Pulley v. NORFOLK SOUTHERN RY. CO., INC.

• Decision Date: 07 December 2001
• Citation: 821 So.2d 1008
• Parties: Jesse J. PULLEY v. NORFOLK SOUTHERN RAILWAY COMPANY, INC.
• Court: Alabama Court of Civil Appeals

821 So.2d 1008

Jesse J. PULLEY v. NORFOLK SOUTHERN RAILWAY COMPANY, INC.

2000570.

Court of Civil Appeals of Alabama.

December 7, 2001.

J. Harry Blalock of Blalock & Blalock, P.C., Birmingham, for appellant.

Jerry A. McDowell, Forrest C. Wilson III, and Todd P. Resavage of McDowell, Knight, Roedder & Sledge, L.L.C., Mobile, for appellee.

CRAWLEY, Judge.

Jesse J. Pulley, a railroad worker, appeals from a summary judgment entered in favor of his employer, Norfolk Southern Railway Company, Inc., on a suit he had filed against it under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. §§ 51-60 (1982). Pulley originally filed his complaint in the Jefferson Circuit Court. On Norfolk Southern's motion, the action was transferred to the Mobile Circuit Court.¹ In his complaint Pulley alleged that Norfolk had failed to furnish him a reasonably safe place in which to work and that he had suffered a heart attack as a result of that negligence and that Norfolk negligently had failed to respond in a timely and appropriate manner to his medical emergency, thus causing him to suffer additional heart damage. The trial court entered a summary judgment in favor of Norfolk. We reverse and remand.

Pulley is a qualified, experienced, Fairmont Spiker machine operator for Norfolk Southern Railway.² On the day before November 8, 1994, Pulley had worked a 14-hour day on the Fairmont-Spiker machine, fixing and replacing hoses and fixing anvils. On November 8, 1994, one of the trained Spiker operators was out with back problems, and the crew was short one Spiker operator. The foreman directed an inexperienced worker to run the side of the Spiker opposite from the side Pulley was operating. Pulley informed the foreman that he did not believe the man was qualified to operate the machine and that he could not be responsible if someone was injured as a result of an unqualified person's working the machine. The foreman replied: "That's all we've got." The unqualified worker flipped a switch that caused hot hydraulic oil to shoot from a hose. The worker was hit with the hot oil; then Pulley was hit with the hot oil. The supervisor subsequently began screaming at the crew to get the machine off the track because a train was coming. Pulley explained that he panicked at this point, that he approached the machine from behind in an attempt to cut it off, but the machine had no cut-off valve, and that the oil spewing from the machine was growing hotter and hotter by the moment. Finally a mechanic arrived with a plug. Pulley had to hoist himself up on the machine, remove the hose, screw in a fitting, and insert the plug into the fitting to stop the flow of hot oil.

At the time he plugged the fitting and stopped the flow of oil, Pulley felt a sharp pain traveling across his chest. He became short of breath and within minutes collapsed with chest pain. Pulley then located another machine operator who assisted him to the nearest crossing. When Pulley reached the crossing, he told Travis Johnson, the division engineer, that he was having severe chest pain and said that he needed to go to the hospital. Johnson instructed him to sit down by a ditch. After 30 minutes, Pulley was no longer able to sit; he could only lie flat in the ditch. Johnson put Pulley in an automobile with the air conditioner running and called someone to take him to the hospital. A man named Jerry Buggs arrived with a truck and took Pulley to a hospital in Jackson. The crossing was located in Saraland, and Mobile Infirmary would have been a much closer hospital facility. Pulley spent the night in the Jackson hospital and was transferred the following day to Mobile Infirmary where he underwent open-heart surgery.

In opposition to Norfolk's motion for a summary judgment, Pulley submitted a portion of his deposition, excerpts from the deposition of Dr. Norman Stevens, the emergency-room physician at Jackson Hospital, as well as excerpts from the deposition of Dr. Carl Maltese, the cardiac surgeon who performed bypass surgery on Pulley at Mobile Infirmary. In his deposition, Pulley testified that pursuant to Norfolk's policies and procedures he had received 91 days of training before he was allowed to operate the Fairmont Spiker. He explained that, by allowing an unqualified person to operate such powerful and complex machinery, Norfolk had placed the safety of many workers in jeopardy. He further stated that if Norfolk had followed its own rules and procedures the November 8, 1994, incident would never have happened. Both Dr. Stevens and Dr. Maltese testified that Pulley would not have suffered a heart attack, even in the presence of the stressful work conditions of November 8, 1994, had he not been predisposed to cardiac problems by virtue of his history of obesity, smoking, drinking, and high cholesterol. However, they also testified that the stress he suffered that day probably contributed to his heart attack. Dr. Maltese testified that it was his opinion that, had Norfolk promptly transported Pulley to Mobile Infirmary, where he could have received immediate treatment after the event, the health-care professionals at that facility might have been able to lessen the heart attack and reduce the resulting damage to Pulley's heart.

On January 9, 2000, without stating the reasons therefor, the trial court entered a summary judgment in favor of Norfolk. Because the amount in controversy exceeded the jurisdictional limitation of this court, Pulley appealed to the supreme court. The supreme court transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

A party is entitled to a summary judgment when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Rule 56(c), Ala. R. Civ. P. "Our standard of review in cases involving summary judgments is de novo." Lee v. Burdette, 715 So.2d 804, 806 (Ala.Civ.App.1998). "In reviewing the disposition of a motion for [a] summary judgment, we utilize the same standard as that of the trial court in determining whether the evidence before the court made out a genuine issue of material fact" and whether the movant "is entitled to a judgment as a matter of law." Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); Rule 56(c)(3), Ala. R. Civ. P. "[I]f the moving party makes a prima facie showing that no genuine issue of material fact exists, then the burden ... shifts to the non-movant; ... the non-movant must show `substantial evidence' in support of his position." Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 798 (Ala. 1989). Evidence is "substantial" if it is "of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). Our review is further subject to the caveat that this court must review the record in a light that is most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala. 1990).

Section 51 of FELA provides that "[e]very 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 employers of such carrier." 45 U.S.C. § 51. "To prevail in a FELA action, the plaintiff must prove the traditional elements of negligence: duty, breach of duty, foreseeability, and causation." Lyles v. Alabama State Docks Terminal Ry., 730 So.2d 123, 124 (Ala.1998).

This court has stated:

"What constitutes negligence in a FELA action is governed by federal law and does not vary according to state law. Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949); Southern Ry. v. Roberts, 380 So.2d 774 (Ala. 1979), overruled on other grounds by Tidball v. Orkin Exterminating Co., 583 So.2d 239 (Ala.1991)

.

Sweeney v. CSX Transp., Inc., 735 So.2d 472, 475 (Ala.Civ.App.1998), aff'd, 735 So.2d 476 (Ala.1999). The evidence must show that Norfolk was negligent, that Pulley was injured, and that his injury resulted in whole or in part from the negligence of any of Norfolk's officers, agents or employees. 45 U.S.C. § 51 (1993); Lyles v. Alabama State Docks Terminal Ry., supra (plurality opinion) (in order to prevail in a FELA action the claimant must prove negligence, duty, breach of duty, foreseeability and causation).

In Hines v. Consolidated Rail Corp., 926 F.2d 262 (3d Cir.1989), the United States Court of Appeals for the Third Circuit provided the following historical backdrop for FELA:

"FELA was passed in 1908 in an effort to provide a tort compensation system for railroad workers who, at that time, experienced among the highest accident rates in United States history. Schwartz & Mahshigian, The Federal Employers' Liability Act, a Bane for Workers, a Bust for Railroads, a Boon for Lawyers, 23 San Diego L.Rev. 1, 3 (1986). In a series of decisions starting with Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957) and then followed, most notably by Gallick v. Baltimore & Ohio Railroad, 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963), the Supreme Court broadened FELA's standards of fault and proximate cause. See Phillips, An Evaluation of the Federal Employers' Liability Act, 25 San Diego L.Rev. 49, 51 (1988). In Rogers, the Court held that `the test of a [FELA] 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, 352 U.S at 506,77 S.Ct. at 448. Moreover, the Court held that it was irrelevant whether the jury could also `with reason, on grounds of probability, attribute the result to other causes including the employee's contributory

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