Myrick v. Union Pac. R.R. Co.

• Decision Date: 25 July 2017
• Docket Number: No. 1-16-1023.,1-16-1023.
• Parties: Chevas MYRICK, Plaintiff–Appellant, v. UNION PACIFIC RAILROAD COMPANY and The Belt Railway Company of Chicago, Defendants–Appellees.
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 161023

84 N.E.3d 504

Chevas MYRICK, Plaintiff–Appellant,

v.UNION PACIFIC RAILROAD COMPANY and The Belt Railway Company of Chicago, Defendants–Appellees.

No. 1-16-1023.

Appellate Court of Illinois, First District, SECOND DIVISION.

July 25, 2017

Hoey & Farina, P.C., of Chicago (Matthew F. Liebert, Richard A. Haydu, and Steven P. Garmisa, of counsel), for appellant.

Elizabeth A. Graham and Robert J. Gibbons, Corporation Counsel, of Chicago, for appellees.

OPINION

JUSTICE PIERCE delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, an employee of Union Pacific Railroad Company, sustained injuries to his leg while he was assigned to work in a rail yard operated by Belt Railway Company of Chicago. Plaintiff alleged that he was dropped off by a Belt Railway employee at an unlit, hazardous location, and that while he was walking from the drop off location to his destination, he stepped in a snow-covered hole. Plaintiff's first amended complaint asserted claims against Union Pacific and Belt Railway under the Federal Employers' Liability Act (FELA) ( 45 U.S.C. § 51 (2012) ) and a negligence claim against Belt Railway.¹ Lawanda Myrick, Myrick's wife, asserted a loss of consortium claim against Belt Railway.² The circuit court granted defendants' pretrial motion in limine to bar plaintiff from introducing evidence that there were safer alternative locations where he could have been dropped off. Plaintiff made an offer of proof regarding the alternative drop off locations. The jury returned a verdict in favor of defendants. Plaintiff's motion for a new trial was denied, and plaintiff appeals. For the following reasons, we reverse and remand for a new trial.

¶ 2 BACKGROUND

¶ 3 Chevas Myrick, a freight conductor, filed a complaint seeking damages for injuries he allegedly sustained while working for Union Pacific Railroad Company at a facility operated by Belt Railway Company of Chicago (collectively, defendants). In count I of Myrick's first amended complaint, he asserted a claim under the FELA against Union Pacific. He alleged that on March 7, 2013, while performing his duties as a "trainman/conductor," he was sent by Union Pacific to a Belt Railway facility to build a train and prepare it for departure. When Myrick finished building the train, Belt Railway transported him to "an area between rail tracks in the rail yard which required [him] to walk across a number of railroad tracks to reach [the] locomotive" so that it could be moved out of Belt Railway's yard. Myrick alleged that the ground was uneven and covered by 3 to 18 inches of snow, and that while he was walking from the drop off location to the locomotive, he stepped "into a hole under the snow in the walkway between the tracks," resulting in injuries. The complaint alleged that Union Pacific had a duty "to use ordinary care in furnishing [Myrick] with a safe place to work, even when required to go into property owned and operated by third parties." Myrick alleged, in relevant part, that Union Pacific was negligent by failing to have him "properly and safely transported to the engine," and "[o]therwise, fail[ing] to provide [Myrick] with a reasonably safe place to work."

¶ 4 Count II asserted a FELA claim against Belt Railway, alleging that at the time he was injured, Myrick "was acting as a borrowed servant" or alternatively, "acting for two masters." Count II alleged that Myrick was dropped off "several hundred feet" from the train's engine and that while walking across the rail tracks, he stepped into a hole covered by snow, causing him injuries. He alleged that Belt Railway had a duty to "provide [Myrick] with a reasonably safe place to work, to provide reasonably safe conditions in which to work, to exercise ordinary care to avoid placing [Myrick] in danger and to exercise ordinary care on its property in operations for the safety of [Myrick]." He alleged, in relevant part, that Belt Railway was negligent for "[f]ail[ing] to deposit [Myrick] at a safe location adjacent to the locomotive[.]"

¶ 5 Count III asserted a negligence claim against Belt Railway, alleging that instead of driving Myrick "onto a vehicular road *** which would have deposited [Myrick] directly adjacent to the locomotive engine, as was the customary procedure, [the] trainmaster deposited [Myrick] in an area between rail tracks in the rail yard which required [Myrick] to walk across a number of railroad tracks to reach the train." Myrick alleged that Belt Railway had a duty to use ordinary care for his safety, and was negligent, in relevant part, for "[f]ailing to transport [him] to a safe location to access the engine," and "provide [him] with a reasonably safe place to work."

¶ 6 Defendants answered the first amended complaint, and the case proceeded to a jury trial. Prior to trial, defendants moved in limine to bar "the introduction of any evidence that [Myrick] should have been dropped off in a ‘better’ or ‘safer’ location." Defendants argued that "railroad employers are not required to furnish their employees with the latest, best, and most perfect equipment or methods with which to work," and that the relevant inquiry under FELA is whether the railroad "exercised reasonable care in fulfilling its duty to provide a reasonably safe workplace and reasonably safe methods, not whether the procedures could have been made ‘safer.’ " Defendants asserted that "[o]nly if plaintiff can present evidence establishing that the location where he fell was not reasonably safe should he prevail."

¶ 7 In his written response to defendants' motion in limine , Myrick argued that defendants had a duty to use ordinary care to provide him with a reasonably safe place to work. He argued that his testimony would show that he was "customarily driven on different path [sic ] outside the yard on a roadway" and that March 7, 2013, was the first time that defendants had dropped him off in the area where they did. He argued that defendants "ignored" their "normal procedure" in favor of "the less safer [sic ] alternative."

¶ 8 After oral argument, the circuit court found that "the focus should be on where the accident happened," since neither FELA nor a common law negligence claim requires a defendant to explain "why they didn't drop him off someplace else[.]" The circuit court observed that Myrick would have "ample opportunity" to show how defendants' decision as to where Myrick was dropped off was negligent and that it "was not a good place to drop him off." The circuit court explained that even if the location where Myrick was dropped off was the only place that defendants could have dropped him off, defendants still had a duty to make it safe. The circuit court granted defendants' motion in limine .

¶ 9 At trial, Myrick testified that one of his regular job responsibilities as a Union Pacific freight conductor was to perform "transfer jobs." In a transfer job, Union Pacific transports its employees to another railroad's switching facility. There, the Union Pacific employees assemble a train under the supervision and control of the other railroad's managers, and then move the train to Union Pacific's facilities. Myrick had done transfer jobs at various times over his 15-year employment, and it was a regular assignment for several months prior to the accident. On March 6, 2013, Myrick began work at around 9:00 p.m. at Union Pacific's facility in Northlake. Union Pacific assigned Myrick to do a transfer job at Belt Railway's Chicago facility. He was taken by a "cab" to the Belt Railway facility. The Union Pacific crew assembled the Union Pacific train on the "main line track." Myrick requested the Belt Railway yardmaster to call for a cab to take Myrick to the head of the train. However, after a 20 to 30 minute wait, Belt Railway told Myrick that no cabs were available and that he would have to walk to the locomotive.

¶ 10 While Myrick was walking, Mark Labbe, the Belt Railway trainmaster, picked Myrick up in a Jeep, drove him closer to the head of the train where he dropped him off about 25 railcars from the locomotive. Labbe selected the drop off location. Myrick stated that it was dark outside and that the only light in the area was from the lantern that he had with him. The snow was about two feet deep. Myrick testified that it was not an area where he would normally walk and that the ground was uneven. After crossing two sets of tracks, Myrick stepped on the shoulder of the track and his foot went into a snow-covered trench injuring his leg.

¶ 11 Labbe testified that it was not unusual for him to give crews rides in the yard. When he picked Myrick up, they were about a half mile from the locomotive. There was snow on the ground, and the road Labbe was driving on had been partially plowed, however, the area where he dropped Myrick off had not been plowed. Labbe testified that he dropped off daytime crews "a few times" during that winter at the same location where he dropped off Myrick, that it was "the most efficient," and "it was the most common sense area to drop him off at."

¶ 12 Myrick's co-worker, Wiley Brown, had never seen Belt Railway drop a worker where Labbe dropped Myrick that day, and on previous occasions when the locomotive was in a similar location as the date of the accident, Belt Railway would drop the conductor under the Harlem Avenue bridge on a road adjacent to the tracks.

¶ 13 Belt Railway's track supervisor in charge of snow removal, Robert Ward, testified that the area where Myrick was dropped off had been "left to go natural," and that Belt Railway did not plow that area because transportation employees like Myrick did not typically work there. Where the injury occurred, the tracks were sloped because they were main line tracks, which are different from yard tracks, where transportation employees typically work, which are flat.

¶ 14 Myrick made the following offer of proof regarding alternative drop off locations:

"Q. Now, the area that you were dropped off, was that the

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