Seeberger v. Burlington Northern R. Co.

• Decision Date: 02 September 1999
• Docket Number: No. 67328-4.,67328-4.
• Citation: 138 Wash.2d 815,982 P.2d 1149
• Parties: Raymond L. SEEBERGER, Respondent, v. BURLINGTON NORTHERN RAILROAD COMPANY, Petitioner.
• Court: Washington Supreme Court

982 P.2d 1149

138 Wash.2d 815

Raymond L. SEEBERGER, Respondent, v. BURLINGTON NORTHERN RAILROAD COMPANY, Petitioner.

No. 67328-4.

Supreme Court of Washington, En Banc.

Argued June 15, 1999.

Decided September 2, 1999.

Lane, Powell, Spears & Lubersky, Timothy D. Wackerbarth, Michael B. King, Seattle, Louis P. Warchot, Daniel Saphire, Washington, DC, for Amicus Curiae on Behalf of Association of American Railroads.

Kroschel, Gibson, Kinerk & Reeve, David Reeve, Bellevue, for Petitioner.

Mary E. Van Gemert, Seattle, Mitchell, Lang & Smith, Thomas M. Christ, Portland, OR, for Respondent.

TALMADGE, J.

We must decide in this case if an injured railroad worker has adduced sufficient evidence of his employer's negligence to take his case under 45 U.S.C. § 51, the Federal Employers' Liability Act (FELA), to the jury. Under the very liberal test articulated in federal case law, which requires the worker provide only slight evidence his injuries were foreseeably the result of the railroad's breach of its duty to provide him a safe tool in his workplace, we hold the worker produced sufficient evidence to take his FELA case to a jury. Consequently, we reverse the trial court's summary judgment in favor of the railroad.

ISSUE

Did a railroad worker produce sufficient evidence upon the railroad's motion for summary judgment to create a fact question for a jury to decide as to whether the railroad breached its duty under FELA to provide him a safe workplace by giving him a tool it could reasonably have foreseen was unsafe for the task the worker performed?

FACTS

Raymond Seeberger, a "carman" for Burlington Northern Railroad Company (BN) at BN's Tacoma yard, had been employed in that capacity since 1956. Among other functions, a railroad carman inspects loads carried in freight cars. One day Seeberger was told to check on a grain car leaking grain onto the tracks. He went to investigate and found a car filled with grain leaking because a horizontal door in the bottom of the car was slightly ajar and needed to be closed more tightly.

To close the door, a carman had to turn a shaft that protruded from beneath the car. At the end of the shaft was a drumhead with elliptical sockets for insertion of a lever to aid in turning the shaft. Instead of a tool used specifically for the task of turning the drumhead, Seeberger used a wrecking bar, a long bar that is pointed on one end and flat on the other used for general work around a rail yard, to turn the drumhead. Seeberger inserted the pointed end of the wrecking bar into one of the holes in the drumhead and pushed down on it in an attempt to close the door.

The pointed end of the wrecking bar did not fit snugly into the hole because the hole was bigger than the point. Seeberger testified at his deposition: "I put the bar in the hole and I leaned on it to put the pressure on it and the bar slipped out of the hole and I fell against the side of the car." Clerk's Papers at 123. He fell to his knees and smashed his shoulder into the side of the freight car. He testified the bar slipped out because the hole was too big, the bar was too small, and the point did not fit in the hole.

Workers for grain companies have a specific tool that may be inserted snugly into the drumhead to turn the shaft. Other BN employees used this tool. Other BN employees also used a power tool to turn the shaft on grain cars, but the power tool was quite large and cumbersome.

The injury to Seeberger's shoulder eventually required surgery and "months and months and months" of physical therapy. Clerk's Papers at 129. Seeberger has residual stiffness in his shoulder and cannot bowl or throw a baseball more than 10 feet.

Seeberger sued BN in the Pierce County Superior Court under FELA, claiming BN had been negligent in failing to provide him with a proper tool. BN moved for summary judgment, arguing Seeberger had used a wrecking bar safely for opening and closing freight car doors for 20 years in exactly the same way he used the bar on the day he was injured. Thus, BN contends, it could not have foreseen the harm Seeberger suffered and therefore was not negligent. Seeberger responded with evidence of the specific tool and a power tool designed especially for moving the bottom door of a freight car. Nevertheless, the trial court concluded there were no factual issues for trial and granted summary judgment for BN, dismissing Seeberger's case. Seeberger appealed. Division Two of the Court of Appeals, in a brief published opinion, reversed and remanded for further proceedings, holding a jury could conclude BN was "slightly negligent" in failing to provide Seeberger with a safer tool. Seeberger v. Burlington N. R.R. Co., 91 Wash.App. 865, 868, 960 P.2d 461 (1998). We granted review.

ANALYSIS

The FELA states, in pertinent part:

Every common carrier by railroad ... shall be liable in damages to any person suffering injury while he is employed by such carrier ... resulting in whole or in part from the negligence of any of the [employees] ... or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery ... or other equipment.

45 U.S.C. § 51. Federal law controls the FELA's application:

By the federal Employers' Liability Act, Congress took possession of the field of employers' liability to employees in interstate transportation by rail; and all state laws upon that subject were superseded.... The kind or amount of evidence required to establish it is not subject to the control of the several states.

Chicago M. & St. P. Ry. Co. v. Coogan, 271 U.S. 472, 474, 46 S.Ct. 564, 70 L.Ed. 1041 (1926). Accord Adair v. Northern Pac. Ry., 64 Wash.2d 539, 541, 392 P.2d 830 (1964) (federal law in FELA cases controls questions of sufficiency of evidence); Hilliard v. Clifford, 134 Wash. 590, 594, 236 P. 108 (1925) (FELA preempts state workers' compensation law). A succinct yet thorough discussion of FELA history and law appears in a very recent case from the United States Court of Appeals for the Seventh Circuit:

The FELA dates from the heyday of American steam railroads. Enacted in 1908, the statute provides a broad, federal tort remedy for railroad workers injured on the job. The Act abolished a number of traditional defenses to liability, including the fellow-servant rule, contributory negligence, and assumption of risk. Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 542, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994); Lancaster v. Norfolk & Western Ry. Co., 773 F.2d 807, 817 (7th Cir.1985). Although the Act required railroad workers to prove negligence, the Supreme Court relaxed the standard by holding that the proof needed to get a case to a jury in a FELA case is merely whether "`employer negligence played any part, even the slightest, in producing the injury.'" Gottshall, 512 U.S. at 543, 114 S.Ct. 2396 (quoting Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957)). A plaintiff's burden in a FELA action is therefore significantly lighter than it would be in an ordinary negligence case. See Harbin v. Burlington Northern Ry. Co., 921 F.2d 129, 132 (7th Cir.1990) (noting examples of FELA actions submitted to jury based only upon "evidence scarcely more substantial than pigeon bone broth"). Courts have interpreted the Act's language liberally in light of its humanitarian purposes. Metro-North Commuter R. Co. v. Buckley, 521 U.S. 424 [429-30], 117 S.Ct. 2113, 2117, 138 L.Ed.2d 560 (1997).

Still, the FELA "is not an insurance statute." Gottshall, 512 U.S. at 554,114 S.Ct. 2396. A FELA plaintiff who fails to produce even the slightest evidence of negligence will lose at summary judgment. McGinn [v. Burlington N. R.R.], 102 F.3d [295, 301 (7th Cir.1996)]. Specifically, the FELA plaintiff must offer evidence proving the common law elements of negligence, including duty, breach, foreseeability, and causation. Fulk v. Illinois Cent. R.R. Co., 22 F.3d 120, 124 (7th Cir.)[,cert. denied, 513 U.S. 870, 115 S.Ct. 193, 130 L.Ed.2d 125 (1994)]. The FELA holds railroads to a prudent-person standard of care, Reardon v. Peoria & Pekin Union Ry. Co., 26 F.3d 52, 54 (7th Cir.1994), and a plaintiff who wishes to demonstrate that a railroad breached its duty must show circumstances that "a reasonable person would foresee as creating a potential for harm." McGinn, 102 F.3d at 300.

Williams v. National R.R. Passenger Corp., 161 F.3d 1059, 1061-62 (7th Cir.1998).

In discussing the elements of a FELA case and the test for taking a FELA case to the jury, the Court of Appeals below concluded a jury could find BN "slightly negligent." Seeberger, 91 Wash.App. at 868, 960 P.2d 461. The term "slightly negligent" is imprecise and does not state the law correctly. For instance, in considering whether an employee under the FELA has only a "slight" duty of care to prevent injury to himself, the court in Fashauer v. New Jersey Transit Rail Operations, Inc., 57 F.3d 1269, 1283 (3rd Cir.1995), said, "It seems to us that someone acts either with due care or without due care." That is, the duty is binary: it either exists or it does not. It cannot exist only "slightly." Similarly, BN was either negligent or not negligent with respect to Seeberger; it could not have been "slightly" negligent.

Confusion on this point appears to have arisen from the following statement in Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957): "Under [the FELA] the test of a 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." The Supreme Court undoubtedly meant to refer to a "breach of a duty owed by the employer to the employee," rather than "employer negligence." As the Supreme Court itself later observed, this statement does not speak of a relaxed standard of negligence, but rather a relaxed standard of...