Ribbing v. Union Pac. R.R. Co.

• Decision Date: 03 September 2020
• Docket Number: 8:18CV509
• Parties: Carol RIBBING, as the personal representative of the Estate of Gregory Ribbing, deceased, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, Defendant.
• Court: U.S. District Court — District of Nebraska

484 F.Supp.3d 676

Carol RIBBING, as the personal representative of the Estate of Gregory Ribbing, deceased, Plaintiff,

v.UNION PACIFIC RAILROAD COMPANY, Defendant.

8:18CV509

United States District Court, D. Nebraska.

Signed September 3, 2020

Sara A. Larson, Omaha, NE, Shawn M. Sassaman, Bern, Cappelli Law Firm, Conshohocken, PA, for Plaintiff.

Anne M. O'Brien, Daniel Hassing, Jason W. Grams, Lamson, Dugan Law Firm, Omaha, NE, for Defendant.

MEMORANDUM AND ORDER

Joseph F. Bataillon, Senior United States District Judge

This matter is before the Court on defendant Union Pacific Railroad Company's ("U.P." to "the Railroad") motion for summary judgment, Filing No. 36. This is an action for damages under the Federal Employers’ Liability Act ("FELA"), 45 U.S.C. § 51 et seq. , brought by the surviving spouse of a former Railroad employee, Gregory Ribbing, as personal representative of his estate. Plaintiff Carol Ribbing asserts a survival claim and a wrongful death claim against the Railroad, alleging that workplace exposure to toxic substances and carcinogens caused her late husband's multiple myeloma

and resulting death.

The Railroad moves for summary judgment on the plaintiff's survival and wrongful death claims, contending that both are barred by a release Gregory Ribbing executed in 1997.

I. FACTS

The parties agree to the following relevant facts. See Filing No. 37, defendant's brief at 2-4; Filing No. 39, plaintiff's response at 1-4. The plaintiff's decedent, Gregory Ribbing, was born in 1957. He began working for the Missouri Pacific Railroad Company, U.P.’s predecessor in interest, in 1997 and worked on bridge gangs throughout his career. He worked with creosote over the course of his career would sometimes have creosote burns on his skin. He worked with and around diesel combustion products and pesticides and his wife testified his clothes would carry a diesel and creosote odor.

On November 27, 1995, he suffered an injury to his back in an accident near Bush, Illinois, that prevented him from ever returning to work. He signed a general release in May 1997 for a claim connected to the 1995 accident in exchange for $275,000.00. As part of his release, Gregory Ribbing agreed that he was permanently disabled and agreed that he would "not return, nor attempt to return, to work for ... Union Pacific Railroad Company or any affiliated or subsidiary companies in any capacity." Filing No. 38-1, Ex. 3, Release at 1. His wife testified that Gregory understood at the time that he signed his release that he was not returning to work at the Railroad. In the release, Gregory Ribbing acknowledged any injuries "may be permanent and progressive and recovery therefrom uncertain and indefinite, so that consequences not now anticipated may result." Id. at 2.

It is undisputed that Gregory had an opportunity to read and review the release before he signed it. Carol Ribbing witnessed her husband's execution of the release, but did not discuss the language of the release with him. The release was also signed by Gregory Ribbing's attorney, who certified he had "explained the effect and scope of the aforesaid release to [Gregory] before [Gregory] signed the said release which extends to all the claims, demands, and choses in action, whether known or unknown, anticipated or not anticipated, against the parties it therein releases." Id. at 4. The plaintiff acknowledges that the decedent had the opportunity to ask his lawyer questions about the release and was not under any mental disability

at the time that he signed his release. Gregory Ribbing was diagnosed with multiple myeloma in September 2014. Filing No. 40-1, Ex. 1, Medical Record. Gregory Ribbing died on December 27, 2014, and his widow filed this action against U.P. on October 26, 2018.

The record shows the General Release executed by the decedent releases the Railroad from "all suits, actions, causes of action, claims and demands of every character whatever" that Gregory Ribbing then had, or thereafter would have, that arose from his railroad employment

and arising out of, or to arise, or grow out of, any and all injuries to person and damage to property in consequence of, or in any way connected with, an accident which occurred on or about the 27th day of November, 1995, at or near Bush, Illinois, resulting in personal injuries which, as I claim, have totally and permanently disabled me from ever performing the duties of my employment.

Filing No. 38-3, Ex. 3, General Release at 1. "Said accident" is thereafter mentioned nine times in the General Release. Id. at 1-4. The General Release provides that in exchange for consideration in the amount of $275,000.00,

it is the express intention and desire of [Gregory Ribbing] to release, discharge and acquit St. Louis Southwestern Railway Company, Southern Pacific Transportation Company, and Union Pacific Railroad Company, their agents, servants and employees, and all other persons, firms and corporations liable, or who might be claimed liable, from any and all claims, demands and choses in action arising from the injuries, disabilities and damages sustained in the said accident which are uncertain, indefinite and the consequences of which are not now anticipated.

Filing No. 38-3, Ex. 3, General Release at 2 (emphasis added). The closing paragraph of the General Release again recites that Gregory Ribbing agrees to release all claims "on account of said accident," but then adds "also any and all other personal injury claims or grievances of any nature whatsoever, including, but not limited to, labor disputes, hearing loss, repetitive trauma, chemical exposure, and exposure to diesel fumes growing out of [his] employment." Id. at 3.

II. LAW

Summary judgment is appropriate when, viewing the facts and inferences in the light most favorable to the nonmoving party, "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "The movant ‘bears the initial responsibility of informing the district court of the basis for its motion and must identify ‘those portions of [the record] ... which it believes demonstrate the absence of a genuine issue of material fact.’ " Torgerson v. City of Rochester , 643 F.3d 1031, 1042, (8th Cir. 2011) (en banc ) (quoting Celotex, 477 U.S. at 323, 106 S.Ct. 2548 ). If the movant does so, "the nonmovant must respond by submitting evidentiary materials that set out ‘specific facts showing that there is a genuine issue for trial.’ " Id. (quoting Celotex, 477 U.S. at 324, 106 S.Ct. 2548 ).

The evidence must be viewed in the light most favorable to the nonmoving party, giving the nonmoving party the benefit of all reasonable inferences. Kenney v. Swift Transp., Inc. , 347 F.3d 1041, 1044 (8th Cir. 2003). If "reasonable minds could differ as to the import of the evidence," summary judgment should not be granted. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "In ruling on a motion for summary judgment, a court must not weigh evidence or make credibility determinations." Id. "Where the unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate." Koehn v. Indian Hills Cmty. Coll. , 371 F.3d 394, 396 (8th Cir. 2004).

The validity of a release under the FELA is determined in accordance with federal law. Dice v. Akron, Canton & Youngstown Ry. Co. , 342 U.S. 359, 361, 72 S.Ct. 312, 96 L.Ed. 398 (1952) ; see also Maynard v. Durham & S. Ry. Co. , 365 U.S. 160, 161, 81 S.Ct. 561, 5 L.Ed.2d 486 (1961). Under § 5 of the FELA, any contract where the purpose is to "exempt" an employer from "any liability" under FELA is void. 45 U.S.C. § 55 ; see CSX Transp., Inc. v. McBride , 564 U.S. 685, 708, 131 S.Ct. 2630, 180 L.Ed.2d 637 (Roberts, J., dissenting) ("FELA expressly abrogated common law tort principles in four specific ways ... [FELA] barred employees from contractually releasing their employers from liability."). The plaintiff bears the burden of establishing that a release is void under § 5 of the FELA. Callen v. Penn. Ry. Co. , 332 U.S. 625, 630, 68 S.Ct. 296, 92 L.Ed. 242, (1948).

However, if a controversy exists "as to whether there is liability, and if so for how much," a release is not a device to exempt from liability but is a means of compromising a claimed liability, and is not precluded by § 5 of the FELA ( 45 U.S.C. § 55 ). Id. ; see also Sea-Land Serv., Inc. v. Sellan , 231 F.3d 848, 851 (11th Cir. 2000) (explaining that 45 U.S.C. § 55 prevents employers from restricting FELA rights as a condition of employment). Thus, "a release of FELA claims can have the same effect as any other release, in that it may constitute a settlement or compromise, rather than an attempt to escape liability." Babbitt v. Norfolk & W. Ry. Co. , 104 F.3d 89, 92 (6th Cir. 1997).

There is a split in authority as to the validity of a release of future claims under the FELA. Compare Babbitt , 104 F.3d at 93 (holding that a release is not valid if it exempts the railroad from liability for future, undiagnosed injuries) with Wicker v. Consol. Rail Corp. , 142 F.3d 690, 701 (3rd Cir. 1998) (holding that a release may be valid if it exempts the railroad from liability for future, undiagnosed injuries as long it is executed for valid consideration as part of a settlement and the scope of the release is limited to those risks that are known to the parties at the time the release is signed).

Under the bright-line...