961 F.2d 1021 (2nd Cir. 1992), 363, Hogan v. Consolidated Rail Corp.

Docket Nº:363, 364, Dockets 91-7625, 91-7627.
Citation:961 F.2d 1021
Party Name:June E. HOGAN, Individually and as Administratrix of the Estate of Michael J. Hogan, Deceased, Plaintiff-Appellant, v. CONSOLIDATED RAIL CORPORATION, Defendant-Appellant, Excelsior Truck Leasing Company, Defendant, Norfolk & Western Railway Company, also known as Norfolk & Southern Railway Company, Defendant-Appellee.
Case Date:April 06, 1992
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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961 F.2d 1021 (2nd Cir. 1992)

June E. HOGAN, Individually and as Administratrix of the

Estate of Michael J. Hogan, Deceased, Plaintiff-Appellant,



Excelsior Truck Leasing Company, Defendant,

Norfolk & Western Railway Company, also known as Norfolk &

Southern Railway Company, Defendant-Appellee.

Nos. 363, 364, Dockets 91-7625, 91-7627.

United States Court of Appeals, Second Circuit

April 6, 1992

Final Submissions Oct. 31, 1991.

Argued Oct. 15, 1991.

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Marvin I. Barish, P.C., Philadelphia, Pa., for plaintiff-appellant, joined brief of defendant-appellant.

Susan C. Roney, Buffalo, N.Y. (Laurie S. Bloom, Mary C. Baumgarten, Nixon, Hargrave, Devans & Doyle, on the brief), for defendant-appellant.

Thomas F. Segalla, Buffalo, N.Y. (Patricia Gillen, Saperston & Day, on the brief), for defendant-appellee.

Before: KEARSE, PRATT, and WALKER, [*] Circuit Judges.

KEARSE, Circuit Judge:

Plaintiff June E. Hogan appeals from a judgment of the United States District Court for the Western District of New York, John T. Elfvin, Judge, dismissing so

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much of her complaint as asserted a negligence claim against defendant Norfolk & Western Railway Company ("N & W") in connection with the death of her husband Michael J. Hogan ("Hogan"). Defendant Consolidated Rail Corporation ("Conrail") appeals from so much of the judgment as dismissed its cross-claim against N & W. The district court granted partial summary judgment dismissing the claims against N & W on the ground that plaintiff and Conrail had failed to come forward with sufficient evidence that any negligence by N & W contributed to the accident leading to Hogan's death. The court later directed that a final judgment embodying its partial summary judgment be entered pursuant to Fed.R.Civ.P. 54(b). For the reasons below, we conclude that the Rule 54(b) certification was an abuse of discretion and that this Court lacks jurisdiction to hear the appeals.


The undisputed facts and the evidence developed in the pretrial proceedings thus far reveal the following. Hogan was employed by Conrail as foreman of a track maintenance crew. On the morning of October 19, 1987, just prior to the fatal accident, Hogan's Conrail crew was making repairs on tracks in Portland, New York. The pertinent section of Conrail track was approximately 114 feet away from tracks owned by N & W, and at the same time an N & W crew was cutting brush in the vicinity of its own tracks. Prior to the accident, Conrail employees had observed brush-cutting debris flying onto the Conrail right-of-way from the direction of the N & W operation and had complained to Hogan that the debris could cause injury to members of the Conrail crew. Hogan had indicated that he would try to talk to the N & W crew. Hogan was found dead after he was run over, on Conrail property, by a truck owned by defendant Excelsior Truck Leasing Company ("Excelsior") and driven in reverse by an employee of Conrail. The driver of the truck did not see Hogan until after the accident. There were no eyewitnesses.

Plaintiff commenced this wrongful death action against Conrail, N & W, and Excelsior, asserting claims against Conrail under the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60 (1988) ("FELA"), and against N & W on a common-law negligence theory, premising jurisdiction on both FELA and 28 U.S.C. § 1332 (1988) (diversity of citizenship). Her claim against N & W asserted that N & W had been negligent in the brush-cutting operation and had caused debris to hit Hogan, suggesting that this had rendered him unable to avoid being run over by the Conrail-operated truck. Conrail cross-claimed against N & W on the same premise, contending that N & W was at least jointly liable for Hogan's death.

The parties proceeded to conduct discovery seeking to determine, inter alia, the cause of the accident. A Conrail employee who saw Hogan lying in front of the Conrail truck immediately after the accident testified that Hogan had a head laceration and that there was a piece of wood in the vicinity of his head and shoulders. The coroner who had been called to the scene stated in an affidavit that he had not seen any wood, metal, or freshly cut brush near Hogan's body. He had observed a crushing injury to Hogan's head, but his report did not mention a laceration. No debris was found in Hogan's head wound; and no blood or human tissue was found on the piece of wood that the Conrail employee had seen near Hogan's head.

In light of the evidence elicited during discovery, N & W moved pursuant to Fed.R.Civ.P. 56 for dismissal of the claims against it on the ground that plaintiff and Conrail had failed to come forward with any evidence to indicate that any N & W debris had struck Hogan or any other possible causal connection between N & W's activities and Hogan's death. N & W contended that it was entitled to summary judgment because there was insufficient evidence to constitute a prima facie case of negligence against it. In a Memorandum and Order dated January 15, 1991 ("Decision"), 1991 WL 5142, the district court agreed.

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The court noted that though under New York law the plaintiff in a wrongful death case "is emburdened by a lower standard of proof than in a personal injury case, where the victim is available to testify as to cause ..., this does not mean that a plaintiff may maintain a wrongful death cause of action based only upon speculation or guesses." Id. at 6. In the present case, the court noted that there was "no evidence whatsoever that the piece of wood found near Hogan's head actually hit him," id. at 9; that the coroner and pathologist had found that Hogan's death was caused by multiple skull fractures and extreme skull compression, compatible with a truck running over his head; and that at the time of the accident, substantial noise had been created by a Conrail train passing, with whistle blowing, raising the possibility that Hogan had simply failed to hear the truck's back-up alarm. The court concluded as follows:

Thus, there is simply no evidence that links--with more than mere conjecture--N & W's brush-cutting activities with Hogan's demise. While it is possible that Hogan may have been hit by a piece of flying debris, such a conclusion simply cannot be reached without speculation. There are too many unknowns and too many other possible reasons for the accident. He may have slipped and fallen into the path of the truck. He may have, for some medical reason, fallen. He may have been looking away, distracted, and simply not heard the truck's back-up alarm. "If the circumstantial evidence presented lends itself equally to several conflicting inferences, the trier of fact is not permitted to select the inference it prefers, since to do so would be [the] equivalent of engaging in pure speculation about the facts."

Id. at 9-10 (quoting Mehra v. Bentz, 529 F.2d 1137, 1139 (2d Cir.1975), cert. denied, 426 U.S. 922, 96 S.Ct. 2628, 49 L.Ed.2d 375 (1976)).

In an order dated June 4, 1991, the court directed that a final judgment dismissing all claims against N & W be entered pursuant to Rule 54(b), stating the following reason:

This Court finds that the January 15, 1991 summary judgment was a final judgment as to Norfolk & Western because it disposed of all claims against that party. This Court also finds that there is no just reason to delay any appeal from this summary judgment. See Fed.R.Civ.P. rule 54(b). Indeed, if entry of final judgment is denied presently and, on appeal from the judgment involving the remaining defendant(s), it is determined that this Court's January 15, 1991 summary judgment was incorrectly granted, a complete new trial would have to be held. Because Conrail asserts that Norfolk & Western is at least partly responsible for any liability that might be determined against Conrail, this Court deems that the correctness vel non of its January 15, 1991 summary judgment should be determined prior to trial.

June 4, 1991 Order at 2, 1991 WL 100549. These appeals followed.


On appeal, Plaintiff and Conrail contend that the district court erred in granting summary judgment in favor of N & W, arguing that the evidence here "would clearly support a jury finding that [N & W]'s negligence proximately caused Hogan's death." (Conrail brief on appeal at 22.) Following oral argument, this Court asked the parties to submit briefs on the question of "whether the grounds stated in the district court's June 4, 1991 order, directing that a final judgment be entered pursuant to Fed.R.Civ.P. 54(b) on the partial summary judgment granted in favor of [N & W] were sufficient for a Rule 54(b) certification." Having received those briefs, we conclude, for the reasons below, that the certification was an abuse of discretion and that this Court lacks jurisdiction to hear these appeals.

In addition, we raise a question as to federal subject matter jurisdiction over the claims against N & W, to be explored by the district court.

  1. Appellate Jurisdiction

    Rule 54(b) provides an exception to the general principle that a final judgment

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    is proper only after the rights and liabilities of all the parties to the action have been adjudicated. It empowers the district court to enter a final judgment as to fewer than all of the parties in an action, but "only upon an express determination that there is no just reason for delay." Fed.R.Civ.P. 54(b). The determination of whether to grant Rule 54(b) certification is committed to the discretion of the district court and will be set aside only for an abuse of discretion. Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 8-10, 100 S.Ct. 1460,...

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