Opinion
No. C-03-04574 RMW, Re Docket No. 17.
October 27, 2004
Anthony S. Petru, Counsel for Plaintiff(s).
John D. Feeney, Gregory C. Simonian, Counsel for Defendant(s).
ORDER GRANTING IN PART, DENYING IN PART DEFENDANT UNION PACIFIC RAILROAD COMPANY'S MOTION FOR SUMMARY JUDGMENT
Defendant Union Pacific Railroad Company ("Union Pacific") has moved for summary judgment on the second and third causes of action set forth in plaintiff Eddie Shane Johnson's complaint. The motion was heard on October 22, 2004. The court has read the moving and responding papers and heard the argument of counsel. For the reasons set forth below, Union Pacific's motion for summary judgment of claim two is denied; its motion for summary judgment regarding claim three is granted.
The court recognizes that this ruling is contrary to the tentative ruling provided in advance of the hearing, however the court found the parties' oral arguments persuasive.
I. BACKGROUND
On April 15, 2003, Eddie Shane Johnson ("Johnson"), a Union Pacific employee, suffered an injury to his right foot when the wheels of a railroad hopper car filled with rock product ran over them while he was working on site at Granite Rock Company ("GRC") in Watsonville, California. Nguyen Decl. Exh. 4. Johnson's first and second toes were later amputated as a result of the injury. Johnson Dep. Tr. at 50-51.The following facts are not in dispute for purposes of this motion: Johnson, a trainman, was conducting an inspection of a train loaded with granite rock and set to depart the train yard at GRC for a location in San Jose. The train Johnson was inspecting was set to depart on track 705. Id. at 156. Johnson was observing the train on its west side by walking between the rails on the adjacent track 2. Id. at 155. As the train was moving slowly past Johnson, he noticed an air hose support dangling between two cars. Id. at 165. He radioed to stop the train so that he could enter the "red zone" between the cars to re-secure the support. The engineer stopped the train, set the throttle into the correct position, and applied the brakes to secure the train before Johnson entered the space between the cars. Id. at 173-76.
After waiting for the cars to come to a complete stop, Johnson crossed over to the opposite side of the track. Id. at 187-88. Now on the east side of the track, Johnson entered the red zone, leading with his left foot and placing it in the middle of the train tracks. Id. at 190. Johnson's right leg and foot were initially positioned outside of the rail, but while re-securing the strap, his right foot moved to the top of the outside rail. An unexpected movement of the train caused the hopper car to run over his right foot while it was located on the rail. Id. at 201.
The parties disagree about the reason that Johnson crossed to the other side of the train after noticing the dangling strap. Johnson claims that after the train stopped and he began to approach the train, he stumbled on the walkway on the west side of the train between the two tracks as he got off the main line on track 2 and headed to track 705 where the train was. Id. at 179. Thus, he claims, he decided to cross to the east side of the train to obtain more stable footing before attempting to re-secure the support strap. Id. at 180. Furthermore, Johnson claims that because of the buildup of granite dust around the east side rail of track 705, he was unaware that his foot had moved on top of the rail, thinking it was a flat surface, until after the wheels of the car had rolled over it.
Johnson filed suit against Union Pacific for the injuries he sustained in the course of his employment under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. §§ 51 et seq., asserting three causes of action under FELA. His second and third causes of action allege that Union Pacific is strictly liable for Johnson's injuries. The second cause of action asserts that Union Pacific violated the federal Safety Appliance Act ("SAA"), 49 §§ 20301 et seq., because Johnson was attempting to correct a defect in a safety appliance on the train at the time his injury occurred. His third cause of action asserts that Union Pacific violated a local safety statute, California Public Utilities Commission ("CPUC") General Order Number 118 ("GO 118"), by failing to provide a reasonable regular surface adjacent to the track on which to walk and that such violation results in strict liability under 45 U.S.C. section 54a. Union Pacific seeks summary judgment on both of these causes of action.
II. ANALYSIS
A. Legal Standard
Summary judgment is proper when the pleadings, discovery and affidavits show that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. On an issue for which the opposing party will have the burden of proof at trial, the moving party need only point out "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
B. Federal Safety Appliance Act
To recover under FELA a plaintiff generally must prove that the railroad was negligent and that such negligence caused his injury, either in whole or in part. Rogers v. Missouri Pac. R.R., 352 U.S. 500, 506 (1957). Under FELA, an employer can be held strictly liable for an employee's injuries if they result from a violation of the SAA. See, e.g., Lisek v. Norfolk and Western Ry. Co., 30 F.3d 823, 825-26 (7th Cir. 1994). The SAA imposes an absolute duty on railroads to provide and maintain certain safety appliances on vehicles and trains used on its railroad lines. O'Donnell v. Elgin, J. E. Ry. Co., 338 U.S. 384, 390-91 (1949). Failure of equipment to perform as required by the SAA imposes absolute liability for the proximate results of such a failure. Lisek, 30 F.3d at 825-26. The Tenth Circuit has even held that an employee injured on the way to repair or coming back from repairing an SAA violation can result in absolute liability. Wilson v. Union Pac. R.R. Co., 56 F.3d 1226, 1230 (10th Cir. 1995). Furthermore, a railroad may not assert an assumption of the risk defense when the injury is the result of an SAA violation. 49 U.S.C. § 20304.
The SAA does not define "safety appliance" but provides lists of equipment that a railroad must require. For example, the enumerated safety equipment for all "vehicles" includes couplers, secure sill steps, efficient hand brakes, secure ladders, and running boards, 49 U.S.C. § 20302(a)(1), while all locomotives require a power-driving wheel brake and appliances for operating the train-brake system, id. § 20302(a)(4). Relevant to this motion is the SAA provision that trains requires enough vehicles equipped with power or train brakes so that the engineer of the locomotive can control the train's speed without needing brake operators to use the common hand brakes (at least 50% of the vehicles). Id. § 20302(a)(5). The determination whether a particular piece of equipment comes within the purview of the SAA is a question of law. See Shields v. Atlantic Coast Line R.R. Co., 350 U.S. 318, 322-25 (1956). Thus, to determine whether the unsecured air hose support strap subjects Union Pacific to absolute liability for Johnson's injury, the court must decide whether the air hose support strap is a safety appliance under the SAA.
Union Pacific argues that the absence of particular mention of support straps in 49 U.S.C. section 20302 precludes finding such straps to be safety appliances, thereby preventing Johnson from asserting strict liability for a violation of the SAA. It cites Moses v. Union Pacific R.R., 64 F.3d 413 (8th Cir. 1995), and Jordan v. Southern Ry. Co., 970 F.2d 1350 (4th Cir. 1992), for the proposition that the SAA only applies to equipment specifically enumerated in the statute. However, the holdings of those two cases cannot be read so broadly. First, Moses merely contained the statement that "[i]t does not appear . . . that a pull plate is a "safety appliance" for purposes of the FSAAs [citations omitted] and the FSAAs do not extend to devices not enumerated in section 11." Second, Union Pacific misstates the holding of Jordan. Rather than limiting the safety appliances solely to those devices listed, the Fourth Circuit recognized that the safety appliance designation applied to categories of devices:
The FSAA, originally at 45 U.S.C. §§ 1-16, was repealed and reenacted at 49 U.S.C. §§ 20301 et seq.
We think that the only way to understand Shields, especially in light of the specific language of the statute, is that the categories of safety appliances created by § 11 (e.g., running boards) should be broadly read to include every device falling within that category, even if the Secretary of Transportation has not seen fit to standardize a particular type or use of that device.Jordan, 970 F.2d at 1354.
Is the air brake support strap in the category of safety appliances created by the SAA? The court requires more than a proximity test for an associated device to become a safety appliance under the SAA. In Atchison, Topeka Santa Fe Ry. Co. v. Scarlett, 300 U.S. 471 (1937), the plaintiff was injured using a brace rod located next to a ladder as an extra step. The Court determined the brace rod was not part of the ladder and therefore not a safety appliance under the SAA, stating, "We do not see how it reasonably can be said that the brace rod constitutes a part of the ladder. In itself, it was a contrivance separate and distinct from the ladder, designed and used for a purpose entirely apart from the use of that appliance." Id. at 474-75.
Thus, if a device is not a separate and distinct from the safety appliance, it may be a safety appliance for purposes of the SAA. In Southern Pac. Co. v. Carson, 169 F.2d 734 (9th Cir. 1948), the Ninth Circuit was asked to determine whether a brake club was a safety appliance under the SAA. The brake club was a device used as a lever to set hand brakes on train cars. Although not generally required to set brakes, it was necessary to set brakes in the steep Tuscon yard in which the injury occurred. Concluding that the brake club qualified under the SAA, the court stated:
Here, if the facts be given attention as plainly they must, it can not rationally be said that the brake club did not constitute a part of the hand brake. The club was not a contrivance separate and distinct from the brake, nor was it designed or used for a purpose apart from the use of the brake. On the contrary, it was confessedly designed and used for a purpose inseparable from the use of the braking appliance.Id. at 737.
For example, courts have acknowledged that air hoses are safety appliances under the SAA. See, e.g., Grogg v. Missouri Pac. R.R. Co., 841 F.2d 210, 213 (8th Cir. 1988) ("[Defendant does] not dispute the air hose is a component of an appliance covered by the FSAA."). This is so even though the SAA does not specifically designate air hoses as a safety appliance. Here, the facts presented by the parties support the inference that the support strap is not a "contrivance separate and distinct from the brake." Johnson has presented evidence that the "glad hands," fixtures used to connect the air brake hose between the cars, have openings specifically designed for the safety strap. Nguyen Decl. Exh. A, photos A-C. Furthermore, regulations governing the inspection and testing of brakes state both that "[b]rake rigging shall be properly secured and shall not bind or foul or otherwise adversely affect the operation of the brake system," 49 C.F.R. § 232.207(b)(5) (2004), and "[a]ll parts of the brake equipment shall be properly secured." Id. § 232.207(b)(6). See also id. § 232.205(c)(6), (7). Assuming that Union Pacific's objection to Johnson's expert's testimony is correct that brake rigging is limited to equipment under the train, the requirement that all parts of the brake equipment be properly secured as part of brake testing still demonstrates that securing straps are devices within the air brake category. Therefore, the air hose support strap is part of the air brake system and thus a safety appliance under the SAA.
Union Pacific has presented evidence that the Rule 5 of the AAR Interchange Rules, which Johnson cites in support of his argument that air brake support straps are required, does not apply to the type of hopper car Johnson was attempting to secure at the time of his accident. However, Johnson has presented sufficient evidence that the Code of Federal Regulations requires brake system parts be properly secured on any train or car, defeating defendant's motion on this point.
Thus, as conceded at the hearing, if the air hose support strap is a safety appliance under the SAA, then Union Pacific is subject to strict liability if a failure of or defect in that appliance contributed in fact to Johnson's injury. The Supreme Court noted in Kernan v. Am. Dredging Co., 355 U.S. 394 (1957):
In FELA cases based upon violations of the Safety Appliance Acts . . ., the Court has held that a violation of [the] statute creates liability under FELA if the resulting defect or insufficiency in equipment contributes in fact to the death or injury in suit, without regard to whether the injury flowing from the breach was the injury the statute sought to prevent.Id. at 432-33, 438; see also id. at 433-47 (examining cases in which SAA liability attached although the injury was not of a type the safety appliance or statute was designed to prevent). Johnson has presented sufficient evidence to demonstrate that his injury was likely caused in fact by a failure of or defect in the support strap. The strap was dragging between the rails when it should have been attached to the "knuckle" or draw bar. Johnson Dep. Tr. at 167. It was because Johnson saw the unsecured strap that he radioed for the train to stop, id. at 169, and he was between the cars attempting to re-secure the strap when he was injured by the car. Furthermore, Johnson was unable to secure the strap after two tries. Id. at 192. Accordingly, the court denies Union Pacific's motion for summary adjudication on Johnson's second cause of action. B. 45 U.S.C. § 54a
1. PUC General Order No. 118
Under FELA, an employer may not assert a defense of contributory negligence against an employee when the employee's injury resulted from a violation of a locally-enacted safety statute. Specifically, FELA provides that no employee "who may be injured . . . shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury . . . of such employee." 45 U.S.C. § 53. A "statute enacted for the safety of employees" also includes "[a] regulation, standard, or requirement in force or prescribed . . . by a State agency that is participating in investigative and surveillance activities under section 20105." Id. § 54a.
GO 118 directs that "each railroad corporation operating in the State of California shall file its standards for the construction, reconstruction and for the subsequent maintenance of walkways adjacent to its tracks." Nguyen Decl. Exh. E, General Order No. 118, Regulations Governing the Construction, Reconstruction, and Maintenance of Walkways Adjacent to Railroad Trackage at 1. In compliance with GO 118, carriers filed the required standards specifying, inter alia, that "[w]alkways shall provide a reasonable regular surface with gradual slope not to exceed approximately one inch to eight inches." Id., Standards Filed by Carriers Subject to General Order 118 at 1.
For purposes of this motion, Union Pacific concedes that GO 118 is such a safety statute. It nevertheless argues that the provisions of GO 118 do not apply because Johnson was not on a walkway at the time of the accident. Union Pac. Br. at 2. There is little question that, as Union Pacific contends, no part of Johnson body was on a walkway prescribed by GO 118 when the train wheels ran over his foot. The walkways set forth in the standards filed in accordance with GO 118 must be (1) at least two feet wide and (2) set at specified distances from the rail according to type and location of the track. Id., Standards Filed by Carriers Subject to General Order 118 at 2-6 figs. 1-6. Those standards thus necessitate the rail and the walkway be in different places. Johnson has testified that his left foot was in the gage between the rails on track 705 and that his body was in the red zone between the cars. Since his right foot must have been on the rail for the wheels to have crushed his toes, it could not have also been on the walkway.
Indeed, Union Pacific's moving papers include a Memorandum and Order from the Eastern District of California holding GO 118 to be a qualifying safety statute under 45 U.S.C. § 53. See Nguyen Decl. Exh. 10, Wagner v. Union Pac. R.R. Co., No. 03-0582 (E.D. Cal. July 16, 2004).
Johnson's contention, however, is different. He argues that the walkway ("ballast") between tracks 2 and 705 was maintained in a manner that violated GO 118. Johnson states that he tripped on the ballast as he moved from track 2 (from which he was observing the train) to track 705. Johnson Depo. Tr. at 173. He had been walking between the rails on track 2 because the ballast's poor condition. Id. at 178. Thus, he contends, there remain material questions of fact as to whether failure to maintain walkways in compliance of GO 118 caused Johnson to cross over to the other side of the tracks before attempting to re-secure of the strap. See e.g., Grogg v. Missouri Pac. R.R. Co., 841 F.2d 210, 212 (8th Cir. 1988) ("To recover for a violation of the FSAA [plaintiff must] show: (1) the statute was violated; and (2) the violation was "a causative factor contributing in whole or in part to the accident" that caused [the] injuries.").
Nevertheless, Johnson has failed to adduce any evidence that the injury would not have occurred had he remained on the side of the track we was originally walking on. Even assuming Union Pacific had failed to maintain the walkway between tracks 705 and 2 in accordance with GO 118, Johnson was not injured while walking between the rails on track 2, as he claims he was forced to do because of the insecure footing of the walkway. Furthermore, there is no evidence that the track conditions on the east side of the track, where Johnson would have been had he not crossed to get away from the insecure footing of the walkway at issue, were different than those on the west side. Although Johnson testified that there was generally a build up of granite dust on site at GRC, Johnson Dep. Tr. at 273, there is no admissible evidence regarding the depth of the granite dust on the west side of the track as compared to that on the east side. And although Johnson argues that the time it took him to cross the tracks to the other side caused him to be on the rail when the train rolled forward, the undisputed facts show that the strap had slipped out of Johnson's grip twice before and that he never successfully secured the strap before the train moved. Id. at 192, 199. Any conclusion that the extra time it took Johnson to cross over the tracks because of any defects in the walkway would be pure speculation. Because Johnson has not raised any disputed issues of material fact, the court grants Union Pacific's motion for summary adjudication on Johnson's third cause of action.
2. Track Safety Standards
In his opposition, Johnson argues that Union Pacific's failure to maintain the tracks at GRC pursuant to 49 C.F.R. part 213 constitutes a violation of 45 U.S.C. section 54a and that this violation caused him to lose awareness of where his foot was placed. However, Johnson's third cause of action cites only GO 118. No violation of Part 231 was alleged in Johnson's complaint, thus, the court declines to consider his arguments on the matter.
III. ORDER
For the foregoing reasons, the court denies Union Pacific's motion for summary adjudication on Johnson's second cause of action and grants the motion on his third cause of action.