Huntsinger v. BNSF Ry. Co., A156588
| Decision Date | 07 June 2017 |
| Docket Number | A156588 |
| Citation | 286 Or.App. 84,398 P.3d 403 |
| Parties | Jerald C. HUNTSINGER, Plaintiff-Appellant, v. BNSF RAILWAY COMPANY, Defendant-Respondent. |
| Court | Oregon Court of Appeals |
Cody Hoesly, Portland, argued the cause for appellant. With him on the briefs was Larkins Vacura LLP.
Wendy M. Margolis, Portland, argued the cause for respondent. With her on the brief was Cosgrave Vergeer Kester LLP.
Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.
Plaintiff, a railroad employee, was injured when he fell from defendant's locomotive while preparing a train for departure. He brought negligence claims against defendant under the Federal Employers' Liability Act (FELA), 45 USC §§ 51 - 60, basing five of his claims on violations of the Locomotive Inspection Act (LIA), 49 USC §§ 20701 - 20703, and associated federal regulations. The trial court granted summary judgment to defendant on plaintiff's LIA claims, concluding that the LIA was inapplicable because, at the time of plaintiff's injury, the locomotive was not "in use." On appeal, plaintiff assigns error to that ruling, arguing that, at the time of his injuries, the locomotive was "in use" within the meaning of the LIA. We conclude that the trial court erred in granting summary judgment to defendant because, viewing the summary judgment record in the light most favorable to plaintiff, under the totality of the circumstances, the locomotive was "in use."1 Accordingly, the judgment is reversed and remanded with respect to claims 2 through 6 and is otherwise affirmed.
We review the trial court's grant of summary judgment for legal error. Johnson v. State Board of Higher Education , 272 Or. App. 710, 714, 358 P.3d 307, rev. den. , 358 Or. 527, 366 P.3d 1168 (2015). Summary judgment is proper when there are no genuine issues of material fact, and the moving party is entitled to prevail as a matter of law.2 ORCP 47 C. Generally, in reviewing the trial court's grant of summary judgment, we view the facts in the light most favorable to plaintiff, the nonmoving party, and we draw all reasonable factual inferences in his favor. Morehouse v. Haynes , 350 Or. 318, 321, 253 P.3d 1068 (2011). In this case, the parties agreed for purposes of defendant's summary judgment motion that the facts are undisputed. See Towe v. Sacagawea, Inc. , 357 Or. 74, 95-96, 347 P.3d 766 (2015) ().
Because the relevant facts on appeal concern the condition of a train and one of its locomotives at the time of plaintiff's injury, we recount the circumstances surrounding the injury in some detail. Plaintiff was employed by defendant as a "carman," meaning that he specialized in the inspection, maintenance, and repair of railcars, and, like other carmen employed by defendant, he was not authorized or qualified to work on locomotives. Defendant's locomotive department—consisting of machinists, hostlers, and electricians—was responsible for performing work on locomotives. Plaintiff was not a member of a transportation crew (i.e. , the engineer and other workers who travel with the train).
On the evening of plaintiff's injury, he was working on a train as part of a two-person, outbound-inspection crew in the Terminal 6 rail yard (the T-6 yard) in Portland. Nominally, the T-6 yard is a "storage yard," but most of the traffic in the yard is from grain trains travelling to and from the nearby Rivergate terminal. Loaded grain trains travel from the east through the T-6 yard to the Rivergate terminal; after a train is unloaded, a crew typically brings the train back to the T-6 yard for routine inspection and maintenance before the train returns east. Defendant uses storage tracks in the T-6 yard as departure tracks for grain trains.
Because the T-6 yard lacks a designated repair facility, locomotives or railcars needing repairs or maintenance are sent to a dedicated repair facility in Vancouver, Washington. However, if a locomotive needs only "light work or servicing," defendant's locomotive department performs such work at the T-6 yard. Typically, defendant's locomotive department completes all necessary servicing and repairs on a locomotive before it is coupled to an outbound train for departure. Locomotive 4574, the lead locomotive for the train to which plaintiff was assigned, received an inspection at the Vancouver facility the night before plaintiff was injured.
Before a train departs from the T-6 yard, the train's transportation crew arms electronic devices known as the "FRED" and "Mary." The FRED is a flashing device affixed to the rear of a train; the Mary is a small box located inside the lead locomotive. Together, the two devices monitor the air pressure in the train's air brake system and relay that information between the front and the back of the train.
The train to which plaintiff was assigned was a grain train that was set out on two tracks but otherwise fully assembled, as the tracks were too short to hold the entire train during its predeparture preparations. On the evening of plaintiff's injury, he and a crewmate were inspecting cars, performing an "air test" on the train's brake lines, and arming the FRED and Mary (typically, the train's transportation crew arms the FRED and Mary, but any qualified person can do so). Plaintiff entered Locomotive 4574 to arm the Mary and observed that the device was not working. He then exited the locomotive and moved on to other inspection tasks in order to give the Mary time to start working properly. When he returned, the Mary was still not operative. In the course of removing the Mary to switch it with a replacement, plaintiff fell from the locomotive and suffered injuries to his elbow, arm, and wrist.
At the time of plaintiff's injury, the train was "blue flagged." Blue-flagging is a safety measure used to indicate that workers are in, under, or around a train. See 49 CFR § 218.23(a) (). According to federal regulations, the carmen who blue-flagged the train were the only workers permitted to remove the blue flag, and they were not permitted to do so until they had completed their work.3
When plaintiff was injured, a "handful" of cars had yet to be inspected. Locomotive 4574 was idling in order "to pump air into the air brake lines to build pressure in the train's air braking system." The train in question, as is typical of grain trains departing the T-6 yard, did not have a scheduled departure time. However, it was considered a "high priority train," meaning that "departure from the T-6 yard is imminent" once the FRED and Mary are armed. As part of their preparation of the train, the trainmaster had asked plaintiff and his crewmate to "pull down the air" for one section of railcars, which refers to the task of disconnecting the train's air brake system from the air compressors in the rail yard. Ordinarily, once workers have "pull[ed] down the air," the train departs soon thereafter because, if too much time passes, the train must be subjected to additional brake tests.
At the time of plaintiff's injury, there was no transportation crew for the train on site, and no crewmembers had been called to report to the yard to depart with the train that evening. The train was still on the yard tracks and had not been moved onto the main line. The train departed the T-6 yard at 5:30 a.m., approximately 13 hours after plaintiff had started his inspection.
Following the accident, plaintiff brought a damages action against defendant under the FELA, a federal statute that provides a private right of action to railroad workers who sustain on-the-job injuries as a result of their employer's negligence. 45 USC § 51 ; Norfolk S. Ry. Co. v. Sorrell , 549 U.S. 158, 165, 127 S.Ct. 799, 166 L.Ed.2d 638 (2007). Plaintiff based five of his claims on the LIA and corresponding regulations, the violation of which establishes a rail carrier's negligence as a matter of law for purposes of a FELA action. See Urie v. Thompson , 337 U.S. 163, 188-89, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949) ().4
A rail worker may rely upon an LIA violation to establish his employer's negligence as a matter of law only if the injury-causing locomotive was "in use" at the time of the injury.5 See 49 USC § 20701 (); Wright v. Ark. & Mo. R.R. Co. , 574 F.3d 612, 620 (8th Cir. 2009) ; McGrath v. Consol. Rail Corp. , 136 F.3d 838, 842 (1st Cir. 1998) ; Crockett v. Long Island R.R. , 65 F.3d 274, 277 (2d Cir. 1995).6
Defendant moved for partial summary judgment on plaintiff's five LIA claims, arguing that the LIA is inapplicable because the locomotive was not "in use" at the time of plaintiff's injury. For purposes of defendant's motion, the parties agreed that the material facts were undisputed, and that whether the locomotive was "in use" presented an issue of law for the court to decide. The trial court agreed with defendant that the locomotive was not "in use," granted defendant's summary judgment motion, and dismissed plaintiff's LIA claims.7
The sole issue on appeal is whether the trial court erred in its conclusion that the LIA is inapplicable because the locomotive was not "in use" at the time of plaintiff's injury, thereby precluding plaintiff from relying on the LIA to establish defendant's negligence as a matter of law under the...
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Mitchell v. BNSF Ry. Co., SD 35586
...to state procedural rules." Morgan v. Union Pacific R.R. , 368 S.W.3d 219, 222 (Mo. App. E.D. 2012). To quote Huntsinger v. BNSF Ry. , 286 Or.App. 84, 398 P.3d 403, 407 n.8 (2017), whether the ‘in use" issue is one of fact or law may be "a procedural question on which we are not bound by fe......