Perry v. Norfolk and Western Ry. Co.

• Decision Date: 19 October 1994
• Docket Number: Civ. No. 1:94cv-113.
• Citation: 865 F. Supp. 1292
• Parties: George K. PERRY, and Karen L. Sallows, Plaintiffs, v. NORFOLK AND WESTERN RAILWAY COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Indiana

865 F. Supp. 1292

George K. PERRY, and Karen L. Sallows, Plaintiffs, v. NORFOLK AND WESTERN RAILWAY COMPANY, Defendant.

Civ. No. 1:94cv-113.

United States District Court, N.D. Indiana, Fort Wayne Division.

October 19, 1994.

COPYRIGHT MATERIAL OMITTED

Frederick R. Hovde, Townsend Hovde and Montross, Indianapolis, IN, for plaintiffs George K. Perry, Karen L. Sallows.

John C. Duffey, Russell H. Hart, Adel James Chareq, Stuart and Branigin, Lafayette, IN, for defendants Norfolk Southern Corp., Norfolk and Western Ry. Co.

ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court on defendant Norfolk and Western Railway Company's Motion for Summary Judgment. For the following reasons, defendant's Motion for Summary Judgment is granted.

SUMMARY JUDGMENT

Summary judgment is proper "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 the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). However, Rule 56(c) is not a requirement that the moving party negate his opponent's claim. Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir.1990). Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery, against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The standard for granting summary judgment mirrors the directed verdict standard under Rule 50(a), which requires the court to grant a directed verdict where there can be but one reasonable conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). A scintilla of evidence in support of the non-moving party's position is not sufficient to successfully oppose summary judgment; "there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 252, 106 S.Ct. at 2512; In Matter of Wildman, 859 F.2d 553, 557 (7th Cir. 1988); Klein v. Ryan, 847 F.2d 368, 374 (7th Cir.1988); Valentine v. Joliet Township High School District No. 204, 802 F.2d 981, 986 (7th Cir.1986). No genuine issue for trial exists "where the record as a whole could not lead a rational trier of fact to find for the nonmoving party." Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 322 (7th Cir.1992) (quoting Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)).

Initially, Rule 56 requires the moving party to inform the court of the basis for the motion, and to identify those portions of the "pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, which demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. The non-moving party may oppose the motion with any of the evidentiary materials listed in Rule 56(c), but reliance on the pleadings alone is not sufficient to withstand summary judgment. Goka v. Bobbitt, 862 F.2d 646, 649 (7th Cir.1988); Guenin v. Sendra Corp., 700 F.Supp. 973, 974 (N.D.Ind.1988); Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, 464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983).

So that the district court may readily determine whether there are genuine issues of material fact, under Local Rule 56.1, the moving party is obligated to file with the court a "Statement of Material Facts" supported by appropriate citation to the record to which the moving party contends there is no genuine issue. In addition, the non-movant is obligated to file with the court a "Statement of Genuine Issues" supported by appropriate citation to the record all material facts to which the non-movant contends there are exists a genuine issue necessary to be litigated. See Waldridge v. American Hoechst Corp. et al., 24 F.3d 918 (7th Cir. 1994). In ruling on a summary judgment motion the court accepts as true the non-moving party's evidence, draws all legitimate inferences in favor of the non-moving party, and does not weigh the evidence or the credibility of witnesses. Anderson, 477 U.S. at 249-51, 106 S.Ct. at 2511. However, "it is a gratuitous cruelty to parties and their witnesses to put them through the emotional ordeal of a trial when the outcome is foreordained," and in such cases summary judgment is appropriate. Mason v. Continental Illinois Nat'l Bank, 704 F.2d 361, 367 (7th Cir.1983).

Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. Id. 477 U.S. at 248, 106 S.Ct. at 2510. Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute. Id. The issue of fact must be genuine. Fed.R.Civ.P. 56(c), (e). To establish a genuine issue of fact, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356; First National Bank of Cicero v. Lewco Securities Corp., 860 F.2d 1407, 1411 (7th Cir.1988). The non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Id. A summary judgment determination is essentially an inquiry as to "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. at 2512.

BACKGROUND

On May 17, 1993, Norfolk & Western Railway Company (hereinafter N & W) Train 183 departed from New Haven, Indiana, traveling westbound. (Affidavit of Engineer Edward J. Ryan at ¶ 5.) Train 183 consisted of two engines, pulling 110 rail cars. (Affidavit of Trainmaster R.M. Ballinger at ¶ 2.) At approximately 7:30 a.m., N & W's East Wayne Yardmaster contacted Engineer Ryan and Conductor Frederick of Train 183 and advised them to stop the train in order to check some loose metal bands which had been spotted on the fourteenth car. (Ryan Aff. at ¶ 6; Affidavit of Conductor G.C. Frederick at ¶ 6.) The train was stopped near Brooklyn Avenue (Mile Post 148) in Fort Wayne, Indiana. (Ryan Aff. at ¶ 7; Frederick Aff. at ¶ 7.) Engineer Ryan and Conductor Frederick stayed in the engine while the train was stopped. (Ryan Aff. at ¶ 8; Frederick Aff. at ¶ 8.)

Car Foreman David Moore and Car Inspector Lowell Wheeler traveled by truck to the location where the train was stopped, walked to the fourteenth car, inspected and removed the bands, and walked back to where they had parked the truck. (Affidavit of David Moore at ¶¶ 3-6; Affidavit of Lowell Wheeler ¶¶ 3-6.) Neither man saw anyone on N & W's property while they were present at the site of the stopped train. (Moore Aff. at ¶ 7; Wheeler Aff. at ¶ 7.)

At approximately 7:30 a.m. that same morning, plaintiff George Perry, age fifteen years and seven months, and his two friends, Jason Covey and Dale Payne, decided to skip school. (Deposition of George Perry at p. 52.) Instead of attending school, Perry and his companions planned to go to Quimby Village, a shopping center, where they intended to eat and "hang out." (Perry Dep. at pp. 53-54.) To get to Quimby Village, the three young men decided to climb onto a rail car of an N & W freight train, which had stopped on the railroad tracks close to Perry's home on Scott Avenue and also near Brooklyn Avenue. (Perry Dep. at pp. 111-12.) They planned to ride the train to the "River Greenway," where they were going to jump off of the moving train and walk the remaining distance to Quimby Village. (Perry Dep. at p. 60.)

Perry and his two companions climbed onto a stopped rail car that, by Perry's estimation, was somewhere in the middle of the train. (Perry Dep. at pp. 158-59.) Jason Covey was the last of the three to board, and he had to run alongside the train as it began to move. (Perry Dep. at p. 119.) Covey held onto the rail car as he ran, pulling himself up onto the train, and then a short time later jumped off, scratching his hand in the process. (Perry Dep. at pp. 119-20.) When Perry saw Covey jump, he decided to "ride it out." He did not want to jump at this point because he had seen Covey cut his hand when he dismounted the train. Also, the train was moving even faster at this point, and Perry believed that it would be dangerous for him to jump. (Perry Dep. at pp. 120-21.) Perry then observed Dale Payne jumping off of the train, in the process of which he "busted his head" and "rolled." (Perry Dep. at p. 122.) Perry thought it would be even more dangerous for him to jump at that point because the train had picked up more speed. (Perry Dep. at p. 122.) Perry finally jumped at a point more than one mile from where his friends had jumped. Perry's feet ended up in the path of the train's wheels, his legs were severely injured, and ultimately, portions of both of his legs were amputated below the knee.

As the train neared Mile Post 169, an N & W dispatcher contacted the train's crew and informed them that someone had been injured at or near Nuttman Avenue (Mile Post 148.9). The crew was directed to stop the train and inspect it. (Ryan Aff. at ¶ 12; Frederick Aff. at ¶ 12.) Conductor Frederick inspected the train and found blood on the forty-first rail car in the train. (Frederick Aff. at ¶ 13; see also Exhibits C-1 to C-6.) At approximately 1:35 p.m., Trainmaster Ballinger inspected the train at Peru, Indiana, and found blood, tissue, and hair on one of the lead axles of the forty-first car, and blood on the bottom of the brake shoes and on wheels on the north side of the same rail car. (Ballinger Aff. at ¶ 3.)

At no time on May 17, 1993, did Engineer Ryan or Conductor Frederick...