Stoeger v. Burlington Northern R. Co.

• Decision Date: 24 September 1996
• Citation: 323 Or. 569,919 P.2d 39
• Parties: Edward STOEGER, Petitioner on Review, v. BURLINGTON NORTHERN RAILROAD COMPANY; and Elf Atochem North America, Inc. aka Atochem North American, Inc., Respondents on Review. CC 9304-02196; CA A82933; SC S42068.
• Court: Oregon Supreme Court

Page 39

919 P.2d 39

323 Or. 569

Edward STOEGER, Petitioner on Review, v. BURLINGTON NORTHERN RAILROAD COMPANY; and Elf Atochem North America, Inc. aka Atochem North American, Inc. Respondents on Review.

CC 9304-02196; CA A82933; SC S42068.

Supreme Court of Oregon.

Argued and Submitted Nov. 2, 1995.

Decided July 18, 1996.

Reconsideration denied Sept. 24, 1996.

Thomas M. Christ, of Mitchell, Lang & Smith, Portland, argued the cause for petitioner on review. With him on the petition were Douglas S. Querin and Stacy J. Hankin, of Bricker, Zakovics & Querin, P.C., Portland.

Larry E. Leggett, of Kroschel & Gibson, Bellevue, Washington, argued the cause and filed the brief for respondent on review Burlington Northern Railroad Company.

Jerard S. Weigler, of Lindsay, Hart, Neil & Weigler, Portland, argued the cause for respondent Elf Atochem Northern American, Inc. With him on the brief was Robin A. Jones, Portland.

Michael H. Simon, of Perkins Coie, Portland, filed a brief on behalf of amicus curiae Oregon Association of Defense Counsel.

Anthony A. Allen, of Law Offices of Michael B. Dye, Salem, filed a brief amicus curiae Oregon Trial Lawyers Association.

Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN, FADELEY, GRABER and DURHAM, JJ. ^*

VAN HOOMISSEN, Justice.

Plaintiff, an employee of defendant Burlington Northern Railroad Company (BN), brought this action alleging that he was injured while working on sidetracks owned by defendant Elf Atochem North America, Inc. (Atochem). The trial court granted defendants' motions for summary judgment on the ground that there was no genuine issue of material fact regarding defendants' alleged negligence. The Court of Appeals affirmed without opinion. Stoeger v. Burlington Northern Railroad Co., 132 Or.App. 552, 889 P.2d 391 (1995). For the reasons stated below, we reverse.

On review of a summary judgment, this court determines whether there is a genuine issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. ORCP 47 C; Fields v. Jantec, Inc., 317 Or. 432, 437, 857 P.2d 95 (1993). We view the evidence and all reasonable inferences to be drawn from it in the light most favorable to the party opposing the motion. Id. That is true even as to those issues on which the opposing party would have the burden of proof at trial. Welch v. Bancorp Management Advisors, Inc., 296 Or. 208, 218, 675 P.2d 172, reh'g den., 296 Or. 713, 679 P.2d 866 (1984).

Atochem owns and maintains sidetracks connecting its plant to BN's main line. BN owns and operates the trains that run on Atochem's sidetracks. A contract between Atochem and BN obligates Atochem to maintain its sidetracks and connecting switches.

At the time of his alleged injury, plaintiff was assisting in switching cars from one sidetrack to another in Atochem's yard. Plaintiff alleged in his complaint that he injured his back when he attempted to throw a switch for tracks numbered five and six, sometimes called the "five/six switch." ¹ To do that, he had to bend down, lift a handle and turn it sideways, or horizontally. He claims that the switch handle "stuck" or "hung up" while he was turning it and that the sudden added resistance caused him to strain various muscles and ligaments.

That same day, plaintiff reported his injury on a BN "Personal Injury Report" form. When asked to identify any "defects involved" in his injury, plaintiff checked a box marked "none." The next day, BN sent an inspection team to examine the "five/six switch." The team reported that the switch was properly lubricated and free of defects. Atochem's shipping supervisor and engineer also inspected the switch the day after the incident and found no defects.

Twenty-one days after the alleged injury, O'Dell, BN's investigator, recorded (with plaintiff's permission) an unsworn and uncounseled telephone conversation with plaintiff as follows:

"Q: [O'Dell] And what happened?

"A: When I reached down to grab the little switch, I reached down and grabbed the switch at--that goes into 5 and 6, and I reached to pull the handle they had some gravel there I guess. I must have slipped. I really honestly really don't know how exactly it did happen. I slipped and I felt a big sharp pain in the lower part of my back and I went down to my knees and I stayed there for a few minutes and I got up and it took everything I could do just to finish throwing that switch and continue on, but I stayed on the job until we went home that day, thinkin' I might get better instead of, uh, worse in any way.

" * * * * *

"Q: And was there any abnormal resistance to the switch?

"A: Honestly I don't remember. I didn't think there was. The switch wasn't a really hard switch, but it wasn't an easy switch. I mean you had to put a little effort into it, but uh, I don't remember. To be honest I just don't remember except when I felt the pain it went down.

"Q: Well, did you then get the switch thrown all right, or--

"A: Yes, I went ahead and threw the switch and we went ahead and did a spotted that car and got that other car and then we were ready to go back up towards Willbridge.

" * * * * *

"Q: Do you remember showing on [a personal injury report] * * * under the portion called 'Defects Involved.' You checked the box that said none?

"A: I don't remember, but uh, if you got it there, I guess so.

" * * * * *

"Q: Okay. Uh, would that [injury report] indicate that you felt that there was no defects in the switch or anything, or what?

"A: Well, I don't think there * * * Like I said the switch isn't the easiest switch to throw and it's not the hardest switch to throw out there for cryin' out loud. We've got lot harder switch [sic ] out there that we turned in and I don't know, like I say I don't know how it happened or exactly what happened. I just don't know, Mr. O'Dell. It's just that--throw the switch. But I don't think that switch was a defective switch, no.

"Q: Okay, did you slip or trip, or anything like that?

"A: I think the main thing I must have slipped, but I don't recall. That's what I'm sayin'.

"Q: Oh.

"A: There's a little switch there and you're reachin' down, and you're tryin' to pull, you reach down and you've got a radio in one hand and I think, if I remember right I really don't, as I'm sayin' I can't--It happened so quick, I don't remember exactly what did happen.

" * * * * *

"Q: Okay. Did you understand all the questions I asked you here this morning?

"A: Yes, I did.

"Q: And is everything that you told me true and correct?

"A: Yes, it is."

Plaintiff brought this action against BN under the Federal Employers Liability Act, 45 USC § 51 et seq., ² and against Atochem under the common law of negligence, alleging as to both that the switch was defective and that the defect caused his injury. Defendants moved for summary judgment, arguing that there was no evidence that the switch was defective and, therefore, that there was no evidence that they had been negligent. Defendants relied on plaintiff's statements to O'Dell that plaintiff did not think that the switch was defective or abnormally resistant. Defendants also argued that, even if the switch was defective, there was no evidence that they knew or, in the exercise of reasonable care, should have known, of the defect.

In response, plaintiff submitted an affidavit stating in part:

"As I explained in my statement to Burlington Northern Railroad claims agent O'Dell, I had lifted the handle of the 5/6 switch and was in the process of moving it from one notch to the other in an arching motion. At first, the switch handle moved easily. I had lifted the handle part of the way up when it suddenly hung up and became stiff and hard to throw. I felt pain in my back when the switch handle hung up. Because the pain was so severe, I fell to my knees and stayed there a few minutes. I then got up and was able to finish throwing the switch.

"I recall visually inspecting the switch as I walked towards it. I did not observe any broken or bent pieces nor any mechanical problems with the switch. A switch is defective when there exists a broken or bent piece or a mechanical problem that results in abnormal resistance and prevents me from throwing the switch. Because I was able to throw the 5/6 switch, I did not consider the switch to be defective or to be abnormally resistant."

The trial court ruled that plaintiff's affidavit was "inadmissible" to contradict his earlier statements to O'Dell and granted defendants' motions for summary judgment. The Court of Appeals affirmed without opinion. We first address the trial court's ruling that plaintiff's affidavit is inadmissible to contradict his earlier statements to O'Dell.

ORCP 47 C provides in part:

"The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."

We find nothing in ORCP 47 that gives a trial court, in a summary judgment proceeding, the authority to rule that an affidavit of a party is "inadmissible" simply because it states facts that are inconsistent with a prior statement by the same party. ³ We hold that the trial court erred by excluding plaintiff's affidavit from consideration on summary judgment.

The next question is whether plaintiff's affidavit creates a "genuine" issue of material fact, sufficient to defeat defendants' motions for summary judgment. Defendants argue that plaintiff's affidavit fails to present a sufficient explanation for the inconsistency between his affidavit and his earlier statements to O'Dell and, therefore, summary judgment was proper. Defendants rely on a series of Court of Appeals opinions which held that where the nonmoving party makes a statement that absolves the other party of liability, a later inconsistent statement does not create a genuine issue of...