes that had he used his flashlight to shine down on where he planned to step, he would have been able to see that there was no ground below the ladder. (Pepple Dep. at 98-99). In addition, Pepple acknowledges that there was no way for anyone at CSXT to have known he was even working on a bridge because Pepple, himself, was unaware of that fact. (Pepple Dep. at 95).
Pepple was eventually discovered by his conductor, Howard Kline, and taken to St. Vincent Mercy Medical Center in Toledo, Ohio. (Pepple Dep. at 101-104). CSXT 9013 and CSXT 7749 were eventually inspected by both CSXT and General Electric Company, the manufacturer of the engines. It was determined that the problem was with the lead locomotive, CSXT 9013, rather than the trailing unit, CSXT 7749, from which Pepple fell. (Bogett Dep. at 63-64). A switch which controls the dynamic brake had become stuck due to frayed lamination on a steel rod within the master control panel of CSXT 9013. (Bogett Dep. at 63-64). CSXT's representative, David Deamer (hereinafter "Deamer"), verified that a circuitry problem caused CSXT 9013 to malfunction. (Deamer Dep. at 21-22). The problem with the master control panel had started prior to October 4, 2000. (Deamer Dep. at 26). Deamer admitted that this defect would have rendered the locomotive inoperable. (Deamer Dep. at 38).
SUMMARY JUDGMENT STANDARD
"Summary judgement is proper only if `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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.'" Gonzalez v. Ingersoll Milling Machine Co., 133 F.3d 1025, 1031 (7th Cir. 1998) (quoting Fed.R.Civ.P. 56(c)). While the moving party "always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record, if any, which it believes demonstrate the absence of a [genuine issue of] material fact, there is nothing in Rule 56 that requires a moving party to negate an essential element of an opponent's claim for which the opponent will bear the ultimate burden at trial." Bank of Illinois v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1168 (7th Cir. 1996) (citing Celotex Corp. v. Catrett, 477 U.S. 3178 (1986)). Rather, the standard for granting summary judgment requires the district court to grant summary judgment if the record before us "could not lead a rational trier of fact to find for the non-moving party." McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 796 (7th Cir. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)).
The burden is therefore on the non-movant to set forth "specific facts showing that there is a genuine issue for trial." Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998) (quoting Fed.R.Civ.P. 56 (e)). "In determining whether a genuine issue of material fact exists, courts must construe all facts in the light most favorable to the non-moving patty and draw all reasonable and justifiable inferences in favor of that party." Debs v. Northeastern Illinois Univ., 153 F.3d 390, 394 (7th Cir. 1998). Substantive law determines which facts are "material"; that is, those facts which might affect the outcome of the suit under the governing law. See McGinn v. Burlington Northern R.R. Co., 102 F.3d 295, 299 (7th Cir. 1996). Consequently, a dispute over irrelevant or unnecessary facts does not preclude summary judgment. See Hardin v. S.C. Johnson Sons, Inc., 167 F.3d 340, 344 (7th Cir. 1999).
The non-moving party may not rest on the allegations of the pleadings in opposing a motion for summary judgment. See Crim v. Bd. of Educ. of Cairo Sch. Dist. No. 1, 147 F.3d 535, 540 (7th Cir. 1998). Rather, the non-moving party must produce some evidence sufficient to show that a genuine issue of material fact exists. "Futhermore, a `party needs more than a scintilla of evidence . . . to defeat summary judgment.'" Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7th Cir. 1998) (quoting Senner v. Northcentral Technical College, 113 F.3d 750, 757 (7th Cir. 1997)). Thus, a summary judgment determination is essentially an inquiry as to whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.
DISCUSSION
I. CSXT's Motion for Oral Argument
After examining the parties' motions, briefs, and evidentiary submissions, the Court does not believe that oral argument is necessary to decide the cross-motions for summary judgment now before it. Accordingly, CSXT's motion for oral argument will be denied.
II. FELA Liability
Section 1 of FELA states as follows:
Every common carrier by railroad while engaging in commerce . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative . . . 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, machinery, track, roadbed, works, boats, wharves, or other equipment.45 U.S.C. § 51.
Thus, section 1 expressly creates a cause of action against railroad employers for negligence. Section 1 does not define negligence, but the Supreme Court has said that negligence under FELA consists of "common law principles as established and applied in the federal courts." Urie v. Thompson, 337 U.S. 163, 174 (1949). Indeed, federal courts have established that in order to recover under FELA, a plaintiff must prove all the elements of a common law negligence cause of action: duty, breach, causation, foreseeability, and damages. See Gallick v. Baltimore Ohio R.R. Co., 372 U.S. 108, 117 (1963); Savage v. Union Pacific R. Co., 67 F. Supp.2d 1021, 1027 (E.D. Ark. 1999).
The Supreme Court has also interpreted section 1 of FELA to create a cause of action when an employee is injured or killed because his employer has violated a safety statute, otherwise known as negligence per se. In Urie v. Thompson, the Supreme Court relied on sections 3 and 4 of FELA to find that "where section 1 refers to `any defect or insufficiency, due to its negligence, in its cars, engines, appliances,' etc., it clearly is the legislative intent to treat a violation of [safety statutes] as negligence — what is sometimes called negligence per se." Urie, 337 U.S. at 188-89 (internal citations omitted).
In this case, plaintiff Pepple has brought both ordinary negligence and negligence per se claims against CSXT. The negligence per se claims are based on alleged violations of the Locomotive Inspection Act (hereinafter "LIA"), formerly known as the Boiler Inspection Act, 205 U.S.C. § 20701 as well as alleged violations of 49 C.F.R. § 214.103 (a). The Court now considers these claims.
III. Pepple's Negligence Claims Under FELA
Pepple's "Second Amended Complaint at Law" alleges that CSXT "negligently and carelessly ordered Plaintiff to exit his locomotive at night on an unlighted and unmarked railroad bridge;" "negligently and carelessly provided Plaintiff with unsecured footing on a railroad bridge which allowed Plaintiff to fall through it;" "negligently and carelessly provided Plaintiff with inadequate lighting at night to reveal any dangers of falling while walking on a railroad bridge;" "negligently and carelessly inspected and maintained its locomotives which resulted in them being unable to power up while over a railroad bridge;" "negligently and carelessly provided plaintiff with one or more defective locomotives." The Court examines these allegations in turn.
A. CSXT's Alleged Negligence in Ordering Pepple to Alight from the Train on a Railroad Bridge
Defendant argues that it was not negligent in ordering Pepple to exit the train on an unlighted and unmarked railroad bridge because no one at CSXT ordered Pepple to exit the locomotive on a bridge. Essentially, CSXT argues that no one at CSXT could have foreseen that Pepple was working on an unlit bridge and therefore, the foreseeability prong of the negligence test has not been met. The Court believes that whether or not CSXT personnel working at the mechanical desk could have foreseen that Pepple was working on a railroad bridge is an issue of fact for a jury to decide. Accordingly, CSXT's motion for summary judgment on this claim is denied.
B. CSXT's Alleged Negligence in Providing Pepple with Unsecured Footing on a Railroad Bridge Which Allowed Plaintiff to Fall Through It
CSXT argues that it did not negligently provide Pepple with unsecured footing on the railroad bridge which caused him to fall through it because Pepple's fall was not caused by unsecure footing. The Court agrees. Pepple has not satisfied the causation prong of the negligence test. In his deposition, Pepple stated that he stepped directly off the engine into thin air. (Pepple Dep. at 91). Clearly, since Pepple never set foot on the bridge, his fall was not caused by "unsecured footing on the bridge." CSXT's motion for summary judgment on this claim will be granted.
C. CSXT's Alleged Negligence in Providing Pepple with Inadequate Lighting
With respect to Pepple's claim that CSXT was negligent in providing Pepple with inadequate lighting, CSXT argues that is not liable. First, CSXT argues that Pepple has not proven that CSXT breached any duty it had to provide adequate lighting. To support its contention, CSXT points to Pepple's deposition testimony that he did not use the flashlight in his back pocket to light his path. Indeed, Pepple testified that he did not use the flashlight because he felt he could adequately see where he was going. (Pepple Dep. at 70-72, 78-79, 84, 90, 98). However, in negligence claims under FELA, contributory negligence is not a bar to the action. Rather, contributory negligence only serves to diminish damages. See 45 U.S.C. § 53; Urie, 337 U.S. at 189 n. 30. Thus, any negligence on Pepple's part does not negate any independent duty CSXT had to provide adequate lighting on its locomotives. In fact, Pepple also testified that the lighting on the locomotives was "really not that great. I mean, it's — it's lighting if you call it lighting. It's faint lighting," (Pepple Dep. at 70-72), and that he "[didn't] recall the light — any — any light." (Pepple Dep. at 84). Accordingly, the Court finds a genuine issue of fact as to whether CSXT had any duty to provide more lighting and whether CSXT breached any such duty.
CSXT further argues that inadequate lighting did not cause Pepple's fall. Quite simply, this is a question of fact for a jury to decide. Accordingly, summary judgment on this claim will be denied.
D. CSXT's Alleged Negligence in Inspecting and Maintaining its Locomotives
Pepple alleges that CSXT was negligent in inspecting and maintaining its locomotives and that this negligence led to his injury. Under FELA, the standard of care which the railroad must meet is the same as the standard of care in ordinary negligence actions. That is, the railroad is only negligent if it fails to use that degree of care which would be used by a reasonable person under the circumstances, that is, if it fails to use ordinary care. See Tiller v. Atlantic Coastline R. Co., 318 U.S. 54, 67 (1943).
In this case, Pepple's own expert, William Bogett, Ph.D., testified in his deposition that the defect in CSXT 9013 was not something that CSXT should have discovered with routine inspections and that CSXT was not negligent in failing to discover it.
Bogett testified as follows:
Q. This problem [with locomotive CSXT 9013] is not one that you would expect a user to discover on either routine or federally mandated inspections; is that correct?
A. It wouldn't be — I would not expect them to find it on routine inspections, no. I would expect them to look occasionally at what they could look at. Absent any instructions to the contrary, it's not something that I would expect to be detected on routine inspection, no.
Q. In other words, sir, . . . you are not critical of [CSXT], you are not saying [CSXT] was negligent for failing to discover this problem before, . . . is that correct?
A. From what I've been able to see in the file, that's correct.
(Bogevt Dep. at 64).
Thus, according to plaintiff's expert, CSXT was not negligent in its inspection and maintenance of its locomotives. Using ordinary care, CSXT would not have discovered the defect with CSXT 9013. Pepple has not produced any evidence contradicting this assertion. Accordingly, CSXT's motion for summary judgment on this claim will be granted.
E. CSXT's Alleged Negligence in Providing Pepple with Defective Locomotives
Pepple's claim that CSXT negligently provided him with defective locomotives must fail for similar reasons: CSXT's inspections would not have revealed the alleged defect. Reasonable foreseeability is necessary to determine negligence under FELA. Gallick, supra. To recover, "the plaintiff must prove that the railroad, with the exercise of due care, could have reasonably foreseen that a particular condition could cause injury." Davis v. Burlington Northern, Inc., 541 F.2d 182, 185 (8th Cir. 1976). In this case, Pepple's expert opined that in the exercise of ordinary care, CSXT would not have discovered the defect with GSXT 9013. Because reasonable inspections would not have revealed the defect, CSXT could not have reasonably foreseen that such a defect existed. Summary judgment on this claim will be granted.
IV. Pepple's Negligence Per Se Claims Under FELA
A. CSXT's Alleged Violation of 49 C.F.R. § 214.103 (a)
As discussed above, if an employer violates a safety statute, this constitutes negligence per se under FELA. Pepple's first negligence per se claim alleges that CSXT "failed to provide the plaintiff with a personal fall arrest system or safety net system while he was working more than twelve feet from the ground in violation of 49 Code of Federal Regulations § 214.103(a)." This regulation, however, is inapplicable to the present action as it pertains to "railroad bridge workers," which Pepple is not. 49 C.F.R. § 214.103 (a) states as follows: "[W]hen employees work twelve feet or more above the ground or water surface, they shall be provided and shall use a personal fall arrest system or safety net system." This section, however, falls under 49 C.F.R. § 214, subpart B "Bridge Worker Safety Standards." Subpart B defines "bridge worker" as follows:
Railroad bridge worker or bridge worker means any employee of, or employee of a contractor of, a railroad owning or responsible for the construction, inspection, testing, or maintenance of a bridge whose assigned duties, if performed on the bridge, include inspection, testing, maintenance, repair, construction, or reconstruction of the track, bridge structural members, operating mechanisms and water traffic control systems, or signal, communication, or train control systems integral to that bridge.49 C.F.R. § 214.7 (emphasis added).
Pepple's assigned duties on October 4, 2000 did not include any task having to do with the track, bridge structural members, operating mechanisms and water traffic control systems, or signal, communication, or train control systems integral to the bridge from which he fell. Rather, Pepple was attempting to repair the train. Therefore, Pepple does not meet the definition of "bridge worker" and 49 C.F.R. § 214. 103 (a) does not apply to him.
Pepple argues that the fact that Pepple was not a "bridge worker" does not preclude him from benefitting from the regulation. Plaintiff relies on a United States Supreme Court case, Kernan v. American Dredging Company, 355 U.S. 426 (1958), where a seaman lost his life in a shipboard fire. The cause of the fire was an open flame kerosene lamp which ignited highly flammable vapors. In Kernan, the plaintiff alleged that the lamp should have been 8 feet, rather than 3 feet, above the deck based on a coast guard regulation. The defendant, in turn, argued that the regulation had nothing to do with protecting people from fire, but was only intended to aid navigation. The Kernan Court rejected that defense, stating that "the rule that violation of a statutory duty creates liability only when the statute was intended to protect those in the position of the plaintiff from the type of injury that in fact occurred . . . has long been discarded from the FELA." Id. at 438-39. Thus, Pepple argues, the fact that he is not a "bridge worker" should not preclude him from protection under 49 C.F.R. § 214.103 (a).
The Kernan case, however, is distinguishable from the case at bar. In Kernan, the defendant violated an applicable regulation which imposed a specific duty on the defendant. The defendant's violation of that duty caused the plaintiff's injuries and the defendant was liable for that violation, regardless of the fact that the plaintiff's injuries were not the injuries the regulation sought to guard against. Thus, the Kernan case does not hold that a defendant can be liable for failure to comply with inapplicable statutes and regulations. In short, in Kernan, the coast guard regulation imposed a duty on the defendant which the defendant violated. Here, 49 C.F.R. § 214.103 (a) imposes no duty on CSXT with respect to individuals in Pepple's position. To hold otherwise would require railroads to erect and maintain safety nets under all railroad bridges at all times. CSXT cannot be liable for the violation of a regulation with which it never had a duty to comply. CSXT's motion for summary judgment on this claim will be granted; Pepple's motion for summary judgment on this claim will be denied.
B. CSXT's Alleged Violation of the Locomotive Inspection Act
Pepple's second negligence per se claim charges CSXT with a violation of the LIA. In Urie v. Thompson, the Supreme Court found that violation of the LIA constituted negligence per se for purposes of FELA. The Urie Court stated:
[B]y its own terms the [LIA] does not purport to confer any right of action upon injured employees. It merely makes violation of its prohibitions "unlawful." Yet it has been held consistently that the [LIA] supplements the [FELA] by imposing on interstate railroads an absolute and continuing duty to provide safe equipment. . . . Section [FELA] . . . is the basis of an employee's suit for violation of the [LIA].
Urie, 337 U.S. at 188-89 (internal citations omitted).
The LIA itself states, in pertinent part:
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. are in proper condition and safe to operate without unnecessary danger of personal injury.
205 U.S.C. § 20701.
Accordingly, the LIA imposes an absolute duty on railroads to maintain their locomotives in proper and safe condition. When a railroad violates this duty and the violation causes injury to a railroad employee, FELA provides the employee with a cause of action. A plaintiff does not have to show that negligence caused equipment to operate improperly or unsafely; proving the improper or unsafe operation is enough to show negligence as a matter of law. See Richardson v. Consolidated Rail Corp., 17 F.3d 213, 216 (7th Cir. 1994).
CSXT argues that even if it violated the LIA, it should not be held liable because the defect in CSXT 9013's master control panel was not a proximate cause of Pepple's injury. In 1957, the United States Supreme Court held that traditional common law tests of proximate causation do not apply in FELA litigation. In what has been regarded as a landmark case, Rogers v. Missouri Pacific R. Co., 352 U.S. 500 (1957), the Court stated that under FELA, the test of causation "is simply whether the proofs 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." Id. at 506. This rule has been widely accepted in the federal courts and in the Seventh Circuit. See, e.g., Milom v. New York Cent. R. Co., 248 F.2d 52 (7th Cir. 1957); Butler v. New York Cent. R. Co., 253 F.2d 281 (7th Cir. 1958); Heater v. Chesapeake O. R. Co., 497 F.2d 1243 (7th Cir. 1974); Kossman v. Northeast Regional Commuter R.R. Corp., 211 F.3d 1031 (7th Cir. 2000); Walker v. Northeast Regional Commuter R.R. Corp., 225 F.3d 895 (7th Cir. 2000). Thus, under FELA, a plaintiff need not prove proximate causation. Rather, if the employer's negligence played even the slightest part in producing the plaintiff's injury, the employer is liable.
Relying on this precedent, CSXT argues that the defect in CSXT 9013's master control panel was not a cause of Pepple's injuries, even in the slightest. Rather, the defect was a condition incidental to Pepple's injuries. Pepple, for his part, argues that the defect in CSXT 9013 was the reason he was stopped on the bridge. But for the defect, he argues, he would not have suffered any injury. As a result, the Court finds that a genuine issue of material fact exists with respect to whether CSXT's alleged violation of the LIA caused Pepple's injuries. Accordingly, both CSXT's and Pepple's motions for summary judgment on the LIA claim will be denied.
V. CSXT's Motion to Strike
Defendant CSXT has also filed a "Motion to Strike," together with its "Combined Reply Memorandum in Support of Motion for Summary Judgment of Defendant and Memorandum in Opposition to Plaintiff's Motion for Summary Judgment." In this motion to strike, CSXT asks that the affidavits of Neil Pepple and William Bogett be stricken from the record on the basis that they contradict Pepple's and Bogett's deposition testimony. The Court's analysis of CSXT's and Pepple's summary judgment motions, however, does not rely on the affidavits challenged in CSXT's "Motion to Strike." Accordingly, CSXT's motion to strike will be denied as moot.
CONCLUSION
For the foregoing reasons, CSXT's motion for summary judgment is GRANTED in part and DENIED in part. Pepple's motion for summary judgment is DENIED. CSXT's motion for oral argument is DENIED, and CSXT's motion to strike is DENIED as moot.