Miller v. Union Pac. R.R. Co.

• Decision Date: 26 August 2020
• Docket Number: No. 19-2536,19-2536
• Citation: 972 F.3d 979
• Parties: Gary W. MILLER, Plaintiff - Appellant v. UNION PACIFIC RAILROAD COMPANY, Defendant - Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

972 F.3d 979

Gary W. MILLER, Plaintiff - Appellant

v.UNION PACIFIC RAILROAD COMPANY, Defendant - Appellee

No. 19-2536

United States Court of Appeals, Eighth Circuit.

Submitted: May 12, 2020

Filed: August 26, 2020

Rehearing and Rehearing En Banc Denied October 23, 2020^*

Richard L. Carlson, William Anthony Kvas, Hunegs & Leneave, Wayzata, MN, for Plaintiff-Appellant.

Jason W. Grams, William Maxwell Lamson, Jr., Lamson & Dugan, Omaha, NE, for Defendant-Appellee.

Before COLLOTON and BENTON, Circuit Judges, and WILLIAMS,¹ District Judge.

WILLIAMS, District Judge.

Gary W. Miller sustained injuries while serving as an engineer for Union Pacific Railroad Company (UP) when the train he was operating partially derailed because a misaligned switch sent the train onto an unused siding track. Miller brought suit seeking compensation under the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq., asserting FELA negligence per se and negligence claims. Specifically, in his negligence per se claim, Miller alleged UP failed to comply with federal regulations requiring it to align the switch for mainline movement. In his negligence claim, Miller alleged UP was negligent by failing to align the switch for mainline movement, properly secure switch keys to prevent a third party from changing the switch, install additional or different devices to lock the switch in place, or remove the switch when UP stopped using the siding track. Miller appeals the district court's² order denying his motion for partial summary judgment and granting UP's motion for summary judgment. We affirm.

I.

At about 8:00 p.m., on September 20, 2015, Miller and a conductor were operating a train from Oklahoma City to Enid, Oklahoma along a mainline track. Near Enid was a switch that could divert a train from the mainline track to a siding track. UP had not used the siding track for about ten years and generally had not maintained the siding track. The siding track was short and there was a ravine past the end of the track. The siding track was not intended for high speeds.

Federal Railroad Administration (FRA) regulation 49 C.F.R. § 218.105 requires railroads to adopt policies designating the default position for switches. In compliance with this regulation, UP adopted an operating rule requiring switches to be lined for mainline travel when not in use. FRA regulations also require railroad switches to have reflectorized "switch targets" that tell the train crew whether a switch is lined for mainline travel or onto a siding track. A green square indicates the switch is lined for mainline travel, and a red circle with a silver stripe indicates that the switch is lined for the siding track.

As the train neared Enid and was about 1,500 feet from the switch, Miller noticed the small silver stripe on the switch indicator. When Miller realized the switch was lined toward the siding track, he activated various braking mechanisms. The event data recorder for the train shows that Miller began braking just more than 800 feet from the switch. The train continued down the track and when the train was about 500 feet from the switch Miller could first see part of the red target. The lead locomotive went through the switch onto the siding track. The second locomotive derailed and pulled the lead locomotive to a stop. The remaining cars piled up near the switch. Miller was injured in the incident.

UP had inspected the switch just days before the accident, on both September 15 and 18, 2015, finding it aligned for mainline movement. The switch was secured by a standard switch lock that could be unlocked with a universal "102 key." These 102 keys worked on numerous UP switches and were distributed to various UP employees. Amtrak employees also had access to 102 keys. Those two inspections also showed the switch was spiked and anchored to prevent the switch from being misaligned to the unused siding track. The day before the accident, another train passed over the switch on the mainline without incident. Between that train's passage and the accident, there was no evidence that any UP employees were at the switch location within the scope of their duties.

After the accident, UP inspected the switch again. This time the switch was partially lined to the siding track but was not latched in that position. Someone had used a 102 key to unlock the switch. At some point before September 20, 2015, there was a burglary of an Amtrak building in nearby Oklahoma City, and a number of 102 keys were stolen. The side of the lock looked like it had recently been "beat on." Locks that have not been opened for a while can be difficult to open, and sometimes it is necessary to strike the side of locks to get keys to work.

UP contacted the authorities, and Special Agent Scott Bybee ("Bybee") of the Railroad Police Department investigated the incident. In addition to the marks on the lock, Bybee also noted that the spikes and rail anchors holding the switch in place had been removed and were left near the switch. Bybee believed that the derailment was the result of a criminal act.

In granting summary judgment in UP's favor, the district court concluded that a third party, not UP, had misaligned the switch causing the accident. The district court found that UP was not negligent per se because Miller could not prove UP violated the switch position regulation when it did not know or should have known that the switch had become misaligned. The district court also found that even if UP violated the regulation, its violation was excused because it exercised reasonable care to comply with the regulation. As to Miller's negligence claim, the district court found that Miller failed to produce facts raising a genuine issue for trial about whether UP breached a general duty of care.

II.

This Court reviews a grant of summary judgment de novo. See Torgerson v. City of Rochester , 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). "Summary judgment should be granted when—viewing the facts most favorably to the nonmoving party and giving that party the benefit of all reasonable inferences—the record shows that there is no genuine issue of material fact." Schilf v. Eli Lilly & Co. , 687 F.3d 947, 948 (8th Cir. 2012) (citing FED. R. CIV. P. 56(c) ). "At summary judgment, the court's function is not to weigh the evidence and determine the truth of the matter itself, but to determine whether there is a genuine issue for trial." Id. at 949 (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). "There is a genuine dispute when the evidence is such that a reasonable jury could return a verdict for the non-moving party." Dick v. Dickinson State Univ. , 826 F.3d 1054, 1061 (8th Cir. 2016) (citation and internal quotation marks omitted); see also Odom v. Kaizer , 864 F.3d 920, 921 (8th Cir. 2017) (reviewing grant of summary judgment de novo; summary judgment is proper when there is no genuine issue of material fact and party is entitled to judgment as a matter of law; evidence is viewed and all reasonable inferences are drawn in nonmoving party's favor). In summary judgment, however, "[t]he nonmovant ‘must do more than simply show that there is some metaphysical doubt as to the material facts,’ and must come forward with ‘specific facts showing that there is a genuine issue for trial.’ " Torgerson , 643 F.3d at 1042 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ).

III.

Enacted in 1908, FELA provides railroad employees with a federal cause of action for injuries. FELA states, in relevant part:

Every common carrier by railroad ... shall be liable in damages to any person suffering injury while he is employed by such carrier ... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier[.]

45 U.S.C. § 51. FELA imposes upon employers a continuous duty to provide a reasonably safe place to work. Cowden v. BNSF Ry. Co. , 690 F.3d 884, 889 (8th Cir. 2012). "Cognizant of the physical dangers of railroading that resulted in the death or maiming of thousands of workers every year, Congress crafted a federal remedy that shifted part of the ‘human overhead’ of doing business from employees to their employers." Consol. Rail Corp. v. Gottshall , 512 U.S. 532, 542, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994) (quoting Tiller v. Atl. Coast Line R.R. Co. , 318 U.S. 54, 58, 63 S.Ct. 444, 87 L.Ed. 610 (1943) ). "In order to further FELA's humanitarian purposes," Congress removed various common-law obstacles to an employee's recovery, id. , and courts have "liberally construed FELA to further Congress’[s] remedial goal," id. at 543, 114 S.Ct. 2396. Nevertheless, "although common-law principles are not necessarily dispositive of questions arising under FELA, unless they are expressly rejected in the text of the statute, they are entitled to great weight in our analysis." Id. at 544, 114 S.Ct. 2396.

"Under the FELA, ‘[a] railroad will be liable if its or its agent's negligence played any part, even the slightest , in producing the employee's injury.’ " Ybarra v. Burlington Northern, Inc. , 689 F.2d 147, 149 (8th Cir. 1982) (quoting Richardson v. Mo. Pac. R.R. Co. , 677 F.2d 663, 665 (8th Cir. 1982) (emphasis in original)). "FELA's language on causation ... ‘is as broad as could be framed.’ " CSX Transp., Inc. v. McBride , 564 U.S. 685, 691, 131 S.Ct. 2630, 180 L.Ed.2d 637 (2011) (quoting Urie v. Thompson , 337 U.S. 163, 181, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949) ); see also Fletcher v. Union Pac. R.R. Co. , 621 F.2d 902, 909 (8th Cir.1980) ("The test of causation under the FELA is whether the railroad's negligence played any part, however small, in the injury which is the subject of the suit."). "That FELA is to be liberally construed, however, does not mean that it is a workers’ compensation statute." Gottshall , 512 U.S. at 543, 114 S.Ct. 2396. The basis of...