458 F.3d 80 (2nd Cir. 2006), 05-1945, Tufariello v. Long Island R. Co.

Docket Nº:05-1945-CV.
Citation:458 F.3d 80
Party Name:Vito TUFARIELLO, Plaintiff-Appellant, v. LONG ISLAND RAILROAD COMPANY, Defendant-Appellee.
Case Date:July 20, 2006
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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458 F.3d 80 (2nd Cir. 2006)

Vito TUFARIELLO, Plaintiff-Appellant,



No. 05-1945-CV.

United States Court of Appeals, Second Circuit.

July 20, 2006

        Argued: Jan. 13, 2006.

        Appeal from a judgment of the United States District Court for the Eastern District of New York (Cheryl L. Pollak, Magistrate Judge). The plaintiff brought suit against the defendant under the Federal Employers' Liability Act, 45 U.S.C. §§ 51 et seq., for the hearing loss he allegedly sustained while he was employed by the defendant in its rail yard. The district court granted the defendant's motion for summary judgment, concluding that the plaintiff's claims were precluded by regulations promulgated under the Federal Railroad Safety Act, 49 U.S.C. § 20106 and, alternatively, that the plaintiff had not established a prima facie case of negligence because he failed to adduce sufficient evidence on the issues of causation and breach of duty.

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        Philip Patrick Vogt, Altier & Vogt, LLC, New York, NY, for Plaintiff-Appellant.

        Sean Patrick Constable, Long Island Railroad Co. Law Department, Jamaica, NY, for Defendant-Appellee.

        Before CABRANES and SACK, Circuit Judges, and AMON, District Judge. [*]

        SACK, Circuit Judge.

        The plaintiff, Vito Tufariello, was until his retirement in 2003, employed by the Long Island Railroad Company (the "LIRR") as a mechanic in one of its rail yards. Locomotives would sound their horns whenever they entered or exited the railroad station adjacent to this yard. In 1998 and 1999, the LIRR introduced new locomotives into service. In June and July 1999, it modified the new locomotives' horns in response to complaints that they were too loud and too shrill.

        In 2003, Tufariello brought this action under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51 et seq., alleging that the repeated sounding of the horns had caused him permanent hearing loss and that the LIRR had negligently exposed him to those sounds at his workplace. The district court granted summary judgment in favor of the LIRR, concluding that Tufariello's FELA action was "preempted" by the Federal Railroad Safety Act of 1970 ("FRSA"), 45 U.S.C. § 421 et seq. (repealed in 1994 and reinstated in substance in 49 U.S.C. § 20101 et seq.). The court further concluded that even if this claim were not preempted, Tufariello could not make out a prima facie case of negligence because he did not offer expert testimony or objective measurements of the horns' decibel levels necessary to establish either that the train horns caused his hearing loss or that the

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LIRR breached its duty of care to him. We disagree with both conclusions and therefore vacate the judgment of the district court. We remand the matter to that court.


        "In setting forth the facts underlying this appeal from the district court's grant of summary judgment to the defendant[], we construe the evidence in the light most favorable to the plaintiff, drawing all reasonable inferences and resolving all ambiguities in [the plaintiff's] favor." Colavito v. N.Y. Organ Donor Network, Inc., 438 F.3d 214, 217 (2d Cir. 2006).

        The Train Horns

        Tufariello worked for the LIRR from 1978 until 2003 as a "B and B mechanic." In that capacity, he installed and replaced windows, painted doors, fixed shingles on roofs, and installed tile and linoleum. In 1998 and 1999, Tufariello was assigned to the LIRR's Patchogue Yard, where he built parts for a bridge project.2 At that time, the LIRR placed into service its new diesel-electric ("DE") and dual-mode ("DM")3 locomotives, which were equipped with warning horns that were sounded as the locomotives entered and exited Patchogue station.

        According to Tufariello, these horns were so loud that "a person's speech could not be heard by another person within one arm's length when spoken at normal levels in the Yard." Plaintiff's 56.1 Statement ¶ 34. He also asserts that each time a horn would sound, "it caused physical discomfort and my ears would continue to ring after the horn stopped." Aff. of Vito Tufariello, Feb. 15, 2005, at ¶ 16. Tufariello contends that he asked the LIRR's building and bridge supervisor, Keith McFarland, for hearing protection three or four times but was never provided with it.

        Tufariello was not the only person employed at the yard who complained about the horns. McFarland testified that "everyone" in the yard did. Dep. of Keith Mc[F]arland, Dec. 7, 2004, at 15 ("McFarland Dep.").4 He also stated that upon hearing the blasts, "[y]ou would have to put your hands over your ears . . . [b]ecause it was incredibly loud." Id. at 25. Somewhere between six and twelve locomotives would sound their horns each day, with each blast lasting about ten to fifteen seconds.

        Community residents and local political representatives also complained to the LIRR about the loudness and shrillness of the horns. In response, the LIRR agreed to test them in order to ensure their compliance with federal standards. The LIRR conducted such tests in May and June 1999 at its Richmond Hill and Morris Park Yards, but it conducted no such tests at Patchogue Yard. The tests showed that when measured 100 feet in front of the locomotive on the track, the horns' sounds were, at their loudest, a time-weighted average of 100 dB(A).5 When the same

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horns were measured from 30 feet at a 90 degree angle from the track, the loudest level recorded was 110 dB(A).

        As a result of the tests, the LIRR decided to reduce the frequency (or pitch) of the horns and to reposition them on the locomotives. After the modifications, the horns recorded a decibel level of 108 dB(A) when measured 100 feet in front of the locomotive on the track. They recorded a decibel level of 111 dB(A) when measured from 30 feet at a 90 degree perpendicular angle from the track.

        Throughout this time, the LIRR was conducting a "Hearing Conservation Program" pursuant to regulations promulgated by the Occupational Safety & Health Administration ("OSHA"). See 29 C.F.R. § 1910.95(c). Under this program, hearing protection was made available to all LIRR employees who were exposed to an eight-hour time-weighted average sound level ("TWA") of 85 dB(A) or greater. The LIRR asserts that it further ensured that such hearing protection was worn by any employee exposed to a TWA of 90 dB(A) or greater. Tufariello testified, however, that he was never provided with any such protection. Dep. of Tufariello, May 4, 2004, at 20. McFarland testified that he discouraged the workmen from wearing hearing protection "for safety reasons," lest it prevent them from hearing vehicles and equipment in the yard. McFarland Dep. at 16. It was, however, never established what decibel level of sound Tufariello was exposed to while working in the yard.

        According to Tufariello, in September 2000, he began to notice that he was having trouble hearing. An examining physician, Dr. Eliot Danziger, told Tufariello that he had suffered permanent hearing loss and referred him to another doctor, who provided Tufariello with a hearing aid. Dr. Danziger later averred that based on his audiological testing, Tufariello suffered from a "severe sensorial impairment bilaterally." Aff. of Dr. Eliot Danziger, Feb. 16, 2005, at ¶ 5. He further stated that it was his opinion "with a reasonable degree of medical certainty" that the injury to Tufariello's ears "was caused by exposure to 10-12 train horn blasts per day in the Patchogue Yard in late 1998 and 1999." Id. at ¶ 19.

        The District Court Opinion

        On July 18, 2003, Tufariello filed a complaint in the United States District Court for the Eastern District of New York. He alleges that the LIRR was negligent for, among other things, "failing to provide proper hearing protection to [him] in light of his exposure to excessive noise" and for not providing him with "reasonably safe conditions in which to work, and reasonably safe tools and equipment." Compl. at 2-3. Such negligence, he asserts, caused him permanent hearing loss for which the LIRR was liable under FELA. On January 24, 2005, the LIRR filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56.

        The district court (Cheryl L. Pollak, Magistrate Judge)6 granted the LIRR's motion. It first concluded that Tufariello's claims were "preempted" by the FRSA. Tufariello v. Long Island R.R. Co., 364 F.Supp.2d 252, 256 (E.D.N.Y. 2005). The court recognized that the preemption provision of the FRSA, 49 U.S.C. § 20106, affects only the propriety of applying provisions of state law, but it reasoned that the FRSA's goal of uniformity in the law relating to railway safety required that it also trump FELA insofar as the two federal statutes conflict. Id. at 257-61. Because

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regulations promulgated pursuant to the FRSA provide for a minimum decibel level for train warning-devices, the court concluded, such a regulation " 'cover[ed]' the subject matter" of warning devices, thereby precluding Tufariello's cause of action under FELA. Id. at 259-60.

        The district court then concluded that even if Tufariello's claims were not precluded by the FRSA, he had still failed to make out a prima facie case of negligence. Without expert testimony, Tufariello could not establish that the horn blasts caused his injury, and without objective evidence of the decibel level of the horns, Tufariello could establish neither causation nor that the LIRR breached its duty to maintain a safe workplace. Id. at 261-62.

        Tufariello appeals.


        I. Standard of Review


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