Smith v. BNSF Ry. Co.

NORMAN SMITH, Plaintiff-Appellant, v. BNSF RAILWAY COMPANY, a corporation, Defendant-Appellee.

No. A-1-CA-36916

COURT OF APPEALS OF THE STATE OF NEW MEXICO

March 16, 2020

This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.

APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY

James L. Sanchez, District Judge

Hubbell Law Firm, LLC

Christopher H. Leach

Kansas City, MO

Davis, Bethune & Jones, LLC

Scott S. Bethune

Wes Shumate

Kansas City, MO

Feliz Angelica Rael

Albuquerque, NM

for Appellant

Atkinson, Baker & Rodriguez, P.C.

Justin D. Rodriguez

Clifford K. Atkinson

Julia E. McFall

Albuquerque, NM

for Appellee

MEMORANDUM OPINION

BOGARDUS, Judge.

{1} Plaintiff Norman Smith (Smith) appeals the district court's order entering summary judgment in favor of Defendant BNSF Railway Company (BNSF) and dismissing with prejudice Smith's complaint, brought under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51-60 (2018), alleging that he was injured by BNSF's negligence while working for the railway. We conclude that summary judgment was improperly granted and therefore reverse.

BACKGROUND

{2} Smith, who was a mechanic for BNSF, sued the railway because he was injured after falling from one of its "hy-rail" section trucks, vehicles capable of being driven on roadways and railways. Smith fell as he was trying to climb up to the driver's seat of the truck. The truck's entryway had three steps and, to the right of the door, one grab hold. Leading up to the fall, the driver's door was open. Smith's right hand was on the grab hold, his left hand was on the inside door handle, and his left foot was on the top step. Smith's foot slipped, the door moved toward him, and his hands lost grip. He fell to the ground and injured his neck and lower back.

{3} Smith brought his action under FELA. In relevant part, Smith alleged that BNSF was negligent in failing to provide a reasonably safe way to enter and exit the truck. BNSF denied the allegation. Following discovery, BNSF moved to exclude Smith's railroad liability expert witness, David Joe Lydick, and moved for summary judgment. The district court conducted a hearing on all then-pending motions, but it never ruled on BNSF's motion to exclude Mr. Lydick. Instead it focused on the propriety of summary judgment. The court ruled in BNSF's favor and then issued the order, the subject of this appeal, granting summary judgment to BNSF and dismissing the case with prejudice. The court's order does not state the reason for the ruling.

DISCUSSION

I. FELA Actions, FELA Rules of Law, and Standard of Review

{4} State and federal courts have concurrent jurisdiction over actions, like Smith's, brought under FELA. 45 U.S.C. § 56. Regardless of the forum, federal law controls such actions substantively, Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158, 165 (2007), while "FELA actions in state courts follow state procedural rules, including rules for summary judgment[,]" Noice v. BNSF Ry. Co., 2015-NMCA-054, ¶ 20, 348 P.3d 1043.

{5} Under FELA, a railroad is liable for an employee's injury "resulting in whole or in part from the [railroad's] negligence[,]" including when the injury is caused by "any defect or insufficiency" in the railroad's equipment. 45 U.S.C. § 51. FELA was enacted "[i]n response to mounting concern about the number and severity of railroademployees' injuries . . . to provide a compensation scheme for railroad workplace injuries, pre-empting state tort remedies." Sorrell, 549 U.S. at 165. "Unlike a typical workers' compensation scheme, which provides relief without regard to fault," id., some evidence of a railroad's negligence must be presented to survive summary judgment, Walker v. Ne. Reg'l Commuter R.R. Corp., 225 F.3d 895, 897 (7th Cir. 2000). Nevertheless, courts are to construe FELA liberally to effectuate its purpose of helping injured railroad workers. Urie v. Thompson, 337 U.S. 163, 181-82 (1949); accord Noice v. BNSF Ry. Co., 2016-NMSC-032, ¶¶ 16-17, 383 P.3d 761.

{6} "Absent express language to the contrary, the elements of a FELA claim are determined by reference to the common law." Sorrell, 549 U.S. at 165-66. Thus, the two elements of a FELA action are: "(1) negligence, i.e., the standard of care, and (2) causation, i.e., the relation of the negligence to the injury." Id. at 169 (internal quotation marks and citation omitted). Beginning with the first of these, "[w]hat constitutes negligence for the FELA statute's purposes is a federal question, not varying in accordance with the differing conceptions of negligence applicable under state and local laws for other purposes." Noice, 2016-NMSC-032, ¶ 18 (alteration, internal quotation marks, and citation omitted). In that regard, "[t]he standard applied by federal courts in determining whether there is sufficient evidence to send a FELA case to the jury is significantly broader than the standard applied in common law negligence actions." Schulenberg v. BNSF Ry. Co., 911 F.3d 1276, 1286 (10th Cir. 2018) (internal quotation marks and citation omitted). "A FELA case can be taken from the jury only when there is a complete absence of probative facts to support the employee's claim." Id. (alteration, internal quotation marks, and citation omitted).

{7} FELA negligence encompasses a railroad's "duty to use reasonable care in furnishing its employees with a safe place to work." Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 558 (1987). As our UJI 13-908 NMRA indicates, FELA negligence may take the form of a failure to do an act "which a reasonably prudent person, in the exercise of ordinary care, would do in order to prevent injury to . . . another." "In deciding whether ordinary care has been exercised, the conduct in question must be considered in light of all the surrounding circumstances, as shown by the evidence." UJI 13-910 NMRA.

{8} Reasonable foreseeability of harm is an "essential ingredient of FELA negligence." CSX Transp., Inc. v. McBride, 564 U.S. 685, 703 (2011) (alteration, emphasis, internal quotation marks, and citation omitted). Therefore, under FELA, to establish that a railroad breached its duty to provide its employees with a safe workplace, the plaintiff must show circumstances in the workplace that the railroad could have reasonably foreseen as creating a potential for harm. McGinn v. Burlington N. R.R. Co., 102 F.3d 295, 300 (7th Cir. 1996).

{9} Concerning the second element of a FELA claim, causation, "FELA's language . . . is as broad as could be framed." McBride, 564 U.S. at 691 (internal quotation marks and citation omitted). "[I]n comparison to tort litigation at common law, a relaxed standard of causation applies under FELA." Id. at 692 (internal quotation marks andcitation omitted). "[T]he test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought." Rogers v. Missouri Pac. R.R. Co., 352 U.S. 500, 506 (1957); accord UJI 13-915 NMRA.

{10} Turning now to the district court's grant of summary judgment under Rule 1-056 NMRA, our review is de novo. See Noice, 2016-NMSC-032, ¶ 10.

{11} We are reminded of the following.

Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. We resolve all reasonable inferences in favor of the party opposing summary judgment, and we view the pleadings, affidavits, depositions, answers to interrogatories, and admissions in the light most favorable to a trial on the merits. . . . Where the evidence is susceptible to reasonable conflicting inferences bearing upon material facts, entry of summary judgment is improper. We are mindful that summary judgment is a drastic remedial tool which demands the exercise of caution in its application. . . . An issue of fact is "genuine" if the evidence before the court considering a motion for summary judgment would allow a hypothetical fair-minded fact[-]finder to return a verdict favorable to the non-movant on that particular issue of fact. An issue of fact is "material" if the existence (or non-existence) of the fact is of consequence under the substantive rules of law governing the parties' dispute.

Associated Home & RV Sales, Inc. v. Bank of Belen, 2013-NMCA-018, ¶¶ 22-23, 294 P.3d 1276 (alterations, internal quotation marks, and citations omitted).

II. Summary of the Parties' Arguments, the District Court's Ruling, and the Propriety of Taking Mr. Lydick's Testimony Into Account in the Summary Judgment Analysis

{12} On appeal and in his reply to BNSF's motion for summary judgment, Smith argues that he presented the district court with evidence of BNSF's negligence and evidence that BNSF's negligence caused Smith's injury; he argues that this presentation precludes summary judgment. BNSF counters, as it did below, that Smith cannot establish evidence of BNSF's negligence. As noted, along with its motion for summary judgment, BNSF filed a motion in limine under Rule 11-702 NMRA, to exclude the expert opinion of Smith's expert, Mr. Lydick. In that motion, BNSF argued that Mr. Lydick is not qualified to testify and that his opinions lack foundation. BNSF referenced these arguments in support of its motion for summary judgment, which was granted.

Although the basis for the ruling is not apparent,¹ the court clearly did not rule on the motion in limine or otherwise determine the admissibility of Mr. Lydick's opinions.

{13} Before considering the parties' arguments in more detail, we first dispose of BNSF's request that, in our review of the summary judgment motion, we treat Mr. Lydick's testimony as speculative, lacking in foundation, and therefore...