Albert v. Southern Pacific Transportation Co., B073689

• Citation: 30 Cal.App.4th 529,35 Cal.Rptr.2d 777
• Decision Date: 28 November 1994
• Docket Number: No. B073689,B073689
• Court: California Court of Appeals
• Parties: Bertrand E. ALBERT, Plaintiff and Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant and Respondent.

Page 777

35 Cal.Rptr.2d 777

30 Cal.App.4th 529

Bertrand E. ALBERT, Plaintiff and Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant and Respondent.

No. B073689.

Court of Appeal, Second District, Division 4, California.

Nov. 28, 1994.

Rehearing Denied Dec. 21, 1994.

Review Denied Feb. 23, 1995.

Magana, Cathcart & McCarthy, Brian R. Magana and Deborah Mitzenmacher, Los Angeles, for plaintiff and appellant.

Lane, Powell, Spears & Lubersky and Lawrence P. Riff, Los Angeles, for defendant and respondent.

ARLEIGH M. WOODS, Presiding Justice.

Bertrand E. Albert (Albert) appeals judgment entered against him in his action against Southern Pacific Transportation Company (SP or respondent) after the court granted respondent's motion for summary judgment. (Code Civ.Proc., § 437c, subd. (c).)

While working for SP on March 28, 1991, Albert, then 55 years old, suffered a heart attack. He had never experienced any symptoms or been told by any physician that there was anything wrong with his heart. Until the attack, Albert felt "[v]ery normal." As a result, no one at SP had any knowledge of his heart condition.

Albert had been a carman for SP since 1973, working in the Cornfield Yard, where SP repairs and maintains its cars. On March 28, 1991, during the 6 a.m. safety meeting Albert and his partner, Charlie Moten, were assigned to replace couplers and perform other repairs on a car that his supervisor wanted repaired before the SP switch engine picked up the cars between 10:30 a.m. and noon. ¹

March 28 was a "clear, sunny" day. There was nothing out of the ordinary about Albert's physical condition. Before stopping for lunch at 10:30 a.m., Albert had replaced one coupler and changed the brake shoes on one end of the car. At that time, Albert felt that everything was "[b]eautiful."

After lunch, Albert and Moten commenced work on the second coupler. They had difficulty removing the "cross key," a large cotter pin-like device that fits into a slot in the coupler. Although he had a 12-pound sledgehammer in his work cart, Albert attempted to drive the key out of its slot with the 16-pound sledgehammer as was his habit when there was a "cross key that did not want to move." Albert and Moten alternated turns using the sledgehammer. Albert swung the sledgehammer 10 times in each of 3 sets, while Moten did not swing it as many times.

While Albert was working on the coupler, Johnny Juarez, the foreman, noticed that they were not having success with the sledgehammer and he suggested that it would be easier to use a forklift and chain to finish the job. Juarez then left and the forklift driver was summoned to remove the cross key.

Juarez returned to the car after the cross key had been removed. He monitored the progress made by Albert. Albert said seeing his supervisor there "kind of made me nervous in a way" knowing that the job was to be completed by noon.

After removing the worn cross key, the forklift driver delivered a replacement. They could not insert the new cross key into the coupler. Albert and Moten repeated their process of alternating in hitting the cross key with the sledgehammer. Again the cross key was struck about 30 times by Albert and about 10 times by Moten. They were not successful. The forklift driver was again summoned to remove the new cross key, have it ground to remove a burr that had formed on it, and returned to the car.

After the forklift driver repositioned the cross key, Albert hit it another 15 times in about 25 seconds, but with no success. At that point, Albert felt tired, but not ill. The forklift was used to pound the cross key in. On the drive to the locker room, about 12:55 p.m., Albert experienced the onset of the heart attack symptoms.

On August 14, 1991, Albert filed a complaint against respondent in which he alleged a cause of action for negligence pursuant to the Federal Employers Liability Act (FELA). Respondent answered and then moved for summary judgment on the grounds that (1) Albert's heart attack was not foreseeable by SP, and (2) Albert could not show by expert opinion that, to a reasonable medical probability, Albert's heart attack was caused by SP's negligence. The court granted the motion and entered judgment for respondent. ² This appeal followed. We affirm.

A motion for summary judgment shall be granted "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ.Proc., § 473c, subd. (c).) When the defendant is the moving party, summary judgment is proper if the defendant demonstrates the absence of an essential element of the plaintiff's case. (Dolquist v. City of Bellflower (1987) 196 Cal.App.3d 261, 266, 241 Cal.Rptr. 706.) In the instant case, the trial court granted summary judgment on the grounds that, as a matter of law, Albert's heart attack was unforeseeable, thus negating an essential element of his negligence action. Our review of this determination is de novo. (Homestead Savings v. Darmiento (1991) 230 Cal.App.3d 424, 430, 281 Cal.Rptr. 367.)

Under FELA a railroad employer is "liable in damages to any person suffering injury while he is employed by such employer" for such injury or death resulting in whole or in part caused by the employer's negligence. (45 U.S.C., § 51.) Thus, the FELA plaintiff "must show both negligence on the part of the employer and causation." (Heater v. Chesapeake and Ohio Railway Company (7th Cir.1974) 497 F.2d 1243, 1246.) The plaintiff must make out a prima facie case of negligence on the part of the employer, including the element of reasonable foreseeability. (Gallick v. Baltimore & Ohio R.R. Co. (1963) 372 U.S. 108, 117, 83 S.Ct. 659, 665, 9 L.Ed.2d 618 ["reasonable foreseeability of harm is an essential ingredient of [FELA] negligence. [Citations.]"].) "To recover, the plaintiff must prove that the railroad, with the exercise of due care, could have reasonably foreseen that a particular condition could cause injury. [Citations.] The defendant's duty is measured by what a reasonably prudent person should or could have reasonably anticipated as occurring under like circumstances. [Citation.]" (Davis v. Burlington Northern, Inc. (8th Cir.1976) 541 F.2d 182, 185; Dale v. Baltimore & Ohio R. Co. (1989) 520 Pa. 96, 552 A.2d 1037, 1038 ["a plaintiff must establish, inter alia, that the employer could have foreseen that injury to the employee was likely or reasonably probable...."].) Although foreseeability is ordinarily a question of fact for the jury, it can be decided as a matter of law when "reasonable minds cannot disagree on the propriety of the [trial] court's resolution of the issue." (552 A.2d at p. 1040.)

Relevant authority holds that a railroad employer cannot be held liable under FELA for a heart attack suffered by its employee in the regular course of his employment when neither the railroad nor the employee had any reason to believe that the employee had a heart condition. Under these circumstances, the injury was not reasonably foreseeable. (Robert v. Consolidated Rail Corp. (1st Cir.1987) 832 F.2d 3, 5-7; Morrison v. Illinois Cent. Gulf R. Co. (Miss.1980) 387 So.2d 754, 756; Thompson v. Tippit (Tex.App.1957) 300 S.W.2d 351, 355-358; Creamer v. Ogden Union Railway & Depot Co. (1952) 121 Utah 406, 242 P.2d 575, 577-578.)

In Robert, the plaintiff alleged that he suffered an off-the-job heart attack as the result of an extended period of on-the-job harassment by his supervisors. Conrail moved for summary judgment on the grounds that the plaintiff's heart attack was unforeseeable because he had never previously experienced symptoms of heart trouble, had not complained about the harassment or related stress and had not alleged that Conrail negligently failed to stop the harassment. (Robert v. Consolidated Rail Corp., supra, 832 F.2d at p. 5.) The trial court granted summary judgment and the plaintiff appealed.

On appeal, while acknowledging the broad remedial purpose of FELA, the reviewing court upheld the summary judgment because the plaintiff's "case is lacking as to proof of foreseeability.... [T]he record fails to show that Conrail knew or should have known of the possibility that its conduct toward Robert would cause him to suffer a heart attack. We would have a much different case if Conrail, knowing of appellant's heart condition, acted negligently toward Robert." (Robert v. Consolidated Rail Corp., supra, 832 F.2d at p. 6, fn. omitted.) The court concluded that the plaintiff "failed to establish that Conrail could or should reasonably have foreseen that he would suffer a heart attack from stress of which Conrail was never informed." (Id. at p. 7.)

Similarly, in Morrison, the reviewing court upheld a directed verdict where the plaintiff, who suffered an on-the-job stroke, claimed that the railroad was negligent in failing to restrict his duties to avoid the possibility of a stroke or heart attack when there was no evidence that he suffered from a medical condition that might induce a stroke or heart attack. (Morrison v. Illinois Cent. Gulf R. Co., supra, 387 So.2d at p. 756.)

In Thompson, the plaintiff suffered from an arterial condition that made him susceptible to heart attack but neither he nor his employer, the railroad company, was aware of it. While engaged in heavy physical exertion, the plaintiff sustained a heart attack and subsequently brought a suit against the railroad under FELA. The jury returned a verdict in his favor. The railroad appealed and the judgment was reversed on the grounds that the evidence failed to support a finding of negligence because "the record is still devoid of any evidence from which it may be fairly said that the defendant was charged with notice of any fact or facts from which the heart attack which plaintiff sustained could be anticipated as a result of the work to...