Marshall v. Grand Trunk W. R.R. Co.

• Decision Date: 09 May 2011
• Docket Number: Case No. 1:09–cv–754.
• Citation: 850 F.Supp.2d 686
• Parties: Wayne L. MARSHALL, Plaintiff, v. GRAND TRUNK WESTERN RAILROAD COMPANY, Defendant.
• Court: U.S. District Court — Western District of Michigan

850 F.Supp.2d 686

Wayne L. MARSHALL, Plaintiff,

v.GRAND TRUNK WESTERN RAILROAD COMPANY, Defendant.

Case No. 1:09–cv–754.

United States District Court,

W.D. Michigan,

Southern Division.

May 9, 2011.

Laurence C. Acker, Robert E. Harrington, III, Robert B. Thompson, Harrington Thompson Acker & Harrington, Chicago, IL, for Plaintiff.

Mary C. O'Donnell, Gregory Clifton, Durkin McDonnell Clifton & O'Donnell PC, Detroit, MI, for Defendant.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ON FELA LIABILITY

PAUL L. MALONEY, Chief Judge.

INTRODUCTION

This is an action under the Federal Employers Liability Act, 45 U.S.C. § 51 et seq. (“FELA”), which the parties agree is plaintiff Wayne L. Marshall (“Marshall”)'s sole remedy for on-duty injuries allegedly sustained during the course of his employment with defendant Grand Trunk Western Railroad Company (“the railroad”). Marshall seeks FELA damages for injuries allegedly sustained in four accidents which occurred in February 2006, January 2007, September 2007, and December 2007, and he alleges that each of those accidents was at least “a cause” of his medical conditions and three concomitant surgeries: April 2008 left-knee surgery by Dr. Kokmeyer, October 2008 right-knee replacement by Dr. Thomas, and February 2009 left-knee replacement again by Dr. Thomas. Marshall seems to allege that he had back “surgery”, see Plaintiff's Motion for Summary Judgment on FELA Liability filed December 2010 (“P's MSJ”) at 2, but the railroad clarifies that he merely had a permanent stimulator implanted in his back in November 2009, which it does not characterize as surgery, see Defendant's Brief in Opposition to Motion for Summary Judgment on FELA Liability filed February 3, 2011 (“Def's Opp”) at 8 n. 11 (citing Marshall's March 4, 2010 Dep. (P's MSJ Ex. 1) at 24).

It is undisputed that under FELA's relaxed causation requirement, Marshall need not prove that the railroad's negligence was the proximate, sole, or primary cause of his injuries, only that his injuries resulted “in part” from its negligence. In turn, Marshall can establish the railroad's negligence per se by showing that it violated any provision of the Federal Safety Appliance Act, 49 U.S.C. § 20301 et seq. (“FSAA”) and the regulations which the United States Department of Transportation (“DOT”) has promulgated thereunder (namely portions of 49 C.F.R. §§ 213, 231, and 232). In addition, Marshall contends, once he establishes that the railroad violated the FSAA, the railroad will be statutorily precluded from raising the affirmative defense of contributory negligence. Therefore, Marshall urges, there is no genuine issue of material fact as to whether the railroad is liable for the injuries he sustained in four on-the-job accidents which occurred in 2006 and 2007.

If Marshall is correct about the FELA liability standard and the lack of a genuine issue as to such liability, the jury would be left to determine only the nature, extent and duration of his injuries, and the appropriate monetary compensation for those injuries. Marshall alleges that his on-the-job injuries caused him to undergo back surgery and bilateral knee-replacement surgery, but the railroad responds that he has failed to show that those injuries and treatments were occasioned by his on-the-job accidents. See Def's Opp. at 1.

Marshall filed a motion for summary judgment in December 2010 (Docs. 65–67), relying heavily on testimony from his eight-hour deposition and its thirty-six exhibits, see P's MSJ at 1 n. 1. In February 2011 the railroad filed an opposition brief (Doc. 75) and Marshall filed a reply brief (Doc. 79). The court heard oral argument on Monday, May 2, 2011. For the reasons that follow, the court will GRANT IN

PART AND DENY IN PART

plaintiff Marshall's motion for summary judgment.BACKGROUNDFebruary 2006 Accident (Count 3)

Marshall worked for the railroad from June 1971 (age 18) until December 2007 (age 54), when he allegedly became permanently disabled. See P's MSJ, Exhibit (“Ex”) 1–Deposition of Wayne L. Marshall, Volume 1 (“Marshall Dep. 1”) at 45. He was 57 years old when he filed the instant complaint. He asserts one FELA claim for each of the four on-the-job accidents. The first of the four accidents occurred on February 1, 2006, when Marshall was working on a freight crew performing switching operations in Edwardsburg, Michigan for a local company, see Marshall Dep. 1 at 88. While Marshall was riding on a railcar, holding its “grab irons” with his hands and planting his feet securely on the sill step (stirrup), the step collapsed, causing both his knees to strike the railcar and become injured, see Marshall Dep. 1 at 95–96. The railroad alleges, however, that Marshall did not miss any time at work due to this incident, see Def's Opp. at 2 (citing Marshall March 4, 2010 Dep. at pp. 182–183).

January 2007 Accident (Count 1)

On January 11, 2007, while Marshall was working on a freight train traveling from Battle Creek, Michigan to Chicago, Illinois, the train made an emergency stop at an area called “Valpo Hill” in Valparaiso, Indiana, due to a malfunction in the air-braking system, see Marshall Dep. 1 at 102–104 and 114–116. The railroad directed Marshall to walk up the hill along the two-mile length of the train and determine the reason for the air-braking malfunction. Marshall alleges that he called his supervisor and explained that because the ground sloped severely downwards on both sides of the track, there was no safe, suitable place for him to walk alongside the track, but the supervisor directed him to do so anyway, see Marshall Dep. 1 at 119–120 and 125–126. Holding onto the side of railcars, Marshall walked nearly two miles looking for the cause of the brake malfunction, continually sliding and slipping down the allegedly steep hill; between the 99th and 100th railcars, he found the problem, see Marshall Dep. 1 at 116–117 and 122–125. He noticed that a strap which held the air hose connecting the air supply from one car to the next car, had broken and fallen down, continually striking the ground as the train traveled. That caused the air hoses connecting the braking system to break apart, triggering a loss of air to the rest of the train's brake system and causing the emergency stop. See Marshall Dep. 1 at 125–129. Marshall fixed the problem by reattaching the hoses and using wire to serve the function of the now-broken strap, i.e., to keep the hoses in the air and off the ground, see Marshall Dep. 1 at 117. He alleges, however, that because the railroad required him to walk on such steeply sloping ground for such a long distance, he immediately began to suffer pain in his back and legs, and he reported this pain to the railroad as an injury, see Marshall Dep. 1 at 144. The railroad agrees that Marshall missed eleven days of work right after this incident, see Def's Opp. at 2 (citing Marshall March 4, 2010 Dep. at p. 183).

The railroad denies, however, that the area where it required Marshall to walk that day was steep or sharply sloped. On the contrary, the railroad alleges that the ground where he walked was “quite flat [and] well maintained—hardly the menacing ... hill ... that plaintiff attempts to depict.” Def's Opp. at 12. The railroad proffers photographs showing the area—photographs which Track Supervisory Henry Ludvigsen confirmed accurately depict the relevant area on the side of the train track in Valparaiso, Indiana, see Def's Opp. Ex. 6 (Ludvigsen Aff), and which Marshall agreed “looks like a portionof the track that I walked”, see Marshall March 4, 2010 Dep. at 175–76. The court determines that if a reasonable factfinder credited the railroad's description of the Valparaiso land, as it could, it could find that even if the railroad's supervisor directed Marshall to walk for a mile or two along the tracks that day to discover the FSAA prohibited defects which caused an emergency stop, said defect did not play any role in the injuries Marshall allegedly suffered that day.

The railroad also attempts to show that a reasonable factfinder could find that it did not violate the FSAA's air-braking regulation, and therefore that there was no FSAA violation to support Marshall's attempt to hold the railroad strictly liable under FELA under a negligence per se theory. See Def's Opp. at 13 (pointing to Marshall's deposition testimony that he did not know when the strap connecting the air hoses broke, did not know whether the broken strap caused the failure of the ordinary air-braking system and the application of the emergency brake, and did not know why the train made an unscheduled emergency stop) (citing Marshall March 4, 2010 Dep. at 114:20–22 and 114:25 through 115:unspecified line). The court need not consider this alternative defense to count one, however, because the aforementioned factual dispute regarding the slope of the land is alone enough to create a genuine issue of material fact as to whether Marshall was even injured on that day in the manner he alleges. Because the factfinder could find that Marshall was not injured on the job on that day, he is not entitled to summary judgment as to FELA liability on count one.

The Sill–Step Accidents: September 2007 (Count 2) and February 1, 2006 (Count 3)

While working the Battle Creek–to–Chicago route on September 13, 2007, Marshall and a locomotive engineer were assigned to drop off and pick up railcars at a yard owned by EJ & E Railway in Griffith, Indiana, which required Marshall to stand on the side of a particular car (UELX600000) as it moved through the yard as part of a train, see P's MSJ Ex. 2—Deposition of Wayne L. Marshall, (“Marshall Dep. 2”) at 47 and 59. Marshall's hands held “grab irons” on the railcar and his feet were securely planted on a “sill step”—also known as a stirrup—which every railcar has, and he operated a handbrake after his particular car came to a stop, in order to remove it from the...