Earwood v. Norfolk Southern Ry. Co.

• Decision Date: 06 December 1993
• Docket Number: Civ. A. No. 4:93-cv-06-HLM.
• Citation: 845 F. Supp. 880
• Parties: James EARWOOD and Gail Earwood, Plaintiffs, v. NORFOLK SOUTHERN RAILWAY COMPANY, Rojerio Garcia, and Koch Services, Inc., Defendants, Rojerio GARCIA and Koch Services, Inc., Cross-claimants, v. NORFOLK SOUTHERN RAILWAY COMPANY, Cross-defendants.
• Court: U.S. District Court — Northern District of Georgia

845 F. Supp. 880

James EARWOOD and Gail Earwood, Plaintiffs, v. NORFOLK SOUTHERN RAILWAY COMPANY, Rojerio Garcia, and Koch Services, Inc., Defendants, Rojerio GARCIA and Koch Services, Inc., Cross-claimants, v. NORFOLK SOUTHERN RAILWAY COMPANY, Cross-defendants.

Civ. A. No. 4:93-cv-06-HLM.

United States District Court, N.D. Georgia, Rome Division.

October 28, 1993.

Order on Reconsideration December 6, 1993.

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Michael J. Warshauer, Burge & Wettermark, Atlanta, GA, for plaintiffs.

Lemuel Hugh Kemp, Bruce Alan Kling, Kinney Kemp Pickell Sponcler & Joiner, Dalton, GA, for Norfolk Southern Ry. Co.

Wade K. Copeland, Webb Carlock Copeland Semler & Stair, Atlanta, GA, Jan Laurence Sadick, Office of J.L. Sadick, Houston, TX, for Rojerio Garcia, Insurance Co. of North America, Koch Services, Inc.

ORDER

HAROLD L. MURPHY, District Judge.

This case is before the Court on Defendant/Cross-defendant Norfolk Southern Railway Company's Motion for Partial Summary Judgment and Motion in Limine to Exclude or Motion to Strike.

BACKGROUND

Plaintiff James Earwood was the conductor on Defendant Norfolk Southern Railway Company's train on January 9, 1991; and was working at his assigned work station, inside the crew cabin of the diesel electric locomotive. The crew strictly complied with the operating directions provided by Defendant. The train collided with a tanker truck, owned by Defendant/Cross-claimant Koch Services, Inc. and driven by Defendant/Cross-claimant Rojerio Garcia, on the public grade crossing at McFarland Road and South Hamilton Street in Dalton, Georgia. Plaintiff was injured in the accident. The tanker truck was badly damaged and the driver was injured.

At that crossing Defendant's tracks were parallel and immediately adjacent to tracks owned by CSX Transportation. CSX cars and locomotives were sitting at the intersection when the collision occurred.

On January 9, 1991 no active warning devices had been installed at this intersection. On December 14, 1990 the Georgia Department of Transportation (DOT) and CSX signed an agreement for the installation of such devices. A similar agreement between the DOT and Defendant was signed on January 25, 1991. The intersection had been studied and prioritized, and planning had begun for active warning device installation. Also some "contracting" for the project had been done. Federal funds paid for personnel time for prioritization, planning and contracting. The installation was completed on November 21, 1991.

Plaintiff James Earwood brought claims against Defendant Norfolk under the Federal Employer's Liability Act (FELA), arguing that his working conditions were unsafe, that Defendant Norfolk knew or should have known of the unsafe conditions and failed to act. This plaintiff brought common law negligence claims against Defendants Koch Services and Garcia. Plaintiff Gail Earwood brought loss of consortium claims against Defendants Koch Services and Garcia. Koch Services and Garcia cross-claimed against Defendant Norfolk alleging inadequate warning and excessive train speed, given the multiple tracks and cars sitting thereon. Defendant argues that all claims to the extent, they assert excessive speed are pre-empted. Defendant also argues that any evidence of speed should be excluded.

STANDARD FOR SUMMARY JUDGMENT

Federal Rule of Civil Procedure 56(c) authorizes summary judgment when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." The moving party bears the heavy burden of demonstrating that no dispute as to any material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Clark v. Coats & Clark, Inc., 929 F.2d 604 (11th Cir.1991). This burden is met by "pointing out to the District Court — that there is an absence of evidence to support an essential element of the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). This initial burden remains with the moving party even when the issue involved is one on which the non-movant will bear the burden of proof at trial. Russ v. International Paper Co., 943 F.2d 589, 592 (5th Cir.1991).

Once the moving party has fulfilled its burden and shown that no factual issues exist which could warrant a trial, the burden shifts to the non-movant to come forward with specific facts showing that a genuine dispute still does exist. Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986); Clark v. Coats & Clark Inc., 929 F.2d 604 (11th Cir.1991). This burden shifts back to the non-moving party, however, only after the moving party meets its initial burden and shows that no factual issues remain for trial. Russ, 943 F.2d at 592. If the moving party does not meet its initial burden, the non-movant is not obligated to put forward additional evidence.

The District Court's duty is to view the evidence and all factual inferences in the light most favorable to the party opposing the motion. See Bradbury v. Wainwright, 718 F.2d 1538, 1543 (11th Cir.1983). In deciding a motion for summary judgment, it is not the Court's function to decide issues of genuine material fact. Rather, the Court's function is to determine whether such an issue exists to be tried. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Warrior Tombigbee Transportation Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir.1983). It is the applicable substantive law which identifies what facts are material. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. Facts which in good faith are disputed, but which do not resolve or affect the outcome of the suit will not properly preclude the entry of summary judgment. Id. In short, such facts are not material. The materiality of a fact rests solely on the governing substantive law. A district court "can only grant summary judgment `if everything in the record ... demonstrates that no genuine issue of material fact exists.'" Tippens v. Celotex Corp., 805 F.2d 949, 952 (11th Cir.1986), (quoting Keiser v. Coliseum Properties, Inc., 614 F.2d 406, 410 (5th Cir.1980)).

Genuine disputes are those where the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. Moreover, for factual issues to be "genuine" they must have a real basis in the record. Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. The nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Id. at 586, 106 S.Ct. at 1355 (citations omitted.) "This standard mirrors the standard for a directed verdict.... The inquiry under each is the same: 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, 477 U.S. at 251-52, 106 S.Ct. at 2511-12.

DISCUSSION

I. PARTIAL SUMMARY JUDGMENT

A. GAIL EARWOOD

Plaintiff Gail Earwood has alleged no cause of action against the Defendant Norfolk Southern Railway. Contrary to Defendant's "Statement of Material Facts as to Which There is No Dispute," Plaintiff Gail Earwood has not "alleged negligence as to the issue of speed of the train." Plaintiff Gail Earwood has only alleged a loss of consortium claim against Defendants Rojerio Garcia and Koch Services, Inc. The Court concludes that Defendant Norfolk Southern Railway's summary judgment motion is inapplicable to Plaintiff Gail Earwood and denies the motion as to her.

B. PLAINTIFF JAMES EARWOOD'S FELA CLAIMS

Regulations adopted by the Secretary of Transportation pursuant to the Federal Railroad Safety Act (F.R.S.A.) preempt state common law negligence claims based on general allegations of "excessive speed." CSX Transportation v. Easterwood, ___ U.S. ___, ___ & n. 13, ___ & n. 15, 113 S.Ct. 1732, 1742 & n. 13, 1743 & n. 15, 123 L.Ed.2d 387 (1993). However, a negligence action based on a duty to slow or stop a train to avoid a specific, individual hazard is not preempted. 45 U.S.C. § 434; see Easterwood, ___ U.S. at ___ n. 15, 113 S.Ct. at 1743 n. 15; Missouri Pac. R.R. Co. v. Lemon, 861 S.W.2d 501, 508 (Tex.Ct.App.1993). The Easterwood opinion does not address the effect, if any, of the F.R.S.A. on the Federal Employer's Liability Act (FELA).

As a general rule of statutory construction courts should give effect to all provisions of a statute. See Connecticut Nat'l Bank v. Germain, ___ U.S. ___, ___, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992). Absent an intolerable or irreconcilable conflict between two statutes, a court need not decide whether one controls over the other or whether the later one impliedly repeals the earlier one. See Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 566-67, 107 S.Ct. 1410, 1415-17, 94 L.Ed.2d 563 (1987).

FELA is the exclusive remedy for injured railroad employees. Wabash R.R. Co. v. Hayes, 234 U.S. 86, 34 S.Ct. 729, 58 L.Ed. 1226 (1914); Janelle v. Seaboard Coast Line R.R. Co., 524 F.2d 1259, 1261 (5th Cir.1975). FELA is worded broadly and is interpreted even more broadly. Buell, 480 U.S. at 561-62, 107 S.Ct. at 1413. A variety of other federal statutes have been held not to preclude claims under FELA. Buell, 480 U.S. at 567, 107 S.Ct. at 1416 (FELA claims not precluded by mandatory arbitrability under RLA);¹ Smolsky v. Consol. R. Corp., 780 F.Supp. 283, 286 (E.D.Pa.1991) (FELA claims not precluded by Title VII).

The Defendant, with no analysis of how F.R.S.A. and FELA interact, asserts that Easterwood precludes Plaintiff's claims under FELA. Plaintiff argues that FELA is the Plaintiff's exclusive remedy and is intended to be broadly...