Putnam v. Norfolk S. Ry. Co.
| Decision Date | 15 January 2016 |
| Docket Number | 2140873. |
| Citation | 204 So.3d 371 |
| Parties | Trennon PUTNAM v. NORFOLK SOUTHERN RAILWAY COMPANY, INC. |
| Court | Alabama Court of Civil Appeals |
Alabama Supreme Court 1150434.
R. Willson Jenkins, Florence, for appellant.
Michael W. Ray, Turner B. Williams, and Al F. Teel of Burr & Forman, LLP, Birmingham; and Larry B. Moore of Moore, Berry & Linville, Florence, for appellee.
Trennon Putnam ("the employee") appeals from a summary judgment entered by the Colbert Circuit Court ("the trial court") on his claim against Norfolk Southern Railway Company, Inc. ("the employer").
On December 16, 2009, the employee filed a complaint against the employer asserting a claim of negligence pursuant to the Federal Employers' Liability Act ("the FELA"), 45 U.S.C. §§ 51 –60, based on the employer's alleged failure to provide the employee with a safe place to work; specifically, the employee alleged that he had suffered hearing loss as a result of his working conditions. The employer filed an answer on March 1, 2010. On September 5, 2014, the employer filed a motion for a summary judgment. The employee filed a response to the employer's summary-judgment motion on January 6, 2015. The employer filed a reply brief in support of its summary-judgment motion on January 9, 2015. On May 28, 2015, the trial court entered an order granting the employer's summary-judgment motion. The employee filed his notice of appeal to the Alabama Supreme Court on July 2, 2015, and, pursuant to § 12–2–7(6), Ala.Code 1975, that court subsequently transferred the appeal to this court.
The employee testified in his deposition that, after he graduated from high school in 1985, he worked for Bevis Furniture from 1986 to 1990 and that, during his employment with Bevis Furniture, he had worked in the office the first two years and in the plant using a rivet press the latter two years. He stated that he wore earplugs when he worked at Bevis Furniture. The employee testified that he began working for the employer on February 20, 1990, as a service attendant in the mechanical department of the Sheffield Yard in Alabama and that he continued to work in that position at the time of his deposition on September 24, 2010. According to the employee, his duties include fueling the locomotives; sanding the locomotives to provide traction; oiling the locomotives; watering the locomotives; changing brake shoes on the locomotives; "hostling" or handling or moving the locomotives between tracks; and supplying locomotive cabs. He testified that those duties are performed on a shop ramp in the Sheffield Yard. According to the employee, he works an eight-hour shift five days a week and that the amount of time per eight-hour shift that he is exposed to locomotive noise varies depending on how busy the Sheffield Yard is each day. The employee testified that a light day would entail working on approximately 10 locomotives, that a heavy day would involve working on approximately 18 to 22 locomotives, and that servicing a locomotive can take anywhere from 20 minutes to over an hour, depending on what shape the locomotive is in.
The employee stated that he services the locomotives while they are running to check for oil and water leaks and that, up until two years before his deposition, it had been the employer's practice to leave all the locomotives running even if they were not being serviced at the time, so there might have been up to 25 locomotives running at once. The employee stated that, in the two years before his deposition, the employer had begun shutting the locomotives off to save fuel. According to the employee, while performing his duties of servicing the locomotives, he is exposed to the engine noise, to "getting air pop off from the dry bones on [the locomotives]," to the "turbo," which is a high-pitched noise the locomotives make while idling, and to the horn and the bell of the locomotives when the workers perform checks on those mechanisms. He testified also that, in order to service the locomotives, he is required to "blow oil up" in the air-compressor room where the oil tank is located once or twice per shift, that that takes approximately 10 minutes each time, and that that area is also very noisy. The employee stated that, on days when there are fewer than 10 locomotives to service, he cleans up and stocks materials, during which time he also eats lunch. He stated that his other duties include cleaning up, unloading fuel cars, and maintaining the stockroom. According to the employee, the amount of time that he is exposed to locomotive noise varies depending on how busy he is each day.
According to the employee, when he began working for the employer, he had to submit to a physical examination, which resulted in the production of an audiogram, which is a written record of the results of a hearing test that was performed on him. He testified that he had submitted to annual hearing tests during his employment with the employer. The employee stated that he had been provided "[a]n assortment of different styles of earplugs" by the employer and that, in 2008, two years before his deposition, the employer had begun providing "earmuffs," which, he said, were his preferred hearing protection. He testified that he could not remember whether earplugs had been required when he first began working for the employer, but, he said, he had worn earplugs for as long as he could remember. Although he stated that he had never complained to anyone in management about the type of hearing protection that he had been provided during the time he had worked for the employer, he also stated that he had asked for a different type of hearing protection to wear when he was working around the locomotives during fueling and oiling. According to the employee, he was typically given his hearing test before the start of his shift and that that routine, as well as the way the hearing test was administered and the way informational videos were provided to him, had not changed since the beginning of his employment with the employer.
The employee testified that he and his family had restored classic automobiles and that his father had had a torch, a welder, and a grinder in his shop where they worked on the cars. The employee testified further that he had worn earplugs when he had worked in the shop with his father in the past, but, he stated, he now buys cars that have already been restored. He testified that he had attended car races when he was younger because his brother and his brother's son race stock cars, but, he said, he had attended very few races as an adult. The employee stated that he had worn earplugs when he had attended those races. The employee also testified that he had driven motorcycles from 2002 to 2009.
Mark Dudle testified that he began working for the employer in 1992 as an assistant manager for industrial hygiene, that he had since been promoted twice, and that, at the time of his deposition on August 9, 2013, he was the manager for industrial hygiene and safety reporting. The employer presented as an exhibit to its summary-judgment motion a copy of the policies relating to its hearing-conservation program, which had been issued in September 1985, and the revision thereto. Dudle stated that the goal of the hearing-conservation program is to protect the hearing health of the employer's workers and that the employer's hearing-conservation program includes workers who are exposed to noise above 85 decibels for an 8–hour time-weighted average. He testified that, according to the Occupational Safety and Health Administration ("OSHA"), 85 decibels is the level at which the employer is required to implement a hearing-conservation program for its workers that are exposed to noise at that level or above.
According to Dudle, if a worker is losing his or her hearing from occupational-noise exposure, the employer should continue to include that worker in the hearing-conservation program, which requires annual audiometric testing and training of the worker and notifying the worker of the test results. Dudle testified that the standard method of audiometric testing is to administer the test to a worker without the worker wearing a hearing-protection device. He stated that manufacturers of hearing-protection devices assign a noise-reduction rating to their hearing-protection devices and that the higher the noise-reduction rating, the more attenuation that device provides. Dudle testified that it is not the employer's responsibility to say whether the noise-reduction rating displayed on the packaging of a hearing-protection device is accurate.
In a letter dated April 4, 2013, from Larry Liukonen, the employer's expert witness and an industrial hygienist, to the employer's attorney, Liukonen stated that, on February 15, 2013, he had visited the Sheffield Yard and conducted tests on the employee's noise exposure and that the tests he had conducted were concurrent with testing that had been performed by Paul E. Saywell, Jr., the employee's expert witness, who is also an industrial hygienist. Liukonen stated that, during the testing, the employee had simulated the loudest portions of his job. In his letter, Liukonen concluded, among other things, that the employee's noise exposure was within OSHA allowable limits and that, as a result, participation in a hearing-conservation program was not necessary and hearing protection was not required for the employee.
Liukonen testified at his deposition on August 12, 2014, that he had been to "very, very many service tracks" since 1979 and that he had "tested very many service attendants" and had "reviewed testing of other people who've tested service attendants," and, he concluded, "service attendants at service tracks don't have excessive noise exposure." Liukonen stated that the use of hearing protection is a last resort to control noise exposure. He testified that "engineer[ing] out the noise" is the best...
To continue reading
Request your trial