Coll v. BNSF Ry. Co.

CLARK COLL, CHAPTER 7 TRUSTEE, Plaintiff, v. BNSF RAILWAY COMPANY, Defendant.

No. 12 CV 139 JAP/WPL

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

Dated: February 18, 2014

MEMORANDUM OPINION AND ORDER

On January 16, 2014, Defendant BNSF Railway Company (BNSF) moved for summary judgment. See BNSF RAILWAY COMPANY'S MOTION FOR SUMMARY JUDGMENT (Doc. No. 58) (Motion). BNSF argues that (1) federal law precludes Plaintiff's claims and (2) Plaintiff has not produced sufficient evidence that BNSF acted negligently or that BNSF's negligence caused Plaintiff's injuries.¹ Plaintiff opposes the Motion. See PLAINTIFF'S RESPONSE TO THE DEFENDANT'S MOTION FOR SUMMARY JUDGEMENT [SIC] (Doc. No. 64) (Response). As described below, the Court will grant in part and deny in part BNSF's Motion.

BACKGROUND

I. The March 18, 2009 Accident

On March 18, 2009, Mr. Chad Griswold, a BNSF employee, injured his right elbow and shoulder when he slipped down the steps inside a BNSF locomotive, Locomotive 5371. Employee Personal Injury/Occupational Illness Report, Exhibit B to Response (Doc. No. 64-2). After the accident, Mr. Griswold filled out a BNSF Employee Personal Injury Form reporting the accident and explaining that he "slipped on worn smooth second step." Id. According to Mr. Griswold, his right foot slipped because the step was "worn off there" and was "pretty slick."Deposition of Chad Griswold, Exhibit A to Response (Doc. No. 64-1) (Griswold Deposition) 53:6-11. At the time of the fall, the steps were dry and clear of debris. Id. at 55:2-9.

II. Mr. Russell Kendzior's Expert Report

On October 12, 2013, Plaintiff's slip-and-fall expert, Mr. Russell Kendzior inspected the stairway in Locomotive 5371. Traction Experts, Inc. Summary Report, Exhibit D to Response (Doc. No. 64-4). In his October 19, 2013 report, Mr. Kendzior opines that "the stairway in question was improperly designed, maintained, and constructed" in violation of various safety codes and industry standards including Occupational Health and Safety Administration (OSHA) regulations, American Society of Testing and Materials (ASTM) standards, and American National Standards Institute (ANSI) standards. Id. at 3. Mr. Kendzior identifies five defects: (1) the lack of slip resistant tread or nosing, (2) inappropriately marked nosing, (3) the absence of a "gripable handrail," (4) insufficient warnings, and (5) unsafe "step geometry" - the step on which Mr. Griswold fell is 10 inches tall and 10 inches deep. Id. at 4-5. In addition, Mr. Kendzior states that BNSF failed to "properly inspect, test or audit the slip resistance of [the] stairway in question." Id. at 4. According to Mr. Kendzior, the improper design, maintenance, and inspection contributed to Mr. Griswold's fall. Id.

III. Plaintiff's Complaint

In the complaint, Plaintiff asserts claims under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51-60; the Federal Safety Appliance Act (FSAA), 49 U.S.C. § 20301, et seq.; and the Locomotive Inspection Act (LIA), 49 U.S.C. §§ 20701-20703. Because Plaintiff now withdraws his FSAA claim, Response at 19, the Court will dismiss this claim with prejudice.

Given the general nature of the allegations in Plaintiff's complaint, it is not entirely clearwhat theories of liability Plaintiff intends to present to the jury. Based on its reading of Mr. Kendzior's report, the Court assumes Plaintiff will make claims based on BNSF's failure to 1) maintain the steps, 2) treat the steps with slip resistant tread, 3) mark the step nosing, 4) install a handrail, 5) post warning signs, 6) modify the "step geometry," and 7) inspect the slip resistance of the steps. The Court construes the complaint as asserting all of these claims under both the LIA and the FELA.

DISCUSSION

I. Standard of Review

Summary judgment may be granted if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). When applying this standard, the Court examines the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. Applied Genetics Intl, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). The party seeking summary judgment bears the initial burden of "show[ing] that there is an absence of evidence to support the nonmoving party's case." Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991) (internal quotation marks omitted). Once the movant meets this burden, Rule 56 requires the non-moving party to designate specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). In considering a motion for summary judgment, then, the Court's "role is simply to determine whether the evidence proffered by plaintiff would be sufficient, if believed by the ultimate factfinder, to sustain her claim." Foster v. Alliedsignal, Inc., 293 F.3d 1187, 1195 (10th Cir. 2002).

II. The Locomotive Inspection Act

Plaintiff claims that BNSF improperly designed, maintained, and inspected the stairway on Locomotive 5371 in violation of the Locomotive Inspection Act (LIA), 49 U.S.C. §§ 20701-20703 (formerly known as the Boiler Inspection Act, 45 U.S.C. §§ 22-34). The LIA "imposes an absolute duty on railroad carriers to ensure that their locomotives are properly maintained and safe to operate." Matson v. Burlington N. Santa Fe R.R., 240 F.3d 1233, 1235 (10th Cir. 2001) (internal citation omitted). Under the LIA:

A railroad carrier may use or allow to be used a locomotive or tender on its railroad line only when the locomotive or tender and its parts and appurtenances --

(1) are in proper condition and safe to operate without unnecessary danger of personal injury; (2) have been inspected as required . . .; and (3) can withstand every test prescribed by the Secretary [of Transportation]. . .

49 U.S.C. § 20701. Because the LIA does not create an independent cause of action, an LIA claim must be brought under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51-60. A railroad carrier who violates the LIA is strictly liable for any resulting harm under the FELA. McGinn v. Burlington N. R.R., 102 F.3d 295, 299 (7th Cir. 1996). Here, Plaintiff contends that BNSF violated the LIA by (1) operating a locomotive whose parts and appurtenances were in an unsafe condition, (2) failing to comply with Federal Railroad Administration (FRA) regulations, and (3) failing to properly inspect the stairway. The Court will address each contention in turn.

A. Operating a Locomotive in an Unsafe Condition

The general provision of the LIA prohibits railroad carriers from operating a locomotive whose parts and appurtenances pose an "unnecessary danger of personal injury." 49 U.S.C. § 20701. The validity of a claim brought under this provision depends in large part on whether the court categorizes the claim as a "failure to maintain" claim or a "failure to install" claim. King v. Southern Pacific Transp. Co., 855 F.2d 1485, 1489 (10th Cir. 1988) (failure to maintain claimsare "entirely different from claims that a railroad is liable for failing to install additional safety devices . . . [s]uch 'failure to install' claims have been rejected"); Giebel v. Union Pac. R.R. Co., No. 08-cv-6294, 2010 U.S. Dist. LEXIS 46233, at *8 (D. Minn. May 11, 2010) ("Federal courts have strictly limited failure-to-install claims."). As the name would suggest, a failure to maintain claim arises when a plaintiff alleges that a railroad carrier failed to repair or refurbish locomotive parts thereby creating an unsafe condition. Compliance with the regulations promulgated by the FRA is not a defense to such a claim. King, 855 F.2d at 1489.

Courts treat failure to install claims differently. A railroad carrier will only incur liability under the general provision of the LIA for failing to install equipment if the missing equipment constitutes "an integral or essential part of a completed locomotive." King, 855 F.2d at 1488-89. Optional safety features are not "integral or essential." See, e.g., McGinn, 102 F.3d at 299 ("A luggage rack is not a mechanical component essential to the operation of a locomotive."); King, 855 F.2d at 1490 (the uniform installation of armrests does not transform armrests into an integral appliance under the LIA); Mosco v. Baltimore & O. Railroad, 817 F.2d 1088, 1091 (4th Cir. 1987) (the LIA does not mandate the installation of protective window devices, such as bars and screens); Marshall v. Burlington Northern, Inc., 720 F.2d 1149, 1154 (9th Cir. 1983) (strobe and oscillating lights are not integral or essential warning devices).

Here, Plaintiff asserts both a "failure to maintain" claim and a "failure to install" claim. First, Plaintiff professes that BNSF permitted the step on which Mr. Griswold fell to deteriorate, through regular use, until it was worn, smooth, and unsafe. Mr. Griswold testified that his foot slipped because the step was "worn" and "pretty slick" from traffic. Griswold Deposition at 53:10-14. Mr. Griswold's testimony raises a genuine issue of material fact about the condition of the step and about whether the condition of the step caused Mr. Griswold to suffer injury. SeeWhelan v. Penn Cent. Co., 503 F.2d 886, 889 (2d Cir. 1974) (finding that a jury could reasonably conclude a brakeman's fall was caused by an icy, bent rear step, which had a small metal strip coming loose); Bolan v. Lehigh Valley R. Co., 167 F.2d 934, 937 (2d Cir. 1948) (holding that there was sufficient evidence for the jury to conclude the condition of a pilot step caused the plaintiff's fall where the plaintiff testified that he fell because of the location of the bolt heads on the step); Davis v. Reynolds, 280 F. 363, 365 (4th Cir. 1922) (denying the defendant's request for a directed verdict on plaintiff's claim that a slick sill step caused him to fall where the plaintiff testified that he would...