Opinion
8:20-CV-413
2022-01-14
Christopher WALLS, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, a Delaware corporation; Defendant.
Jayson D. Nelson, Hunegs, Leneave Law Firm, Omaha, NE, Joshua N. Miller, Paul A. Banker, Randal W. LeNeave, Hunegs, Leneave Law Firm, Wayzata, MN, for Plaintiff. Anne M. O'Brien, Daniel Hassing, William M. Lamson, Jr., Lamson, Dugan Law Firm, Reha Dallon, Union Pacific - Law Department, Omaha, NE, for Defendant.
Jayson D. Nelson, Hunegs, Leneave Law Firm, Omaha, NE, Joshua N. Miller, Paul A. Banker, Randal W. LeNeave, Hunegs, Leneave Law Firm, Wayzata, MN, for Plaintiff.
Anne M. O'Brien, Daniel Hassing, William M. Lamson, Jr., Lamson, Dugan Law Firm, Reha Dallon, Union Pacific - Law Department, Omaha, NE, for Defendant.
MEMORANDUM AND ORDER
Brian C. Buescher, United States District Judge I. INTRODUCTION
Christopher Walls has sued Union Pacific Railroad Company ("Union Pacific") for negligence and negligence per se under the Federal Employers’ Liability Act ("FELA") and Federal Railroad Administration ("FRA") regulations. Before the Court is Walls's Motion for Partial Summary Judgment. Filing 52. For the reasons stated herein, the Court grants in part and denies in part Walls's motion.
II. BACKGROUND
This suit arises from an injury Walls sustained while acting as a conductor for one of Union Pacific's trains. On February 18, 2020, Walls arrived at Union Pacific's Herington Yard in Kansas. Filing 54-2 at 4. That day, Walls was to serve as conductor for a train traveling from Herington to Topeka, Kansas, where he would drop off cars, pick up other cars, and then return to Herington. Filing 54-2 at 4; Filing 54-3 at 6. Accompanying Walls on this journey were Toby Becker, the train's engineer, and Scott Jones, the brakeman. Filing 54-2 at 4. Walls and Jones had performed this job together several times. Filing 54-2 at 4; Filing 54-4 at 5–6.
Walls, Becker, and Jones travelled westward on the train toward Union Pacific's Topeka Yard. Filing 54-2 at 5; Filing 54-3 at 7. As the crew neared the Topeka Yard at 2:00 p.m. from the east, Jones deboarded the train at Milepost 69. Filing 54-2 at 5; Filing 54-4 at 6. Jones's duty was to use an electric, hand-operated switch which would allow the train to enter the Topeka Yard. Filing 54-2 at 5; Filing 54-4 at 7–8. After Jones deboarded, the train continued westward. Filing 54-7. Once the front of the train reached Milepost 70, Walls deboarded. Filing 54-2 at 5. At Milepost 70 is a signal that flashes colored lights to the west. Filing 54-3 at 11; Filing 54-4 at 8. The signal tells the train's operators when it is safe for the train to enter the Topeka yard. Filing 65-1 at 7–8. After Walls deboarded, the train continued westward and then stopped once the rear of the train had passed by Milepost 70 and the signal. Filing 54-2 at 5. Walls then boarded the car at the end of the train. Filing 54-2 at 5.
The landmarks discussed herein are Milepost 69, which is furthest east, Milepost 70, which is one mile to the west of Milepost 69, and the crossover switch onto the spur track into Topeka's rail yard, which lies between Milepost 69 and Milepost 70. Filing 65-1 at 3–12.
To enter the Topeka Yard, the train needed to perform a "shove" move. Filing 54-3 at 10. This required the train to reverse directions and move eastward into the Topeka Yard. Filing 54-3 at 10–11. What is supposed to happen during a proper shove move is that the rear of the train, moving in reverse eastward, would pass Milepost 70 and the signal. Filing 65-1 at 3–4, 8–9; Filing 65-3 at 6–7. Once the rear of the train had passed Milepost 70 and the signal, Jones would "throw" the switch to allow the train to enter the Topeka Yard. Filing 54-4 at 8. However, if Jones threw the switch before the rear of the train had passed Milepost 70 and the signal, the signal would flash red and the train would have to stop. Filing 54-3 at 11–12.
Walls, looking eastward from the end of the train at the westward-facing signal at Milepost 70, served as the eyes and ears of Becker, the engineer, who was operating the train from the lead locomotive at the western front of the train. Filing 65-1 at 7; Filing 65-3 at 6–7. From his vantage point on the rear car at the easternmost part of the train, Walls could watch the signal and make sure the signal did not flash red before the rear of the train passed Milepost 70. Filing 54-3 at 10; Filing 54-4 at 6–7. If the signal went red before the rear of the train passed Milepost 70, Walls could radio Becker to stop the train. Filing 54-2 at 5; Filing 65-2 at 11–12.
Walls received approval to begin moving the train eastward and radioed Becker to begin moving the train in reverse. Filing 54-3 at 11, Filing 65-2 at 8–9. Jones, who was standing somewhere near Milepost 69, watched the train to determine when the rear car had passed Milepost 70 and the signal. Filing 54-4 at 8; Filing 65-3 at 7–8, 11–12. According to Walls, he had told Jones to wait until he radioed Jones that the rear of the train had passed Milepost 70 and the signal before throwing the switch. Filing 54-2 at 11. Jones, however, claims that Walls did not tell Jones to wait until Walls radioed him that the rear of the train had passed Milepost 70 and the signal. Filing 54-4 at 17. Instead, Jones watched the train and when he believed he could see that the rear car had passed Milepost 70 and the signal, he threw the switch. Filing 54-4 at 8. When Jones threw the switch early the signal flashed red. Filing 54-2 at 5; Filing 54-4 at 8–9. Walls, looking eastward from the rear car of the train, saw the signal flash red and directed Becker to stop the train. Filing 54-2 at 5.
When a train stops, slack between the cars may roll through the train in a chain reaction toward one end of the train. Filing 54-2 at 9–10. Slack rolling through the train can significantly jolt a person riding in a train car. Filing 65-2 at 16–17. As Walls was expecting the train to stop, he began talking to Jones on his radio about whether Jones had thrown the switch early and caused the signal to flash red. Filing 54-2 at 6. Walls claims that, while speaking with Jones on his radio, Walls was grasping the horizontal bar of the rear car with his right hand and had both feet placed adequately apart on the platform. Filing 54-2 at 30. Walls also claims that he always takes slack rolling towards him into account when riding in a train car. Filing 54-2 at 29. The parties dispute whether Walls should have been able to hear slack rolling towards him as he stood in the rear car of the train. Filing 54-2 at 6–7; Filing 65-2 at 16–17.
While Walls was talking on the radio to Jones, he was suddenly ejected from the rear car. Filing 54-2 at 7. Walls's right foot landed on a railroad tie, shattering his tibia and causing severe injury to his entire right leg. Filing 54-2 at 7–8, 12. When Walls looked up, he saw the train rolling towards him. Filing 54-2 at 8. He quickly crawled over the rails to avoid the oncoming train. Filing 54-2 at 8. Upon reaching safety, Walls radioed Jones and Becker to inform them that he was injured. Filing 54-2 at 9. Walls was later transported to a hospital. Filing 54-2 at 12.
Union Pacific employees investigated the incident. Filing 54-3 at 6, 8–10. It is unclear from the record what conclusion Union Pacific made as to Becker's conduct, and Walls does not provide evidence that Becker behaved negligently. See Filing 54-2 at 9. As to Jones throwing the switch early, Union Pacific Rule 8.2 states, "The employee operating the switch or derail is responsible for the position of the switch or derail in use." Filing 54-6 at 3. It also requires that "switches and derails [be] properly lined for the intended route." Filing 54-6 at 3. Violating Union Pacific operating rule 8.2 is a "Critical event," which means it can involve a "life or death" scenario. Filing 54-4 at 15; Filing 54-5 at 1, 4; Filing 54-6 at 3. On October 12, 2020, Walls filed suit against Union Pacific. Filing 1. In his Complaint, Walls brings a negligence action under FELA in Count I, where he alleges that Union Pacific failed to provide him with a reasonably safe place to work, failed to properly train employees and adopt safety measures for "shove" movements and operating switches, and engaged in other negligent conduct. Filing 1 at 3. In Count II, Walls brings a FELA negligence per se action pursuant to the Federal Railroad Safety Act ("FRSA") and Union Pacific's operating rules, claiming that Union Pacific failed to comply with operating rule 8.2 and FRA regulations. Filing 1 at 3–4. Walls filed a Motion for Partial Summary Judgment on August 13, 2021, requesting that the Court find Union Pacific liable under both counts, with damages being the only remaining issue. Filing 53 at 3. Walls also requests that the Court prevent Union Pacific from asserting contributory negligence as a defense to his negligence per se claim. Filing 52 at 1–2.
Union Pacific disciplined Walls under rule 8.2, although Union Pacific contends any evidence of discipline should be excluded under Federal Rule of Evidence 407. Filing 64 at 17–19. The Court neither rules on this contention nor uses this evidence while analyzing Walls's motion.
III. ANALYSIS
A. Standard of Review
"Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Garrison v. ConAgra Foods Packaged Foods, LLC , 833 F.3d 881, 884 (8th Cir. 2016) (citing Fed. R. Civ. P. 56(c) ). "[S]ummary judgment is not disfavored and is designed for every action." Briscoe v. Cnty. of St. Louis , 690 F.3d 1004, 1011 n.2 (8th Cir. 2012) (internal quotation marks omitted) (quoting Torgerson v. City of Rochester , 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc)). In reviewing a motion for summary judgment, the Court will view "the record in the light most favorable to the nonmoving party ... drawing all reasonable inferences in that party's favor." Whitney v. Guys, Inc. , 826 F.3d 1074, 1076 (8th Cir. 2016) (citing Hitt v. Harsco Corp. , 356 F.3d 920, 923–24 (8th Cir. 2004) ). Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, " Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves." Se. Mo. Hosp. v. C.R. Bard, Inc. , 642 F.3d 608, 618 (8th Cir. 2011) (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). The moving party need not produce evidence showing "an absence of a genuine issue of material fact." Johnson v. Wheeling Mach. Prods. , 779 F.3d 514, 517 (8th Cir. 2015) (citing Celotex , 477 U.S. at 323, 106 S.Ct. 2548 ). Instead, "the burden on the moving party may be discharged by ‘showing’ ... that there is an absence of evidence to support the nonmoving party's case." St. Jude Med., Inc. v. Lifecare Int'l, Inc. , 250 F.3d 587, 596 (8th Cir. 2001) (quoting Celotex , 477 U.S. at 325, 106 S.Ct. 2548 ).
In response to the moving party's showing, the nonmoving party's burden is to produce "specific facts sufficient to raise a genuine issue for trial." Haggenmiller v. ABM Parking Servs. , Inc. , 837 F.3d 879, 884 (8th Cir. 2016) (quoting Gibson v. Am. Greetings Corp. , 670 F.3d 844, 853 (8th Cir. 2012) ). The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts, and must come forward with specific facts showing that there is a genuine issue for trial." Wagner v. Gallup, Inc. , 788 F.3d 877, 882 (8th Cir. 2015) (quoting Torgerson , 643 F.3d at 1042 ). "[T]here must be more than ‘the mere existence of some alleged factual dispute’ " between the parties in order to overcome summary judgment. Dick v. Dickinson State Univ. , 826 F.3d 1054, 1061 (8th Cir. 2016) (quoting Vacca v. Viacom Broad. of Mo., Inc. , 875 F.2d 1337, 1339 (8th Cir. 1989) ).
B. Walls's Motion for Partial Summary Judgment on Negligence Per Se Count
Walls moves for summary judgment on his claim for negligence per se under FELA. Walls argues that Jones negligently threw the switch early, in violation of FRA regulation 49 C.F.R. § 218.103 and Union Pacific operating rule 8.2, which forced Walls to stop the train and eventually led to his injury. Filing 53 at 13–14, 22. Walls also requests that the Court prevent Union Pacific from asserting a contributory negligence defense against his negligence per se claim. Filing 53 at 22–23. Union Pacific responds that there are genuine disputes over whether Jones violated 49 C.F.R. § 218.103 and operating rule 8.2, which make summary judgment in Walls's favor inappropriate. Filing 64 at 1. It further argues that there is a dispute over what caused Walls's injury. Filing 64 at 15–16. The Court concludes that Union Pacific was negligent per se as a matter of law and that, under FELA's low standard of causation, its negligence caused Walls's injury. It further finds that Union Pacific may not present a contributory negligence defense against this claim. Accordingly, Walls is entitled to partial summary judgment.
1. Negligence Per Se
Walls first argues that Jones, and by extension Union Pacific, was negligent per se by throwing the switch early. Filing 53 at 12–20. According to Walls, Jones throwing the switch early violated FRA regulation 49 C.F.R. § 218.103 and Union Pacific operating rule 8.2, which both provide that a switch operator must ensure a switch is "properly lined for the intended route." Filing 53 at 17–20; 49 C.F.R. § 218.103. Thus, Walls asserts, this violation of an FRA regulation establishes Union Pacific as negligent per se. Filing 53 at 17–20. Union Pacific counters that throwing the switch early does not violate 49 C.F.R. § 218.103 because the regulation merely requires that a switch be properly lined for the intended route and the switch here was properly lined, it was just lined too early. Filing 64 at 20–21.
FELA provides a federal cause of action to railroad employees who sustain injuries "in whole or in part from the negligence of any of the officers, agents, or employees of [the railroad company]." 45 U.S.C. § 51 ; see also Miller v. Union Pac. R.R. Co. , 972 F.3d 979, 983 (8th Cir. 2020) ("FELA provides railroad employees with a federal cause of action for injuries."). FELA is liberally construed "to further Congress’[s] remedial goal" of combatting "the physical dangers of railroading that result[ ] in the death or maiming of thousands of workers every year." Consol. Rail Corp. v. Gottshall , 512 U.S. 532, 542–43, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994). "Under FELA, an employer's ‘fault may consist of a breach of the duty of care ... or of a breach of some statutory duty.’ " Miller , 972 F.3d at 984 (alteration in original) (quoting Kernan v. Am. Dredging Co. , 355 U.S. 426, 432, 78 S.Ct. 394, 2 L.Ed.2d 382 (1958) ). "If a plaintiff proves a railroad violated a statutory duty, then the plaintiff need not prove the common law elements of foreseeability, duty, or breach." Id. Indeed, violating a safety statute "creates liability under FELA ... without regard to whether the injury flowing from the breach was the injury the statute sought to prevent." Kernan , 355 U.S. at 433, 78 S.Ct. 394. Thus, "[a] railroad's violation of a safety statute ... is negligence per se." CSX Transp., Inc. v. McBride , 564 U.S. 685, 704 n.12, 131 S.Ct. 2630, 180 L.Ed.2d 637 (2011). A regulation promulgated by the FRA is considered a safety statute under FRSA, and therefore violating an FRA regulation constitutes negligence per se under FELA. See Miller , 972 F.3d at 984, 986 (noting, where the plaintiff alleged a violation of an FRA regulation, "[i]t is true that under a FELA negligence per se theory, [the plaintiff] need not show that [the defendant railroad company] acted negligently in violating a safety regulation"); see also Ellenbecker v. BNSF Ry. Co. , No. 4:19-CV-3038, 2021 WL 781384, at *11 (D. Neb. Mar. 1, 2021) ("[A] regulation promulgated by the FRA is deemed to be a safety statute under the Federal Railroad Safety Act." (citing 45 U.S.C. § 54a )); Walden v. Illinois Cent. Gulf R.R. , 975 F.2d 361, 364 (7th Cir. 1992) ("In an FELA action, the violation of a statute or regulation ... automatically constitutes breach of the employer's duty and negligence per se." (emphasis added)); Harper v. Norfolk S. Ry. Co. , 992 F. Supp. 2d 795, 803–04 (S.D. Ohio 2014) (finding that a violation of FRSA regulation 49 C.F.R. § 218.103 can support a FELA negligence per se claim because "FRSA and FELA are closely related," the regulation was directed towards safety, and other courts had allowed plaintiffs to submit evidence of a FRSA violation to establish FELA negligence claims).
FRSA directs the Secretary of Transportation to "prescribe regulations and issue orders for every area of railroad safety." 49 U.S.C. § 20103. The Secretary delegated authority to the FRA to "[c]arry out the functions and exercise the authority vested in the Secretary by [FRSA]." 49 C.F.R. § 1.89(b).
Walls asserts that Jones, and by extension Union Pacific, violated FRA regulation 49 C.F.R. § 218.103 and operating rule 8.2 when he threw the switch early. Filing 53 at 17–20. 49 C.F.R. § 218.103 states that railroad companies must "adopt and comply with an operating rule which complies with the requirements of this section." 49 C.F.R. § 218.103. One of the requirements of § 218.103 is that employees operating a switch shall "[v]isually determine that switches are properly lined for the intended route and that no equipment is fouling the switches." Id. at § 218.103(b)(4). Union Pacific operating rule 8.2, which mirrors the requirements of 49 C.F.R. 218.103 ; Filing 64 at 9, requires that employees operating switches must ensure that "switches ... are properly lined for the intended route." Filing 54-6 at 3.
49 C.F.R. § 218.103 states that an employee who violates a railroad company's operating rule which "complies with the requirements of this section ... shall be considered to have violated the requirements of this section." 49 C.F.R. § 218.103(a)(1). A violation of Union Pacific operating rule 8.2, therefore, constitutes a violation of 49 C.F.R. § 218.103. See Harper v. Norfolk S. Ry. Co. , 992 F. Supp. 2d 795, 805 (S.D. Ohio 2014) (finding that violating an applicable operating rule issued in compliance with 49 C.F.R. § 218.103 constitutes a violation of 49 C.F.R. § 218.103 ).
The undisputed facts show that Jones was to wait until the rear of the train had passed Milepost 70 and the signal before throwing the switch. Filing 54-4 at 8. Jones threw the switch before the rear of the train had passed Milepost 70 and the signal, which caused the signal to flash red. Filing 54-3 at 10, 12; Filing 54-4 at 8–9. The signal flashing red required Walls to stop the train. Filing 54-3 at 11. Based on these facts, the Court concludes that Jones violated 49 C.F.R. § 218.103 and Union Pacific operating rule 8.2. When Jones threw the switch early, it was not "properly lined for the intended route." 49 C.F.R. § 218.103.
Union Pacific contends "the switch was in fact properly lined for the intended route." Filing 64 at 20. Union Pacific points out that Jones threw the switch so that the train could enter the Topeka Yard—its intended route—and his only mistake was throwing the switch early. Filing 64 at 20–21. According to Union Pacific, nothing in 49 C.F.R. § 218.103 and Union Pacific operating rule 8.2 prohibits throwing switches early. This argument is unpersuasive. Of course, Jones throwing the switch would allow the train to proceed along its intended route. But Jones throwing the switch early meant that it was not "properly lined" under the regulation. To be properly lined, the switch had to be thrown after the rear of the train had passed Milepost 70 and the signal. The undisputed record shows that when Jones threw the switch early, the signal flashed red and the train needed to stop. Therefore, as a matter of law, when Jones threw the switch early the switch was not "properly lined for the intended route." See In re Stevenson Assocs., Inc. , 777 F.2d 415, 418 (8th Cir. 1985) ("[A] district court's interpretation and application of federal statutes or regulations ... raise questions only of law."). Thus, Jones's conduct violated 49 C.F.R. § 218.103 and Union Pacific operating rule 8.2.
"Proper" means "Suitable for a specified or implicit purpose or requirement; appropriate to the circumstances or conditions ; of the requisite standard or type; apt, fitting; correct, right." Proper , Oxford English Dictionary, (3d ed. 2007), https://www.oed.com/view/Entry/152660#eid28227468 (emphasis added). "Properly lined," therefore, is circumstance-dependent. The circumstances in this case required Jones to throw the switch when the rear car passed Milepost 70 and the signal. Thus, when he threw the switch early, it was not "properly lined."
Jones, and by extension Union Pacific, breached a duty imposed by FRA regulations. This violation constitutes "negligence per se." See McBride , 564 U.S. at 704 n.12, 131 S.Ct. 2630. Thus, as a matter of law, Walls has established Union Pacific's negligence under FELA.
2. Causation
Having concluded that Jones's conduct constituted negligence per se, the Court turns to whether Jones's conduct caused Walls's injury. "FELA's language on causation ... ‘is as broad as could be framed.’ " McBride , 564 U.S. at 691, 131 S.Ct. 2630 (quoting Urie v. Thompson , 337 U.S. 163, 181, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949) ). "Under the FELA, ‘the railroad will be liable if its or its agent's negligence played any part, even the slightest, in producing the employee's injury.’ " Ybarra v. Burlington N., Inc. , 689 F.2d 147, 149 (8th Cir. 1982) (quoting Richardson v. Mo. Pac. R.R. Co. , 677 F.2d 663, 665 (8th Cir. 1982) ); see also Fletcher v. Union Pac. R.R. Co. , 621 F.2d 902, 909 (8th Cir. 1980) ("The test of causation under the FELA is whether the railroad's negligence played any part, however small, in the injury which is the subject of the suit.").
Jones throwing the switch early forced Walls to stop the train. The question, therefore, is whether stopping the train caused Walls to be ejected from the rear car and land on a railroad tie. Becker testified in his deposition that he brought the train to a stop after Walls radioed him, which is confirmed by Jones acknowledging that Becker brought the train to "an easy stop." Filing 54-4 at 10; Filing 65-2 at 18. The record also shows that when a train stops, slack can roll toward one end of the train and significantly jolt a person riding in a train car. Filing 54-2 at 9–10; Filing 65-2 at 16–17. Walls claims that, while he was speaking to Jones, "the abrupt stop occurred, and [he] was ejected from the train." Filing 54-2 at 6. There is nothing in the record giving an alternative explanation for why Walls was ejected from the rear car, and Union Pacific makes no argument that there is one. See Wingate v. Gage Cnty. Sch. Dist., No. 34 , 528 F.3d 1074, 1078–79 (8th Cir. 2008) ("[A] nonmovant may not rest upon mere denials or allegations, but must instead set forth specific facts sufficient to raise a genuine issue for trial."). The Court concludes Walls has shown that the undisputed evidence contains no genuine issue of material fact that the train stopping caused his injuries.
Any argument that Walls was negligent in not preparing for a stop is an argument that his damages should be reduced under a comparative-negligence defense, not that the stop did not cause his injury. See 45 U.S.C. § 53 ("[T]he fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee ...."). Moreover, while a defendant under FELA may make a "sole cause defense," arguing that "the employee's own negligence was the sole cause of the accident," Toth v. Grand Trunk R.R. , 306 F.3d 335, 351 (6th Cir. 2002), Union Pacific has not done so in this case.
Union Pacific argues that throwing the switch early could not have caused Walls's injury because it only resulted in the "normal stop of the train." Filing 64 at 16. It also argues that Walls has not shown that Becker stopped the train in a negligent manner or that there was more slack in the train than usual. Filing 64 at 15–16. This argument misses the mark. The issue is not if the train stopping was "normal," that Becker stopped the train negligently, or that the train had an excessive amount of slack. The only question is whether the train stopping caused Walls to be ejected from the rear car. If the train stopping, which was due to Jones's negligent conduct, caused Walls to be ejected from the rear car, then Jones's "negligence played [a] part, however small, in the injury." Fletcher , 621 F.2d at 909.
The Supreme Court has held that "FELA ... did not incorporate any traditional common-law formulation of ‘proximate causation[,] which [requires] the jury [to] find that the defendant's negligence was the sole, efficient, producing cause of injury.’ " McBride , 564 U.S. at 694, 131 S.Ct. 2630 (alterations in original) (quoting Rogers v. Mo. Pac. R. Co. , 352 U.S. 500, 506, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957) ). All that is required is proof that "employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought." Rogers , 352 U.S. at 506, 77 S.Ct. 443. Walls has provided this proof. Accordingly, he is entitled to partial summary judgment on his negligence per se claim.
3. Contributory Negligence Defense
Walls request that the Court prevent Union Pacific from asserting a contributory-negligence defense against his negligence per se action. Filing 53 at 22–23. 45 U.S.C. § 53 states that an employee's contributory negligence "shall not bar a recovery." 45 U.S.C. § 53. Instead, a jury must reduce damages "in proportion to the amount of negligence attributable to [the] employee." Id. at § 53. However, "where the violation by [the] common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee," no such reduction in damages occurs. Id. at § 53.
Here, the Court has concluded that Union Pacific's employee, Jones, violated 49 C.F.R. § 218.103. This regulation is considered a safety statute promulgated by the FRA under FRSA. See Ellenbecker , 2021 WL 781384 ("[A] regulation promulgated by the FRA is deemed to be a safety statute under the Federal Railroad Safety Act." (citing 45 U.S.C. § 54a )); Martinez v. Burlington N. & Santa Fe Ry. Corp. , 276 F. Supp. 2d 920, 923–24 (N.D. Ill. 2003) ("Where a defendant is found liable under the FELA for violation of a federal railroad safety regulation, the plaintiff's damages will not be reduced because of his own negligence."); O'Malley v. Pub. Belt R.R. Comm'n for City of New Orleans , 334 F. Supp. 3d 811, 815 (E.D. La. 2018) ("Violations of [FRSA] regulations ... trigger the no-comparative-fault rule."); Eckert v. Aliquippa & S. R. Co. , 828 F.2d 183, 187 (3d Cir. 1987) (holding that violating a safety regulation precludes the defense of contributory negligence under 45 U.S.C. § 53 ). Because Jones violated 49 C.F.R. § 218.103, Union Pacific cannot argue that Walls's negligence should reduce his damages. Therefore, as to Walls's negligence per se action, Union Pacific may not assert the contributory negligence defense provided in 45 U.S.C. § 53.
C. Wall's Motion for Partial Summary Judgment on Negligence Count
Finally, Walls moves for partial summary judgment on his claim that Union Pacific was negligent under FELA. Filing 52 at 1. Walls's argument in support of his motion on his negligence count is nearly identical to his argument in support of summary judgment on his negligence per se count. Walls argues that Jones was negligent when he threw the switch early, which violated Union Pacific operating Rule 8.2. Filing 53 at 12–17. Because Jones threw the switch early, Walls was required to stop the train, which ultimately led to his injury. Filing 53 at 12–17. The Court concludes that genuine disputes over material facts preclude granting Walls partial summary judgment on his FELA negligence claim.
Unlike his negligence per se count, Walls does not rely on 49 C.F.R. § 218.103 to establish Union Pacific's negligence in this count. This difference is critical to the Court determining that Walls is entitled to summary judgment on his negligence per se count but not his negligence court. In the negligence per se count, the violation of 49 C.F.R. § 218.103 conclusively establishes Union Pacific's negligence. See Miller , 972 F.3d at 984 ("If a plaintiff proves a railroad violated a statutory duty, then the plaintiff need not prove the common law elements of foreseeability, duty, or breach."). However, in Walls's negligence claim, he must establish that Jones breached a duty Jones owed to Walls. See Crompton , 745 F.3d at 296 ("[A] plaintiff must prove ‘the common law elements of negligence [to prevail in a FELA case], including foreseeability, duty, breach, and causation ....’ ") (second alteration in original) (quoting Fulk v. Ill. Cent. R. Co. , 22 F.3d 120, 124 (7th Cir. 1994) ). The Court finds that summary judgment on the negligence count is not warranted because there is a jury question as to whether Walls breached his duty to Jones when he visually determined if the rear car had passed Milepost 70 and the signal.
To succeed on a FELA negligence claim, Walls must prove the common-law elements of duty, breach, foreseeability, and causation. Crompton v. BNSF Ry. Co. , 745 F.3d 292, 296 (7th Cir. 2014) (listing elements); Tufariello v. Long Island R. Co. , 458 F.3d 80, 87 (2d Cir. 2006) (same). "An employer's duty of care in a FELA action turns in a general sense on the reasonable foreseeability of harm." Ackley v. Chicago & N. W. Transp. Co. , 820 F.2d 263, 267 (8th Cir. 1987). Whether a railroad company has violated its duty of care "is measured by the degree of care that persons of ordinary, reasonable prudence would use under similar circumstances and by what these same persons would anticipate as resulting from a particular condition." Id. Moreover, the duty of care, "while measured by foreseeability standards, is broader under the statute than a general duty of due care." Id. However, "[A]n employer is not liable if it had no reasonable way of knowing about the hazard that caused the employee's injury." Peyton v. St. Louis Sw. Ry. Co. , 962 F.2d 832, 833 (8th Cir. 1992).
Given that "[t]he Supreme Court has emphasized the jury's role in determining whether an employer has breached its duties under the FELA," Ackley , 820 F.2d at 267, the Court concludes that a jury should determine if Jones in fact breached a duty to Walls. Of course, Union Pacific has recognized the importance of properly lining switches by promulgating operating Rule 8.2, which requires switches to be properly lined for their intended route. It is also true that Union Pacific considers a violation of this rule to be a "Critical event." Therefore, it is likely that Jones was under a duty to ensure that the switches were properly lined. However, Walls must also show that Jones breached this duty such that his conduct was negligent. See Crompton , 745 F.3d at 296 ("[A] plaintiff must prove ‘the common law elements of negligence [to prevail in a FELA case], including foreseeability, duty, breach, and causation....’ ") (second alteration in original) (quoting Fulk v. Ill. Cent. R. Co. , 22 F.3d 120, 124 (7th Cir. 1994) ).
Whether Jones breached his duty to Walls depends on whether a person of ordinary, reasonable prudence would have visually determined if the rear car of the train had passed Milepost 70 and the signal. Here, there is a genuine dispute of material fact over whether Jones breached his duty. The Court is unable to determine whether Jones was negligent in how he determined when to throw the switch. For example, Walls testified that he told Jones to wait for him to tell Jones to throw the switch, but Jones disputes this claim. Filing 54-2 at 11; Filing 54-4 at 17. This disagreement represents a genuine dispute over a material fact that must be presented to a jury. Moreover, neither party presents evidence on the proper procedure for a Union Pacific employee to follow in determining when to throw a switch. It is for a jury to determine whether it was negligent for Jones to visually determine when the rear of the train had passed Milepost 70 and the signal before throwing the switch. See Ackley , 820 F.2d at 267 ("The jury is required to weigh myriad factors, including the nature of the task and its hazards, to decide whether an employer has furnished its employee with a reasonably safe place to work."). Accordingly, the Court concludes that a genuine dispute of material fact precludes granting Walls partial summary judgment on his FELA negligence claim.
IV. CONCLUSION
Because Union Pacific's employee violated a regulation that caused, however slight, Walls's injury, Walls is entitled to partial summary judgment on his negligence per se claim. Moreover, as to the negligence per se claim, Union Pacific is precluded from asserting a contributory negligence defense. However, factual issues preclude the Court from granting partial summary judgment on his FELA negligence claim. Accordingly,
IT IS ORDERED:
1. Walls's Motion for Partial Summary Judgment, Filing 52, is granted in part and denied in part.