Espinoza v. The Kan. City S. Ry. Co.
| Docket Number | 04-22-00732-CV |
| Decision Date | 23 August 2023 |
| Parties | Ana Marie Mendez ESPINOZA, Individually and as Personal Representative of the Estate of Juan Manuel Espinoza, Jr.; Janice Janet Espinoza; Jonathan Espinoza; and Juliza Espinoza, Appellants v. THE KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellee |
| Court | Texas Court of Appeals |
From the 406th Judicial District Court, Webb County, Texas Trial Court No. 2020CVF001385D4 Honorable Oscar J. Hale, Jr., Judge Presiding
Sitting: Beth Watkins, Justice, Lori I. Valenzuela, Justice Sandee Bryan Marion, Chief Justice (Ret.) [1]
The underlying action is a wrongful death suit brought by appellants, Ana Maria Mendez Espinoza, Individually and as Personal Representative of the Estate of Juan Manuel Espinoza, Jr.; Janice Janet Espinoza; Jonathan Espinoza; and Juliza Espinoza[2] against appellee, The Kansas City Southern Railway Company ("KCSR"). Appellants appeal the trial court's order granting summary judgment in favor of KCSR on all their claims. We affirm.
Background[3]
At approximately 6:00 p.m. on September 20, 2017, Juan Espinoza ("Juan") began his shift at KCSR's Laredo yard shifting rail cars from one track to another. Juan, a railroad conductor, was part of a crew with Manuel Chaires and Juan Hinojosa. At the time, Javier Herrera was the KCSR Trainmaster and Frank Dovalina was the KCSR Assistant Trainmaster.
According to appellants, Juan reported he did not feel well at the start of his shift. He told his co-workers he was experiencing what he thought was heartburn and he told Chaires he needed, "like more Cokes, like 50 more of these to burp more." About the same time, Juan also told his co-workers that he had fallen asleep in the restroom. Chaires and Hinojosa both recognized Juan falling asleep on the job was atypical behavior. Herrera gave Juan a Nexium for heartburn, and later in his shift another co-worker gave him a Tums for his heartburn symptoms.
Around 3:00 a.m., Juan, Chaires, and Hinojosa drove to the west end of the yard. Juan drove a Kubota utility vehicle. Juan and Chaires performed their work and switched about ten rail cars. At approximately 4:00 a.m., Chaires saw the Kubota roll backwards and contact Juan, who collapsed and lay on the ground screaming loudly. Juan was conscious but was making noises like he was "having a bad dream." Chaires told Hinojosa to call the yard office and tell them Juan had fallen. Instead, Hinojosa exited the train and made his way to Chaires and Espinoza. He did not contact the yard office using the locomotive radio as requested because he did not know how. Ultimately, Chaires radioed the yard office and spoke to Dovalina to advise him that Espinoza had fallen and was not getting up. Dovalina responded, "okay let me try to get a ride."
At about 4:05 a.m., Dovalina notified Herrera that Espinoza "had fallen down and was not responsive." Approximately six more minutes passed before Dovalina called 9-1-1. Another employee, Juan Vasquez, overheard the distress call over the radio. Vasquez ran to find a Kubota ATV to get to Espinoza, but none were available. Vasquez instead asked Dovalina if he wanted to head to the west end of the yard in his personal vehicle and Dovalina agreed.
When Vasquez and Dovalina arrived on the scene, Espinoza was lying on his left side. The men turned him onto his back, but he was not breathing. Vasquez attempted CPR to no avail. At 4:33 a.m., Webb County EMS arrived at the KCSR office-the only location they had been given. The Webb County Sheriff's Office was dispatched to KCSR's yard located at 604 Serrano Road for a deceased person report. Juan had died of a heart attack.
On August 7, 2020, appellants sued KCSR under the Federal Employers' Liability Act ("FELA") alleging KCSR was negligent and seeking recovery for wrongful death survival, and personal injuries. Appellants argued KCSR was negligent based on "a duty to assist [Juan] when [KCSR's] employees saw [Juan] showing signs of illness and chest pain." Appellants contended that had KCSR provided Juan with transport to an emergency room for emergency evaluation when he reported severe heartburn and falling asleep in the bathroom, more likely than not, Juan's chance for survival was greater than ninety percent.
Among the experts retained by appellants were Brandon Ogden (on liability) and Paul Dlabal, M.D. (on causation). KCSR moved to exclude Ogden and Dlabal's opinions. KCSR also filed both traditional and no-evidence motions for summary judgment on appellants' claims arguing, in part, that it did not have a duty to (1) take preventive measures in anticipation of an employee's cardiac arrest, (2) intervene with medical assistance, or (3) supply automated external defibrillators ("AEDs") or train employees in their use. Appellants filed a response, and KCSR replied.
On September 9, 2022, the trial court granted all three of KCSR's motions. In five issues on appeal that that can be narrowed into two categories, appellants assert the trial court erred (1) in rendering summary judgment in favor of KCSR and (2) granting KCSR's motions to exclude the opinions of Ogden and Dlabal.
To prevail on a traditional summary judgment motion, KCSR had to establish that no genuine issues of material fact exist and that it was entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c). A traditional motion for summary judgment must stand or fall on its own merits, and a summary judgment may only be granted or affirmed on grounds expressly presented in the motion itself. See, e.g., Weekley Homes, LLC v. Paniagua, 646 S.W.3d 821, 826 (Tex. 2022) (per curiam); Hardaway v. Nixon, 544 S.W.3d 402, 412 (Tex. App.-San Antonio 2017, pet. denied). "A defendant who conclusively negates at least one of the essential elements of a cause of action or conclusively establishes an affirmative defense is entitled to summary judgment." Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010).
We review the evidence presented by the motion and response in the light most favorable to the non-movant, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Id. (no-evidence); Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005) (traditional). When, as here, the trial court grants summary judgment without specifying its grounds, we must uphold the trial court's judgment if any of the asserted grounds are meritorious. Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.-Houston [1st Dist.] 2005, pet. denied).
In their first issue on appeal, appellants assert that once an employer undertakes to provide medical care, it must do so in a non-negligent manner, and they contend there is more than a scintilla of evidence that KCSR took on a duty to provide medical care beyond that required by law.
"With respect to providing compensation for workplace injuries, the obligations of railroads differ from those of the majority of other employers in the United States." Sells v. CSX Transp., Inc., 170 So.3d 27, 32-33 (Fla. Dist. Ct. App. 2015). "The workers' compensation laws that cover virtually all other industries provide compensation to injured employees on a no-fault basis." Id. "However, under FELA, being injured on the job does not automatically entitle an employee of a railroad to compensation; instead, compensation is awarded only if the employer's negligence caused the injury, and compensation must be reduced to the extent of the employee's own negligence." Id. (citing to 45 U.S.C §§ 51, 53). FELA makes any railroad engaged in interstate commerce liable in damages for an injury to or death of an employee sustained while employed by the railroad if the injury or death resulted in whole or in part from the negligence of the railroad's employees or by reason of any defect or insufficiency in its equipment due to its negligence. See 45 U.S.C.A. § 51 ("Liability of common carriers by railroad, in interstate or foreign commerce, for injuries to employees from negligence; employee defined"); Union Pac. R.R. v. Williams, 85 S.W.3d 162, 165 (Tex. 2002).
To prevail on a FELA claim, a plaintiff must establish the traditional common-law elements of negligence: duty, breach, foreseeability, and cause-in-fact. See Tufariello v. Long Island R.R., 458 F.3d 80, 87 (2d. Cir. 2006); Fulk v. Ill. Cent. R.R., 22 F.3d 120, 124 (7th Cir. 1994); Moody v. Boston & Maine Corp., 921 F.2d 1, 3 (1st Cir. 1990); Abraham v. Union Pac. R.R., 233 S.W.3d 13, 17 (Tex. App.-Houston [14th Dist.] 2007, pet. denied). "More specifically, to prove a claim that the railroad failed to provide an employee with a safe workplace, 'the worker must establish that he became ill at work, that without prompt medical treatment he faced death or serious bodily harm, that the employer had notice of his illness, that the employer failed to furnish prompt medical attention, and that his death or injury resulted in whole or in part from the employer's delay in response.'" Sells, 170 So.3d at 32-33 (quoting Pulley v. Norfolk S. Ry. Co., Inc., 821 So.2d 1008, 1014-15 (Ala. Civ. App. 2001)). Because FELA is a federal statute, "FELA cases adjudicated in state courts are subject to state procedural rules, but the substantive law governing them is federal." St. Louis Sw. Ry. Co. v. Dickerson, 470 U.S. 409, 411 (1985); BNSF Ry. Co. v. Phillips, 485 S.W.3d 908, 910 (Tex. 2015).
FELA is a remedial statute with a lower burden of proof such that an employee is entitled to a jury trial if he has adduced any evidence sufficient to "justify with reason the conclusion that employer...
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