Schmidt v. Burlington Northern And Santa Fe Ry. Co., 08-35845.
Decision Date | 18 May 2010 |
Docket Number | No. 08-35845.,08-35845. |
Citation | 605 F.3d 686 |
Parties | John SCHMIDT, Plaintiff-Appellant,v.BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, Western Fruit Express, Inc., a Delaware Corporation, Defendants-Appellees. |
Court | U.S. Court of Appeals — Ninth Circuit |
John A. Kutzman, Paoli, Latino & Kutzman, P.C., Missoula, MT, for the plaintiff-appellant.
Jacquelyn M. Hughes, Hedger Friend, P.L.L.C., Billings, MT, for the defendants-appellees.
Appeal from the United States District Court for the District of Montana, Donald W. Molloy, District Judge, Presiding. D.C. No. 06cv193-DWM.
Before: JOHNNIE B. RAWLINSON and CONSUELO M. CALLAHAN, Circuit Judges, and LARRY A. BURNS,* District Judge.
Opinion by Judge BURNS:
John Schmidt appeals the district court's grant of summary judgment in favor of Defendant Burlington Northern and Santa Fe Railway Company (BNSF) on his negligent injury claim under the Federal Employers Liability Act (FELA), 45 U.S.C. §§ 51 et seq. The district court found Schmidt did not present adequate evidence to show he was employed by BNSF. We disagree, and conclude Schmidt's evidence raises a triable issue of fact as to whether BNSF was his employer.
BNSF is a major railway company and is engaged in interstate commerce. Schmidt was originally hired in 1975 by Western Fruit Express (WFE), a wholly-owned subsidiary of BNSF. WFE does not transport passengers or goods but provides, maintains, and repairs refrigerated cars and trailers for use by BNSF and other railroad lines. WFE and BNSF maintain joint facilities at Hillyard, in Spokane, Washington.
Schmidt was employed by either BNSF or WFE or both intermittently from 1975 through 1999, when he was furloughed. He was recalled to work in 2003, but BNSF's medical officer determined he was not fit to return to duty because a medical exam uncovered he had suffered a severe neck injury. Schmidt maintains his neck injury resulted from welding assignments he performed from 1992 through 1999 in the car shop in Spokane, and blames the injury on his supervisors' negligence. According to Schmidt, he worked almost continuously on projects that required hours of welding underneath railroad cars while wearing a welding hood and hard hat.
Schmidt offered the following evidence 1 in support of his contention that BNSF, and not WFE, was his employer during the relevant time period:
• Schmidt applied in 1975 at a Burlington Northern office to work for Burlington Northern.
• The official who first hired him in 1975 told him he was a Burlington Northern employee.
FELA authorizes employees of railroads engaged in interstate commerce to sue their employers for negligent injury in the course of employment. 45 U.S.C. § 51. It is undisputed BNSF is a railroad within this provision, but WFE is not. If WFE was Schmidt's sole employer, his remedies would be limited to worker's compensation. If BNSF was his employer, FELA provides for the recovery of additional damages.
Summary judgment should be granted “if 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). “[A]ll reasonable inferences are to be drawn in favor of the non-moving party.” Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 630 (9th Cir.2005). The evidence must be enough for a “reasonable trier of fact” to find for the plaintiff. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir.2000). We review the granting of summary judgment de novo. Enlow v. Salem-Keizer Yellow Cab Co., 389 F.3d 802, 811 (9th Cir.2004).
Under FELA, the test of whether a company is the employer of a particular worker turns on the degree of control the company exerts over the physical conduct of the worker in the performance of services. Kelley v. Southern Pac. Co., 419 U.S. 318, 324, 95 S.Ct. 472, 42 L.Ed.2d 498 (1974). Kelley recognizes three different theories of control, derived from common law, by which a plaintiff can establish employment for FELA purposes. Id. (citations omitted). In proceedings before the district court, Schmidt pursued his claims primarily under the third Kelley theory, the “subservant” theory.2
Although he now argues he could have brought his claims under Kelley's second theory, the “joint employer” theory, he concedes he did not argue this below, and we therefore treat the argument as waived. Brazil v. United States Dep't of Navy, 66 F.3d 193, 198-99 (9th Cir.1995).
To prove WFE was BNSF's servant, Schmidt must establish BNSF controlled or had the right to control the physical conduct of WFE's employees in the course of the work during which the injury allegedly occurred. Kelley, 419 U.S. at 325, 95 S.Ct. 472. The subservant theory presupposes the existence of two separate entities in a master-servant relationship. A plaintiff can proceed under this theory by showing his employer was the common-law servant of the defendant railroad such that the railroad controlled or had the right to control the employer's daily operations. Id. A plaintiff must also show he was “employed to perform services in the affairs of [the defendant railroad] and ... with respect to the physical conduct in the performance of the services [was] subject to [that railroad's] control or right to control.” Id. at 324, 95 S.Ct. 472 (quoting Restatement (Second) of Agency § 220(1)). For Schmidt to succeed under the subservant theory, he must show BNSF controlled or had the right to control his physical conduct on the job. Id. It is not enough for him to merely show WFE was the railroad's agent, or that he was acting to fulfill the railroad's obligations; BNSF's generalized oversight of Schmidt, without physical control or the right to exercise physical control of his daily work is insufficient. Id. at 325-26, 95 S.Ct. 472; Lodge 1858, Am. Fed'n of Gov't Employees v. Webb, 580 F.2d 496, 504 (D.C.Cir.1978).
The Restatement lists factors relevant to determining whether a master-servant relationship exists. Kelley, 419 U.S. at 335, 95 S.Ct. 472 (Douglas, J., dissenting) ( ). They include:
Applying these factors, we conclude Schmidt's evidence could reasonably support a finding that WFE was BNSF's servant, and that BNSF had the right to control WFE's employees, including Schmidt. For example, Schmidt offered evidence that BNSF's policies regulated how he carried out the welding work which may have caused his injuries, and required Schmidt to participate in its safety and job skills training along with BNSF and WFE employees. In addition, Schmidt's supervisors wore BNSF logos on their work clothing, suggesting they may have been BNSF's agents, and indirectly...
To continue reading
Request your trial-
John Doe I v. Nestle
...(suggesting that the Third Restatement is the appropriate source of federal agency law); see also Schmidt v. Burlington Northern and Santa Fe Ry. Co., 605 F.3d 686, 690 n. 3 (9th Cir.2010) (noting that the Third Restatement has “superceded” the Second Restatement). 55. See, e.g., Philip Mar......
-
Saint–Jean v. Dist. of Columbia
...(Third) of Agency, which uses ‘employer’ and ‘employee’ rather than ‘master’ and ‘servant[.]’ ” Schmidt v. Burlington N. and Santa Fe Ry. Co., 605 F.3d 686, 690 n. 3 (9th Cir.2010) (citation omitted). 7. Under D.C. caselaw, a “university dean [was deemed to have] acted within [the] scope of......
-
Doe v. Uber Techs., Inc.
...largely identical, save replacing the terms "master" and "servant" with "employer" and "employee." See Schmidt v. Burlington N. & Santa Fe Ry. Co. , 605 F.3d 686, 690 n. 3 (9th Cir.2010).3 Uber cites a similar case for the opposite proposition, but, as discussed further infra , Uber draws f......
-
Garcia v. Vitus Energy, LLC
...F. App'x 369 (9th Cir. 2019).200 See Docket 46 at 21–22; Docket 49 at 24–32; Docket 50 at 14–20.201 Schmidt v. Burlington N. & Santa Fe Ry. Co. , 605 F.3d 686, 690 n.3 (9th Cir. 2010).202 See Espinoza v. Princess Cruise Lines, Ltd. , No. 2:17-cv-08412-FLA (JEMx), 581 F.Supp.3d 1201, 1221-23......