Opinion
2:20-cv-01126-SU
09-23-2021
LEE NEAL, an individual, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY; APOLLO MECHANICAL CONTRACTORS, INC., Defendant.
FINDINGS AND RECOMMENDATION
Patricia Sullivan United States Magistrate Judge
Plaintiff Lee Neal brings this action against Defendants Union Pacific Railroad Company (Union Pacific) and Apollo Mechanical Contractors, Inc. (Apollo) for negligence resulting from a multi-car collision involving Defendants' employees. This matter comes before the Court on Defendant Union Pacific Railroad Company's Motion for Summary Judgment. ECF No. 31. The Court heard oral argument on this motion on August 25, 2021. ECF No. 45. For the reasons set forth below, Defendant's Motion for Summary Judgment should be DENIED.
LEGAL STANDARD
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file, if any, show “that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Substantive law on an issue determines the materiality of a fact. T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324. Special rules of construction apply when evaluating a summary judgment motion: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 630-31.
BACKGROUND
I. Factual Background
Plaintiff works for Union Pacific as the senior manager of terminal operations. Meyer Decl. Ex. 1, at 3, ECF No. 32. As senior manager of terminal operations, Plaintiff is responsible for everything that happens in the terminal, so he is always on call and expected to respond to work-related matters any at time. Id. Unlike other managers-who are given scheduled times to work or are listed as “on duty” or “off duty” on days or nights-the senior manager is only listed as either “on duty” or “off duty.” Barney Decl. Ex. 1, at 10-11; ECF No. 40-1. Although Plaintiff could engage in personal activities while at home, he considers himself to always be on duty. Id. at 8-9, 12. The parties dispute whether Plaintiff was on duty at the time of the collision. Plaintiff believes that he was on duty and explained that, as senior manager, “you were off duty or you were on duty” so “if [he] was on duty, [he] was on duty.” Meyer Decl. Ex. 1, at 8. On the other hand, Union Pacific contends that Plaintiff was on call but off duty. Def. Reply to Def. Mot. Summ. J. 2-3, ECF No. 42. Additionally, Union Pacific provided Plaintiff with a company vehicle to commute between his home in Kennewick, Washington, and the Union Pacific Hinkle Yard in Hermiston, Oregon. Meyer Decl. Ex 1, at 4-5, 7. Union Pacific does not require employees to use a company vehicle or drive a particular route while commuting to and from work. Crawford Decl. ¶ 2, ECF No. 35; Meyer Decl. Ex. 1, at 1.
On the morning of December 16, 2019, Plaintiff began his normal commute to Hinkle Yard in his company vehicle. Plaintiff had not sent or received any work calls or messages beforehand. Meyer Decl. Ex. 1, at 10; Baker Decl. Ex. 1, ECF No. 33. Plaintiff had his work phone and laptop with him. Barney Decl., Ex. 1, at 22-23. As he typically did on his commute, Plaintiff stopped at a nearby gas station where he would buy a cup of coffee, get gas, or both. Meyer Decl. Ex. 1, 9-10. At around 5:30 a.m., Plaintiff was involved in a multi-vehicle collision while driving over the Umatilla bridge. Id. at 15-16. In the first collision, another Union Pacific manager, Gilberto Martinez, rear-ended Plaintiff. Id.; Meyer Decl. Ex. 2 at 15-16; Barney Decl. Ex.2, at 22-23. Immediately following the first collision, Plaintiff was rear-ended a second time by Defendant Apollo's vehicle. Id.
Martinez was also commuting to work while driving a Union Pacific-owned truck. Martinez Decl. ¶ 2, ECF No. 34; Meyer Decl. Ex. 2, at 11, 13. Martinez only used the truck for company business and the truck had been modified for railroad use with the installation of a high-rail device. Barney Del. Ex. 2, at 6, 14. The truck was also fitted with an onboard camera that began recording if a sudden event occurred and the recording was then sent to Union Pacific managers. Barney Decl. Ex 2, at 18-19. Additionally, as the manager of track maintenance, Martinez was always on call and considered his working hours to be “24/7.” Meyer Decl. Ex. 2, at 5-6; Barney Decl. Ex.2, at 6, ECF No. 40-2. Martinez lived approximately 40 to 45 minutes away from Hinkle Yard and was expected to respond to emergencies within 45 minutes of receiving a call. Meyer Decl. Ex. 2, at 7, 10. Like Plaintiff, Martinez had not received or sent any work-related messages or calls the morning of the collision. Martinez Decl. ¶ 2.
Following the collision, Plaintiff filled out an accident form for Union Pacific. Barney Decl. Ex. 1, at 25. Plaintiff originally marked that he was on duty at the time of the collision, but, at the director of terminal operations' instruction, later changed the form to state that he was off duty at the time. Id. at 28-29; 31-32. Plaintiff noted, however, that he was “always on duty” under the “Time Shift or Trip Began” section of the form. Id. at 31.
ANALYSIS
Plaintiff filed two claims for relief, seeking damages from Union Pacific and Defendant Apollo for the injuries that Plaintiff sustained in the collisions. Compl. ¶ 17, ECF No. 1. Plaintiff asserts that Union Pacific is (1) liable under the Federal Employers Liability Act, 45 U.S.C. § 51, et seq. (1939) (FELA) for ordinary negligence and (2) vicariously liable under the Oregon common law doctrine of respondeat superior for the negligence of Martinez. Comp. ¶ 19, 27. In support of both claims, Plaintiff alleges that he and Martinez were operating their vehicles in the course and scope of their employment for, and while serving as agents of, Union Pacific. Comp. ¶ 13, 21.
In its motion for summary judgment, Union Pacific contends that neither Plaintiff nor Martinez were acting within the course or scope of their employment at the time of the collision, so Union Pacific is not liable under FELA or vicariously liable for negligence under the doctrine of respondeat superior. Def. Mot. Summ. J. 8, 11. Alternatively, if the Court denies summary judgment on Plaintiff's FELA claim, Union Pacific seeks an order granting partial summary judgment on Plaintiff's state common law negligence claim. Id. at 11-12. In its alternative argument, Union Pacific argues that Plaintiff is precluded from asserting a state common law negligence claim, because a FELA claim is Plaintiff's exclusive remedy. Id.
In response, Plaintiff contends that genuine issues of material fact exist, because a reasonable jury could find that both Plaintiff and Martinez were acting within the scope of employment at the time of the collision. Pl. Resp. to Def. Mot. Summ. J. 15, 19-20, ECF No. 39. Plaintiff contends that both he and Martinez were acting within the scope of their employment because both men were on-call managers at all times and always on duty, and both men were driving Union Pacific company vehicles at the time of the collision. Id. at 12, 15, 18-19. The Court concludes that a genuine dispute exists as to (1) whether Plaintiff and Martinez were “on duty” at the time of the collision, and (2) whether Martinez operated his vehicle in furtherance of Union Pacific's business and control. Defendant's Motion for Summary Judgment should therefore be DENIED on all grounds.
I. Federal Employers Liability Act (FELA)
Under FELA, a railroad engaged in interstate commerce is liable to “any person suffering injury while he is employed [by the railroad] . . . resulting in whole or in part from the negligence of any of the officers, agents, or employees” of the railroad. 45 U.S.C. § 51. FELA limits a railroad's liability to injuries involving an employee when such injuries are “sustained in the course of employment.” CSX Transp., Inc. v. McBride, 564 U.S. 685, 691 (2011). For an activity to be within the scope of one's employment, “it must be a necessary incident of the day's work or be essential to the performance of the work.” Rogers v. Chi. & N.W. Transp. Co., 947 F.2d 837, 839-40 (7th Cir. 1991) (recognizing that eating and sleeping on company facilities are incidents necessary to employment, while exercising on railroad property while on call, but off duty, is not). An act is not necessarily incident to an employee's employment “when it is undertaken by an employee for a private purpose and having no causal relationship with his employment.” Id. at 839 (internal citation omitted). In arguing that neither Plaintiff nor Martinez were within the scope of their employment during the collision, Union Pacific urges the Court to apply the “commuter rule” exception to FELA liability.
In the context of vicarious liability, the Ninth Circuit has stated that an employee acts within the course of his employment when: “(1) the conduct occurred substantially within the time and space limits authorized by the employment; (2) the employee was motivated, at least in part, by a purpose to serve the employer; and (3) the act was of a kind that the employee was hired to perform.” Oki Semiconductor Co. v. Wells Fargo Bank, Nat. Ass'n, 298 F.3d 768, 776 (9th Cir. 2002) (citing Restatement (Second) of Agency § 219 (1958)).
Numerous federal courts have adopted what is known as the “commuter rule, ” which holds that, generally, railroad employees who are injured while commuting to and from work are not considered within the scope of their employment for FELA purposes. See, e.g., Getty v. Bos. & Me. Corp., 505 F.2d 1226, 1228 (1st Cir. 1974) (“One commuting to work is ordinarily not deemed to be within the course of his employment.”); Quirk v. N.Y., Chi. & Saint Louis R.R. Co., 189 F.2d 97, 100 (7th Cir. 1951), cert. denied, 342 U.S. 781 (1951); Sassaman v. Pa. R.R. Co., 144 F.2d 950, 952-54 (3d Cir. 1944). The general policy consideration underlying the commuter rule is that FELA was enacted to protect railroad workers from the dangers of railroad work and not the risks of commuting to and from work, which are dangers common to all travelers. See Williams v. Norfolk So. Ry. Co., 767 F.Supp. 756, 759 (E.D. Va. 1991) (“The justification for the [commuter] rule's limitation of FELA coverage is the employer's lack of control over risks associated with commuter travel.”); Caillouette v. Balt. & Ohio Chi. Terminal R.R. Co., 705 F.2d 243, 246 (7th Cir. 1983) (“[W]hile commuting, [railroad employees] are in no greater danger than any other member of the commuting public.”). The parties do not reference, nor has the Court located, any binding or in-circuit district court decisions that have adopted the commuter rule. As such, the Court is guided by persuasive authority from other federal circuit courts to guide the substantive law on the current motion. See U.S. Nat'l Bank of La Grande v. Pole, 2 F.Supp. 153, 158 (D. Or. 1932) (concluding that decisions rendered from court of appeals in different circuits were persuasive authority, “although not absolutely binding upon” this court).
Defendant points to Quirk v. New York, Chicago & Saint Louis Railroad Co., a Seventh Circuit case where the court applied the commuter rule when a general foreman commuting home in a company car was involved in a collision with another employee who was also driving a company car. 189 F.2d 97 (7th Cir. 1951). In Quirk, the court concluded that the general foreman was not acting within the scope of his employment at the time of the collision because once he left work to go home, he was “engaged solely in a personal activity unrelated to his duties as an employee of the defendant.” Id. at 100.
Plaintiff relies on Parker v. Long Island Railroad Company, a case where the Second Circuit concluded that a jury could reasonably find that a railroad foreman who was injured on railroad property was within the scope of his employment. 425 F.2d 1013, 1014 (2d Cir. 1970), cert. denied, 400 U.S. 829, 91 S.Ct. 57, 27 L.Ed.2d 58 (1970). In Parker, the employee was an acting foreman, on-call at all times, and possessed an employer-provided rail pass that allowed him to commute to and from work. Id. The employee was injured in a stairway on railroad property while attempting to catch a train to commute home. Id. Despite the commuter rule, the court recognized that the employee's status as an on-call foreman, combined with the fact that the railroad was the only practical way for the employee to commute to and from work, demonstrated that “the employer ha[d] an interest in [the] availability of the [employee] for emergencies, ” so a jury could reasonably find that the employee's commute “was so essential to the master's work as to be considered within the course of employment.” Id. at 1015.
Both Quirk and Parker present factual scenarios that are distinguishable from the present case. Although the court in Quirk imposed the commuter rule on a foreman who was driving a company-owned vehicle, that employee was not on call or on duty at the time of the collision. And Parker involved an injury on railroad property that did not involve a car collision. As such, the Court does not find either case as strongly persuasive in support of adopting the commuter rule for purposes of this motion.
The Court is persuaded that an employee's status as “on duty” is significant in determining whether an employee is acting within the course of employment. See Cook v. Union Pacific R.R. Co., No. 2:10-cv-6339-TC, 2011 WL 5842795, at *3 (D. Or. 2011) (highlighting that it was undisputed that an employee was on duty when considering whether the employee was within the scope of his employment). In sending the question to the jury, the Second Circuit recognized that the employee in Parker-like Plaintiff and Martinez-was on call at all times. Moreover, in another case where a court concluded that an employee was not within the course of his employment, the court explained that although he was on call, he was off duty at the time of the injury. Rogers, 947 F.2d at 839. The question of whether an employee acts within the course of employment is a question of fact for a jury. Lowden v. Atchison Topeka and Santa Fe R.R., 937 F.2d 491, 493 (9th Cir. 1991) (“[T]he jury, rather the court, should . . . decide whether [an] accident happened while the plaintiff was within the scope of his employment.”). Accordingly, the Court finds that a reasonable jury could conclude that an employee commuting to work while “on duty” in a company vehicle is taking an action necessary to a day's work that is not undertaken for a private purpose without any causal relationship with his employment.
Viewing the facts in the light most favorable to Plaintiff, the Court concludes that a genuine issue exists whether, at the time of the collision, Plaintiff and Martinez were on duty. It is undisputed that both men were on-call managers at the time of the collision. Meyer Decl. Ex. 1, at 3; Barney Decl. Ex. 2, at 6. Defendant asserts that Plaintiff and Martinez were not on duty at the time of the collision because neither one was called into work that morning, Meyer Decl. Ex. 1, at 10; Baker Decl. Ex. 1; Martinez Decl. ¶ 2, Plaintiff was free to engage in personal activities-such as stopping at a gas station, Meyer Decl. Ex. 1, 9-10, and the collision occurred on a public road, id. at 15-16. Additionally, the accident form that Plaintiff submitted to Union Pacific after the collision provides conflicting information: Although one portion of the form noted that Plaintiff is “always on duty, ” Plaintiff amended the form-apparently upon the instruction of a supervisor-to reflect that Plaintiff was off duty at the time of collision. Barney Decl. Ex. 1, at 25, 28-32. On the other hand, Plaintiff and Martinez testified in depositions that (1) they are expected to respond to work calls or messages at all times whenever they do not have a scheduled day off, Meyer Decl. Ex. 2, at 5-6, (2) they are either listed as either “on-duty” or “off-duty, Barney Decl. Ex. 1, at 10-11, and (3) they use their company vehicles to commute to and from work, Meyer Decl. Ex 1, at 4-5, 7, Barney Del. Ex. 2, at 6.
Giving the benefit of all reasonable inferences to the nonmoving party, the Court finds that a reasonable jury could find that Plaintiff and Martinez were on duty at the time of the collision. Thus, the Court concludes that whether Plaintiff and Martinez were on duty is a genuine issue that concerns whether the collision occurred within the course of their employment and Union Pacific's Motion for Summary Judgment on this ground should be DENIED.
II. State Common Law Negligence Claim
Under the doctrine of respondeat superior, an employer is liable for the negligence of its employee when the employee acts “within the scope of his employment.” Stanfield v. Laccoarce, 284 Or. 651, 654 (1978). In determining whether an employee is acting within the scope of his employment, a court considers whether (1) “the act in question is of a kind the employee was hired to perform, ” (2) “the act occurred substantially within the authorized limits of time and space, ” and (3) “the employee was motivated, at least in part, by a purpose to serve the employer.” Id. at 655. Accordingly, the Oregon Supreme Court has held that “the question of whether or not an employee has acted within the scope of his employment at any given time is normally a question for the jury, except in cases where only one reasonable conclusion can be drawn from the facts.” Id.
Under Oregon law, the general rule is that “an employee going to or from work is not in the course of his employment at that time.” Heide v. T.C.I. Inc., 264 Or. 535, 539 (1973). The Oregon Supreme court has further noted that “[t]he mere fact that an employee is on call does not render his employer liable.” Hantke v. Harris Ice Machine Works, 152 Or. 564, 569 (1936). An exception to the general going-and-coming rule, however, includes instances “where the employee is using an automobile or other vehicle furnished by the employer.” Id. at 566; see Osterman v. Osgood, 123 Or.App. 30 (1993) (reversing trial court's grant of summary judgment and finding a triable issue when an employee was involved in a car collision while commuting home from work in a company vehicle).
Union Pacific asserts that Martinez was acting outside of the course and scope of his employment at the time of the collision because Martinez was commuting to work, was not furthering Union's Pacific business, and was not within Union Pacific's right to control given that Union Pacific did not require Martinez to use the company vehicle or direct a specific route to commute to work. Def. Mot. Summ. J. 10-11. On the other hand, Plaintiff argues that Martinez's commute to work was within the scope of his employment, because he was on duty at the time of the collision and driving a company-furnished vehicle that had been modified for work use. Pl. Resp. Def. Mot. Summ. J. 16-19.
The Court finds that because Martinez was furnished a Union Pacific vehicle, the exception to the going-and-coming rule applies. Hantke, 152 Or. at 569 (providing an exception to the going-and-coming rule when the employee uses a vehicle furnished by the employer). Further, a reasonable jury could conclude that Martinez was acting within the course of his employment while driving the vehicle, given (1) the nature of Martinez's employment, (2) the use of his company vehicle for work purposes only, and (3) Union Pacific's control over the vehicle by installing a camera and a utility rail adjustment to the truck. A reasonable jury could conclude that whenever Martinez drove the vehicle, there was some Union Pacific involvement that made the use of the travel itself work-related. See Osterman, 123 Or.App. at 34. Thus, a reasonable jury could find that Martinez was acting in furtherance of Union Pacific's business at the time of the collision. Accordingly, Defendant's Motion for Summary Judgment should be DENIED on this ground.
III. Alternative Argument to State Common Law Negligence Claim
Alternatively, Union Pacific asserts that if the Court denies summary judgment on Plaintiff's FELA claim, then Union Pacific is entitled to partial summary judgment on Plaintiff's state common law claim, because FELA is the exclusive remedy for injured railroad employees. Def. Mot. Summ. J. 11-12. It is a “well-settled principle that the FELA provides the sole and exclusive remedy for injured employees of railroad carriers engaged in interstate commerce.” Wildman v. Burlington N. R.R. Co., 825 F.2d 1392, 1395 (9th Cir. 1987).
The Court disagrees with Defendant's contention that a denial of summary judgment on Plaintiff's FELA claim equates to a finding that Plaintiff has a viable FELA claim. In denying Union Pacific's Motion for Summary Judgment on Plaintiff's FELA claim, the Court determines that a genuine dispute exists whether Plaintiff and Martinez were on duty at the time of the collision. The Court does not conclude that Plaintiff and Martinez were within the course and scope of their employment or that Plaintiff has a viable FELA claim; rather, the Court has merely recognized that a jury could come to such a conclusion.
Moreover, a jury could conclude that Plaintiff has a viable state common law claim and not a viable FELA claim. To prevail on the FELA claim, a jury must find that both Plaintiff and Martinez were acting within the scope of their employment. But to prevail on the state common law claim, a jury need only find that Martinez was acting within the scope of his employment. If a jury found that only Martinez was acting within the scope of his employment at the time of the collision, then Plaintiff could prevail on his state common law claim and not prevail on his FELA claim. Accordingly, because it is possible that Plaintiff could have a viable state common law claim and not a viable FELA claim, it would be impermissible for the Court to grant summary judgment on Plaintiff's state common law claim based on Union Pacific's alternative argument at this juncture.
CONCLUSION
Defendant's Motion for Summary Judgment, ECF. No. 31, should be DENIED.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
A party's failure to timely file objections to any of these findings will be considered a waiver of that party's right to de novo consideration of the factual issues addressed herein and will constitute a waiver of the party's right to review of the findings of fact in any order or judgment entered by a district judge. These Findings and Recommendation are not immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of judgment.
It is so ORDERED and DATED this 23rd day of September 2021.