Downey v. Union Pacific Railroad

• Decision Date: 30 January 2006
• Docket Number: No. 2:03 CV 10.,2:03 CV 10.
• Citation: 411 F.Supp.2d 977
• Parties: Mary DOWNEY, James Downey, Plaintiffs v. UNION PACIFIC RAILROAD, Defendant.
• Court: U.S. District Court — Northern District of Indiana

411 F.Supp.2d 977

Mary DOWNEY, James Downey, Plaintiffs v. UNION PACIFIC RAILROAD, Defendant.

No. 2:03 CV 10.

United States District Court, N.D. Indiana, Hammond Division.

January 30, 2006.

Brian J. Hurley, Douglas Koeppen & Hurley, Valparaiso, IN, for Plaintiffs.

Harold Abrahamson, Abrahamson Reed & Bilse, Hammond, IN, for Defendant.

ORDER AND OPINION

RODOVICH, United States Magistrate Judge.

This matter is before the court on the Motion for Summary Judgment filed by the Defendant, Union Pacific Railroad, on September 29, 2005. For the reasons set forth below, this notion is GRANTED.

Background

Mary Downey, now known as Mary Chastain, was a "car blocker" for National Steel from 2000 through 2002. (Mary Downey Dep. pp. 5, 50-51) As a blocker, she would open each rail car that came into the warehouse at National Steel and perform any cleaning that was necessary to prepare the car to be loaded with steel coils. (Downey Dep. Pg. 14) She also assisted the "supply man" and inspected the bulkhead doors and railing to make sure welding seams or missing rail sections would not cause a problem with the bulkhead. (Downey Dep. p. 15; Dep. of Norman Foldenauer p. 13)

A bulkhead "is a moving wall ... that runs on an upper track through a carriage assembly and ... locks in place to secure the load anywhere in the car." (Steve Lauver Dep. pp. 28-29). The bulkhead also has a bottom track which only is used to lock the bulkhead in place. (Lauver Dep. p. 48) Otherwise, the bulkhead has approximately one to one and one-half inch clearance of the floor. (Lauver Dep. p. 48) An aluminum bulkhead weighs between 750 and 1000 pounds. (Lauver Dep. Pg. 34)

In addition to a visual inspection with flashlights from the floor of the car, from which only the underside of the top bulkhead rail could be seen, Downey and the supply man would move the bulkhead doors in each car several feet to ensure that they moved properly. (Downey Dep. p. 15, Foldenauer Dep. p. 22) Finally, Downey would lay and nail wood for the coils of steel that would be loaded into the car with a forklift. (Downey Dep. pp. 7, 15; Foldenauer Dep. p. 9)

On April 17, 2002, Downey was working with supply man Norm Foldenauer to prepare a boxcar owned by Union Pacific. (Foldenauer Dep. p. 5) According to Downey, Foldenauer was a "stickler" with inspections and would reject cars that had any problems. (Downey Dep. p. 20) Foldenauer recalled that the car in which Downey was injured was "in good shape" upon a visual inspection, in comparison to most cars. (Foldenauer Dep. p. 5) He and Downey tested the two aluminum bulkheads by moving them several feet and did not notice any defects. (Downey Dep. p. 22) However, Foldenauer did notice that the edges of the bulkhead sat the standard one to two inches off the floor but that the middle of the bulkhead was four or five inches off the floor. (Foldenauer Dep. p. 15) It is not clear from Foldenauer's deposition if he observed the uneven edge before or after Downey was injured. (Foldenauer Dep. pp. 14-15)

Following inspection, Downey and Foldenauer moved the bulkheads from the south end of the car to approximately 3/4 of the way towards the north so that the south end could be loaded with coils. (Downey Dep. pp. 24-25) The south end was loaded, and Downey and Foldenauer secured the coils in place by nailing down wood and locking the south bulkhead. (Downey Dep. p. 28) Next, Downey and Foldenauer attempted to move the north bulkhead to the south so that the north end of the car could be loaded. (Downey Dep. p. 28) To accomplish this task, Downey was holding the side of the bulkhead and Foldenauer was in the middle of the bulkhead grasping a handhold. (Downey Dep. p. 32) As they were pulling the bulkhead towards them, Downeyis side of the bulkhead got caught on something and stopped moving. They pushed the bulkhead north again and attempted to pull south twice, but on the second attempt the door raised straight up, rode over the toe of Downey's shoe, and came down on Downeyís right foot. (Downey Dep. pp. 29-30; Foldenauer Dep. p. 12) She now has no feeling in four toes. (Downey Dep. p. 49)

When Downey was injured, she and Foldenauer were attempting to free the bulkhead in the manner recommended by National Steel. (Downey Dep. p. 45) Following Downeyís accident, National Steel directed employees to reject, rather than attempt to move, bulkheads that did not operate correctly in every way. (Foldenauer Dep. p. 18)

An accident report completed in connection to Downey's injury attributed the incident to "defective equipment (railroad)." (Pl.Exh. 2) According to Union Pacific Manager of Technical Engineering Steven Lauver, Union Pacific does not perform a scheduled inspection or regular maintenance on the interior of its own boxcars. (Lauver Dep. pp. 17-18, 20) Rather, Union Pacific learns that maintenance is necessary on a car when it is "rejected" by an end user, a car inspector from the railroads, or from cleaning and preparation facilities. (Lauver Dep. Pg. 16) However, the Union Pacific car inspector inspects only the exterior of the car for obvious defects, even when the car is unlocked. (Lauver Dep. pp. 20, 22-23) The bulkheads are not inspected until there is an opportunity to get inside the car, such as at the National Steel warehouse. (Lauver Dep. Pg. 33)

Union Pacific does not ship railcars directly to National Steel. According to Midwest Traffic Manager for National Steel, Paul Schwarten, National Steel worked with Indiana Harbor Belt ("IHB") Railroad to request cars from different railroads. (Paul Schwarten Dep. p. 9) IHB would place the order for cars with Union Pacific, pick the cars up at a Union Pacific exchange point, and then pursuant to contract, use Norfolk Southern Railroad to push the cars into the National Steel warehouse. (Schwarten Dep. pp. 25-26)

Discussion

Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment is proper only if it is demonstrated that "there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Lawrence v. Kenosha County, 391 F.3d 837, 841 (7th Cir.2004); Branham v. Snow, 392 F.3d 896, 901 (7th Cir.2004); Windle v. City of Marion, Indiana, 321 F.3d 658, 660-61 (7th Cir.2003), cert. denied, 540 U.S. 873, 124 S.Ct. 223, 157 L.Ed.2d 133 (2003). The burden is upon the moving party to establish that no material facts are in genuine dispute, and any doubt as to the existence of a genuine issue must be resolved against the moving party. Adickes v. S.H. Kress & Company, 398 U.S. 144, 160, 90 S.Ct. 1598, 1610, 26 L.Ed.2d 142, 155 (1970); Lowrence, 391 F.3d at 841. A fact is material if it is outcome determinative under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 212 (1986); Lawrence, 391 F.3d at 841; Hottenroth v. Village of Slinger, 388 F.3d 1015, 1027 (7th Cir.2004); Palmer v. Marion County, 327 F.3d 588, 592 (7th Cir. 2003). Even if the facts are not in dispute, summary judgment is inappropriate when the information before the court reveals a good faith dispute as to inferences to be drawn from those facts. Spiegla v. Hull, 371 F.3d 928, 935 (7th Cir.2004); Hines v. British Steel Corporation, 907 F.2d 726, 728 (7th Cir.1990). Finally, summary judgment "will not be defeated simply because motive or intent are involved." Roger v. Yellow Freight Systems, Inc., 21 F.3d 146, 148 (7th Cir.1994). See also Miller v. Borden, Inc., 168 F.3d 308, 312 (7th Cir. 1999); Plair v. E.J. Brach & Sons, Inc., 105 F.3d 343, 346 (7th Cir.1997); United Association of Black Landscapers v. City of Milwaukee, 916 F.2d 1261, 1268 (7th Cir.1990).

In deciding a motion for summary judgment, the trial court must determine whether the evidence presented by the party opposed to the summary judgment is such that a reasonable jury might find in favor of that party after a trial.

The inquiry performed is the threshold inquiry of determining whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.

[T]his standard mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202, 212 (1986)

See also, Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149-151, 120 S.Ct. 2097, 2109, 147 L.Ed.2d 105, 120-22 (2000) (setting out the standard for a directed verdict); Celotex Corp., 477 U.S. at 322-323, 106 S.Ct. at 2553; Branham, 392 F.3d at 901; Lawrence, 391 F.3d at 841; Hottenroth, 388 F.3d at 1027 (stating that a genuine issue is one on which "a reasonable fact finder could find for the nonmoving party"); Schuster v. Lucent Technologies, Inc., 327 F.3d 569, 573 (7th Cir.2003) (stating that a genuine issue exists and summary judgment is inappropriate if there is sufficient evidence for a jury to return a verdict for the nonmoving party).

The plaintiffs allege that Union Pacific breached a duty to inspect the box car in which Downey was injured. To prevail on a claim for negligence in Indiana, "a plaintiff is required to prove: (1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty by the defendant; and (3) an injury to the plaintiff proximately caused by the breach." Peters v. Forster, 804 N.E.2d 736, 738 (Ind.2004). See also Horine v. Homes by Dave Thompson, LLC, 834 N.E.2d 680, 683 (Ind.App.2005). Duty is a question of law. See Peters, 804 N.E.2d at 738; Horine, 834 N.E.2d at 683. However, "`[a] negligence action is rarely an appropriate case for disposal by...