Curran v. Long Island R.R. Co.

161 F.Supp.3d 253

Daniel Curran, Plaintiff,

v.Long Island Railroad Company, Defendant.

13 Civ. 8452 (ER)

United States District Court, S.D. New York.

Signed February 9, 2016

Marc Twyman Wietzke, Flynn & Wietzke, P.C., Garden City, NY, for Plaintiff.

J. Dennis McGrath, Long Island Railroad Company, Jamaica, NY, for Defendant.

OPINION AND ORDER

Ramos, District Judge:

Plaintiff Daniel Curran (“Plaintiff”) brings this action against Defendant Long Island Railroad Company (“LIRR”) under the Federal Employers' Liability Act (“FELA”), 45 U.S.C. § 51 et seq. , for injuries suffered both while Plaintiff was drilling into a piece of buckled railroad track and subsequently during his physical therapy. LIRR has moved for summary judgment. (Doc. 9). For the following reasons, that motion is DENIED.

I. BACKGROUND

Plaintiff has been an LIRR employee since May 15, 2002, and worked specifically as a Signal Maintainer for roughly nine years prior to the injury he sustained on July 2, 2012. Def.'s Local Rule 56.1 Stmt. of Material Facts (“Def.'s 56.1”) (Doc. 12) ¶ 3.¹ On July 2, 2012, Plaintiff was in the process of performing assigned crossing inspections when he and his partner were called to respond to a “heat kink,” which is essentially a deformed, bowed out piece of track, often caused by hot temperatures and/or installation of too much track material at a particular point. Id. at ¶ 5; Pl.'s Rule 56 Response and Counterstatement of Facts (“Pl.'s 56.1”) (Doc. 16) ¶¶ 28–31. Plaintiff and his partner were assigned to fix the heat kink, which was located near the Cold Spring Harbor Station in Huntington, New York. Def.'s 56.1 ¶ 5. The assignment required use of a Cembre Rail Drill (the “drill”) to drill a hole in the rail. Id. at ¶ 6. Another employee initially set up the drill and carried it over to clamp it to the rail. Id. at ¶ 11. Plaintiff began to drill, but soon thereafter the drill bit broke off, and Plaintiff had to unclamp the drill from the rail, carry it roughly twelve to fifteen feet outside the ambit of the track gauge, replace the drill bit, and then carry the drill back to re-clamp it to the rail. Id. at ¶¶ 7–8. The drill itself weighed forty to fifty pounds. Id. at ¶ 14. After carrying it back over, Plaintiff re-clamped the drill to the rail, “stood over the drill, feet spread apart, bending from the waist, and turned the handle” to advance the drill bit into the rail, while the drill itself remained stationary. Id. at ¶ 9. Plaintiff drilled one hole into the rail, and, after drilling that hole, Plaintiff “felt a sharp pain and a discomfort trying to stand up erect.” Id. at ¶¶ 10, 12. An MRI on August 2, 2012 confirmed that Plaintiff suffered a herniation in his lower back. Pl.'s 56.1 ¶ 91. Plaintiff admits that lifting and carrying rail drills is an “essential physical activity” required of a Signal Maintainer. Def.'s 56.1 ¶ 15. He does not allege that the drill was defective in any way.

Following his injury, Plaintiff was assigned two physical therapists within LIRR's medical department, John Byrne (“Byrne”) and Frederic Ho (“Ho”), both LIRR employees. Pl.'s 56.1 ¶ 52.² Byrne and Ho supervised Plaintiff's participation in LIRR's “Work Hardening” program (the “program”), a physical-therapy regimen that includes an “an exercise program for reconditioning, strengthening, [and] functional training.” Id. at ¶¶ 52–60. Byrne and Ho would identify individual employees who required “selective specialized exercises” in order to return to work. Id. at ¶ 63. The program was voluntary and Byrne would design an individualized program based on his evaluation of the employee's abilities and the strengthening the employee required to get back to work. Id. at ¶¶ 61, 64. Byrne and Ho were not medical doctors, and did not discuss treatment strategy with Plaintiff's doctor. Id. at ¶¶ 65, 68, 92–95. Byrne and Ho had complete control over the contours, duration, and specific types of exercises constituting a given employee's program, and were free to alter the particulars as the program progressed if an employee was not improving in certain areas. Id. at ¶¶ 70–73, 76–81.

Plaintiff's particular program, begun in August 2012, was intended to address his herniation and other conditions of his back more generally. Id. at ¶ 99. On September 5, 2012, Plaintiff commenced lifting exercises in which he lifted ten, eleven, fifteen, and then twenty pounds of weight. Id. at ¶ 105. On September 7, 2012, Byrne moved Plaintiff up to forty pounds of weight, but on September 10, 2012, Byrne's notes stated that Plaintiff reported “exacerbation of pain in his low back which worsened” on September 7 and “hasn't abated since that time,” as well as “stabbing pain, which he hadn't experienced in several weeks.” Id. at ¶¶ 102–07. After cutting back weight-based exercises, Byrne slowly reintroduced weight-lifting into Plaintiff's routine over the next week and a half. On September 24, 2012, Plaintiff again was directed to lift thirty, forty, and fifty pounds of weight, despite having complained to Byrne about increased pain in his pelvic area and left leg on September 21, 2012. Id. at ¶¶ 108–13. On September 28, 2012, which was a Friday, Plaintiff progressed to lifting forty, fifty, and sixty pounds, and the following Monday, October 1, 2012, Byrne's notes indicate that Plaintiff reported “increased pain over weekend.” Id. at ¶¶ 119–20. The October 1, 2012 session was Plaintiff's last, and he cancelled forthcoming sessions because he and Byrne agreed that the program was “too much” for Plaintiff. Id. at ¶ 121.

Byrne and Ho did not report to Plaintiff's treating orthopedist at any time during Plaintiff's participation in the program. Id. at ¶ 117. Both men had complete discretion in crafting Plaintiff's weight-lifting regime. Id. at ¶ 123. Both men knew Plaintiff had a herniation in his back prior to Plaintiff's starting the program. Id. at ¶ 126. Plaintiff now asserts that he was negligently treated on September 7, 2012 and over the four-day span from September 28 to October 1, 2012. Id. at ¶ 132.

II. LEGAL STANDARDS

A. Summary Judgment

To prevail on summary judgment, the movant must show that “there is no genuine dispute as to any material fact.” Fed. R. Civ. P. (“FRCP”) 56(a). “An issue of fact is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Senno v. Elmsford Union Free Sch. Dist. , 812 F.Supp.2d 454, 467 (S.D.N.Y.2011) (citing SCR Joint Venture L.P. v. Warshawsky , 559 F.3d 133, 137 (2d Cir.2009) ). “A ‘material’ fact is one that might ‘affect the outcome of the litigation under the governing law.’ ” Id. “The function of the district court in considering the motion for summary judgment is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists.” Kaytor v. Elec. Boat Corp ., 609 F.3d 537, 545 (2d Cir.2010).

The party moving for summary judgment is first responsible for demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Like here, where “the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant's claim.” Cordiano v. Metacon Gun Club, Inc. , 575 F.3d 199, 204 (2d Cir.2009) (citing Celotex , 477 U.S. at 322–23, 106 S.Ct. 2548 ). If the moving party meets its burden, “the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.” Jaramillo v. Weyerhaeuser Co ., 536 F.3d 140, 145 (2d Cir.2008) (citing Celotex , 477 U.S. at 322–23, 106 S.Ct. 2548 ). In deciding a motion for summary judgment, the Court must “ ‘construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.’ ” Brod v. Omya, Inc. , 653 F.3d 156, 164 (2d Cir.2011) (quoting Williams v. R.H. Donnelley, Corp. , 368 F.3d 123, 126 (2d Cir.2004) ).

B. FELA

“The ordinary summary judgment standard is considerably more plaintiff-friendly in FELA cases.” Kendall v. Metro – N. Commuter R.R. , No. 12 Civ. 6015 (DLC), 2014 WL 1885528, at *2 (S.D.N.Y. May 12, 2014). “In FELA cases, the standard for summary judgment is ‘liberally construed’ in light of the ‘strong federal policy in favor of letting juries decide cases arising under FELA.’ ” Vasquez v. Metro – N. Commuter R.R. , No. 12 Civ. 7390 (JPO), 2014 WL 1344597, at *1 (S.D.N.Y. Apr. 4, 2014) (quoting DeRienzo v. Metro. Transp. Auth. , 237 Fed.Appx. 642, 644 (2d Cir.2007) ). “Accordingly, a FELA case ‘must not be dismissed at the summary judgment phase unless there is absolutely no reasonable basis for a jury to find for the plaintiff.’ ” Kendall , 2014 WL 1885528, at *2 (quoting Syverson v. Consol. Rail Corp. , 19 F.3d 824, 828 (2d Cir.1994) ) (emphasis added).

Under FELA, “[e]very common carrier by railroad while engaging in [interstate commerce]...shall be liable in damages to any person suffering injury while he is employed by such carrier...for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars..., machinery, track..., or other equipment.” 45 U.S.C. § 51. There is no dispute that LIRR is a common carrier engaging in interstate commerce and thus subject to FELA, or that Plaintiff suffered injuries while employed by LIRR and acting within the scope of his employment. The core dispute is whether Plaintiff's injuries resulted “in whole or in part” from any negligence on the part of LIRR's officers, agents, or employees.

“In FELA actions, the plaintiff must prove the traditional common law elements of negligence: duty, breach, foreseeability, and...