Wheeler v. CSX Transp., Inc.

• Decision Date: 21 July 2017
• Docket Number: Case No. 3:14 CV 2689
• Parties: ROBERT J. WHEELER, Plaintiff, v. CSX TRANSPORTATION, INC. Defendant.
• Court: U.S. District Court — Northern District of Ohio

ROBERT J. WHEELER, Plaintiff, v. CSX TRANSPORTATION, INC. Defendant.

Case No. 3:14 CV 2689

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO WESTERN DIVISION

July 21, 2017

Magistrate Judge James R. Knepp, II

MEMORANDUM OPINION AND ORDER

INTRODUCTION

This is a case involving a claim under the Federal Employers' Liability Act, 45 U.S.C. § 51 ("FELA"). While working for Defendant CSX Transportation, Inc., ("Defendant"), Plaintiff Robert J. Wheeler ("Plaintiff") contends he was injured when moving a case of water bottles stored on the locomotive engine on which he was working. Plaintiff filed the instant action alleging violations of the FELA and per se negligence based on violation of the Federal Locomotive Inspection Act ("LIA"), 49 U.S.C § 20701 et seq. Pending before the Court is Defendant's Motion for Summary Judgment. (Doc. 26). Plaintiff has opposed (Doc. 30), and Defendant has replied (Doc. 31). Jurisdiction is proper under 28 U.S.C. § 1331. The parties have consented to the undersigned's exercise of jurisdiction. (Doc. 20). The Court held oral argument on the motion on July 13, 2017. (Non-document entry dated July 13, 2017). For the reasons discussed below, Defendant's motion is granted in part and denied in part.

BACKGROUND

On November 9, 2011, Plaintiff was working as a conductor for Defendant on a train from Bedford Park, Illinois (Chicago), to Willard, Ohio. (Plaintiff's deposition, Doc. 30-1, at 8). The engineer on the train was Chuck Shreve. Id. As the train approached the Willard yard limits, Plaintiff began to prepare to leave the engine. Id. at 9. He had stored his grip and backpack behind the conductor's seat, and as the train approached the terminal, he moved them into the nose of the engine. Id. at 9-11.

Plaintiff then wanted to replenish the refrigerator in the cab of the locomotive with bottled water. Id. at 10-11. It was "common courtesy" to replenish the refrigerator with water for the outbound crew. (Shreve deposition, Doc. 30-3, at 5). Locomotive crews obtain the water bottles at various yard offices. See Doc. 30-1, at 11; Berghaus deposition, Doc. 30-2, at 3-4. There is no specific designated location for a locomotive crew to store water bottles, but crews are instructed to place them somewhere out of the way. (Doc. 30-3, at 4) ("Out of the way so it's not, you don't trip on it, you don't fall on it."); (Doc. 30-2, at 4) ("There's no set location of where we train [employees] to actually place [water]. We just tell them not to create a tripping hazard with them.").

The cab of the locomotive contained three seats - an engineer's seat, a conductor's seat, and a center seat. (Doc. 30-1, at 8). A box containing bottles of water had been placed behind the center seat in the cab before Plaintiff and Shreve boarded. Id. at 11. Plaintiff testified the box of water was "wedged" behind the seat. (Doc. 30-1, at 17) ("It was on an angle. That's all I can tell you. It was on an angle wedged in there.").¹

In attempting to move the box, Plaintiff first tried to get it from the engineer's side. (Doc. 30-1, at 11). He bent down on one knee and placed his right hand on the center seat, while attempting to slide the box out from behind the seat with his left hand. Id. Because the box was"wedged in", Plaintiff "got up and went around to the other side[.]" Id. When he could not retrieve the box, Plaintiff then stood up, walked around to the right side of the center seat (the conductor's side), bent over the center seat and attempted to reach the box with his right hand. Id. He bent across the seat, and grabbed the box, but "had a hard time trying to get the box out of there" and "tore the box" in the process. Id. As he bent over, he "twisted and wrenched" his back. Id. Plaintiff ended up laying across the seat. Id. at 12; Doc. 30-3, at 3 ("[W]hat I remember he was stretched over the seat and the water was behind the seat he was stretched over.").² Shreve did not see Plaintiff attempt to reach the water, but heard him "ma[k]e an exclamation and sa[y] he had thrown something out in his back." (Doc. 30-3, at 3). Shreve helped Plaintiff, who was visibly in pain, off the train and into the crew room. Id. An ambulance was called and Shreve helped Plaintiff into the ambulance. Id.

After the incident, road foreman of engines Michael Berghaus assisted in conducting an investigation. See Doc. 30-2.

In his Complaint, Plaintiff alleges, inter alia, that Defendant violated the FELA in a several ways:

a) In failing to provide the Plaintiff with a reasonably safe place to work;

b) In failing to use reasonably safe methods in its train operations;

c) In failing to exercise ordinary care to furnish a locomotive engine in a reasonably safe condition[];

d) In storing cases of water bottles in a location on said engine which was difficult to access and placed stress and strain on Plaintiff's back as he attempted to lift said cases;e) In storing cases of water bottles in a location on said engine which increased Plaintiff's risk of injury;

f) In failing to provide Plaintiff and his crew a storage area on said engine where cases of water bottles could be stored in a reasonably safe manner;

g) In failing to adequately inspect and maintain its engines;

h) In failing to warn Plaintiff of unsafe conditions;

i) In allowing unsafe practices to become common practices;

j) In failing to comply with [the LIA];

k) In failing to comply with the applicable provisions of Part 229-Locomotive Safety Standard of the Code of Federal Regulations including: [49] C.F.R. §229.45 and 49 C.F.R. §229.119.

(Doc. 1, at 3).

In his deposition, Plaintiff described what he thought Defendant did wrong:

Q Getting back to your incident here. What is it you think CSX did wrong?

A They didn't provide a safe place for the box of water.

Q And - -

A They could have had a shelf or something above the cooler or built something special. They got holders for the hammer and the wrenches and the air hoses, but no shelf or holder for the water.

Q Are there locomotive you're aware of that have shelves or holders for the water?

A No, not that I'm aware of. They did have - - one did have a microwave. That's the first time I ever experienced that.

Q But this isn't a case where there is normally a shelf and it's missing?

A No.

Q It's not a standard piece of equipment?

A No.

Q You've never seen a holder or shelf for water?

A Not that I know of.

Q What was unsafe about your working area?

A That box of water was improperly stored.

Q Where are they normally stored?

A I've seen locomotives with 10 cases, loose bottles all over, anywhere in between, some of them with no water. I've made many suggestions and complained many times that there's no place to store this stuff.

Q Water in particular?

A Water in particular.

***

Q You never filled out a PI-82 or an unsafe equipment report or anything like that?

A No. As far as water goes, no. Usually if you have unsafe equipment, you tell the yardmaster or trainmaster to send somebody out to fix it. There was no shelf to fix. There was nothing to fix.

(Doc. 30-1, at 16-17).

STANDARD OF REVIEW

Pursuant to Federal Civil Rule 56(c), summary judgment is appropriate where there is "no genuine issue as to any material fact" and "the moving party is entitled to judgment as a matter of law." When considering a motion for summary judgment, the Court must draw all inferences from the record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The Court is not permitted to weigh the evidence or determine the truth of any matter in dispute; rather, the Court determines only whether the case contains sufficient evidence from which a jury could reasonably find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). The moving party bears the burdenof proof. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). This burden "may be discharged by 'showing'—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case." Id.

DISCUSSION

Defendant has moved for summary judgment, making three interrelated arguments: 1) Plaintiff has no viable claim under the LIA; 2) the LIA precludes a FELA claim that the locomotive should have been equipped with a shelf or holder for water bottles; and 3) Plaintiff cannot show negligence. (Doc. 26). Plaintiff responds that there are disputed issues of material fact and the LIA does not preclude a FELA claim. (Doc. 30).

LIA Claim

Defendant first argues Plaintiff has not presented evidence of an LIA claim. (Doc. 26, at 3-4). Plaintiff responds that there are disputed issues of fact preventing summary judgment on his LIA claims. (Doc. 30, at 11-12). For the reasons discussed below, the undersigned agrees with Defendant.

A defendant injured due to a violation of the LIA may bring an action under the FELA. Lilly v. Grand Trunk Western R. Co., 317 U.S. 481, 485 (1943).³ The LIA provides:

A railroad carrier may use or allow to be used a locomotive or tender on its railroad line only when the locomotive or tender and its parts and appurtenances—

(1) are in proper condition and safe to operate without unnecessary danger of personal injury;

(2) have been inspected as required under this chapter and regulations prescribed by the Secretary of Transportation under this chapter; and

(3) can withstand every test prescribed by the Secretary under this chapter.

49 U.S.C. § 20701. A violation of the LIA results in strict liability. Lilly, 317 U.S. at 485; Mickler v. Nimishillen & Tuscarawas Ry. Co., 13 F.3d 184, 188 (6th Cir. 1993) (citing Urie v. Thompson, 337 U.S. 163, 188-89 (1949)); see also Szekeres v. CSX Transp., Inc., 617 F.3d 424, 427 (6th Cir. 2010) ("A violation of the LIA is negligence per se under the FELA."). To show negligence per se, a plaintiff must show: 1) the locomotive was "in use"; 2) defendant violated a provision of the LIA; and 3) such violation caused plaintiff's injuries. Kernan v. Am. ...