Tufariello v. Long Island R.R. Co.

• Decision Date: 18 March 2005
• Docket Number: No. 03 CV 3520(CLP).,03 CV 3520(CLP).
• Citation: 364 F.Supp.2d 252
• Parties: Vito TUFARIELLO, Plaintiff, v. LONG ISLAND RAIL ROAD COMPANY, Defendant.
• Court: U.S. District Court — Eastern District of New York

364 F.Supp.2d 252

Vito TUFARIELLO, Plaintiff, v. LONG ISLAND RAIL ROAD COMPANY, Defendant.

No. 03 CV 3520(CLP).

United States District Court, E.D. New York.

March 18, 2005.

Philip Patrick Vogt, Altier & Vogt, LLC, New York, NY, for Vito Tufariello, Plaintiff.

Sean Patrick Constable, Long Island Rail Road, Law Department, Jamaica, NY, for Long Island Rail Road Company, Defendant.

MEMORANDUM AND ORDER

POLLAK, United States Magistrate Judge.

On July 18, 2003, plaintiff Vito Tufariello commenced this personal injury action against his former employer, the Long Island Rail Road Company ("LIRR"), pursuant to the Federal Employers' Liability Act, 45 U.S.C. § 51, et seq. ("FELA"), based on plaintiff's alleged exposure to extremely loud locomotive horns and his subsequent loss of hearing. By Notice of Motion, dated January 24, 2005, the LIRR moves for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, on two grounds: (1) plaintiff's claims are preempted by the Federal Railroad Safety Act ("FRSA"), 49 U.S.C. §§ 20101-20153 (formerly 45 U.S.C. §§ 421-447), and regulations promulgated thereunder; and (2) plaintiff cannot establish a prima facie case of negligence. The LIRR also moves, under Rules 104 and 702 of the Federal Rules of Evidence, to preclude plaintiff's expert from testifying based on defendant's claim that the expert's opinions lack reliability.

Based on a review of the parties' arguments, this Court grants defendant's motion for summary judgment.

FACTUAL BACKGROUND

Plaintiff, a former employee of the LIRR who retired in September 2003, was assigned to work in the LIRR's Patchogue Yard from 1998 through 1999 where he built parts for an ongoing bridge project. (Def's 56.1 Stmnt ¶¶ 1, 5).¹ The Patchogue Yard is located west of the Patchogue Station, south of the railroad tracks. (Id. ¶ 6). During this same period of time, the LIRR placed into service its new DE and DM locomotives, which were equipped with audible warning horns. (Id. ¶¶ 7-8). These horns would sound for ten to fifteen seconds each time the locomotives entered and exited the Patchogue Station and proceeded through the street crossings that are located on the east and west ends of the Patchogue Yard. (Id. ¶¶ 6, 8, 20). Defendant estimates that between six and twelve locomotives passed through the yard during the working day. (Id. ¶ 19).

Plaintiff alleges that the "horn blasts were so loud that a person's speech could not be heard by another person within one arm's length when spoken at normal levels in the Yard." (Pl's. 56.1 Stmnt ¶ 34).² Plaintiff further asserts that the horn blasts were "universally perceived by human beings to be excessively shockingly loud." (Id. ¶ 29). According to plaintiff, these horn blasts were so loud that plaintiff's ears would continue to ring even after the blast had ended. (Id. ¶ 35).

Defendant concedes that it received complaints not only from LIRR employees but also from members of the community about the noise levels of the new horns. (Def's. 56.1 Stmnt ¶ 9). In response, the LIRR conducted tests in May and June 1999 to determine if the new warning horns were in compliance with regulations promulgated by the Federal Railroad Administration ("FRA regulations"). (Id. ¶¶ 10-12). See 49 C.F.R. § 229.129. Although tests were conducted in the Richmond Hill and Morris Park Yards, defendant concedes that no testing was conducted at the Patchogue Yard. (Id. ¶ 13).

Defendant contends that the "[t]esting revealed that the new DE and DM locomotive audible warning horns were on par with the existing diesel equipment and louder than electric equipment." (Id. ¶ 14). Defendant asserts that in 1998 and 1999, FRA regulations required these horns to produce a minimum sound level of 96 decibels ("dB(A)"), measured from 100 feet forward of the locomotive and four feet above the center line of track. (Id. ¶ 11). See 49 C.F.R. § 229.129. Defendant contends that, based on its testing, the highest sound level of the new horns, when measured 100 feet forward of the locomotive, was 100 dB(A). (Id. ¶ 17). When measured 90 degrees perpendicular to the track and 30 feet from the locomotive, the new horns registered 110 dB(A). (Id.)

Plaintiff asserts that the LIRR's testing demonstrated that the DE 30 horns "were [a] `more annoying sound and/or loudness []' due to [the] control of the horn, duration, shrillness of the horns and location of the horn on the locomotive 40 feet from the front." (Pl's. 56.1 Stmnt ¶ 14). The testing also showed that the horns were directed over the adjacent trees and shrubs which would normally absorb the sound. (Id.) Thus, according to plaintiff, there was a clear difference between the old and the new locomotive warning horns. (Id.) With respect to the federal regulations, plaintiff contends that these regulations only set minimum levels measured at certain locations; there are no other FRA rules or regulations which deal with sound levels.³ (Id. ¶ 10). Thus, plaintiff asserts that the other tests performed by the LIRR were not in accordance with the FRA. (Id. ¶ 12).

As a result of the testing, the LIRR reduced the frequency or pitch of the horns and repositioned the horns on the locomotives. (Def's. 56.1 Stmnt ¶ 15). According to plaintiff, the LIRR also changed the method for controlling the horn to eliminate a delay between the engineer's action and the horn sounding. (Pl's. 56.1 Stmnt ¶ 15). Plaintiff asserts, however, that the LIRR ignored complaints about these new horns for more than a year and that the modifications were made only after Governor Pataki intervened. (Pl's. 56.1 Stmnt ¶¶ 30, 32). After the modifications were made, testing showed that the highest level measured from 100 feet forward of the locomotive was 108 dB(A); the highest level when measured 90 degrees perpendicular and 30 feet from the locomotive was 111 dB(A).⁴ (Def's. 56.1 Stmnt ¶ 18).

Plaintiff claims that in September 2000, he first noticed a problem with his hearing. He further alleges that two years earlier, on September 4, 1998, he was tested by the LIRR Medical Department and found to have normal hearing. (Pl's. 56.1 Stmnt ¶ 38). He claims that he suffered a loss of hearing as a result of the noise levels to which he was exposed while working at the Patchogue Yard. (Id. ¶¶ 27, 37).

DISCUSSION

Defendant LIRR moves for summary judgment on the grounds that plaintiff's FELA claim is preempted by the Federal Railroad Safety Act, 49 U.S. §§ 20101-20153, and that, in any event, plaintiff has failed to demonstrate a prima facie case of negligence.

A. Summary Judgment Standards

It is well-settled that a party moving for summary judgment has the burden of establishing that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir.1990). Since summary judgment is an extreme remedy, cutting off the rights of the non-moving party to present a case to the jury, see Egelston v. State Univ. College at Geneseo, 535 F.2d 752, 754 (2d Cir.1976); Gibralter v. City of New York, 612 F.Supp. 125, 133-34 (E.D.N.Y.1985), the court should not grant summary judgment unless it is clear that all of the elements have been satisfied. See Auletta v. Tully, 576 F.Supp. 191, 194-95 (N.D.N.Y.1983), aff'd, 732 F.2d 142 (2d Cir.1984). In addition " `the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)).

Once the moving party discharges its burden of proof under Rule 56(c), the party opposing summary judgment "has the burden of coming forward with `specific facts showing that there is a genuine issue for trial.'" Phillips v. Kidder, Peabody & Co., 782 F.Supp. 854, 858 (S.D.N.Y.1991) (quoting Fed.R.Civ.P. 56(e)). Rule 56(e) "provides that a party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials of his pleading." Anderson v. Liberty Lobby, Inc., 477 U.S. at 256, 106 S.Ct. 2505. A party opposing summary judgment may not "merely ... assert a conclusion without supplying supporting arguments or facts." BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir.1996) (internal quotations omitted). The party must set forth "concrete particulars" showing that a trial is necessary. Nat'l Union Fire Ins. Co. v. Deloach, 708 F.Supp. 1371, 1379 (S.D.N.Y.1989). Indeed, "the mere existence of some alleged factual dispute between the parties" alone will not defeat a properly supported motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. at 247-48, 106 S.Ct. 2505 (emphasis in original).

In reversing a grant of summary judgment, the Second Circuit noted that the "`[t]rial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them.'" Quaratino v. Tiffany & Co., 71 F.3d 58, 65 (2d Cir.1995) (quoting Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1224 (2d Cir.1994)).

B. Preemption

Plaintiff, an injured railroad employee, brings this action under FELA, which provides the exclusive remedy for plaintiff in this case. 45 U.S.C. §§ 51, et seq. See Rivera v. Union Pacific Railroad Co., 378 F.3d 502, 507 (5th Cir.2004); see also Lane v. R.A. Sims, Jr., Inc., 241 F.3d 439, 442 (5th Cir.2001); Dixon v. CSX Transp., Inc., 990 F.2d 1440, 1442 n. 2 (4th Cir.1993); Rice v. Cincinnati, New Orleans & Pacific Ry. Co., 955 F.Supp. 739, 740 (E.D.Ky.1997). FELA provides a cause of action to a railroad employee for injury...