Gilliam v. Norfolk S. Ry. Co.
| Decision Date | 30 December 2020 |
| Docket Number | Case No. 1:18-cv-700 |
| Parties | CHARLES GILLIAM, Plaintiff, v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
Bowman, M.J.
Plaintiff Charles Gilliam filed suit in October 2018 under the Federal Employers' Liability Act ("FELA") against his employer, the Norfolk Southern Railway Company ("NSRC"). Defendant has moved for partial summary judgment, as well as to strike an affidavit filed by Plaintiff in opposition to summary judgment. (Docs. 21, 27). This case has been referred to the undersigned for a recommended disposition of the pending motions. (Doc. 2). For the following reasons, both motions should be granted.
In a motion for summary judgment, "a court must view the facts and any inferences that can be drawn from those facts ... in the light most favorable to the nonmoving party." Keweenaw Bay Indian Comm. v. Rising, 477 F.3d 881, 886 (6th Cir. 2007) (internal quotation marks omitted). "Summary judgment is only appropriate 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Id. (quoting Fed. R. Civ. P. 56(c)) (internal quotation marks omitted). "Weighing of the evidence or making credibility determinations are prohibited at summary judgment - rather, all facts must be viewed in the light most favorable to the non-moving party." Id. The parties agree on most facts; where disagreement exists, the undersigned has drawn all reasonable inferences in favor of the Plaintiff.
Plaintiff alleges injuries from two separate workplace accidents. Defendant's motion for summary judgment concerns only the more recent accident, which occurred when Plaintiff slipped on a step while exiting a locomotive on which he had been assigned to work. Thus, only facts relevant to the March 8, 2018 incident are summarized in this Report and Recommendation ("R&R").
Plaintiff worked exclusively at the Portsmouth Yard. The Portsmouth Yard contains three yard areas with multiple tracks, two connected areas known as the "East Yard and the West Yard," and a third "shop yard" near the service building where repairs and servicing are conducted. (Doc. 18, Plaintiff's Depo. at 25, PageID 124; id. at 102, PageID 201). Plaintiff was working as an engineer in the "UP03" job. In that position, Plaintiff used a locomotive to move rail cars around the car shop and its adjacent yard so that others could make repairs. (Id., at 104, PageID 203). To make room for incoming cars, Plaintiff also would move the rail cars on which service had been completed. (Id. at 105, PageID 204). As opposed to an engineering position more directly involved in interstate commerce, the UP03 job was limited to moving cars into and out of the service building and - once service was completed - to the East Yard where other transportation workers would move them further to assemble outbound trains. (Id.)
In the days leading up to March 8, the weather had been "clear and cold" but dry. (Id. at 106, PageID 205). There was no snow in the forecast, nor was there snow on the ground. (Id.; see also id. at 110, PageID 209). Little snow had fallen all winter. (See id., testimony that it had snowed "[m]aybe one time, maybe an inch I think it was all year that year.") However, on that day a brief but intense snow squall began around 10:30 a.m. The unexpected snow "came out of the blue," surprising everyone. (Id. at 106, PageID 205). During the squall, the snow fell heavily, "like a white out." (Id. at 109, PageID 208). The storm lasted no more than 10 to 15 minutes but approximately a half inch of snow covered the ground by its end. (Id. at 122, PageID 121; id. at 184, PageID 283 (estimating that storm altogether lasted "[p]robably ten minutes.").
When the storm arose, Plaintiff was working in the cab of a locomotive identified as NS 3058. (Id. at 117, PageID 216). When he reported to work, he performed a 20-minute daily inspection on NS 3058. (Id. at 117-119, PageID 216-218). The inspection included the exterior steps and walkway where he later fell; he saw no slip or trip hazard at that time. (Id. at 119, PageID 218).
Within "a couple of minutes" of the storm's onset, Plaintiff's conductor, Ralph Boggs, ordered Plaintiff to leave the NS 3058 cab due to poor visibility. (Id. at 115). Specifically, Plaintiff was instructed to shove cars in the clear on the shop lead and to "tie it" down (setting a brake on NS 3058) before going inside the service building for a job briefing and break, and to secure winter boots. At the time, the locomotive was parked across from the service building, approximately 25 yards away.
Plaintiff "never used" snow boots because "[w]e didn't get any snow." (Id. at 111, PageID 210). When he exited the cab wearing regular work boots, it had only been snowing a "couple of minutes" or "probably three minutes, [or] four." (Id. at 109, PageID 208; id. at 122, PageID 221). Plaintiff observed that the ground was "probably just covered." (Doc. 18 at 122, PageID 221). He stepped out a side door of the cab to a platform where he could see a thin coating of light snow. (Id. at 128, PageID 227). Attached to the platform were three steps, from which Plaintiff believed he could safely descend to the ground. (Id. at 129-136, Page ID 228-235). He placed both hands on the grab irons as he began his descent, but his left foot slipped on the second step. He lost his grip with his right hand and the wrenching motion caused an injury to his shoulder. Plaintiff has not been able to return to work.
There is no evidence that there was anything other than snow on the step. When asked whether it was "just snow," Plaintiff speculated that some ice might have been "mixed in" but had no knowledge that was the case. He testified he saw only snow, and did not observe ice or anything else that had accumulated in the 3 or 4 minutes of snowfall prior to his accident:
(Id. at 146, PageID 245 emphasis added).
In hindsight, Plaintiff opined that the conductor should have instructed him to stay inside the cab rather than exiting, and that someone should have brought snow boots out to him from the service building rather than asking him to take a break to retrieve them. However, Plaintiff did not question his conductor's order at the time, even though he would not have followed the order if it was unsafe. Plaintiff "didn't think it was dangerous or I wouldn't have did it." (Id. at 129, PageID 228; see also id. at 130, PageID 229 "I didn't think it was unsafe" or that "anything would go wrong.").
Prior to turning to the merits of the pending motion for partial summary judgment, the undersigned must address Defendant's motion to strike the affidavit of Patrick F. Reilly and attachments thereto, which have been filed by Plaintiff as exhibits in opposition to Defendant's dispositive motion. For the reasons stated in Defendant's memoranda in support of the motion to strike, the undersigned agrees that the Reilly affidavit should not be considered. Expert opinion will not assist the trier of fact in understanding any factual issue, and instead addresses issues of law that are reserved to this Court. The undersigned therefore has not considered the affidavit on summary judgment, but declines to strike it in order to preserve the record for any reviewing court. See Clausing v. Norfolk So. Ry. Co., Case No. 1:16-cv-703 ().
Plaintiff seeks to hold Defendant liable for his injuries under FELA, which requires rail carriers to provide rail workers a safe place to work. There are two ways for Plaintiff to recover under FELA: (1) by proving the elements of simple negligence; or (2) by showing that the Defendant violated a specific statutory or regulatory duty, which constitutes negligence per se.
If a plaintiff proves a railroad violated a statutory duty, then the plaintiff need not prove the common law elements of foreseeability, duty, or breach. Edwards v. CSX Transp. Inc., 821 F.3d 758, 760 (6th Cir. 2016). Moreover, a violation of a safety statute "creates liability under FELA ...without regard to whether the injury flowing from the breach was the injury the statute sought to prevent." Kernan, 355 U.S. at 433, 78 S.Ct. 394. Thus, "a railroad's violation of a safety statute ... is negligence per se." McBride, 564 U.S. at 703 n.12, 131 S.Ct. 2630.
Miller v. Union Pacific R. Co., 972 F.3d 979, 984 (8th Cir. 2020).
The issues presented have been thoroughly briefed by both parties, including not only the usual memoranda in support, in opposition, and in reply, but also supplemental memoranda and Notices of authority. (See Docs. 21-26, 29, 34-40, 42-45). Based upon the extensive briefing and the Court's review of the issues presented, the undersigned will deny Plaintiff's request for oral argument as unnecessary to aid the Court.1
Under the "relaxed" negligence standard that applies under FELA, "an employee must prove only that the railroad's negligence played a part in producing the injury for which the employee seeks...
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