Jones v. BNSF Ry. Co.

306 F.Supp.3d 1060

Shane JONES, Plaintiff,

v.BNSF RAILWAY COMPANY, Defendant.

Case No. 4:15–cv–04200–SLD–JEH

United States District Court, C.D. Illinois, Rock Island Division.

Signed September 19, 2017

Eric D. Holland, Patrick R. Dowd, Randall Seth Crompton, Holland Groves Schneller & Stolze LLC, St. Louis, MO, for Plaintiff.

Stephen J. Heine, Nathan Bach, Thomas J. Dluski, Heyl Royster Voelker & Allen, Peoria, IL, for Defendant.

ORDER

SARA DARROW, UNITED STATES DISTRICT JUDGE

Before the Court are Defendant BNSF Railway Company's ("BNSF") Motion for Summary Judgment, ECF No. 55, and Motion for Leave to File Reply in Excess of Page Limitation, ECF No. 57. For the reasons that follow, the Motion for Summary Judgment is DENIED in part and GRANTED in part and the Motion for Leave to File Reply in Excess of Page Limitation is GRANTED.

BACKGROUND¹

BNSF hired Plaintiff Shane Jones on January 26, 1998. Jones was hired as a "conductor/brakeman/switchman" but became an engineer in 2001, a job he continues to hold today. On December 9, 2014,² Jones was "deadheading" from Fort Madison, Iowa to Kansas City, Kansas. Deadheading is a means of transporting employees from location to location on a train already heading in that direction. While riding on locomotive 7162 that day, Jones stood up to use the bathroom at or near milepost 333.2. As he was stretching his back, the train hit a rough patch of track and he fell down several stairs into the locomotive's nose and injured his shoulders. Jones was never warned of any issues with the section of track surrounding milepost 333.2.

BNSF maintains standards for its tracks and locomotives, all of which either match or are more stringent than what regulations promulgated pursuant to the Federal Railroad Safety Act ("FRSA") require. At the time of Jones's injury, BNSF required visual inspection of the section of track where the injury occurred four times a week. Track inspectors inspected that section on November 23, 24, 25, 26, and 28, as well as on December 1, 2, 3, 4, 5, and 8. Defendant provided records of its inspections from December 2013 to December 2014. See PARS Information Report for Mileposts 327 to 337 from December 9, 2013 to December 9, 2014, Mot. Summ. J. Ex. I, ECF Nos. 55–34–55–37. Although it claims these records show that no defects were found during those inspections, whether the records support that is not clear. It is clear, however, that at least two of the records indicate that BNSF got reports of rough track on the portion of track that it inspected. Id. at 16, ECF No. 55–35 (noting that on November 23 the maintenance desk called to report rough track); id. at 17 (noting that on December 3 the record maker "did not get headed to rough track call until 0230").

In addition to requiring visual inspections, BNSF uses manned and unmanned geometry cars to inspect its tracks. Geometry cars use inclinometers, accelerometers, and lasers to measure track position. Measurements of the track's gauge, surface, and cross-level are fed into a computer program. BNSF has programmed its geometry cars to detect defects that, at a minimum, exceed FRSA standards. In some cases, the cars are programmed to more stringent standards mandated by BNSF. If the geometry cars detect no deviation from their programmed standards, BNSF considers the track safe for cars to travel on at full speed. If the car does detect a deviation, the defect is reported in real time. The report includes information about the defect as well as other details about the track. Sometimes defects lead to a track being "slow ordered," which reduces the track's speed limit so that trains can safely travel along the track. Before a slow order is removed, the cause must be addressed or repaired. Even if a deviation is not reported, the track may still need repairs. Geometry cars are also equipped with Vehicle Track Interaction Exception Inspections ("VTI"), designed to measure surface accelerations. In essence, the VTI measures the acceleration that people riding in the locomotive would feel. The section of track including milepost 333.2 was inspected by geometry car on November 19, 2014. The report indicated no deviation from FRSA standards and the VTI report showed no acceleration beyond a threshold value.

BNSF also records reports of rough track. If there are two or more reports of rough track within a 0.3 mile stretch of track over a period of 30 days, the second report generates a repeat Rough Track Report. Once a repeat Rough Track Report is generated, the affected section of track is automatically slow ordered and cars on the track cannot travel faster than 25 miles per hour. A management level employee then must assess the section of track to determine whether the issue has been resolved. Milepost 333 was reported as rough on October 16 and milepost 333.2 was reported as rough on October 27. Because these were within 30 days, a repeat Rough Track Report was generated and the area was slow ordered. A repeat Rough Track Report was generated on December 9 for a nearby section because there were reports of rough track at milepost 333.6 on November 23 and at milepost 333.7 on December 9. When the track was inspected in response to the November 23 report, no deviations from BNSF standards were found. Another repeat Rough Track Report was generated on December 9 because of reports of rough track at milepost 332.3 on November 28 and at milepost 332.6 on December 9. Bill Moore, a BNSF track inspector, inspected milepost 332.3 in response to the November 28 report. Although BNSF claims that Moore found nothing wrong with the track, see Moore Dep. 42:20–25, Mot. Summ. J. Ex. E, ECF No. 55–29, Moore said that his report meant that the track "was definitely good at [that] spot for track speed," id. 43:2–6, and that he did not mean that no work was done on the track, id. 44:4–7. Because of the two repeat Rough Track Reports on December 9, the track around those mileposts was inspected and two mud holes—spots in the track where ballasts are plugged and no longer drain, resulting in mud being pumped to the surface—were discovered. One mud hole caused a deviation of one and seven-eighths inches and the other a deviation of one and three-eighths inches. FRSA, and BNSF, standards required a slow order to be placed only where the deviation was two inches or more.

Jones asserts that there were long-term problems with the stretch of track between mileposts 332 and 334. For instance, that section of track was slow ordered 120 times in 2014, which is a larger than usual number of slow orders. Additionally, Moore was called to inspect that section of track often because it was degraded and muddy. Plaintiff asserts that BNSF had been working toward a permanent fix for that section of track, but BNSF counters that it merely intended to permanently fix the mud holes identified in December 2014. Furthermore, Doug Fotenos, another track inspector, recommended that milepost 332 be included on BNSF's 2014 capital plan due to the repeated rough track reports. He wanted the track to be undercut, which is more permanent than other types of repair. Milepost 332 was also on BNSF's list to receive funding for major repairs in November 2014.

Jones filed suit in this Court on December 3, 2015. Compl., ECF No. 1. He alleged violations under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. §§ 51 – 60, and the Locomotive Inspection Act, ("LIA"), 49 U.S.C. § 20701. In his FELA claim, Jones alleged:

a) Defendant failed to provide plaintiff with a reasonably safe place to work in that defendant's track and adjacent structures were not properly maintained, thereby creating "drop-outs" or "holes" that pose a danger to trains and crews; or

b) Defendant failed to provide reasonably safe conditions for work in that defendant failed to properly equip its trains with appropriate handholds; or

c) Defendant failed to provide reasonably safe methods of work in that defendant, in an attempt to save money, put plaintiff and other crews on trains deadheading instead of providing them with reliable van transportation; or

d) Defendant failed to provide reasonably safe equipment in that the locomotive engines were not equipped to withstand the dropouts or soft spots of which defendant was aware; or

e) Defendant failed to properly inspect and maintain its track; or

f) Defendant failed to warn of an unsafe condition on its track; or

g) Defendant failed to properly inspect and maintain its locomotive engines; or

h) Defendant failed to warn plaintiff of dangers known to defendant, or that with reasonable inspection, should have been known to defendant; or

i) Defendant violated 49 CFR [sic] § 213 et seq. and 49 CFR [sic] § 229.7 and 229.45 et seq and defendant's violations constitute negligence per se; or

j) Defendant was negligent by the doctrine of Res Ipsa Loquitor [sic].

Compl. 1–4. In his LIA claim, Jones alleged that the locomotive he was riding in lacked adequate safety devices and that the track the locomotive was riding upon was not in compliance with federally mandated minimum track standards. Id. at 4–7. BNSF moved for summary judgment on January 31, 2017. It moved for leave to file a reply in excess of the page limitation in the Local Rules on March 3.

DISCUSSION

I. Motion for Leave to File Reply Brief in Excess of Page Limitations

BNSF requested leave to file a reply in excess of the five-page limitation set out in Local Rule 7.1 (D)(5). BNSF asserts that it needs four extra pages of argument to reply to a complex legal argument raised in Jones's response—the application of POM Wonderful LLC v. Coca–Cola Co. , ––– U.S. ––––, 134 S.Ct. 2228, 189 L.Ed.2d 141 (2014), to whether FRSA precludes Jones's claims brought under FELA. Jones opposed the motion, arguing that BNSF "consciously omitted the POM Wonderful decision from its 27–page Motion for Summary Judgment." Resp. Mot. Leave File Reply Excess Page Limitation 1–2, ECF No. 58. Jones requested leave to file a short...