Ellison v. Shell Oil Co.

• Decision Date: 31 July 1989
• Docket Number: No. 87-5721,87-5721
• Parties: 14 O.S.H. Cas.(BNA) 1155 Charles V. ELLISON, Plaintiff, v. SHELL OIL COMPANY, Third-Party-Defendant-Appellee, Southern Pacific Transportation Company, Defendant-Third-Party-Plaintiff-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 349

882 F.2d 349

14 O.S.H. Cas.(BNA) 1155

Charles V. ELLISON, Plaintiff, v. SHELL OIL COMPANY, Third-Party-Defendant-Appellee Southern Pacific Transportation Company Defendant-Third-Party-Plaintiff-Appellant.

No. 87-5721.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 11, 1989.

Decided July 31, 1989.

Robert S. Wolfe, David E. Cranston and Theodore D. Levin, Morris, Polich & Purdy, Los Angeles, Cal., for third party plaintiff-appellant.

Raymond V. McCord, Shell Oil Co., Universal City, Cal., for third party defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before WALLACE, CANBY and TROTT, Circuit Judges.

WALLACE, Circuit Judge:

Southern Pacific Transportation Company (Southern Pacific) challenges the district court's directed verdict in favor of Shell Oil Company (Shell). Ellison, an employee of Southern Pacific, filed a personal injury action against Southern Pacific under the Federal Employers' Liability Act (FELA). Southern Pacific then brought a third party complaint seeking comparative indemnity from Shell for its alleged role in causing Ellison's injury. Southern Pacific argues that the district court erred in its conclusions that Shell owed no duty to Ellison and that there was insufficient evidence that Shell breached any duty.

The district court had jurisdiction over Ellison's cause of action against Southern Pacific under 28 U.S.C. Sec. 1337(a) and 45 U.S.C. Sec. 56. The district court had ancillary jurisdiction over Southern Pacific's third party claim for indemnity against Shell. United States v. City of Twin Falls, 806 F.2d 862, 866-67 (9th Cir.1986), cert. denied, 482 U.S. 914, 107 S.Ct. 3185, 96 L.Ed.2d 674 (1987); see also United States v. United Pacific Insurance Co., 472 F.2d 792, 794-95 (9th Cir.), cert. denied, 411 U.S. 982, 93 S.Ct. 2273, 36 L.Ed.2d 958 (1973). We have jurisdiction over Southern Pacific's timely appeal pursuant to 28 U.S.C. Sec. 1291. We reverse and remand.

I

The accident occurred on April 27, 1985, at an oil refinery yard owned by Shell in Carson, California (Carson refinery). Ellison, a brakeman employed by Southern Pacific, was part of a Southern Pacific switching crew engaged in "pulling and spotting" liquid petroleum gas railroad tank cars. "Pulling and spotting" is a process in which a switching crew moves designated empty cars from storage tracks to a "loading facility" where they are "spotted" in place for loading.

Ellison's duties frequently required him to board moving railroad cars. To board a tank car, Ellison would take hold of a "grab iron" to step onto a stirrup, and then use the grab iron to pull himself onto the catwalk. The accident occurred when Ellison attempted to board tank car SOEX 3230, which was owned and exclusively used by Shell. The grab iron, which was bolted to the ladder leading to the catwalk, gave way when Ellison took hold of it, causing him to fall to the ground and sustain injuries.

Examination of the grab iron after the accident revealed that a bolt which attached the grab iron to the ladder was missing. Although the surrounding ground surface was paved with blacktop, this missing bolt was never found. There was conflicting testimony as to whether the bolt "sheared off" when Ellison took hold of the grab iron or whether by then it was already missing.

The relationship between Southern Pacific and Shell with respect to this tank car is somewhat difficult to unravel. As already stated, Shell owned and exclusively used the car. Southern Pacific, however, had sole responsibility for moving Shell's railroad cars within, as well as into and out of, the Carson refinery. Shell did not have the personnel or facilities to do this itself. Although Southern Pacific had some discretion over the movement of Shell's cars and could move them without permission, Southern Pacific generally moved cars at Shell's direction.

The record reflects that Jewel Taylor, a Shell employee, coordinated the movement of tank cars into and out of the Carson refinery. Maxcimo Nava, a freight carman employed by Southern Pacific, performed maintenance for freight cars in several yards including the Carson refinery. Taylor and Nava had an arrangement whereby Nava would inspect Shell's cars before Southern Pacific "pulled and spotted" the cars at the loading facility. Southern Pacific would notify Taylor as soon as empty tank cars owned by Shell arrived at the Carson refinery or Southern Pacific's Delores storage yard nearby. Taylor would then tell Nava which cars had arrived, and Nava would make a preliminary mechanical inspection of the cars. Nava made no written report of these inspections, but rather would call Taylor and let her know of any defects requiring repair. Taylor would then see that the repairs were made. She would ask Nava if he could fix the problem; if not, he would "bad order" the car and Taylor would arrange for someone else to repair it.

This was apparently an informal arrangement. The record discloses no such contract governing (1) the relationship between Shell and Southern Pacific, or (2) the responsibility for inspecting either Shell's cars in general, or car SOEX 3230 in particular. Nava was never paid for these preliminary inspections. Taylor described this procedure as a "courtesy car inspection," and Nava's testimony confirmed that this was an informal accommodation. Aside from this informal arrangement, no formal procedure existed for inspection of cars between their arrival at Shell's yard and the time they were "spotted" at the loading facility. "Normally," Taylor testified, such an inspection "really wasn't done." Although she believed that such inspections were needed to expedite the movement of the cars, Taylor could not recall mentioning this need to her supervisors.

Once a car reached the loading facility, two formal inspections would occur. Before loading, Shell personnel would perform a mechanical inspection of the car. After it was loaded, Nava would perform a "Class A inspection." Normally, a car which passed Class A inspection would leave the Carson refinery the same day. Southern Pacific was required under the Safety Appliance Acts to perform such an inspection before the car left the yard and moved onto the railroad line, even if the car was owned by a private shipper such as Shell. 45 U.S.C. Sec. 23.

On April 1, 1985, 26 days before the accident, car SOEX 3230 was formally inspected. The car then left the Carson refinery and arrived loaded in Houston on April 7. The car's whereabouts from April 7 to April 15, 1985, are unclear from the record--presumably it stayed in Houston. Starting April 15, Southern Pacific pulled the empty car from Houston to the Carson refinery, where it arrived on April 22. On April 22 and 23, Southern Pacific removed the car from the Carson refinery and then returned it. The car sat idle and empty on storage tracks at the Carson refinery for the next four days until the accident occurred.

It is unclear from the record whether the car received a "courtesy inspection" from Nava after it reached the Carson refinery. As mentioned above, no written records were kept of these "courtesy inspections," and Taylor had no notes indicating any problem with the car. After telling Nava which cars needed "courtesy inspections," she heard back from him only when an inspection revealed a problem. If she heard nothing, she assumed that Nava had inspected the cars and found no defects or problems.

Ellison brought an action against Southern Pacific under the FELA, 45 U.S.C. Secs. 51-60, alleging violations of the Safety Appliance Acts, 45 U.S.C. Secs. 1-16. The court allowed Southern Pacific to file a third-party action against Shell for indemnity, contribution, and offset. At the conclusion of testimony before a jury, Shell moved for and the district court granted a directed verdict on Southern Pacific's third party claim. Ellison and Southern Pacific then settled the dispute.

II

A directed verdict is reviewed independently; "[t]he court must view the evidence in the light most favorable to the nonmoving party and draw all possible inferences in favor of that party." Donoghue v. County of Orange, 848 F.2d 926, 932 (9th Cir.1987) (Donoghue ). A directed verdict may be upheld only when the evidence permits but one reasonable conclusion as to the verdict. Id.

We look to California law to provide the substantive tort law governing Southern Pacific's ancillary claim against Shell. Armstrong v. Kansas City Southern Railway Co., 752 F.2d 1110, 1114 (5th Cir.1985) (Armstrong ) (state law governs FELA defendant's right to seek indemnity); Ratigan v. New York Central Railroad Co., 291 F.2d 548, 553 (2d Cir.) (same), cert. denied, 368 U.S. 891, 82 S.Ct. 144, 7 L.Ed.2d 89 (1961); see Mayview Corp. v. Rodstein, 620 F.2d 1347, 1357 n. 7 (9th Cir.1980). The district court's interpretation of California law is reviewed independently. Hutchinson v. United States, 841 F.2d 966, 967 (9th Cir.1988).

As a threshold matter, the parties dispute whether our review should address the grounds stated by the district judge in ruling orally on the directed verdict, or the grounds specified in his written judgment. Southern Pacific observes that not only do these grounds differ significantly, but the written judgment was prepared by counsel for Shell. See Heiniger v. City of Phoenix, 625 F.2d 842, 844 n. 4 (9th Cir.1980) (court must "scrutinize with greater than usual care" findings of fact drafted by one party's counsel and adopted verbatim by the court). However, counsel for Southern Pacific conceded at oral argument that the written judgment reflected the considered judgment of the court. We are aware of no case directing us to review the oral judgment rather than the written judgment. Oral responses from the bench may fail to convey the judge's ultimate evaluation. Subsequent consideration may cause the district judge to modify his or...