Lowery v. Illinois Cent. Gulf R. Co., 89-4101

• Decision Date: 16 January 1990
• Docket Number: No. 89-4101,89-4101
• Parties: Leslie Lee LOWERY, Plaintiff-Appellant, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1187

891 F.2d 1187

Leslie Lee LOWERY, Plaintiff-Appellant, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, Defendant-Appellee.

No. 89-4101.

United States Court of Appeals, Fifth Circuit.

Jan. 16, 1990.

Stuart H. Smith, Jack W. Harang, Metairie, La., for plaintiff-appellant.

Charles T. Ozier, George H. Ritter, Wise, Carter, Dhild, Caraway, Jackson, Miss., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before THORNBERRY, GARWOOD and DUHE, Circuit Judges.

THORNBERRY, Circuit Judge:

Plaintiff-appellant Leslie Lee Lowery (Lowery) appeals the district court's grant of summary judgment in favor of defendant-appellee Illinois Central Gulf Railroad Company (ICG) for personal injuries he sustained while on ICG's premises. For the reasons stated herein, we affirm in part, and reverse and remand in part.

Facts and Procedural History

This suit arises out of personal injuries that Lowery suffered while present at the railroad yard of his former employer, ICG. Lowery was an employee of ICG until he was placed on furlough status in October of 1983. Following his layoff, Lowery received unemployment compensation until the end of his entitlement in 1985. During this time, Lowery was self-employed and worked various odd jobs, but at no time did he return to active employee status with ICG. Lowery maintained his contact with ICG employees, however, and like other furloughed employees, he would often stop by for personal visits or to inquire about job opportunities.

On August 5, 1986, Lowery went to ICG to talk to Wendell Forest, his former supervisor, about the possibility of cutting down some trees located on Forest's property. Neither Forest nor ICG had advance knowledge of this visit, and Lowery conceded that the purpose of his visit was completely personal. While walking from his car to the ICG office, Lowery testified that he heard a "chattering" noise coming from the wheels of a tank car that was part of a moving outbound train. He also testified that he detected a burning odor. Lowery's nine-year experience as a car inspector led him to believe that the hand brake on the tank car was engaged. He testified that the hand brake would have remained engaged until someone released it or the car derailed. While the train was moving five or six miles per hour, Lowery decided to board the train so that he could release the brake, an action that he had done hundreds of times before. As he attempted to board the car, he slipped on the sill steps, fell underneath the car, and his foot was severed as the car ran over his leg. Lowery testified that the slip was caused by the presence of grease or oil on the sill steps and grab bar.

Lowery brought suit alleging that ICG was negligent in allowing the hand brake to be engaged and in maintaining the sill step and grab bar. He also alleged that he was an employee of ICG, and was thereby entitled to damages under the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60 (FELA). Alternatively, Lowery brought Mississippi state law negligence claims, including an allegation that ICG breached its duty to him as an invitee or licensee. Lowery claimed $3,000,000 in damages.

After reviewing the evidence, the district court granted summary judgment in favor of ICG, finding as a matter of law that Lowery was not an employee within the meaning of FELA. The court also found that Lowery entered ICG's property as a licensee rather than an invitee, and that Lowery became a trespasser when he exceeded the scope of his license by trying to board the moving train. Finding no evidence that ICG had actual knowledge of his presence or that it acted willfully or wantonly in maintaining the tank car, the district court granted ICG's motion for summary judgment on the state law claims as well. Although Lowery also argued that he was entitled to recover under Mississippi's "rescue doctrine," the court did not address this issue.

Lowery brought this appeal. On review, we affirm the district court's grant of summary judgment on the FELA claim, and we affirm dismissal of the state law claim on the grounds that ICG did not breach its duty to Lowery as a licensee or trespasser. We reverse and remand, however, for reconsideration of Lowery's state law claim insofar as it alleges a negligence cause of action pursuant to Mississippi's rescue doctrine.

Discussion

In reviewing a district court's grant of summary judgment, the standard of review at the appellate level remains the same as at the district court level. Netto v. Amtrak, 863 F.2d 1210, 1212 (5th Cir.1989). The pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, must demonstrate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Id.; Fed.R.Civ.P. 56(c). Under this standard, questions of fact are considered with deference to the nonmovant, while questions of law are subject to de novo review. USX Corp. v. Tanenbaum, 868 F.2d 1455, 1457 (5th Cir.1989). Although we customarily defer to the district judge in a diversity case involving interpretation of the law of the state in which that judge sits, we are "not bound by the district court's interpretation and can reverse the court if we believe the court has incorrectly applied the state's law." Id. (quoting Dean v. Dean, 821 F.2d 279, 283 n. 4 (5th Cir.1987).

I. FELA's Employee Status Requirement

Lowery first objects to the district court's determination that he did not qualify as an employee within the meaning of FELA. Section 51 of FELA provides:

Every common carrier by railroad while engaging in [interstate] commerce ... shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce ... for such injury ... due to its negligence, in its cars, engines, appliances, ... or other equipment.

45 U.S.C. § 51 (emphasis added). To recover under FELA, a plaintiff must prove: (1) that defendant is a common carrier by railroad engaged in interstate commerce, (2) that the injured was employed by the defendant with duties furthering such commerce (3) that the injuries were sustained while claimant was so employed, and (4) that the injuries were the result of the defendant's negligence. Fowler v. Seaboard Coastline R.R., 638 F.2d 17, 19 (5th Cir. Unit B Feb. 1981). At issue here are the second and third elements. In order to qualify as an employee, section 51 provides:

Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall in any way directly or closely and substantially, affect such commerce as set forth above shall, for the purposes of this chapter, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter.

FELA uses the words "employee" and "employed" in their ordinary and natural sense. Robinson v. Baltimore & O.R.R., 237 U.S. 84, 94, 35 S.Ct. 491, 494, 59 L.Ed. 849 (1915). Generally, whether an injured worker was acting as an employee at the time of injury is a question of fact for the jury. Lindsey v. Louisville & N.R.R., 775 F.2d 1322, 1324 (5th Cir.1985). Only if reasonable persons could not reach different conclusions on whether a claimant was an employee of the railroad at the time of his injury may the question be taken from the jury. Baker v. Texas & P. Ry., 359 U.S. 227, 228, 79 S.Ct. 664, 665, 3 L.Ed.2d 756 (1959).

Reviewing all of the facts before us, we agree with the district court that no reasonable juror could find that Lowery was an employee of ICG at the time of his injury. Lowery cites evidence that furloughed employees often visited ICG to inquire about employment opportunities, and that some ICG employees treated furloughed employees like regular employees. Nevertheless, it is undisputed that as of 1983, Lowery has been laid off work. Since then, he has neither been called back to work nor has he collected any wages from ICG. Lowery has also applied for and received unemployment compensation, and his presence at the railroad yard on the date of his injury was neither requested by nor known to ICG. In addition, Lowery conceded that the purpose of his visit was not business related but purely personal. To consider Lowery an employee under these circumstances stretches the term "employee" well beyond its usual meaning.

Furthermore, even assuming that Lowery was "employed," there is no indication that Lowery had any duties furthering interstate commerce, because as a furloughed employee, Lowery simply had no duties at all. Lowery argues that if an emergency arose, he would have a "duty" as a furloughed employee to respond to ICG's call and return back to work. Perhaps. But until Lowery does return to work (assuming of course that he chooses to do so), he has no duties or obligations as an employee. The mere expectation that upon being recalled to work plaintiff will become an employee with duties affecting interstate commerce is not sufficient to bring the case within FELA. Therefore, we affirm the district court grant of summary judgment in favor of ICG on Lowery's FELA claim.

II. Invitee, Licensee, or Trespasser?

Lowery also appeals the district court's rejection of his state law claim that ICG breached its duty to him as either an invitee or licensee on its property. Lowery presented evidence that he and other furloughed employees were expected to visit the railroad yard in the event that work became available, and that ICG knew of and welcomed their presence. Thus, he argues that he was an invitee, or alternatively, a licensee who was injured due to ICG's active negligence. The district court found that Lowery was a licensee when he entered ICG's property, but that he became a trespasser when he exceeded the scope of his license by boarding the train. Because there was no evidence of willful or...