Larson v. Csx Transp., Inc.

• Decision Date: 19 August 2005
• Docket Number: No. 1-04-1219.,1-04-1219.
• Citation: 835 N.E.2d 138
• Parties: Steve LARSON, Plaintiff-Appellant, v. CSX TRANSPORTATION, INC., Defendant-Appellee.
• Court: Illinois Supreme Court

835 N.E.2d 138

Steve LARSON, Plaintiff-Appellant, v. CSX TRANSPORTATION, INC., Defendant-Appellee.

No. 1-04-1219.

Appellate Court of Illinois, First District, Sixth Division.

August 19, 2005.

COPYRIGHT MATERIAL OMITTED

Kent M. Lucaccioni of Kent M. Lucaccioni, Ltd., Chicago, for Appellants.

Brasher Law Firm, L.C., St. Louis, for Appellees.

Justice McNULTY delivered the opinion of the court:

Steven C. Larson brought an action under the Federal Employers' Liability Act (FELA) (45 U.S.C. §§ 51 through 59 (2000)), against CSX Transportation, Inc. (CSXT), for damages for carpal tunnel syndrome allegedly incurred in the course of his employment. The trial court granted defendant's motion for summary judgment. Larson appeals. Because no genuine issue of fact exists as to whether Larson was an employee of CSXT for FELA purposes at the time of his injury, we now affirm.

BACKGROUND

The facts underlying the instant appeal are largely undisputed. In 1987, Larson was employed by Fruit Growers Express (FGE) as a carman. FGE provides inspection and repair services for the refrigerated railroad cars of various railroad customers, and Larson's primary responsibility as a carman was the repair of internal components of these refrigerated cars. In 1992, Larson was promoted to supervisor in charge of car cleaning and repair, but he retained active responsibility for refrigerated car repair.

Larson customarily began his work day with mechanical inspection of the cars of CSXT, a common carrier by rail, at the railroad's yard. The railroad's yardmaster would inform Larson which cars needed to be inspected and where they were located within the yard. If a railcar failed its inspection, Larson would call the yardmaster and request that the car be set out for repair. Before making repairs to railcars, Larson obtained both verbal and written permission from CSXT's yardmaster. If any refrigerated cargo seemed to be at risk of loss, Larson also called CSXT's freight claims department. That department determined what to do in the event that a car could not be immediately repaired and its load was at risk: have the car transferred for repair, have the load transferred, or run the car to the destination.

Larson sought similar direction from employees of railroads other than CSXT when performing work on their cars. Though he generally began each day doing inspections at the CSXT yard, he checked his answering machine each morning for service calls which had come in over the previous night, he was free to set his own schedule and priorities, and he always gave priority to calls for service on cars whose loads were at risk of loss without regard to the railroad which utilized them. Larson would occasionally do additional work for CSXT cars which he did not do for the cars of other railroads, such as lubing the doors.

In 1989, FGE was purchased in its entirety by Rail Wagons, Incorporated, a wholly owned subsidiary of CSXT. Approximately 90% of FGE's revenue was derived from billings for work done on CSXT cars. The administrative functions of FGE, including payroll services, were performed by CSXT pursuant to contract. Larson's immediate supervisor at FGE was B.J. Mackey. B.J. Mackey's supervisor at FGE was James Crisp, who reported directly to an assistant vice president of CSXT, David Bell.

FGE supplied all the necessary tools for Larson to complete his work; however, at least some of the vehicles used by FGE employees were leased from CSXT. A boom truck leased by FGE and used by Larson had a CSXT emblem stenciled on its door, but the pickup truck which Larson drove to and from work sites did not have any identification on its exterior. The vehicles were given identification numbers which corresponded with numbers on credit cards which were to be used by FGE employees to refuel them; the credit cards had CSXT emblems printed on them; however, the funds used to satisfy the credit cards come out of an FGE account.

Larson filed a complaint against CSXT in the circuit court of Cook County, alleging that he had initially developed symptoms of carpal tunnel syndrome in 1995; that the symptoms returned in 1997 and that he was diagnosed with the condition at that time; that he underwent surgeries for the condition in March and April 2000; and that he remained disabled as a result of the condition. Larson further claimed that he was loaned by FGE to CSXT, that FGE was the servant of CSXT, that he was therefore an employee of CSXT for purposes of the Federal Employers' Liability Act (45 U.S.C. §§ 51 through 59 (2000)), and that his condition was a result of CSXT's negligence in requiring him to use equipment that caused the condition and in failing to provide him with equipment which would have allowed him to avoid repetitive stressful motions.

CSXT denied the substance of Larson's complaint and filed a motion for summary judgment, contending that the pleadings, depositions and admissions show that Larson was not employed by CSXT for FELA purposes or otherwise. The trial court granted CSXT's motion. Larson appeals.

ANALYSIS

The sole issue on appeal is whether summary judgment was properly granted to CSXT on the ground that Larson was not an "employee" of CSXT for FELA purposes at the time of his injury. "Federal substantive law applies to actions brought under FELA." Tierney v. Burlington Northern R.R. Co., 240 Ill.App.3d 526, 529, 181 Ill.Dec. 406, 608 N.E.2d 479 (1992), citing Dice v. Akron, Canton & Youngstown R.R. Co., 342 U.S. 359, 72 S.Ct. 312, 96 L.Ed. 398 (1952). Decisions of federal courts control our interpretation of federal statutes. Elgin, Joliet & Eastern Ry. Co. v. Industrial Comm'n, 9 Ill.2d 505, 507, 138 N.E.2d 553 (1956).

Summary judgment shall be entered when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. "In determining the existence of a genuine issue of material fact, courts must consider the pleadings, depositions, admissions, exhibits, and affidavits on file in the case and must construe them strictly against the movant and liberally in favor of the opponent." Buccieri v. Illinois Central Gulf R.R., 235 Ill.App.3d 191, 196, 176 Ill.Dec. 142, 601 N.E.2d 840 (1992). Courts review the propriety of summary judgment de novo. Buccieri, 235 Ill.App.3d at 196, 176 Ill.Dec. 142, 601 N.E.2d 840. When the plaintiff fails to present evidence to create a genuine issue of material fact on the question of his employment by the defendant for FELA purposes, summary judgment for the defendant is proper. Dominics v. Illinois Central R.R. Co., 934 F.Supp. 223, 226-27 (S.D.Miss.1996).

In order to establish a cause of action under FELA, a plaintiff must prove the following four elements: (1) defendant is a common carrier; (2) plaintiff was an employee of the common carrier; (3) plaintiff's injury was sustained while employed by the common carrier; and (4) defendant's negligence is the cause of the injuries. 45 U.S.C.A. § 51 (2000).

Larson concedes that he was nominally employed by FGE, which is not a party to the instant appeal and is not a common carrier for FELA purposes. Edwards v. Pacific Fruit Express Co., 390 U.S. 538, 543, 88 S.Ct. 1239, 1242, 20 L.Ed.2d 112, 116 (1968). Plaintiffs nominally employed by non-FELA entities may nonetheless recover from railroad defendants under the statute under any one of three circumstances: (1) plaintiff is a borrowed servant of the railroad; (2) plaintiff works for two employers (his own and the railroad) simultaneously; or (3) plaintiff's employer is a servant of the railroad and, thus, plaintiff is a "subservant" of the railroad. Kelley v. Southern Pacific Co., 419 U.S. 318, 324, 95 S.Ct. 472, 476, 42 L.Ed.2d 498, 506 (1974). Larson contends that he has presented sufficient evidence to reach the jury on each of the possible theories of recovery against CSXT. We disagree.

"Borrowed" or "Dual Servant" Theory

Larson argues that he is a "borrowed servant" or a "dual servant" of CSXT and is thus entitled to recover from the railroad under FELA. "Under the `borrowed servant' doctrine, one master enters into an agreement with a second by which the second (for example) borrows the servants of the first. The borrowing master thus becomes the borrowed servant's master while the borrowed servant is performing the borrowing master's tasks." Pelliccioni v. Schuyler Packing Co., 140 N.J.Super. 190, 197-98, 356 A.2d 4, 8 (1976), citing Linstead v. Chesapeake & Ohio Ry. Co., 276 U.S. 28, 48 S.Ct. 241, 72 L.Ed. 453 (1928); Williams v. Louisville & Nashville R.R. Co., 398 F.Supp. 683 (S.D.Ohio 1975); Helton v. United States, 309 F.Supp. 479, 484 (E.D.Ark.1969). The "dual servant" situation arises when "two employers share equally in the direct supervision and control of one servant." Pelliccioni, 140 N.J.Super. at 198, 356 A.2d at 8, citing 1 Restatement (Second) of Agency § 226, at 498 (1958). At the center of the analysis for both the borrowed servant theory and the dual servant theory is the question of control. Kelley, 419 U.S. at 325-26, 95 S.Ct. at 476-77, 42 L.Ed.2d at 506-07. The control necessary to establish the plaintiff's status as the defendant's servant is the latter's significant supervisory role over the means and manner of the plaintiff's performance; global oversight is insufficient, as is cooperation and consultation in coordinated operations. Ancelet v. National R.R. Passenger Corp., 913 F.Supp. 968, 971 (E.D.La.1995).

To support his claim of control Larson points to the following: (1) he was instructed to "do certain things with certain types of cars"; (2) CSXT foremen would instruct him where to work at the yard; (3) he communicated directly with the CSXT freight claims department about specific problems with cars, accompanied by instructions as to whether/how to repair the car; and (4) he would have to get permission to work on certain repairs in the yard.

In Ancelet, similar facts were held to be insufficient...