Olson v. Burlington Northern and Santa Fe Railway Company, No. A05-2126 (Minn. App. 8/22/2006)
| Decision Date | 22 August 2006 |
| Docket Number | No. A05-2126.,A05-2126. |
| Parties | Steven A. Olson, Appellant, v. The Burlington Northern and Santa Fe Railway Company, Respondent. |
| Court | Minnesota Court of Appeals |
Appeal from the District Court, Hennepin County, File No. PI 02-008021.
Charles T. Hvass, Jr., Ingebritson & Associates, LLP, (for appellant).
Timothy K. Masterson, Spence, Ricke, Sweeney & Gernes, P.A., (for respondent).
Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Parker, Judge.*
UNPUBLISHED OPINION
This is an appeal from summary judgment granted to respondent railroad on appellant's negligence claim under the Federal Employers' Liability Act (FELA). Appellant argues that (a) the district court improperly made findings of fact to determine that the railroad did not breach a duty to appellant; and (b) the district court improperly weighed the facts to determine that the railroad's alleged negligence was not the cause of appellant's lung injury. Appellant also requests that this case be remanded with directions that a different judge be assigned for trial. Because we conclude that for FELA purposes, appellant produced sufficient evidence to create a question of fact regarding the railroad's breach of duty and the causation of appellant's lung injury, we reverse. Because appellant did not file a notice to remove the trial judge under Minn. R. Civ. P. 63.03 and has not demonstrated disqualifying bias or prejudice, we deny appellant's request to direct that a new judge be assigned to hear this case on remand.
Appellant Steven A. Olson was employed by respondent Burlington Northern and Santa Fe Railway Company (Burlington Northern) from 1970 until 1998. Olson claims that he was exposed to rock dust in the course of his employment by Burlington Northern when he dumped ballast from railroad cars and when he worked on surfacing gangs or tie gangs. Burlington Northern provided Olson with disposable paper masks for these tasks, but Olson claims that the masks were "useless" because "[w]hen breathing, and sweating in the summer air, the mask would become moist[, and the] dust would cling to the mask resulting in suffocation if the mask continued to be worn." Olson states that when he complained about the lack of protective devices to his supervisors, he was told that nothing else could be done.
In March 2001, Olson sued Burlington Northern under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 1-60 (2000), alleging that he suffered injuries to his lungs, hips, knees, back, and "other body parts" as a result of Burlington Northern's negligence.
In a deposition, Olson testified about his lung injuries. He said that he had experienced dizziness, "shortness of breath," and "gasp[ing] for air" for a couple of years and that he had seen four medical doctors regarding these symptoms.
To support his lung-injury claim, Olson introduced the report and affidavits of Dr. David Bonham. Bonham examined Olson at the request of Olson's attorney "to evaluate the presence of any lung disease." Bonham's report includes "impressions" of "asbestos related pleural disease" and "chronic industrial bronchitis with mild air flow obstruction." He states in his report that
the patient's respiratory problems are, I believe, related to his exposure to various dusts and other respiratory irritants while working for the railroad. . . . [H]is industrial bronchitis is related to the very heavy rock dust that he was repeatedly exposed to over the years as well as other dust exposures.
Bonham states in his May 2003 affidavit:
It is my opinion that Mr. Olson's primary lung problem is caused by chronic industrial bronchitis. The cause of chronic industrial bronchitis for Mr. Olson — exposure to rock dust — has been a known hazard to the medical community for decades, and the causation of chronic industrial bronchitis by exposure to rock dust was being taught when I was going to medical school in the late 60's and early 70's.
Bonham further states, "It is also my opinion that any worker exposed to rock dust . . . should have been provided filtration devices that would have prevented the rock dust from getting into his lungs."
Burlington Northern moved for summary judgment. The district court concluded that (1) Olson's knee- and back-injury claims were barred by the statute of limitations, and (2) Olson failed to produce evidence necessary to establish the element of duty on his negligence claim for his lung injuries; and the district court granted summary judgment to Burlington Northern. This court affirmed summary judgment on Olson's knee- and back-injury claims, but it reversed and vacated the district court's order regarding Olson's negligence claim for his lung injuries. Olson v. Burlington N. & Santa Fe Ry., No. A03-1698, 2004 WL 1614947, at *1 (Minn. App. July 20, 2004). This court determined that there was a genuine issue of material fact regarding the existence of Burlington Northern's duty. Id. at *3-*4.
After the remand, Burlington Northern again moved for summary judgment. The district court granted Burlington Northern's motion, concluding that Olson did not demonstrate that Burlington Northern breached its duty and failed to demonstrate causation. This appeal follows.
When reviewing an appeal from summary judgment, this court asks whether (1) there are any genuine issues of material fact; and (2) the district court's application of the law was erroneous. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law." Minn. R. Civ. P. 56.03. On appeal, this court views the evidence "in the light most favorable to the party against whom judgment was granted." Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).
Olson appeals from summary judgment dismissing his lung-injury claim under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 1-60 (2000). FELA imposes liability on railway companies for work-related injuries that are caused in whole or in part by the company's negligence and allows injured railroad workers to recover for the negligence of their employers. 45 U.S.C. § 51; Lecy v. Burlington N. & Santa Fe Ry., 663 N.W.2d 589, 592 (Minn. App. 2003) (citing Ackely v. Chicago & N.W. Transp. Co., 820 F.2d 263, 266 (8th Cir. 1987)). Both state and federal courts have jurisdiction to hear FELA claims. 45 U.S.C. § 56.
A FELA plaintiff must prove all of the essential common-law elements of negligence. Smith v. Soo Line R.R., 617 N.W.2d 437, 439 (Minn. App. 2000) (citing Fulk v. Ill. Cent. R.R., 22 F.3d 120, 124 (7th Cir. 1994)), review denied (Minn. Nov. 21, 2000). Ordinarily, a defendant in a negligence action is entitled to summary judgment when the record reflects a complete lack of proof on any of the four essential elements of the claim: duty, breach of that duty, an injury, and causation. Gradjelick v. Hance, 646 N.W.2d 225, 230 (Minn. 2002). This court previously held that a genuine issue of material fact exists relating to the duty that Burlington Northern owed to Olson. Olson v. Burlington N. & Santa Fe Ry., No. A03-1698, 2004 WL 1614947, at *3-*4 (Minn. App. July 20, 2004). Thereafter, the district court granted summary judgment on Olson's lung-injury claim because it concluded that Olson failed to demonstrate Burlington Northern's breach of duty or causation. Therefore, we now consider only the breach-of-duty and causation elements of Olson's negligence claim.
A summary-judgment motion cannot be defeated by "unverified and conclusory allegations or by postulating evidence that might be developed at trial." Gradjelick, 646 N.W.2d at 230. But under FELA, a plaintiff's burden of proof to present a case to the jury "is significantly lighter . . . than it would be in an ordinary negligence case." Smith, 617 N.W.2d at 439. Under FELA, "the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought." Rogers v. Mo. Pac. R.R., 352 U.S. 500, 506, 77 S. Ct. 443, 448 (1957). And only "`slight' or `minimal'" evidence is required to create a jury question on the issue of negligence in a FELA case. Mendoza v. S. Pac. Transp. Co., 733 F.2d 631, 632 (9th Cir. 1984); see also Hauser v. Chicago, Milwaukee, St. Paul, & Pac. R.R., 346 N.W.2d 650, 653 (Minn. 1984) ().
Olson first argues that the district court erred by finding that Burlington Northern did not breach its duty to provide Olson a reasonably safe workplace. He argues that the district court improperly found facts when it determined that Olson had provided no evidence that the masks were "not appropriate." A railroad company has a duty to provide its employees with a reasonably safe workplace. Lecy, 663 N.W.2d at 592 (citing Ackley, 820 F.2d at 267). "A railroad breaches its duty to provide a safe workplace when it knows or should know of a potential hazard in the workplace, yet fails to exercise reasonable care to inform or protect its employees." Smith, 617 N.W.2d at 439 (citing Gallose v. Long Island R.R., 878 F.2d 80, 84-85 (2d Cir. 1989)).
Here, the district court found that Burlington Northern "knew of the potential hazard of dust exposure." Burlington Northern required employees "working around any ballast disturbing activities . ....
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