Lingo v. Ohio Central Railroad, Inc., No. 05AP-206 (OH 5/9/2006)
| Decision Date | 09 May 2006 |
| Docket Number | No. 05AP-206.,05AP-206. |
| Parties | Matthew S. Lingo, Plaintiff, v. Ohio Central Railroad, Inc., Defendant-Third-Party Plaintiff-Appellant, v. Norfolk Southern Railway, Third-Party Defendant-Appellee. |
| Court | United States State Supreme Court of Ohio |
APPEAL from the Franklin County Court of Common Pleas, (C.P.C. No. 03CV-12962).
Brenner, Brown, Golian & McCaffrey Co., LPA, Joseph J. Golian, and Shannon K. Benton, for appellant Ohio Central Railroad.
Porter, Wright, Morris & Arthur, LLP, R. Leland Evans, J. Kenneth Thien, and David K. Orensten, for appellee Norfolk Southern Railway Company.
{¶1} Defendant-third-party plaintiff-appellant, Ohio Central Railroad ("appel-lant"), appeals from the January 31, 2005 judgment entry of the Franklin County Court of Common Pleas. This entry incorporates the trial court's August 23, 2004 decision granting summary judgment in favor of third-party defendant-appellee Norfolk Southern Railway ("appellee"), and against appellant. Appellee filed motions to dismiss the appeal and for attorneys' fees.
{¶2} The relevant procedural and factual history follows. Matthew Lingo ("Lingo"), the plaintiff below, was an employee of appellant. On May 15, 2002, while working at appellant's rail yard in Columbus, Ohio, Lingo slipped while attempting to assemble a train and board a moving flatbed railcar owned by third-party defendant-appellee Norfolk Southern Railway ("appellee"). Lingo fell to the ground, and sustained severe injuries when the railcar ran over his left leg.
{¶3} After an initial filing and a voluntary dismissal, Lingo refiled his complaint on November 25, 2003. Therein, he brought claims against appellant alleging violations of the Federal Employers' Liability Act ("FELA"),1 violations of the Federal Safety Appliance Act ("FSAA"),2 and common law wrongful discharge. Appellant filed a third-party complaint against appellee, third-party defendant Vogt Power International, Inc., and CSX Transportation, Inc. Lingo later voluntarily dismissed his claims against the latter two third-party defendants. Lingo and appellant filed cross-motions for partial summary judgment as to the FSAA claim. On August 23, 2004, the trial court granted Lingo's motion and denied appellant's motion.
{¶4} On May 5, 2004, appellee filed a motion for summary judgment against appellant on the issues of contribution and indemnification. Among the documents appellee submitted in support of its motion were relevant portions of the depositions of Michael J. Connor ("Connor"), vice-president of appellant; James L. Pinson ("Pinson"), the manager of car accounting for appellee; John D. Sigler ("Sigler"), the manager for car administration for appellee; and Lingo.
{¶5} Connor indicated during his deposition testimony that he believed that appellee was the successor corporation to Conrail. He further testified in his deposition that sometime in 1991 or 1992, appellant and Consolidated Railroad Corporation ("Conrail"), entered into "oral understandings" in which appellant agreed not to send its employees to Buckeye Yard, a rail yard owned by Conrail, for the purpose of inspecting and repairing railcars that were going to be sent to appellant's rail yard. Connor stated that pursuant to this "oral understanding," Conrail, before tendering a railcar to appellant, would inspect outgoing railcars and bring the railcars into compliance with Federal Railroad Administration ("FRA") safety rules and Association of American Railroads ("AAR") interchange rules. Connor testified that appellant never asked appellee whether it intended to honor the oral agreement between appellant and Conrail after appellee took over operations from Conrail at Buckeye Yard.
{¶6} Connor testified that appellant trained its employees with both on-the-job training and written materials. Connor stated that employees were permitted to board and dismount moving railcars. He additionally stated that if a supervisor became aware of an unsafe or inappropriate practice of an employee of the railroad, it was the responsibility of the supervisor to instruct the employee on safe practices.
{¶7} Connor also testified that appellant delivered boilers to Dresden, Ohio, on railcars that lacked necessary safety equipment, such as handholds, due to the nature of the cargo. He testified that a customer such as the Dresden power facility is not normally required to return a delivered railcar to compliance with rules and regulations by replacing safety appliances such as handholds. However, absent a waiver from the federal regulations, appellant is responsible to ensure that a railcar complies with safety standards after a customer has unloaded a railcar and returned it. Connor further testified that when receiving a train from another railroad at an interchange, it is the responsibility of the receiving railroad to inspect the railcar to ensure that it is in compliance.
{¶8} Pinson testified in his deposition that as the manager of car accounting for appellee, he has familiarity with the location of railcars owned by appellee. He testified that the railcar in question originally picked up cargo consisting of boilers in Mobile, Alabama, and delivered the boilers to Dresden, Ohio, on April 25, 2002. The handholds were most likely removed so that the boilers would fit on the railcar. He stated that appellant received the railcar with two "idler cars" on March 21, 2002, and retained the railcar in its possession, or the possession of an affiliated company of appellant, until April 26, 2002. Pinson testified that the "idler cars," which had been traveling with the misrouted railcar were returned to appellee on April 13, 2002, but the railcar itself was not returned until April 26, 2002. On May 13, 2002, appellee sent the railcar to appellant's rail yard.
{¶9} Sigler testified in his deposition that federal law requires that handholds be attached to a railcar so that railroad employees can ride railcars safely. Sigler testified that handholds can be removed to accommodate oversized cargo. According to Sigler, when a railcar has had its handholds removed, it must have an "idler car" attached to each end of the railcar in order to be compliant with federal law for safety purposes. Sigler additionally stated that once oversized cargo is removed, it is the responsibility of the consignee or unloader of the cargo to replace the handholds, or in the alternative, notify the delivering railroad to replace the handholds.
{¶10} Lingo testified in his deposition that he first noticed the railcar in question on May 13 or 14, 2002. The railcar was not listed as one that should be in the rail yard. After notifying his dispatcher, he was instructed to set the railcar aside because the railcar had been misrouted. On May 15, 2002, Lingo's dispatcher ordered him to send the misrouted railcar back to appellee by placing it in the train that was headed to appellee's Buckeye rail yard (the "CBT" train). Lingo stated he began to assemble the CBT train by putting railcars in a certain sequence in order to take the railcar in question back to appellee. Although the railcar lacked handholds, Lingo boarded the railcar the first time successfully while it was moving by placing his feet in stirrups attached to the railcar and holding the flatbed of the railcar. He was then told by another employee to stop the railcar. After the railcar began moving again, Lingo attempted to board the railcar a second time when it was moving, but slipped and was injured.
{¶11} Lingo testified that in the two years he had worked for appellant prior to the injury, that he had only one day of classroom training, been given a CSX rule book, taken two annual tests on rules, and had on-the-job training as part of a three-man crew. Lingo testified that he often worked with flatcars similar to the railcar in question, and that when boarding moving flatbed railcars without handholds, he would jump on the car, placing his feet in the stirrups and lean forward grabbing the top of the railcar with his hands. According to Lingo, he had previously boarded railcars without handholds in front of his supervisors during the course of his employment with appellant.
{¶12} On August 23, 2004, the trial court granted appellee's motion for summary judgment, finding that appellant was entitled to neither contribution nor indemnification from appellee. The judgment entry set forth that the same was not a final appealable order.
{¶13} Appellant and Lingo settled the wrongful discharge claim prior to trial. The case proceeded to trial on the FELA claim with Lingo and appellant as the only remaining parties. The jury returned a verdict in favor of Lingo and against appellant. On January 31, 2005, the trial court entered a judgment upon the jury's verdict, also entered judgment as to all parties and claims, and expressly incorporated therein all interlocutory orders. On February 18, 2005, Lingo filed a notice of satisfaction and release, which stated that the judgment had been satisfied.
{¶14} Appellant timely appealed, and asserts the following five assignments of error:
1. The trial court erred when it granted summary judgment as to third-party defendant Norfolk Southern Railway Company in holding third-party plaintiff Ohio Central Railroad was not entitled to indemnification for breach of contract.
a. The trial court erred in granting summary judgment in favor of third-party defendant Norfolk Southern Railway Company in holding no enforceable oral agreement existed between third-party plaintiff Ohio Central Railroad and third-party defendant Norfolk Southern.
b. The trial court erred when it held that an oral contract to perform pre-interchange inspections on railcars was an agreement not to be performed within one year from its making and was in violation of the Statute of Frauds.
2. The trial court erred when it granted summary judgment as to third-party defendant Norfolk...
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