Garay v. Missouri Pacific R. Co.

• Decision Date: 13 February 1999
• Docket Number: Civil Action No. 96-1127-WEB.
• Citation: 38 F.Supp.2d 892
• Parties: Genaro GARAY and Eva Garay, parents and heirs of Nicholas Garay, deceased, and Ann Case, personal representative and administrator of the estate of Nicholas Garay, Plaintiffs, v. MISSOURI PACIFIC RAILROAD COMPANY, a corporation, Union Pacific Railroad Company, a corporation, and Trinity Industries, Inc., individually and as successor to Pullman-Standard, Inc., and John Doe, Corporation, Inc., unknown manufacturers, Defendants.
• Court: U.S. District Court — District of Kansas

38 F.Supp.2d 892

Genaro GARAY and Eva Garay, parents and heirs of Nicholas Garay, deceased, and Ann Case, personal representative and administrator of the estate of Nicholas Garay, Plaintiffs, v. MISSOURI PACIFIC RAILROAD COMPANY, a corporation, Union Pacific Railroad Company, a corporation, and Trinity Industries, Inc., individually and as successor to Pullman-Standard, Inc., and John Doe, Corporation, Inc., unknown manufacturers, Defendants.

Civil Action No. 96-1127-WEB.

United States District Court, D. Kansas.

February 13, 1999.

COPYRIGHT MATERIAL OMITTED

Pedro L. Irigonegaray, Irigonegaray & Associates, Topeka, KS, Robert L. Pottroff, Myers, Pottroff & Ball, Manhattan, KS, Bradley W. Maudlin, Garden City, KS, for Genaro Garay, Eva Garay, Ann Case.

James M. Yeretsky, Gregory F. Maher, Michael J. Smith, Yeretsky & Maher, Kansas City, MO, for Missouri Pacific Railroad, Union Pacific Railroad Co.

Kenneth L. Weltz, Klenda, Mitchell, Austerman & Zuercher, L.L.C., Wichita, KS, Brad W. Schacht, Hugh Q. Gottschalk, Todd A. Fredrickson, Otten, Johnson, Robinson, Neff & Ragonetti, P.C., Denver, CO, for FMC Corp.

Memorandum and Order

WESLEY E. BROWN, Senior District Judge.

This is a product liability action brought under Kansas law. Plaintiffs allege that the decedent, Nicholas Garay, was killed in an accident involving a defective rail car. The matter is before the court on motions for summary judgment filed by defendant FMC Corporation ("FMC") (Doc. 73) and by defendants Union Pacific Railroad Company and Missouri Pacific Railroad Company ("the railroads") (Doc. 75). The court has reviewed the parties' submissions and the relevant law and is prepared to rule.

I. Facts.

The following facts are undisputed or stated in the light most favorable to the plaintiffs.¹

A. Background.

The defendant FMC manufactured rail-car MP715966 in August of 1967. This was the hopper car in which the decedent, Nicholas Garay ("Garay"), died. At the time of Garay's death, the hopper car was owned by defendant Missouri Pacific. Union Pacific owned the rail siding in Sharon Springs, Kansas, where the hopper car was located at the time of Garay's death.

At the time of his death, Garay was an employee of Bean Acres, Inc. He had been hired the week of March 21, 1994. Bean Acres operates a facility that processes pinto beans. It receives shipments of beans by truck, processes them, and ships them out. Garay's primary responsibility during the three weeks he worked at Bean Acres was loading sacks of beans onto boxcars.

Garay was nineteen years old at the time of his death. He was described as a quiet person and a good worker who did as he was told. He had a sixth-grade education. Garay did not speak or read English; he spoke only Spanish.

During Garay's first week working at Bean Acres, he and co-worker Eliseo Perez were helping to load beans into a hopper car. Pl.Resp., Exh. 1 at 33, 39. Garay was inside the car spreading beans to the sides of each compartment as beans were being poured into the top of the hopper car. Id. at 39. Garay and Perez were told by Jesse Montoya, another co-worker, that they had to do this in order to fit more beans into the car. Perez told Montoya he didn't want to do this because it was kind of dangerous. Id. According to Perez, he told Garay (in Spanish): "I said, as soon as you get to the pile, I said you can get in there and you can start spreading them around, if you get your feet buried about halfway, I said, you are gone. I said, You are going to be knocked down, you can fall down and a whole bunch of beans is going to come and cover you up." Railroad Mem., Exh. 9 at 14-15. Garay just smiled and said it wasn't dangerous at all. Id. at 40, 78. Montoya then told them he just wanted to put more beans in the car and that they didn't have to do it, and Garay got out of the car.

When Garay called his mother to tell her he had gotten the job with Bean Acres, he said he was going to be running sacks through a machine that would sew them, and that on occasion they would be sending him to check boxcars. FMC. Mem., Exh. H at 25-26. When she asked whether it was a dangerous place to work in, he answered that the most dangerous part of the job was when he had to get on top of the boxcars. Id. at 27. Garay also talked to his brother and mentioned that sometimes beans got moist and would stick to the walls of a hopper car and that he would have to get up on the edge of the car and work with a shovel, and that if anybody fell inside a car there was nothing there they could grab on to, to pull themselves out. Id., Exh. F at 16-17.

B. Unloading the Hopper Car.

Sometime before April 6, 1994, Bean Acres had processed a cargo of beans for shipment on Union Pacific to California. Upon arrival, however, the shipment was rejected due to moisture contamination. Union Pacific returned the shipment to Bean Acres, hired Bean Acres to reprocess the beans and, subsequently, sold the beans to Bean Acres for an agreed-upon price. In order to reprocess the beans, Bean Acres had to unload them. It was a relatively rare occurrence for Bean Acres to unload a hopper car. April 6, 1994, was the first time Garay had ever participated in the unloading of a hopper car.

A hopper car is unloaded by opening hatches at the bottom and on top of the car, which permits the cargo to flow out of the bottom. At Bean Acres, employees placed a small conveyor belt under the car, so when the hatches were opened, the belt would take the cargo from under the car to a larger conveyor belt which, in turn, carried the cargo to a waiting truck. Because of the size and speed of the small belt, the hatch at the bottom of the hopper car could not be opened more than five or six inches.

On the morning of April 6, 1994, Garay and three other Bean Acres employees, upon instruction from their supervisor, entered the hopper car through the top hatch to remove by hand a layer of beans, described as a "crust", which had formed on top of the product due to excess moisture. The employees picked up chunks of beans and placed them in buckets for removal from the hopper car. They prepared the truck for unloading and then took their lunch break.

After the conveyor belts were in place, one of the employees opened the bottom hatch. There is evidence in the record that the men encountered some difficulty in getting beans to flow out of the car due to moisture. See Pl.Resp. to Railroads, Exh. 1 at 73. Rick Carson, a supervisor at bean Acres, testified that when they first started unloading, wet beans at the bottom clogged the hatch and they had to get a claw hammer to claw the beans loose and get them flowing. Pl.Resp. to Railroads, Exh. 6 at 25-27. Eliseo Perez testified that the beans were coming out slow. Id., Exh. 1 at 73. At some point, Garay entered the hopper car, although it is not entirely unclear when or why. One reasonable inference from the record is that he did so to facilitate the flowing of beans or to make sure they were flowing. Eliseo Perez testified that he and Pondo climbed to the top of the hopper car "to see how the beans was running." FMC Mem., Exh. C at 20. Perez testified that Pondo and Garay were sitting down on the beans inside of the compartment. Id. at 20-21; Pl.Resp. to Railroads, Exh. 1 at 72. They were talking. Id. Perez asked them if everything was running okay; they said yes. Id. at 21. Garay pointed out a little funnel the beans were making as they ran out and asked Perez if he thought it was very fast. Perez said yes. Jesse Montoya then called to Perez to come down and help move the truck. Perez climbed down and was followed by Pondo. Nicholas didn't come down; he was still inside the car. Id.

The next anyone knew of Garay was a short time later when a co-worker noticed Garay's tennis shoe sticking out of the opening at the bottom of the hopper car. The co-worker testified that the beans had been draining at a very slow pace, and that at the moment he saw the tennis shoe the beans drained in great quantities. Id., Exh. 3 at 27-28. Garay had been completely buried in the beans. The co-worker found the supervisor, who called emergency services. Rescue and revival efforts, however, were unsuccessful.

Garay died of suffocation. Included in plaintiffs' evidence is the expert opinion of Dr. Jill Gould, M.D. Railroads' Mem., Exh. 14. In Dr. Gould's opinion, plaintiff died of asphyxia caused by "1) occlusion of the airways with beans and debris, 2) mechanical compression of the chest by weight of the beans, and 3) lack of available oxygen for breathing in the confined space." She stated further that Garay "was alive at the time of being entrapped and was actively inhaling foreign material into his respiratory tract." She did not express an opinion as to what caused Garay to be in the hopper car (i.e., whether or not he fell).

Plaintiffs have retained an expert witness, consulting engineer John Sevart, who contends the hopper car was defective in a number of respects. In Sevart's opinion, the hopper car should have been equipped with lanyard (safety line) attachment points, notices calling attention to the attachment points, and grates over its top hatches with access points for entry into the car. Sevart contends the hopper car should have had a written warning identifying the hazard of suffocation. According to Sevart, the railroads should have instructed users of the hopper car (1) not to enter the car and why, (2) about use of lanyards (what type of lanyard to use, how to attach them and the reason for their use), and (3) on means of accelerating unloading without having someone enter the hopper car. Sevart does not contend that these warnings should have been given in Spanish.

II. Summary Judgment Standards.

The standards governing the consideration of a motion for summary judgment are well established. The Federal Rules of Civil Procedure provide that summary judgment is appropriate when the documentary evidence filed with the...