Elston v. Union Pacific R. Co.

• Decision Date: 22 May 2003
• Docket Number: No. 02CA0766.,02CA0766.
• Citation: 74 P.3d 478
• Parties: Wayne R. ELSTON, Plaintiff-Appellant, v. UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, Defendant-Appellee.
• Court: Colorado Court of Appeals

74 P.3d 478

Wayne R. ELSTON, Plaintiff-Appellant, v. UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, Defendant-Appellee.

No. 02CA0766.

Colorado Court of Appeals, Div. III.

May 22, 2003.

Rossi, Cox, Kiker & Inderwish, P.C., John J. Rossi, Paul F. Byrnes, Aurora, Colorado, for Plaintiff-Appellant.

Hall & Evans, L.L.C., Alan Epstein, Frederick T. Martinez, Denver, Colorado, for Defendant-Appellee.

Opinion by Chief Judge DAVIDSON.

In this negligence action brought pursuant to the Federal Employers' Liability Act (FELA), plaintiff, Wayne R. Elston, appeals from the trial court's entry of summary judgment in favor of defendant, Union Pacific Railroad Company. We reverse and remand.

Plaintiff was employed by defendant as a locomotive engineer. He was called on duty to relieve another crew member who had exhausted his maximum allowable work hours. Upon arriving at Adams Siding, where the train was being held, plaintiff was assigned to repair a problem with the train's remote locomotives, called "consists," which were not responding to radio commands from the controlling locomotive. After discussing the problem and actions taken by the original train crew, plaintiff concluded that it was necessary to replace the controlling locomotive.

After replacing the locomotive, plaintiff walked alongside the tracks to the rear of the train to enter the new locomotive code number into the remote consists. It was necessary for plaintiff to walk, rather than drive, to the rear of the train because the snowy conditions precluded defendant's maintenance vehicle from driving alongside the tracks. After making the necessary inputs, plaintiff began walking toward the front of the train. He then slipped and fell on the steeply pitched, snow-covered roadbed structural material, called "ballast," and thereby suffered injury to his right knee.

Plaintiff subsequently filed this lawsuit alleging that defendant was negligent under FELA for: (1) failing to provide reasonably safe walkways alongside its mainline tracks; and (2) violating its statutory duty under the Locomotive Inspection Act (LIA) and the Federal Railroad Safety Act (FRSA) to use only locomotives in proper condition and safe to operate without danger of personal injury.

The trial court granted defendant's motion for summary judgment and dismissed the case with prejudice on the basis that plaintiff had provided no evidence that defendant was responsible for adverse weather conditions, unreasonably allowed ice and snow to accumulate, or had the opportunity, but failed to take appropriate corrective action. In addition, the trial court determined that the regulations under other federal statutes preempted plaintiff's FELA claim that defendant failed to provide its employees with a reasonably safe walkway alongside its railroad line. The trial court further concluded that plaintiff's additional claim that defendant had violated several LIA regulations was without merit and unsupported by the evidence. Subsequently, the trial court issued an amended order denying plaintiff's motion for entry of summary judgment in his favor. This appeal followed.

Our review of an order granting a motion for summary judgment is de novo. See Aspen Wilderness Workshop, Inc. v. Colo. Water Conservation Bd., 901 P.2d 1251 (Colo. 1995). Summary judgment is appropriate only if the pleadings, affidavits, depositions, or admissions establish that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See C.R.C.P. 56(c); Cung La v. State Farm Auto. Ins. Co., 830 P.2d 1007 (Colo. 1992). In reviewing a motion for summary judgment, we must view the allegations in the complaint in the light most favorable to the nonmoving party. See Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo.1988).

I.

Plaintiff contends that the trial court improperly invaded the province of the jury by determining as a matter of law that: (1) defendant had satisfied its duty to provide a reasonably safe workplace under FELA; and (2) his LIA claims brought under FELA were without merit. We agree.

A.

FELA is a broad remedial statute designed to be construed liberally so as to effectuate Congress's intent to promote railroad safety. Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994). FELA provides the exclusive remedy for a railroad employee to recover damages for injuries resulting from the negligence of his railroad employer. Lane v. R.A. Sims, Jr., Inc., 241 F.3d 439 (5th Cir.2001).

Under FELA, a railroad employer is required to provide its employees with a reasonably safe place to work. See Gadsden v. Port Auth. Trans-Hudson Corp., 140 F.3d 207 (2d Cir.1998)(railroad may be held liable under FELA for failure to provide its employees with a reasonably safe work environment when it knows or should have known of a potential workplace risk, yet fails to exercise reasonable care to inform and protect its employees concerning this risk); Sinclair v. Long Island R.R., 985 F.2d 74 (2d Cir.1993).

The plaintiff's burden in a FELA action is significantly less than in an ordinary negligence suit, and as a result, it is easier for a plaintiff's FELA claim to survive a summary judgment motion. See Lisek v. Norfolk & W. Ry., 30 F.3d 823 (7th Cir.1994).

A FELA plaintiff is not impervious to summary judgment, however. See Robert v. Consol. Rail Corp., 832 F.2d 3 (1st Cir. 1987)(a plaintiff is still required to establish the traditional common law elements of negligence). To survive summary judgment on a FELA claim that a railroad breached its duty to provide a safe workplace, a plaintiff must show circumstances that a reasonable person would foresee as creating a potential for harm and establish that this breach played some part in causing the injury. McGinn v. Burlington N. R.R., 102 F.3d 295 (7th Cir.1996); see also Rogers v. Mo. Pac. R.R., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957)(FELA case should go to the jury if "the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury").

Foreseeability does not require the employer to have anticipated the plaintiff's injury in the precise manner in which it occurred. It is sufficient if the employer could reasonably foresee that an injury might occur. See Armstrong v. Burlington N. R.R., 139 F.3d 1277 (9th Cir.1998). In a close case, the FELA action should be allowed to proceed to trial. Nichols v. Burlington N. & Santa Fe Ry., 56 P.3d 106 (Colo.App.2002); see also Syverson v. Consol. Rail Corp., 19 F.3d 824 (2d Cir.1994)(FELA case must not be dismissed on summary judgment unless there is no reasonable basis for a jury to find for plaintiff).

Here, in his response to defendant's motion for summary judgment, plaintiff asserted that, because defendant often requires its employees to walk the length of the train to make repairs or change train crews, defendant's failure to provide a reasonably safe walkway alongside the train created a foreseeable risk of harm that caused, in whole or in part, his injury. Defendant argues that summary judgment was proper because, as a matter of law, it cannot be held responsible for the accumulation of ice and snow that resulted in plaintiff's injury, and plaintiff failed to show it had actual or constructive knowledge that the section of the railroad track on which plaintiff was injured was unsafe. We agree with plaintiff that summary judgment was improper.

Under FELA, "normal winter conditions may [provide] sufficient notice to railroad employers about the potential for harm due to a slip and fall on ice or snow." Vonderhaar v. Soo Line R.R., 242 Wis.2d 746, 755, 626 N.W.2d 314, 318 (Wis.Ct.App.2001)(citing Kimbler v. Pittsburgh & Lake Erie R.R., 331 F.2d 383 (3d Cir.1964)); see also McDonald v. N.E. Ill. Reg'l, 249 F.Supp.2d 1051 (N.D.Ill.2003) (genuine issue of fact existed as to whether railroad's failure to remove snow constituted negligence). And whether a defendant has actual or constructive knowledge of a potential workplace risk usually is a question of fact for the jury to decide. See Wahlstrom v. Metro-N. Commuter R.R., 89 F.Supp.2d 506 (S.D.N.Y.2000); see also Rogers v. Mo. Pac. R.R., supra, 352 U.S. at 510, 77 S.Ct. at 450-51 ("Congress vested the power of decision in these actions exclusively in the jury in all but the infrequent cases where fair-minded jurors cannot honestly differ whether fault of the employer played any part in the employee's injury").

Viewing the allegations in the light most favorable to plaintiff, we conclude there is a disputed issue of fact whether defendant satisfied the standard of reasonableness as to the existing and anticipated conditions of the roadbed and ballast, including the icy and snowy condition thereof. See Gallick v. Baltimore & O. R.R., 372 U.S. 108, 118, 83 S.Ct. 659, 666, 9 L.Ed.2d 618 (1963)(a defendant is held to the standard of what is reasonably foreseeable under the same or similar circumstances based upon "what `in the light of the facts then known, should or could reasonably have been anticipated'").

Specifically, in its motion for summary judgment, defendant argued that it was not reasonably foreseeable that plaintiff would take "a shortcut along a steep embankment with loose slag and slick, wet, snowy conditions," rather than the longer, but safer route to the front of the train.

In his response to defendant's motion, however, plaintiff offered evidence that: (1) defendant knew or should have known that because the controlling locomotive was not operating properly, there was a strong possibility it would have to be replaced and plaintiff would be required to walk to the rear of the train to enter a new control code into the remote consists; (2) plaintiff could easily have reached the back of the train when it was stopped at Milner, by walking alongside the shoulder of the highway adjacent to the...