Clements v. Norfolk S. Ry. Co.

• Court: U.S. District Court — Middle District of Georgia
• Writing for the Court: HUGH LAWSON
• Decision Date: 09 November 2012
• Docket Number: Civil Action No. 5:11-CV-322 (HL)
• Citation: Clements v. Norfolk S. Ry. Co., Civil Action No. 5:11-CV-322 (HL) (M.D. Ga. Nov 09, 2012)
• Parties: MILLON R. CLEMENTS, Plaintiff, v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant.

MILLON R. CLEMENTS, Plaintiff, v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant.

Civil Action No. 5:11-CV-322 (HL)

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION

DATED: November 9, 2012

ORDER

This case is before the Court on Defendant Norfolk Southern Railway Company's Motion for Summary Judgment (Doc. 14). For the reasons discussed herein, the motion is denied.

I. FACTS

Plaintiff began working for Defendant in 1975. He started out as a laborer and moved through the ranks to become a truck driver. On May 20, 2010, Plaintiff was operating a material truck as part of his employment. He started his work day at the Davisboro yard. Plaintiff and his supervisor, Mr. Palmer, had a safety briefing over the telephone, where Plaintiff was advised to be careful and protect himself while out on the track.

Plaintiff was assigned the task of moving 115 pound tie plates and other scrap material from the Davisboro yard to the Millen yard. Plaintiff was workingby himself on the material truck. He used a magnetized boom lift to pick up the plates and other material and put them in the back of his truck.

After loading the material, Plaintiff drove to the Millen yard, where he was to drop off the tie plates and scrap material and pick up some anchors to take back to Davisboro. After he arrived at the Millen yard, Plaintiff noticed that the air conditioner in the truck "wasn't putting out like it's supposed to." (Deposition of Millon R. Clements, p. 72). Plaintiff had worked the three previous days in a kaolin mine, where he was moving material around for track work. Plaintiff attributed the air conditioning problem his previous work in the kaolin mine. ("And I knowed I'd been in the clay, working in that clay mine." (Clements dep., p 72)). So he decided to clean out the truck's air filters.

The material truck has three air filters, one large filter with a smaller filter inside of it and a second small filter near the dashboard. Plaintiff had replaced and cleaned the air filters in the past, but had never received any training on how to clean the filters.¹ However, he had seen other people clean them, either by blowing them out with an air hose or by beating them on the truck tire to knock the dust out. Plaintiff decided to beat the filters on his truck tire.

All three filters are located under the hood of the truck. Plaintiff cleaned the big filter first. He then cleaned one of the small filters. The filters were covered in kaolin. In order to get to the smaller filter, Plaintiff had to climb up on the passenger's side front tire. He stepped either on the bottom of the rim or the lug nuts at the bottom of the rim and then stepped on top of the tire. When climbing on top of the tire, Plaintiff had "a little help from that there bar up there I was pulling on, not too much pressure." (Clements dep., p. 87).

After Plaintiff finished cleaning the smaller filter, he stepped down off the tire. He "went lower" than he normally goes and felt pain in his back. (Clements dep., p. 92). He could not recall if he stepped directly to the ground from the top of the tire, or whether he stepped down onto the rim first. After his back began hurting, Plaintiff had to step back up on the tire and replace the filter and then step back down.²

Plaintiff admits that the air conditioner did not stop working completely. ("I didn't say it stopped working. It wasn't putting out air like I know it's supposed to put out." (Clements dep., p. 78)). While part of his reasoning behind cleaning the filters was to make the drive back to Davisboro and then home more comfortable, it was also a maintenance issue. "I figured it'd help the truck breathe more andmake me feel better while I was going to drive it." (Clements dep., p. 80). He testified that he decided to clean out the filters to "[m]aintain the - - yeah, to help me and the truck out." (Clements dep., p. 81). A mechanic typically performed standard maintenance work on the truck, but Plaintiff was also responsible for keeping the truck maintained. According to Plaintiff, "[w]ell, if you operating a truck like that there, you're responsible for keeping it maintained. And little simple, small things, you don't want to carry it to a mechanic to do every little thing. Some things you can do yourself." (Clements dep., p. 80). Further, "when maintenance on your vehicle need done, if you're responsible for that truck, you have to do what you can to keep that truck running." (Clements dep., p. 97).

Plaintiff had never previously complained to any supervisor about kaolin dust accumulation or the air conditioner not blowing cold air. He admits he was not required by Defendant to clean out the filters on the day at issue.

Plaintiff ultimately had to have surgery on his back. In August of 2011, Plaintiff filed a lawsuit against Defendant pursuant to the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51, et seq. ³ Plaintiff alleges that his back injury was caused by the negligence of Defendant. Plaintiff specifically contends that he was not provided with the proper equipment necessary to safely perform his job; that the walking surface in the yard where the incident occurred was in poorcondition; and that he was not properly or sufficiently trained to safely change the air filters in his truck.

When asked during his deposition how he believed Defendant was negligent, Plaintiff stated:

A: Well, I would say possibly - - well, you couldn't put a handle there to help you hold on. Possibly if you had a ladder, which you'll have to get off the back of the truck to get around there to get high enough to keep from climbing up and down on your tire.

Q: Did you have a ladder on the material truck?

A: No, sir.

Q: So one thing you think they could've done was have a ladder available, and then you could've climbed up the ladder as opposed to standing on the tire?

A: Well, it'd been high enough.

(Clements dep., p. 96).

Plaintiff also stated that the area where he was parked and where he stepped down to the ground was not level or made up of one single substance. That particular area of the yard consisted of dirt, rocks, and ballast.⁴ ("It's on -- it was on ballast. Well, it probably was dirt once, but it's a spot out there where,you know, when you spread it out, try to get the water hose out, and then there'll be rocks and ballast, trying to get it packed to keep the water from running off." (Clements dep., p. 77)). He testified that he "maybe" had "bad footing" when he stepped down, and it was possible he stepped on something that could have contributed to his injury. (Clements dep., p. 101).

Defendant has now moved for summary judgment, and argues that Plaintiff cannot establish foreseeability or causation, both of which are required to recover under FELA.

II. SUMMARY JUDGMENT STANDARD

Federal Rule of Civil Procedure 56 requires that summary judgment be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "The moving party bears 'the initial responsibility of informing the . . . court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.'" Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259 (11th Cir. 2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986) (internal quotations omitted)). Where the moving party makes such a showing, the burden shifts to the non-movant, who must go beyond the pleadingsand present affirmative evidence to show that a genuine issue of material fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505 (1986).

The applicable substantive law identifies which facts are material. Id. at 248. A fact is not material if a dispute over that fact will not affect the outcome of the suit under the governing law. Id. An issue is genuine when the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 249-50.

In resolving a motion for summary judgment, the court must view all evidence and draw all reasonable inferences in the light most favorable to the non-moving party. Patton v. Trial Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th Cir. 2002). But, the court is bound only to draw those inferences which are reasonable. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348 (1986))."If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of ajudge, whether he is ruling on a motion for summary judgment or for a directed verdict." Id. at 255.

In a FELA case, a plaintiff is required "to present more than a scintilla of evidence in order to create a jury question on the issue of employer liability, but not much more." Aparicio v. Norfolk & W. Ry. Co., 84 F.3d 803, 810 (6th Cir. 1996) (abrogated on other grounds). The court must also keep in mind that to "'deprive [railroad] workers of the benefit of a jury trial in close or doubtful cases is to take away a goodly portion of the relief which Congress has afforded them.'" Phillips v. Chesapeake & Ohio Ry. Co., 475 F.2d 22, 24 (4th Cir. 1973) (quoting Bailey v. Cent. Vermont Ry., 319 U.S. 350, 354, 63 S.Ct. 1062 (1943)).

III. ANALYSIS

"Railroads have a duty to furnish employees with a 'reasonably safe place in which to work and such protection ...