Dehahn v. Csx Transp. Inc

• Decision Date: 15 April 2010
• Docket Number: No. 79A02-0905-CV-443.,79A02-0905-CV-443.
• Citation: 925 N.E.2d 442
• Parties: Russell A. DEHAHN, Appellant-Plaintiff,v.CSX TRANSPORTATION, INC., Appellee-Defendant.
• Court: Indiana Appellate Court

925 N.E.2d 442

Russell A. DEHAHN, Appellant-Plaintiff,v.CSX TRANSPORTATION, INC., Appellee-Defendant.

No. 79A02-0905-CV-443.

Court of Appeals of Indiana.

April 15, 2010.

COPYRIGHT MATERIAL OMITTED

Edward F. Brennan, Ryan Brennan, The Brennan Law Firm, P.C., Belleville, IL, Donald K. Blair, Blair and Griffith, Monticello, IN, Attorneys for Appellant.

Geoffrey L. Blazi, John C. Duffey, Sarah N. Snoeberger, Stuart & Branigin LLP, Indianapolis, IN, Attorneys for Appellee.

OPINION

MATHIAS, Judge.

Russell A. DeHahn (“DeHahn”) appeals the Tippecanoe Circuit Court's grant of summary judgment in favor of CSX Transportation, Inc. (“CSX”) in DeHahn's action claiming that CSX was liable under the Federal Employers Liability Act (“FELA”) for injuries DeHahn sustained while employed by CSX. On appeal, DeHahn presents three issues, which we reorder and restate as:

I. Whether DeHahn's FELA claim against CSX is precluded by the Federal Railroad Safety Act (“FRSA”);

II. Whether the evidence designated by DeHahn established a genuine issue of material fact precluding summary judgment; and

III. Whether the trial court erred in refusing as untimely a report DeHahn designated as evidence in opposition to CSX's motion for summary judgment.

We reverse and remand.

Facts and Procedural History

The facts in the light most favorable to DeHahn, as the non-moving party, reveal that, at the time of the incident at issue, DeHahn worked as a railroad track foreman and inspector and had worked for CSX since 1980. On April 3, 2003, DeHahn performed his inspection duties by walking along a line of track near a bridge over the Wabash River north of Lafayette, Indiana. DeHahn walked on the outside of the track on the ends or “heads” of the railroad crossties because employees were not allowed to walk in the middle of the track while performing an inspection. Approximately 300 feet south of the bridge, there was a stretch of track where the heads of the crossties were completely covered with two to four inches of ballast.¹ The ballast had been on top of the crossties for over two years, ever since CSX had dumped ballast rocks to “build up the shoulder” of the track. Appellant's App. p. 169. Pursuant to CSX policy, such ballast was not to be left on top of the crossties and “ballast regulators” were to be used to push the ballast off the track and sweep it off the crossties. DeHahn had complained previously to his supervisors that the ballast needed to be removed, but to no avail.

Because there was no other walkway available to him as he performed his inspection, DeHahn had to walk on the ballast on top of the crossties. Even though he was careful to watch his step as he walked on the ballast, some of the ballast rolled out from under his feet, and DeHahn slid and rolled forty feet down the railroad embankment and injured his left leg, left hip, lower back, and right shoulder. In his deposition, DeHahn testified that the safety training he had received for walking on ballast consisted of being told to “watch his footing.” Appellant's App. pp. 64, 169.

On December 14, 2005, DeHahn filed a complaint under FELA seeking damages for the injuries he sustained while employed by CSX. On February 25, 2009, shortly before the scheduled trial, CSX filed a motion for summary judgment, claiming that there was no evidence of negligence and that DeHahn's FELA claim was “preempted” by FRSA. DeHahn filed his response in opposition to summary judgment on March 26, 2009. As part of his response, DeHahn designated an engineering report prepared by his expert, Raymond Duffany (“Duffany”). On April 3, 2009, the day of the scheduled summary judgment hearing, CSX filed an objection to Duffany's report, claiming it was not properly verified and should not be considered.² The trial court granted DeHahn's request for time to respond to CSX's objection, and on April 9, 2009, DeHahn filed his reply in which he resubmitted Duffany's report, this time accompanied by Duffany's affidavit stating that he had prepared the report based on his personal knowledge. CSX objected to the affidavit and report as untimely. On April 14, 2009, the trial court granted summary judgment in favor of CSX, concluding that Duffany's affidavit and report were untimely and would therefore not be considered. The trial court further concluded that there was no genuine issue of material fact and that CSX was not negligent as a matter of law. The trial court therefore did not address CSX's argument that DeHahn's FELA claim was precluded by FRSA. DeHahn now appeals.

Summary Judgment

We review a summary judgment order de novo. Kovach v. Caligor Midwest, 913 N.E.2d 193, 196-97 (Ind.2009). “Considering only those facts supported by evidence that the parties designated to the trial court, we must determine whether there is a ‘genuine issue as to any material fact’ and whether ‘the moving party is entitled to a judgment as a matter of law.’ ” Id. (citing Ind. Trial Rule 56(C)). We construe all factual inferences in the non-moving party's favor and resolve all doubts as to the existence of a material issue against the moving party. Id. The moving party bears the burden of making a prima facie showing that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1270 (Ind.2009). Once the movant satisfies the burden, the burden then shifts to the non- moving party to designate and produce evidence of facts showing the existence of a genuine issue of material fact. Id.

I. FELA vs. FRSA

CSX argues that we can affirm the trial court's judgment on grounds that the trial court did not address, i.e. that DeHahn's FELA claim is precluded by operation of federal regulations promulgated pursuant to FRSA. See Cook v. Ford Motor Co., 913 N.E.2d 311, 322 (Ind.Ct.App.2009) (noting that we may affirm a grant of summary judgment on any basis supported by the record) trans. denied. We address this argument first because, if DeHahn's claim is precluded, we need not address DeHahn's remaining arguments. In order to address this claim, we first provide some background on both of these federal statutory schemes.

A. FELA

DeHahn's claim against CSX is based upon FELA, the Federal Employers' Liability Act,³ 45 U.S.C. §§ 51- 60 (2009). FELA creates a negligence action for railroad employees injured in the scope of their employment:

Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce ... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.

45 U.S.C. § 51. Congress's purpose in enacting FELA was a humanitarian one. Januchowski v. N. Ind. Commuter Transp. Dist., 905 N.E.2d 1041, 1046 (Ind.Ct.App.2009) trans. denied (citing Burnett v. N.Y. Cent. R.R. Co., 380 U.S. 424, 434, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965)). “The impetus for the FELA was that throughout the 1870's, 80's, and 90's, thousands of railroad workers were being killed and tens of thousands were being maimed annually in what came to be increasingly seen as a national tragedy, if not a national scandal.” CSX Transp., Inc. v. Miller, 159 Md.App. 123, 858 A.2d 1025, 1029 (2004). To address this situation, “Congress crafted a federal remedy that shifted part of the ‘human overhead’ of doing business from employees to their employers.” Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 542, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994).

The United States Supreme Court has liberally construed FELA to further its remedial and humanitarian purpose. Januchowski, 905 N.E.2d at 1046 (citing Urie v. Thompson, 337 U.S. 163, 181-82, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949)). Although FELA is to be construed liberally, it is not a worker's compensation statute. Miller, 858 A.2d at 1031 (citing Gottshall, 512 U.S. at 543, 114 S.Ct. 2396). Therefore, FELA “does not make the employer the insurer of the safety of his employees while they are on duty. The basis of his liability is his negligence not the fact that injuries occur.” Id. As such, FELA plaintiffs must offer evidence proving the common law elements of negligence, including duty, breach, foreseeability, and causation. Williams v. Nat'l R.R. Passenger Corp., 161 F.3d 1059, 1061-62 (7th Cir.1998). This has both its benefits and its detriments:

On the downside, it is, to be sure, more difficult [than under workers' compensation statutes] to establish a provable claim.... On the upside, the courts look with favor on FELA suits and the rewards for a successful plaintiff are invariably higher than would be the case with a workers' compensation award.

Miller, 858 A.2d at 1032.

Although a FELA claim is based on the negligence of the railroad employer Gottshall, 512 U.S. at 543, 114 S.Ct. 2396, a FELA claim is not precisely the same as a common law negligence claim. See Miller, 858 A.2d at 1032. As noted by the Court in Gottshall:

In order to further FELA's humanitarian purposes, Congress did away with several common-law tort defenses that had effectively barred recovery by injured workers. Specifically, the statute abolished the fellow servant rule, rejected the doctrine of contributory negligence in favor of that of comparative negligence, and prohibited employers from exempting themselves from FELA through contract; a 1939 amendment abolished the assumption of risk defense.

512 U.S. at 542-43, 114 S.Ct. 2396...