Lybrand v. Union Pacific Railroad Company
ORDER granting in part and denying in part 40 Motion for Summary Judgment. Signed by Judge James M. Moody on 4/25/12. (kpr)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
F. MIKE LYBRAND
UNION PACIFIC RAILROAD COMPANY
Pending is Defendant’s motion for summary judgment, docket # 40. For the reasons set
forth herein, Defendant’s motion for summary judgment is GRANTED IN PART AND
DENIED IN PART.
Plaintiff, Freddie Michael Lybrand filed a complaint against Union Pacific under the
Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq. (“FELA”). Plaintiff alleges that on
July 14, 2008, while he was employed as a conductor for Union Pacific, he suffered injuries
while walking on loose ballast at or near Eagle Mills, Arkansas. Plaintiff contends that the
Defendant failed to provide him with a reasonably safe place to work or reasonably safe
conditions for work; failed to provide him with reasonably safe and suitable equipment; failed to
provide a reasonably safe walking area; failed to inspect and maintain the ballast; and failed to
use appropriately sized and secure ballast/chat in areas where it required its employees to walk.
In his deposition, Plaintiff testified that he fell probably “a foot or so” from the end of the ties.
He testified that the ballast was big and it rolled. On or about February 25, 2011, Plaintiff
provided supplemental discovery responses indicating that the work area identified in his
deposition was unsafe in that the ballast contained inadequate sub-surface, was too large, and
was too loose for an area with that amount of slope.
Ballast consists of crushed rock and lies between the rails and to the sides of the tracks.
It is regulated by the Federal Railroad Administration (“FRA”) under the Federal Rail Safety
Act, 49 U.S.C. § 20106, (“FRSA”). The ballast regulation is found at 49 C.F.R. § 213.103.
Defendant has presented an affidavit from Marc R. Hook, Manager of Track
Maintenance for Union Pacific Railroad Company in Camden Arkansas, in which he states that
the ballast in the area where Plaintiff fell is part of the track structure and provides stability to
the adjacent track. Mr. Hook avers that this ballast: “transmits and distributes the load of the
track and railroad rolling equipment to the subgrade; restrains the track laterally, longitudinally,
and vertically under dynamic loads imposed by railroad rolling equipment and thermal stress
exerted by the rails; provides adequate drainage for the track; and maintains proper track
crosslevel, surface, and alignment.”
The ballast on the side of the track slopes downward. Defendant has presented the expert
opinion of Eric J. Gehringer that the Union Pacific standard for the slope of ballast is 3:1. This
slope allows the ballast to restrain the rails and provide proper drainage while allowing
employees to safely walk on the ballast. Although, the standard used is 3:1, the slope at issue in
this case was less steep. Mr. Gehringer opined that the slope was “ maintaining the proper
amount of ballast to restrain the track from moving laterally or longitudinally, and it was
allowing for proper drainage.” Further, Mr. Gehringer found that in this case “[t]he ballast did
not exceed Union Pacific’s size and slope standards, and it performed the functions required of it
by 49 C.F.R. § 213.103.”
Defendant seeks summary judgment arguing that the FRA’s regulation on ballast
subsumes the field and Plaintiff’s FELA claim is precluded. Defendant also asserts that
Plaintiff’s claims are precluded by the Interstate Commerce Commission Termination Act
(“ICCTA”) and that Plaintiff cannot otherwise prove that his work place was not reasonably
safe. Plaintiff denies that summary judgment is proper.
Standard for Summary Judgment
Summary judgment is appropriate only when there is no genuine issue of material fact, so
that the dispute may be decided solely on legal grounds. Holloway v. Lockhart, 813 F.2d 874
(8th Cir. 1987); Fed. R. Civ. P. 56. The Supreme Court has established guidelines to assist trial
courts in determining whether this standard has been met:
The inquiry performed is the threshold inquiry of determining
whether there is a need for trial -- whether, in other words, there
are any genuine factual issues that properly can be resolved only
by a finder of fact because they may reasonably be resolved in
favor of either party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
The Eighth Circuit Court of Appeals has cautioned that summary judgment should be
invoked carefully so that no person will be improperly deprived of a trial of disputed factual
issues. Inland Oil & Transport Co. v. United States, 600 F.2d 725 (8th Cir. 1979), cert. denied,
444 U.S. 991 (1979). The Eighth Circuit set out the burden of the parties in connection with a
summary judgment motion in Counts v. M.K. Ferguson Co., 862 F.2d 1338 (8th Cir. 1988):
[T]he burden on the moving party for summary judgment is only to
demonstrate, i.e., ‘[to] point out to the District Court,’ that the
record does not disclose a genuine dispute on a material fact. It is
enough for the movant to bring up the fact that the record does not
contain such an issue and to identify that part of the record which
bears out his assertion. Once this is done, his burden is
discharged, and, if the record in fact bears out the claim that no
genuine dispute exists on any material fact, it is then the
respondent’s burden to set forth affirmative evidence, specific
facts, showing that there is a genuine dispute on that issue. If the
respondent fails to carry that burden, summary judgment should be
Id. at 1339 (quoting City of Mt. Pleasant v. Associated Elec. Coop., 838 F.2d 268, 273-274 (8th
Cir. 1988) (citations omitted)(brackets in original)). Only disputes over facts that may affect the
outcome of the suit under governing law will properly preclude the entry of summary judgment.
Anderson, 477 U.S. at 248.
The two statutes at issue were designed to promote railway safety. The Federal Employee
Liability Act (“FELA”) makes a railroad liable to its employees injured “by reason of any defect
or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed,
works, boats, wharves, or other equipment.” 45 U.S.C. § 51. See, Nickels v. Grand Trunk
Western R.R., Inc. 560 F.3d 426 (6th Cir. 2009). The purpose of the Federal Railroad Safety Act
(“FRSA”) is “to promote safety in every area of railroad operations and reduce railroad-related
accidents and incidents.” 49 U.S.C. § 20101. The FRSA grants the authority to the Secretary of
Transportation to “prescribe regulations and issue orders for every area of railroad safety.” 49
U.S.C. § 20103(a). The FRSA seeks national uniformity stating: “[l]aws, regulations, and
orders related to railroad safety ... shall be nationally uniform to the extent practicable.” 49
U.S.C. § 20106(a)(1). “A State may adopt or continue in force a law, regulation, or order related
to railroad safety ... until the Secretary of Transportation ... prescribes a regulation or issues an
order covering the subject matter of the State requirement.” 49 U.S.C. § 20106(a)(2).
this preemption provision expressly addresses state laws, regulations and orders, several courts
have held that the “uniformity demanded by the FRSA can be achieved only if federal rail safety
regulations are applied similarly to a FELA plaintiff's negligence claim and a
non-railroad-employee plaintiff's state law negligence claim.” Nickels, 560 F. 3d 430, quoting,
Lane v. R.A. Sims, Jr., Inc., 241 F.3d 439, 443 (5th Cir.2001); and Waymire v. Norfolk & W. Ry.
Co., 218 F.3d 773, 776 (7th Cir.2000). This Court has followed this analysis. See, Dickerson
v. Staten Trucking, Inc., 428 F.Supp.2d 909, 913-14 (E.D.Ark.2006)(Plaintiff’s crashworthiness
claims under FELA precluded by FRSA) and Davis v. Union Pacific Railroad Company, 598 F.
Supp.2d 955)(E.D.Ark. 2009)(applying the preclusion analysis but finding that the plaintiff’s
FELA claims relating to a fall on a walkway was not precluded by FRSA).
The applicable ballast regulations provide:
Unless it is otherwise structurally supported, all track shall be supported by
material which will -(a) Transmit and distribute the load of the track and railroad rolling equipment to
(b) Restrain the track laterally, longitudinally, and vertically under dynamic loads
imposed by railroad rolling equipment and thermal stress exerted by the rails;
(c) Provide adequate drainage for the track; and
(d) Maintain proper track crosslevel, surface, and alinement.
49 C.F.R. § 213.103. Based on the facts and evidence submitted, the Court finds that Plaintiff’s
claims regarding the size and slope of the ballast are precluded by FRSA. The evidence shows
that the Plaintiff fell in an area immediately adjoining the track. The FRA has substantially
subsumed the field of ballast regulation in this area. Further, the undisputed evidence
demonstrates that size and slope of the ballast in the area in which Plaintiff fell “performed the
functions required of it by 49 C.F.R. § 213.103.”
However, because the ballast regulations do not address walkways, separate and apart
from the track and its supporting structure, the Court finds that the Plaintiff’s claims regarding
the Defendant’s alleged failure to provide a safe walkway and to maintain that walkway are not
precluded by FRSA. The Court does not find Defendant’s argument that Plaintiff’s remaining
claims are precluded by ICCTA persuasive. Further, the Court finds genuine issues of material
fact preclude the entry of summary judgment on these claims.
Wherefore, Defendant’s motion for summary judgment is granted as to Plaintiff’s claims
based on the size and slope of the ballast. The motion is denied as to Plaintiff’s claims relating
to the failure to provide and maintain a reasonably safe walkway.
IT IS SO ORDERED this 25th day of April, 2012.
James M. Moody
United States District Judge
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