Ward v. Ill. Cent. R.R. Co., W2012-01839-COA-R3-CV

• Decision Date: 20 June 2013
• Docket Number: No. W2012-01839-COA-R3-CV,W2012-01839-COA-R3-CV
• Parties: CLAYTON WARD v. ILLINOIS CENTRAL RAILROAD COMPANY
• Court: Tennessee Court of Appeals

CLAYTON WARD v. ILLINOIS CENTRAL RAILROAD COMPANY

No. W2012-01839-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT JACKSON

May 21, 2013 Session

Filed June 20, 2013

Direct Appeal from the Circuit Court for Shelby County

No. CT-006235-07

Jerry Stokes, Judge

Appellant, former employee of Appellee railroad, appeals the trial court's grant of Appellee's motion for summary judgment on the ground of preclusion. Appellant filed this lawsuit under the Federal Employers' Liability Act, seeking damages for injuries he allegedly suffered as a result of walking on ballast in Appellant's railyard. Appellee moved for summary judgment on the ground that Appellant's claim concerning ballast was precluded by the Federal Railroad Safety Act regulation 49 C.F.R. § 213.103. The trial court granted summary judgment, concluding that Appellant failed to meet his burden to negate Appellee's proof that it complied with 49 C.F.R. § 213.103. We have determined that Appellant satisfied his burden of production to negate Appellee's proof regarding whether the ballast rock at issue provided adequate drainage in compliance with 49 C.F.R. § 213.103, making summary judgment inappropriate. Reversed and remanded.

Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Circuit Court Reversed and

Remanded

J. STEVEN STAFFORD, J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J.,W.S., and HOLLY M. KIRBY, J., joined.

Chester H. Lauck, III, Little Rock, Arkansas, for the appellant, Clayton Ward.

S. Camille Reifers and Brooks E. Kostakis, Memphis, Tennessee, for the appellee, Illinois Central Railroad Company.

OPINION

I. Factual and Procedural History

This is the second appeal of this case. In Ward v. Illinois Central R. R. Co., No.W2012-00950-COA-R9-CV, 2011 WL 255146 (Tenn. Ct. App. Jan. 20, 2011) ("Ward I"), this Court granted Appellee Illinois Central Railroad Company's ("ICRR") request for interlocutory appeal to address the question of whether Appellant Clayton Ward's claims were barred by the applicable three-year statute of limitations. The trial court denied ICRR's motion for summary judgment on the statute of limitations ground. In Ward I, we affirmed the trial court, holding that there was a dispute of fact concerning when Mr. Ward discovered his injury, and that the trial court was correct in denying the railroad summary judgment at that time. A full recitation of the factual history of the case is set out in Ward I. In the interest of continuity and judicial economy, we restate the relevant facts here:

Clayton Ward . . . began working for Illinois Central Railroad Company . . . as a carman in April of 2003, when he was thirty years old. Initially, he worked inside a car shop, where he inspected and repaired train cars. After four to five months, however, he began working outside in the train yard, where he was required to walk along the length of the trains and inspect the railcars for defects.

Toward the end of 2004, [Mr. Ward] began to experience swelling and pain in his left ankle. [Mr. Ward] could not recall any particular activity that he was engaged in when he first felt pain in his ankle. He said he had no "warning symptoms," but the pain gradually got worse every day for a couple of weeks. [Mr. Ward] described the pain and swelling as "mainly constant," and he said he did not get any relief from his symptoms at night. [Mr. Ward] said that his ankle would hurt worse when he walked on the ballast when inspecting trains, but that he had problems walking at home as well. He had no problems with his right ankle.

After experiencing these symptoms for two to three weeks, [Mr. Ward] sought medical attention at Campbell Clinic in November 2004. An orthopedic surgeon diagnosed [Mr. Ward] with posterior tibial tendinitis. He gave [Mr. Ward] a "walking boot," ordered physical therapy, and placed him on medical leave from his employment. [Mr. Ward] was later told to discontinue physical therapy and to limit movement of his ankle. Thereafter, he was placed in an "Aircast" brace. In April of 2005, [Mr. Ward] was released from his physician's care and allowed to return to work. According to Plaintiff, his ankleseemed to be fine at that point. Plaintiff passed a required medical examination and was determined to be qualified by Illinois Central's Medical Department, whose findings included a "normal [left] ankle [and] foot exam."

[Mr. Ward] was not placed under any work restrictions by his physician, but for whatever reason, when he returned to Illinois Central, he went to work inside the car shop again. He worked there for approximately two years until April of 2007, when he accepted a position in the train yard performing the same duties that he had previously performed there. Around June of 2007, [Mr. Ward] again began to experience pain and swelling in his left ankle. He was again diagnosed with posterior tibial tendinitis, and he underwent surgery in order to have his damaged tendon replaced in October 2007.

Ward I, 2011 WL 255146, at *1.

According to his deposition testimony, Mr. Ward described Johnston Yard as "where the trains come in and leave from," and further testified that his job as a carman in the yard required him to "walk and inspect each inbound and outbound train." Mr. Ward further stated that when he was assigned to a particular section of Johnston Yard, he was required to inspect any train that came in on any track in that section of the yard. As noted above, Mr. Ward began to experience pain and swelling in his left ankle, which he described as "mainly constant." When asked whether there were any particular activities that exacerbated his ankle pain, Mr. Ward stated in his deposition: "Just inspecting trains, walking on the ballast."

On December 17, 2007, Mr. Ward filed a complaint against Appellee Illinois Central Railroad Company ("ICRR"). The complaint, which was filed pursuant to the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51 et seq., alleged that, "[d]uring his tenure with [ICRR], [Mr. Ward] was negligently, in whole or in part, required and instructed by [ICRR] to work in unsafe working conditions that required him to walk for long periods of time on hard, uneven surfaces."¹ Mr. Ward alleged that these conditions "ultimately resultedin a severe and permanently disabling cumulative trauma disorder to [Mr. Ward's] left ankle." ICRR filed its answer on February 21, 2008, generally denying the material allegations contained in the complaint, and asserting that Mr. Ward's claims were preempted or precluded by federal law. Mr. Ward was granted leave to amend his complaint to specify the amount of damages; the amended complaint was filed on March 20, 2008. The crux of Mr. Ward's complaint is that ICRR's use of ballast in its Memphis railyard, where Mr. Ward worked periodically from 2003 until 2007, was not reasonably safe. He alleges that his job duties as carman, which included walking alongside tracks on a ballast surface while inspecting trains, caused or contributed to his diagnosed condition of posterior tibial tendonitis in his left ankle in November of 2004, and subsequent surgery for that injury in February of 2007.

On March 28, 2012, ICRR filed a motion for summary judgment on the ground of federal preemption or preclusion of all claims asserted by Mr. Ward. In support of its motion, ICRR provided the affidavit of its Assistant Chief Engineer, Montie Chapman. In relevant part, Mr. Chapman testified that ICRR had complied with Federal Railroad Safety Act ("FRSA"), 49 C.F.R. § 213.103, see further discussion infra.

Specifically, Mr. Chapman testified that, during Mr. Ward's tenure with ICRR, ICRR used ballast in its operations. Mr. Chapman stated that the ballast: (1) transmits and distributes the load of the track and railroad rolling equipment to the subgrade; (2) restrains the track laterally, longitudinally, and vertically under dynamic loads imposed by railroad equipment and thermal stress exerted by the rails; (3) provides adequate drainage for the track; and (4) maintains proper track crosslevel, surface and alignment.

On April 27, 2012, Mr. Ward filed a response in opposition to ICRR's motion for summary judgment. The motion was heard by the trial court on May 4, 2012. By Order of May 23, 2012, the trial court granted ICRR's motion for summary judgment. The trial court's order states, in relevant part, that:

This matter came to be heard on May 4, 2012, on [ICRR's] Motion for Summary Judgment based on federal preemption. The Court has fully considered the pleadings, the affidavit ofMontie Chapman, the authorities submitted by the parties, the arguments of counsel, the entire record in this cause, and the Sixth Circuit's holding in Nickels v. Grand Trunk Western R.R., Inc., 560 F.3d 426 (6th Cir. 2009). The Court finds that there are no material facts in dispute concerning the preemption of [Mr. Ward's] claims in this action, and that [ICRR's] motion should be granted.

The Court finds that the Federal Railroad Safety Act (FRSA) regulation 49 C.F.R. § 213.103 substantially subsumes the area of requirements as to ballast size, and that [Mr. Ward's] allegations in this action brought pursuant to the Federal Employers' Liability Act (FELA) are preempted. The Court specifically finds that the subject matter of the lawsuit, the ballast utilized by . . . Illinois Central Railroad Company in areas where Clayton Ward worked, primarily in Johnston Yard (currently known as Harrison Yard) in Memphis, Tennessee, is preempted by the FRSA and federal law.

On June 19, 2012, Mr. Ward filed a motion to alter or amend the judgment, which motion was opposed by ICRR. A hearing on the motion to alter or amend was held on July 20, 2012. By order of July 30, 2012, the trial court denied Mr. Ward's motion.

II. Issues

Mr. Ward appeals; he raises two issues for review as stated in his brief:

1. Did the trial court err in granting summary judgment in favor of [ICRR] on the basis of federal preemption?

2. Did the trial court err

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