Beeber v. Norfolk Southern Corp.

• Decision Date: 20 September 1990
• Docket Number: Civ. No. F 90-30.
• Parties: Thomas A. BEEBER, Plaintiff, v. NORFOLK SOUTHERN CORPORATION, Defendant.
• Court: U.S. District Court — Northern District of Indiana

754 F. Supp. 1364

Thomas A. BEEBER, Plaintiff, v. NORFOLK SOUTHERN CORPORATION, Defendant.

Civ. No. F 90-30.

United States District Court, N.D. Indiana, Fort Wayne Division.

September 20, 1990.

COPYRIGHT MATERIAL OMITTED

David K. Hawk, Hawk, Haynie & Gallmeyer, Fort Wayne, Ind., Paul K. Hemmer, Columbus, Ohio, for plaintiff.

Russell H. Hart, John C. Duffey, Stuart & Branigin, Lafayette, Ind., for defendant.

MEMORANDUM OF DECISION AND ORDER

ROGER B. COSBEY, United States Magistrate Judge.

This matter is before the court¹ based on "Defendant's Motion for Summary Judgment", filed on July 16, 1990. The plaintiff responded to the summary judgment motion on August 14, 1990 and the defendant replied on August 22, 1990. The matter has been fully briefed and is now ripe for ruling. For the reasons stated below, defendant's motion for summary judgment will be granted in part and denied in part.

FACTUAL BACKGROUND

Thomas Beeber's ("plaintiff") complaint alleges four counts against Norfolk and Western Railroad ("defendant") based on two factually unrelated injuries and is brought pursuant to the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51 et seq.; the Safety Appliance Act ("SAA"), 45 U.S.C. § 1 et seq.; and the Boiler Inspection Act ("BIA"), 45 U.S.C. § 22 et seq.

Count I relates to a February 1, 1988 incident. Plaintiff claims that while working as a conductor for the defendant that he received a right inguinal hernia resulting from applying "extra strain" in his attempt to throw a derail.² Plaintiff was required to throw the derail in order to allow railroad cars to be placed onto a side track. This count of the complaint alleges that defendant's negligent failure to inspect and maintain the derail caused an unsafe work place, thus giving rise to a claim under the FELA. The defendant's motion for summary judgment, simply stated, is that plaintiff has not shown any negligence, even the slightest, by defendant.

To attempt to show the defendant's negligence and to oppose the motion for summary judgment under count I, plaintiff offers three types of evidence. First, plaintiff gives his own opinion that defendants failed to properly inspect and maintain the derail. Second, he repeats the statements purportedly made by other individuals that the derail was defective and had been reported. Finally, he contends that the derail has been replaced since the occurrence of plaintiff's injury; this to ostensibly raise the inference that if the derail had been working properly there would have been no need to replace it at all.

Counts II through IV relate to plaintiff's next injury which occurred on August 30, 1988. There, the train on which plaintiff was riding, together with an engineer and brakeman, failed to stop when the engineer applied the dynamic brakes. This brake failure necessitated the use of air brakes and emergency brakes in order to stop the train. Once the train was stopped, plaintiff, who was riding in the caboose, discovered that in the process of stopping the train it had become separated approximately 20 car lengths ahead. Plaintiff left the caboose and went to inspect the separation. Once there, he discovered that two knuckles³ had broken. Without waiting the thirty to sixty minutes it would take for the brakeman to join him from the other end of the train, plaintiff returned to the caboose to get a replacement knuckle, and proceeded back to the separation point to begin repairs. After carrying the 75 pound knuckle plaintiff discovered a strain. Counts II, III and IV of the complaint allege that defendant negligently failed to maintain, inspect and repair its equipment; failed to provide plaintiff with adequate assistance on the train; and generally failed to provide a reasonably safe place to work, thus, stating claims under FELA, SAA and BIA.

With respect to his second injury, and the remaining claims, plaintiff claims that the dynamic brake system failed to stop the train either because it was not working properly or because it was inadequate to perform the job. As a result, two knuckles broke, (allegedly when emergency brake procedures were applied) and it fell to plaintiff to replace them. The central question becomes whether any of defendant's purported deficiencies (generally stated as; negligence, violation of the SAA and/or violation of the BIA) were the proximate cause of plaintiff's injuries.

SUMMARY JUDGMENT STANDARD

The standard for summary judgment is well known to this Court. Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The standard for granting summary judgment mirrors the directed verdict standard under Rule 50(a), which requires the court to grant a directed verdict where there can be but one reasonable conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). A scintilla of evidence in support of the non-moving party's position is not sufficient to successfully oppose summary judgment; "there must be evidence on which the jury could reasonably find for the plaintiff." Id. 106 S.Ct. at 2512; Valentine v. Joliet Twp. High School Dist. No. 204, 802 F.2d 981, 986 (7th Cir.1986).

Initially, Rule 56 requires the moving party to inform the court of the basis for the motion, and to identify those portions of the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which demonstrate the absence of a genuine issue of material fact." Celotex, 106 S.Ct. at 2553. The non-moving party may oppose the motion with any of the evidentiary materials listed in Rule 56(c), but reliance on the pleadings alone is not sufficient to withstand summary judgment. Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir. 1983), cert. denied, 464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983). In ruling on a summary judgment motion the court accepts as true the non-moving party's evidence, draws all legitimate inferences in favor of the non-moving party, and does not weigh the evidence or the credibility of witnesses. Anderson, 106 S.Ct. at 2551.

Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. Id. at 2510. Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute. Id. The issue of fact must be genuine. Fed.R.Civ.P. 56(c), (e). To establish a genuine issue of fact the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Id. A summary judgment determination is essentially an inquiry as to "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 106 S.Ct. at 2512.

DISCUSSION

COUNT I

Any discussion about this count should start at Fed.R.Civ.P. 56(e) which reads in part:

Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to matters stated therein. (emphasis added).

In short, plaintiff must come forward with evidence to establish the existence of an element essential to his case. Celotex, 477 U.S. 317, 106 S.Ct. at 2550. In so doing, he must establish negligence under the FELA. Herdman v. Pennsylvania R.R. Co., 352 U.S. 518, 77 S.Ct. 455, 1 L.Ed.2d 508 (1957). His task is relatively simple: to show that defendant's negligence played any part, even the slightest in producing the injury for which damages are sought. Prosser and Keeton on The Law of Torts § 80 (W. Keeton, D. Dobbs, R. Keeton, & D. Owen 5th ed. 1984). Having said that, however, it is well to remember that speculation, conjecture and possibilities are still not enough. Id.

To start off, defendant has a duty under the FELA to exercise reasonable care in providing a reasonably safe place to work, reasonably safe conditions in which to work and reasonably safe tools and equipment. Shenker v. Baltimore & Ohio R.R. Co., 374 U.S. 1, 7, 83 S.Ct. 1667, 1671, 10 L.Ed.2d 709 (1963); Urie v. Thompson, 337 U.S. 163, 178 n. 16, 69 S.Ct. 1018, 1028 n. 16, 93 L.Ed. 1282 (1949).

The defendant's liability is not absolute, however, and the employer is not liable for failing to provide a safe workplace if it has no reasonable way of knowing that the potential hazard exists. Gallose v. Long Island R. Co., 878 F.2d 80 (2nd Cir. 1989). If an employer learns or should learn of potential hazards it must take reasonable steps to investigate, inform and protect its employees or it will be liable for any resulting injury. Id. The court will discuss seriatim each of the three ways plaintiff has attempted to show a breach of this duty by defendant.

A. Plaintiff's Lay Opinion Testimony

Plaintiff first offers his own affidavit testimony that when he attempted to operate the derail it was stiff and hard to operate. Plaintiff's affidavit ¶ 3. He next opines that a properly working derail would not be stiff or...