Swartout v. Consolidated Rail Corporation

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: <P>Peters, J.</P&gt
• Citation: Swartout v. Consolidated Rail Corporation, 294 A.D.2d 785, 742 N.Y.S.2d 721 (N.Y. App. Div. 2002)
• Decision Date: 23 May 2002
• Parties: KEITH M. SWARTOUT, Respondent,<BR>v.<BR>CONSOLIDATED RAIL CORPORATION, Appellant.

294 A.D.2d 785

742 N.Y.S.2d 721

KEITH M. SWARTOUT, Respondent,

v.CONSOLIDATED RAIL CORPORATION, Appellant.

Peters, J.

Decided May 23, 2002.

Crew III, J.P., Mugglin, Rose and Lahtinen, JJ., concur.

Peters, J.

This personal injury action was commenced pursuant to the Federal Employers' Liability Act (45 USC § 51 et seq. [hereinafter FELA]) to recover damages for injuries allegedly sustained during the course of employment. According to plaintiff, on May 19, 1995, while operating a manual switch in a weedy area several feet from railroad tracks near the Town of Newburgh, Orange County, he was bitten by a black tick and contracted Lyme disease. Plaintiff's complaint alleges that defendant was negligent in failing to, inter alia, provide him with a safe working environment and in failing to warn him of the risk posed by Lyme disease. Following joinder of issue, but before the filing of the note of issue, defendant moved for summary judgment. Plaintiff opposed the motion and further contended that such determination was premature in light of outstanding discovery. Supreme Court denied defendant's motion and defendant appeals.

It is well settled that in deciding a motion for summary judgment, the trial court must view all the evidence in the light most favorable to the party against whom such judgment is sought (see, B-S Indus. Contrs. v Town of Wells, 173 AD2d 1053, 1054) and, where there is any doubt as to the existence of a triable issue of fact, it should deny the motion since the goal is issue finding rather than issue determination (see, Sternbach v Cornell Univ., 162 AD2d 922, 923). In FELA cases, as compared to common-law negligence actions, the standard for determining negligence is "considerably more liberal" (Stephens v Metro-North Commuter R.R., 204 AD2d 945, 945). "In a FELA action, `the test * * * is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury * * * for which damages are sought'" (id. at 945, quoting Rogers v Missouri Pac. R.R. Co., 352 US 500, 506). Recognizing that the proof presented in opposition to a motion for summary judgment under FELA may not be sufficient to raise a triable issue fact under a common-law negligence claim, we agree with Supreme Court that, upon the evidence presented, summary judgment was properly denied.

Here, it is undisputed that defendant had a duty to provide plaintiff with a safe working environment (see, Ulfik v Metro-North Commuter R.R., 77 F3d 54, 58). Defendant could be found to have breached this duty if it knew, or should have known, that Lyme disease was a potential hazard which could be contracted by its employees while walking along...