Cowden v. BNSF Ry. Co.

975 F.Supp.2d 1005

Kevin D. COWDEN, Plaintiff,

v.BNSF RAILWAY COMPANY, Defendant.

Case No. 4:08CV01534 ERW.

United States District Court,

E.D. Missouri,

Eastern Division.

Sept. 30, 2013.

Roger C. Denton, Elizabeth M. Wilkins, Jerome J. Schlichter, Joshua D. Margolis, Nelson G. Wolff, Schlichter and Bogard, St. Louis, MO, for Plaintiff.

Harlan A. Harla, Thompson Coburn, LLP, Belleville, IL, Misty L. Edwards, Boggs and Avellino, LLC, Clayton, MO, Thomas E. Jones, Crystal M. Campbell, Thompson Coburn, LLP, St. Louis, MO, for Defendant.

MEMORANDUM AND ORDER

E. RICHARD WEBBER, Senior District Judge.

This matter comes before the Court on Defendant BNSF Railway Company's Motion for Summary Judgment [ECF No. 120].

I. STATEMENT OF UNDISPUTED FACTS

The following is a recitation of undisputed facts taken from BNSF Railway Company's Statement of Uncontroverted Material Facts in Support of its Motion for Summary Judgment [ECF No. 124], Plaintiff's Statement of Material Facts in Response to BNSF's Motion for Summary Judgment [ECF No. 138], and BNSF Railway Company's Response to Plaintiff's Statement of Material Facts which Preclude Summary Judgment [ECF No. 149].

This suit arises out of injuries Plaintiff Kevin D. Cowden allegedly sustained while riding in a locomotive owned and operated by Defendant BNSF Railway Company, Plaintiff's employer. On January 14, 2008, Plaintiff, in the course of performing his job duties, was traveling in one of Defendant's locomotives in Golden City, Missouri, somewhere in the vicinity of mile posts 151.4 and 151.8. The portion of track on which Plaintiff traveled was subject to a “slow order,” setting the maximum speed for passing trains at forty miles per hour. Defendant's business records denote “tie conditions” as the reason for the slow order, and Defendant had previously placed the section of track under slow orders due to “rough track” and “washouts.” Plaintiff alleges that, on the day in question, the train encountered a rough section of track and “bottomed out,” throwing him into the air and causing him to land with a significant impact, resulting in injuries to his back and neck.

Plaintiff initially filed a Complaint [ECF No. 1], alleging that Defendant violated the Federal Employers' Liability Act (FELA) by failing to provide a reasonably safe working environment.¹ The Court granted summary judgment for Defendant on September 7, 2010. In its Memorandum and Order, the Court found that certain Federal Railroad Safety Act (FRSA) regulations precluded Plaintiff's FELA claim. Additionally, the Court found that Plaintiff had failed to allege a foreseeable harm as required by the FELA. Plaintiff appealed, and the Eighth Circuit reversed. The Eighth Circuit held that this Court erroneously raised the issue of FRSA preclusion sua sponte, and that this Court failed to view the evidence in the light most favorable to Plaintiff in determining the foreseeability issue. See generally Cowden v. BNSF Ry. Co., 690 F.3d 884 (8th Cir.2012).

On remand, Plaintiff filed a First Amended Complaint [ECF No. 103], which alleges that Defendant is liable for his injuries under the FELA for negligently failing to provide him with reasonably safe work conditions and for violating several track safety regulations promulgated by the Federal Railroad Administration (FRA), constituting negligence per se.

II. SUMMARY JUDGMENT STANDARD

A court shall grant a motion for summary judgment only if the moving party shows that “there is no genuine dispute as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). By definition, material facts “might affect the outcome of the suit under the governing law,” and a genuine dispute of material fact is one “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the non-moving party has failed to “make a showing sufficient to establish the existence of an element essential to that party's case, ... there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 322–23, 106 S.Ct. 2548.

The moving party bears the initial burden of proof in establishing “the non-existence of any genuine issue of fact that is material to a judgment in his favor.” City of Mt. Pleasant, Iowa v. Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir.1988). The moving party must show that “there is an absence of evidence to support the nonmoving party's case.” Celotex, 477 U.S. at 325, 106 S.Ct. 2548. If the moving party meets this initial burden, the non-moving party must then set forth affirmative evidence and specific facts that demonstrate a genuine dispute on that issue. Anderson, 477 U.S. at 250, 106 S.Ct. 2505. When the burden shifts, the non-moving party may not rest on the allegations in its pleadings, but, by affidavit and other evidence, must set forth specific facts showing that a genuine dispute of material fact exists. Fed.R.Civ.P. 56(c)(1); Stone Motor Co. v. Gen. Motors Corp., 293 F.3d 456, 465 (8th Cir.2002). To meet its burden and survive summary judgment, the non-moving party must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Instead, the nonmoving party must demonstrate sufficient favorable evidence that could enable a jury to return a verdict for it. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. “If the non-moving party fails to produce such evidence, summary judgment is proper.” Olson v. Pennzoil Co., 943 F.2d 881, 883 (8th Cir.1991).

In ruling on a motion for summary judgment, the Court may not “weigh the evidence in the summary judgment record, decide credibility questions, or determine the truth of any factual issue.” Kampouris v. St. Louis Symphony Soc., 210 F.3d 845, 847 (8th Cir.2000). The Court instead “perform[s] only a gatekeeper function of determining whether there is evidence in the summary judgment record generating a genuine issue of material fact for trial on each essential element of a claim.” Id. The Court must view the facts and all reasonable inferences in the light most favorable to the nonmoving party. Reed v. City of St. Charles, 561 F.3d 788, 790 (8th Cir.2009).

III. DISCUSSION

In moving for summary judgment, Defendant makes three main arguments. First, Defendant contends that the preemption clause of the FRSA contemplates preclusion of FELA claims when the FRSA “covers” the subject matter of the FELA claim. Second, Defendant maintains that certain FRSA regulations “cover” Plaintiff's specific allegations, and that Defendant undisputedly complied with those FRSA regulations. Finally, Defendant argues that Plaintiff has failed to allege a foreseeable injury.

A. Federal Preclusion and Construction of 49 U.S.C. § 20106(a)(2)

The First Amended Complaint generally alleges that Defendant violated the FELA by negligently failing to provide a reasonably safe working environment for Plaintiff. Defendant argues that certain FRSA regulations preclude Plaintiff's FELA claim. However, the plain language of the FRSA preemption clause, 49 U.S.C. § 20106(a)(2), speaks only to preemption of state law claims.² Thus, the initial issue before the Court is whether § 20106(a)(2), as construed by the courts, contemplates preclusion of federal FELA claims.

Enacted in 1908, the FELA provides railroad employees with a federal cause of action for injuries caused by the negligence of the railroad. 45 U.S.C. § 51; Cowden v. BNSF Ry. Co., 690 F.3d 884, 889 (8th Cir.2012). “Cognizant of the physical dangers of railroading that resulted in the death or maiming of thousands of workers every year, Congress crafted a federal remedy that shifted part of the human overhead of doing business from employees to their employers.” Nordgren v. Burlington N. R.R. Co., 101 F.3d 1246, 1249 (8th Cir.1996) (quoting Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 542, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994)). The FELA should be interpreted liberally in light of its “humanitarian” purposes. Metro–North Commuter R.R. Co. v. Buckley, 521 U.S. 424, 429, 117 S.Ct. 2113, 138 L.Ed.2d 560 (1997).

Enacted in 1970, the FRSA “promote[s] safety in every area of railroad operations and reduce[s] railroad-related accidents and incidents.” 49 U.S.C. § 20101; Lybrand v. Union Pac. R.R. Co., No. 5:10CV00045, 2012 WL 1436690, at *2 (E.D.Ark. Apr. 25, 2012). The FRSA grants authority to the Secretary of Transportation to “prescribe regulations and issue orders for every area of railroad safety.” 49 U.S.C. § 20103(a). The Secretary has delegated this authority to the Federal Railroad Administration (FRA). Mich. S. R.R. Co. v. City of Kendallville, 251 F.3d 1152, 1154 (7th Cir.2001). The FRSA strives for national consistency, stating, “[l]aws, regulations, and orders related to railroad safety ... shall be nationally uniform to the extent practicable.” 49 U.S.C. § 20106(a). Thus, pursuant to 49 U.S.C. § 20106(a)(2), the FRSA allows states to “adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation (with respect to railroad safety matters) ... prescribes a regulation or an order covering the subject matter of the State requirement.” The term “ ‘covering’ indicates that preemption will lie only if the federal regulations substantially subsume the subject matter of the relevant state law.” CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 658, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993).

Although the FRSA only addresses preemption of state matters, courts in other circuits have also applied §...