Schultz v. Hodus

• Decision Date: 21 March 1989
• Docket Number: No. 64A03-8808-CV-252,64A03-8808-CV-252
• Citation: 535 N.E.2d 1235
• Court: Indiana Appellate Court
• Parties: George SCHULTZ, Appellant (Plaintiff Below), v. Thad B. HODUS, Phyllis T. Kinder, B & O Railroad, Appellees (Defendants Below).

Page 1235

535 N.E.2d 1235

George SCHULTZ, Appellant (Plaintiff Below), v. Thad B. HODUS, Phyllis T. Kinder, B & O Railroad, Appellees (Defendants Below).

No. 64A03-8808-CV-252.

Court of Appeals of Indiana Third District.

March 21, 1989.

Barry D. Rooth, Theodoros, Theodoros & Rooth, Merrillville, Douglas E. Johnston, Tourkow, Crell, Rosenblatt & Johnston, Fort Wayne, for appellant.

Samuel J. Bernardi, Gregory J. Tonner, Robert J. Dignam, Spangler, Jennings, Spangler & Dougherty, P.C., Valparaiso, for Phyllis T. Kinder.

Leonard M. Holajter, Friedrich, Bomberger, Tweedle & Blackmun, P.C., Highland, for Baltimore & Ohio RR.

STATON, Judge.

George Schultz appeals the trial court's granting of summary judgment in favor of the Baltimore & Ohio Railroad Company (Railroad) and Phyllis Kinder on his amended complaint for damages. This appeal raises two issues:

1. Whether a genuine issue of material fact exists as to whether the Railroad failed to provide him with a safe place to work.

2. Whether a genuine issue of material fact exists as to whether Kinder negligently operated her van.

Affirmed.

On December 28, 1983, Schultz was an employee of the Railroad. On that date, he and three other Railroad employees were to be driven from the rail yard in Garrett, Indiana, to Barr Yard in Chicago, Illinois, to bring a train back to the Garrett Yard. Kinder had an oral agreement with the Railroad under the terms of which the Railroad paid her by the mile to transport its employees in her van to and from various locations when necessary. The Railroad phoned Kinder on the morning of December 28 at approximately seven o'clock, requesting her to transport the crew from Garrett to Barr Yard, a trip of about 150 miles. Kinder arrived at the train station at 8:30 a.m. and left with the crew at about 8:45 a.m.

The roads were in good condition when Kinder, Schultz and the other Railroad employees began the trip. However, when Kinder reached Interstate 94, she discovered the Interstate was covered with ice so she reduced her speed to 15 mph. Kinder took I-94 into Illinois and exited on to Sibley Blvd., which she took into Dolton, Illinois. The driving conditions on Sibley Blvd. in Dolton were better than they were on I-94, but it was icy in places and wet due to melting snow and ice.

Sibley Blvd. was a four lane street running east and west with two lanes in each direction. Kinder was traveling at about 30 mph, with the flow of traffic, in the westbound curb lane when Thad B. Hodus, who was in the east bound curb lane, came across the lanes of traffic and struck Kinder's van. Schultz was injured as a result of the accident.

I. Standard of Review

On an appeal from a summary judgment, we must determine whether the record reveals a genuine issue of material fact and whether the trial court correctly applied the law. Any doubt as to a fact, or an inference to be drawn, is resolved in favor of the non-moving party. Schrader v. Mississinewa Community School Corp. (1988), Ind.App., 521 N.E.2d 949, 952. Summary judgment will be affirmed if it is sustainable upon any theory supported by the record. Aetna Insurance Co. of Midwest v. Rodriquez (1987), Ind.App., 504 N.E.2d 1030, 1032, reversed on other grounds, (1988), Ind. 517 N.E.2d 386, reh. denied.

II. FELA

Schultz first raises the issue whether a genuine issue of material fact exists as to whether the Railroad failed to provide him with a safe place to work. Pursuant to the Federal Employers Liability Act

[e]very common carrier by Railroad while engaging in commerce between any of the several States or Territories ... shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce ... for such injury ... resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.

45 U.S.C. Sec. 51. This statute imposes on the Railroad a nondelegable duty to use reasonable care in furnishing employees with a safe place to work. Payne v. Baltimore & Ohio RR. (6th Cir.1962), 309 F.2d 546, 548-49. This duty extends even to premises not owned, controlled or maintained by the Railroad. Id.

Schultz argues that the Railroad breached its duty when it required him to travel on roads it knew were in hazardous condition. We do not agree with Schultz' premise that evidence exists that the Railroad knew the roads were so hazardous that it was unreasonable to require Schultz to travel on them.

To convince us that a genuine issue of fact exists for a jury, Schultz devotes a large portion of his brief to a discussion of the applicable standards under FELA cases. He correctly notes that the proper inquiry is "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 v. Missouri Pacific RR Co. (1957), 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493. It is also true that only "slight" or "minimal" evidence is needed to raise a jury question of negligence under FELA, Mendoza v Southern Pacific Transportation Co. (9th Cir.1984), 733 F.2d 631, 632, and the jury has broad power to engage in inferences. Id. at 633.

It does not follow, however, as Schultz would have us conclude that the minimal negligence standard removes proximate cause as an essential element of a FELA negligence case, ¹ or that every negligence case should go to the jury. To recover under FELA, the plaintiff must still prove that the employer was negligent. Richardson v. Missouri Pacific RR Co. (8th Cir.1982), 677 F.2d 663, 665. "In this respect, a plaintiff's prima facie case under the Act must include all the same elements as are found in a common law negligence action." Id., quoting Davis v. Burlington Northern, Inc. (8th Cir.1976), 541 F.2d 182, 185, cert. denied, 429 U.S. 1002, 97 S.Ct. 533, 50 L.Ed.2d 613 (1976). The plaintiff must prove that the Railroad could have reasonably foreseen that a particular condition could cause injury. Gallick v. Baltimore & Ohio RR (1963), 372 U.S. 108, 117, 83 S.Ct. 659, 665, 9 L.Ed.2d 618.

Furthermore, the focal point of judicial review is the resonableness of a particular inference or conclusion that may be drawn by the jury. Id., 372 U.S. at 115, 83 S.Ct. at 664. "It is only necessary that the jury's conclusion be one which is not outside the possibility of reason on the facts and circumstances shown." Mendoza, supra, at 633, quoting Chicago, Rock Island & Pacific RR Co. v. Melcher (8th Cir.1964), 333 F.2d 996, 999. These general principles do not, however, grant a plaintiff the unqualified right to have the jury pass on issues of negligence and proximate cause in all cases. New York, N.H. & H.R.R. v. Dox (1st Cir.1957), 249 F.2d 572, 573. Thus, if the facts and circumstances of the present case are such that a conclusion the Railroad is liable for negligence is outside the possibility of reason, we will affirm the trial court's grant of summary judgment.

Schultz contends that a jury could conclude the Railroad is liable for negligence based on depositions of witnesses and exhibits of newspaper stories describing the bad road conditions due to the weather across northern Indiana and the Chicago area. The accident occurred on Sibley Blvd. in Dolton, Illinois. Thus, the only evidence relevant...