Givens v. Union Pacific Railroad Company
ORDER granting in part and denying in part 6 Motion to Dismiss. Signed by Judge Kristine G. Baker on 06/19/2014. (rhm)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
JACK L. GIVENS
Case No. 5:13-cv-00314-KGB
UNION PACIFIC RAILROAD COMPANY
OPINION AND ORDER
Plaintiff Jack L. Givens brings this action against defendant Union Pacific Railroad
Company (“Union Pacific”) pursuant to the Federal Employer’s Liability Act (“FELA”), 45
U.S.C. § 51 et seq. Before the Court is Union Pacific’s motion to dismiss (Dkt. No. 6). Mr.
Givens has not responded, and the time for filing a response has passed. For the following
reasons, Union Pacific’s motion to dismiss is granted in part and denied in part.
Mr. Givens alleges that he was injured on October 3, 2010, when the train he was
operating as a conductor for Union Pacific was involved in a collision with a motor vehicle at a
railroad crossing at or near Mount Pleasant, Texas (Dkt. No. 1, ¶¶ 1, 6). Mr. Givens alleges that
his injuries were the result of the following acts of negligence of Union Pacific:
It failed to provide Plaintiff with a reasonably safe place to work;
It required Plaintiff to ride in the front of the locomotive where he was
most exposed to danger in the event of a collision;
It failed to provide Plaintiff with a safe locomotive which would protect
Plaintiff in the event of a collision;
It failed to provide adequate cushioning devices within its locomotive;
It failed to provide air bags, seat belts, harnesses or other means of
restraint for occupants within its locomotive in case of collision;
It failed to install, maintain, and operate safety gates and/ or warning lights
at its crossing, though such gates and/ or warning lights were practical and
necessary in view of the conditions existing at such crossing;
It failed to cause automatic flash signals to be placed at said crossing to
warn vehicular traffic of any trains that may be proceeding down the
tracks though such automatic flash signals were practical and necessary in
view of the conditions existing at such crossing;
It failed to adequately illuminate its property and right of way to advise
vehicular traffic of the safe and proper thoroughfare to follow to avoid
trains that may be proceeding down the tracks though such illumination
was practical and necessary in view of the conditions existing on its
property and right of way;
It failed to adequately post warning signs and directional markings to
direct vehicular traffic toward the safe and proper thoroughfare to follow
to avoid trains that may be proceeding down the tracks though such
warning signs and directional markings were practical and necessary in
view of the conditions existing on its property and right of way.
(Dkt. No. 1, ¶ 6).
In addition, Mr. Givens alleges that, in the course of more than 30 years working for
Union Pacific as a conductor and trainman, he has been involved in seven other collisions at or
near railroad crossing at various locations, including McGehee, Arkansas, in 1980; Little Rock,
Arkansas, in 1981; Noble Lake, Arkansas, in 1982; Fulton, Arkansas, in 2001 and again at the
same crossing in 2003; in Cari, Louisiana, in 2004; and Texarkana, Texas, in 2006 (Id., ¶ 7). He
claims that, in each collision, the vehicles were occupied and the occupants suffered injuries,
including numerous fatalities (Id.). Mr. Givens alleges that each of these seven prior collisions
also was a result of the negligence alleged in paragraph 6 of his complaint (Id., ¶ 8). He claims
that, prior to each of the eight collisions, he “was in the zone of danger caused by the immediate
collision and had fear of sustaining physical harm from the collision(s).” (Id., ¶ 9).
Mr. Givens alleges that he was first diagnosed with Post Traumatic Stress Disorder
(“PTSD”) and depression after October 5, 2010, as a result of these incidents (Id., ¶ 10). He
asserts that he has suffered fear of physical harm, psychological and emotional injury, mental
anguish, and anxiety as a result of the alleged acts of negligence and that he will continue to
suffer psychological and emotional injury, mental anguish, and anxiety in the future (Id., ¶ 11).
Mr. Givens alleges he has suffered injuries including stress, anxiety, depression, panic disorder,
panic symptoms, and PTSD (Id.). Mr. Givens further claims that “[i]n the event Plaintiff did
have any infirmities to the aforementioned parts of his body of which he was not aware, said
conditions were aggravated, exacerbated and caused to become symptomatic by the emotional
trauma sustained by Plaintiff during the course his work.” (Dkt. No. 1, ¶ 12).
Union Pacific moves to dismiss Mr. Givens’s complaint pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. To survive a motion to dismiss under Rule 12(b)(6), a
complaint must satisfy the pleading requirement of Rule 8(a)(2), which requires that a complaint
present “a short and plain statement of the claim that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2); see Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009).
“Specific facts are not necessary; the statement need only give the defendant fair notice of what
the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93
(2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (internal quotation marks
omitted). However, the complaint “must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Twombly, 550 U.S. at 570). “A pleading that offers ‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will not do.’ Nor does a complaint
suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (citations
omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. “The plausibility standard requires a plaintiff to show at the pleading stage that success on
the merits is more than a ‘sheer possibility.’” Braden, 588 F.3d at 594 (quoting Iqbal, 556 U.S.
at 678). “The plausibility standard is not a probability requirement. Thus, a well-pleaded
complaint may proceed even if it strikes a savvy judge that actual proof of the facts alleged is
improbable, and that a recovery is very remote and unlikely.” Id. (internal quotation marks
In applying this standard, “the complaint should be read as a whole, not parsed piece by
piece to determine whether each allegation, in isolation, is plausible.” Braden, 588 F.3d at 594
(citing Vila v. Inter–Am. Inv. Corp., 570 F.3d 274, 285 (D.C. Cir. 2009) (factual allegations
should be “viewed in their totality”)). “Ultimately, evaluation of a complaint upon a motion to
dismiss is ‘a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.’” Id. (quoting Iqbal, 556 U.S. at 679).
Mr. Givens brings this action pursuant to the FELA, which was enacted in 1908 and
“provides railroad employees with a federal cause of action for injuries ‘resulting in whole or in
part from the negligence’ of the railroad.” Cowden v. BNSF Ry. Co., 690 F.3d 884, 889 (8th Cir.
2012) (quoting 45 U.S.C. § 51). “The FELA imposes upon employers a continuous duty to
provide a reasonably safe place to work.” Francisco v. Burlington N. R.R. Co., 204 F.3d 787,
789 (8th Cir. 2000) (internal quotation marks omitted). “Cognizant of the physical dangers of
railroading that resulted in the death or maiming of thousands of workers every year, Congress
crafted a federal remedy that shifted part of the ‘human overhead’ of doing business from
employees to their employers.” Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 542 (1994)
(quoting Tiller v. Atl. Coast Line R. Co., 318 U.S. 54, 58 (1943)). “‘In order to further FELA’s
humanitarian purposes,’ Congress removed various common-law obstacles to an employee’s
recovery, and courts have ‘liberally construed FELA to further Congress’[s] remedial goal.’”
Cowden, 690 F.3d at 889–90 (citation omitted) (quoting Gottshall, 512 U.S. at 542-43).
Union Pacific moves for dismissal as to Mr. Givens’s claim based on the October 2010
incident by addressing each allegation of negligence in paragraph 6 of Mr. Givens’s complaint,
arguing that his allegations either fail to satisfy the Rule 8 pleading standard or fail to state a
cognizable claim for which relief can be granted under the FELA. Union Pacific also moves to
dismiss Mr. Givens’s claims regarding the seven prior accidents as time-barred. The Court will
address each in turn.
Failure to Provide Reasonably Safe Place to Work
Union Pacific argues that Mr. Givens’s allegation in paragraph 6(a) that Union Pacific
“failed to provide Plaintiff with a reasonably safe place to work” does not contain sufficient
factual matter to satisfy Rule 8(a)’s pleading standard because it does not state specifically how
Union Pacific failed to provide a reasonably safe place to work. Union Pacific’s argument
misapplies the pleading standard by asking the Court to view paragraph 6(a) in isolation. The
sufficiency of paragraph 6(a) depends on viewing the complaint as a whole. Braden, 588 F.3d at
594. The Court denies Union Pacific’s motion to dismiss as to this allegation.
Locomotive Safety Features and Federal Preclusion
In paragraphs 6(b) through 6(e), Mr. Givens alleges negligence regarding the safety
features of the locomotive. Union Pacific argues that these claims of negligence are precluded
by the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20101 et seq.
In 1970, Congress enacted the Federal Railroad Safety Act (“FRSA”) “to promote safety
in every area of railroad operations and reduce railroad-related accidents and incidents.” 49
U.S.C.A. § 20101. The FRSA grants general authority to the Secretary of Transportation to
“prescribe regulations and issue orders for every area of railroad safety supplementing laws and
regulations in effect on October 16, 1970.” 49 U.S.C. § 20103(a). The Secretary has delegated
this authority to the Federal Railroad Administration (“FRA”). Cowden, 690 F.3d at 890 n.4
(citing Union Pac. R.R. Co. v. Cal. Pub. Utils. Comm’n, 346 F.3d 851, 858 n. 8 (9th Cir. 2003)).
The FRSA seeks national uniformity, stating that “[l]aws, regulations, and orders related to
safety and laws, regulations, and orders related to railroad security shall be nationally uniform to
the extent practicable.” 49 U.S.C. § 20106(a). “To maintain this uniformity, the FRSA contains
an express preemption clause.” Cowden, 690 F.3d at 890. “This preemption clause allows for
some coordination between state and federal regulation,” id., and provides that “[a] State may
adopt or continue in force a law, regulation, or order related to railroad safety or security 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).
In CSX Transportation, Inc. v. Easterwood, 507 U.S. 658 (1993), the Supreme Court
clarified what it means to cover “the Subject of the State requirement.” The Court explained
that, where an FRSA regulation “substantially subsumes” the subject matter of a state-law
negligence claim, the claim is preempted. Id. at 664.
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 v. Grand
Trunk W. R.R., Inc., 560 F.3d 426, 430 (6th Cir. 2009) (quoting Lane v. R.A. Sims, Jr., Inc., 241
F.3d 439, 443 (5th Cir. 2001), and citing Waymire v. Norfolk & W. Ry. Co., 218 F.3d 773, 776
(7th Cir. 2000)). This Court has followed this preclusion analysis. See, e.g., Lybrand v. Union
Pac. R. Co., 2012 WL 1436690, at *2 (E.D. Ark. Apr. 25, 2012) (applying preclusion analysis
but finding that claims regarding the alleged failure to provide and maintain safe walkways were
not precluded by the FRSA regulations regarding ballast and track conditions); Davis v. Union
Pac. R.R. Co., 598 F. Supp. 2d 955, 959–60 (E.D. Ark. 2009) (same); Dickerson v. Staten
Trucking, Inc., 428 F. Supp. 2d 909, 913–14 (E.D. Ark. 2006) (finding claims regarding
“crashworthiness” of locomotive precluded by FRSA regulations on locomotive cabs).
In Cowden, the Eighth Circuit expressed its doubt as to this preclusion analysis but
stopped short of rejecting it. Noting that the FRSA and its regulations “were adopted to address
the patchwork effect of each state applying its own set of regulations,” the Eighth Circuit stated
that, “[t]o this extent, it is not clear how negligence claims brought under the federal common
law threaten the uniformity sought by the FRSA.” 690 F.3d at 891 (citation omitted). However,
the Eighth Circuit recognized that the Supreme Court has thus far declined to review the other
circuits’ application of this preclusion analysis and declined to create a circuit split on the issue.
Id at 892. Instead, the Eighth Circuit reversed and remanded, holding that this issue was not
properly raised before the district court but implying that the defendant possibly could show
preclusion on remand. Id. at 892–94. Accordingly, federal preclusion under the FRSA is, for the
time being, viable in the Eighth Circuit.
Union Pacific argues that Mr. Givens’s allegations in paragraphs 6(b) through 6(e) are
precluded by the FRSA’s regulation pertaining to cabs and cab equipment found at 49 C.F.R. §
229.119. Union Pacific relies on Dickerson, 428 F. Supp. 2d 909, a case in which Union Pacific
was a defendant and one of its engineers sought recovery under FELA and alleged similar claims
of negligence. Specifically, the plaintiff alleged that Union Pacific failed to install certain
equipment and devices in its locomotive, such as physical restraints, safety belts, and interior
cushioning, and that Union Pacific failed to provide “a reasonably safe and crashworthy
locomotive.” Id. at 911. The court considered these claims collectively as challenging the
“crashworthiness” of the locomotive and found them precluded by 49 C.F.R. § 229.119. After
reviewing the requirements of § 229.110, the Dickerson court stated that “[i]t is clear that there
are no requirements for installation of safety restraints or locomotive floor padding.” 428 F.
Supp. 2d at 913. The court further found that safety restraints and floor padding are not “integral
and essential” components of a locomotive such that the failure to install those devices could
establish FELA liability through a violation of the Locomotive Inspection Act (“LIA”), 49
U.S.C. § 20701. Dickerson, 428 F. Supp. 2d at 913.
The Court agrees with the reasoning of Dickerson. The Secretary has promulgated
regulations at 49 C.F.R. § 229.119 that cover the subject matter of locomotive cab safety
There are no requirements for cushioning devices.
Although § 229.119(a)
requires that cab seats be securely mounted and braced, there are no requirements for air bags,
seat belts, harnesses, or other means of restraint, and these safety devices are not integral and
essential to the operation of a locomotive. Dickerson, 428 F. Supp. 2d at 913. Mr. Givens’s
FELA claim is precluded insofar as he seeks to recover for Union Pacific’s alleged negligence in
failing to install cushioning and safety restraints. However, this only addresses paragraphs 6(d)
Union Pacific’s argument as to preclusion does not specifically address Mr. Givens’s
allegation in paragraph 6(b) that Union Pacific was negligent in requiring him to ride in the front
of the locomotive or his allegation in paragraph 6(c) that Union Pacific failed to provide him
with a safe locomotive that would protect him in the event of a collision. Union Pacific only
argues preclusion under 49 C.F.R. § 229.119, which, according to Union Pacific, “specifically
sets forth what is required in a locomotive cab” (Dkt. No. 7, at 3). Union Pacific does not
contend that § 229.119 pertains to locomotive configuration and cab location and does not cite
any regulation on that issue. Likewise, Union Pacific does not contend that § 229.119 governs
every aspect of locomotive safety. The Eighth Circuit in Cowden stressed that, like preemption,
the burden is on the party arguing preclusion under the FRSA. Union Pacific has not carried its
burden to demonstrate preclusion as to Mr. Givens’s allegations in paragraphs 6(b) and (c) of his
Apart from preclusion, Union Pacific argues without elaboration that paragraphs 6(b) and
6(c) fail to contain sufficient factual matter to state a claim that is plausible on its face. The
Court disagrees in part. Paragraph 6(b) gives fair notice, and Union Pacific has not demonstrated
that the claim is precluded by the FRSA. However, paragraph 6(c) which alleges only that
Union Pacific failed to provide a safe locomotive that would protect Mr. Givens in the event of a
collision does not give fair notice, especially in the light of the preclusion analysis that applies to
such claims. Mr. Givens has not alleged sufficient factual matter to state a claim in paragraph
6(c) that provides fair notice to Union Pacific or that is plausible on its face. For these reasons,
the Court denies Union Pacific’s motion to dismiss as to paragraph 6(b) and grants Union
Pacific’s motion as to paragraph 6(c).
For the foregoing reasons, the Court grants Union Pacific’s motion to dismiss as to Mr.
Givens’s allegations in paragraphs 6(c), 6(d), and 6(e) of his complaint, and the Court denies
without prejudice Union Pacific’s motion to dismiss as to Mr. Givens’s allegations in paragraphs
Safety of the Railroad Crossing
As to Mr. Givens’s allegations in paragraphs 6(f) through 6(i) regarding Union Pacific’s
alleged failure to provide safety gates, warnings lights, flash signals, and warning signs at the
railroad crossing at issue, Union Pacific states without support in the record that the grade
crossing in Mount Pleasant, Texas, was equipped with flashing lights and gates and then
summarily argues with no citation to authority that it “has no duty to provide additional warning
or directional markings.” (Dkt. No. 7, at 5). Union Pacific cites no support for either of these
statements. Accordingly, Union Pacific’s motion to dismiss as to Mr. Givens’s allegations in
paragraphs 6(f) through 6(i) of his complaint is denied without prejudice. Union Pacific may
renew its motion to dismiss as to these allegations if it wishes to elaborate on and provide legal
support for its argument.
The Seven Prior Accidents
Union Pacific moves to dismiss as time-barred Mr. Givens’s claims that his PTSD and
depression were caused by seven prior grade-crossing accidents from 1980 to 2006. No action
may be maintained under the FELA unless it was commenced within three years from the day
the cause of action accrues. 45 U.S.C. § 56. Generally speaking, the date a FELA cause of
action accrues depends on when the injury manifests itself. See Urie v. Thompson, 337 U.S. 163,
169–70 (1949); United States v. Kubrick, 444 U.S. 111, 121 n.7 (1979). Under the so-called
“discovery rule,” a plaintiff’s cause of action does not accrue until the employee “is aware or
should be aware of his condition.” Paris v. Union Pac. R. Co., 2006 WL 1520575, at *3 (E.D.
Ark. May 30, 2006) (quoting Fletcher v. Union Pac. R. Co., 621 F.2d 902, 906 (8th Cir. 1980)).
“In cases involving traumatic injury, when the symptoms are immediately manifested so that the
employee is aware of the event causing the injury, the cause of action accrues upon the
occurrence of the injury, regardless of whether the full extent of the disability is known at that
time.” Fletcher, 621 F.2d at 906. “By the same token, with industrial diseases, where the
symptoms are not immediately manifested, the cause of action does not accrue until the
employee is aware or should be aware of his condition.” Id.
Mr. Givens’s complaint states he was first diagnosed with PTSD and depression after
October 5, 2010. In that regard, it appears that Mr. Givens contends he did not know of these
alleged injuries before the time of his diagnosis.
Union Pacific’s argument for dismissal
addresses only the date of the accidents. Union Pacific does not address whether the discovery
rule may apply such that Mr. Givens’s claims as to these incidents may be timely. Accordingly,
and for these reasons, the Court denies without prejudice Union Pacific’s motion to dismiss as to
the seven prior accidents.
Union Pacific’s motion to dismiss is granted in part and denied in part (Dkt. No. 6). The
motion is granted as to Mr. Givens’s allegations of negligence in paragraphs 6(d) and 6(e) of his
complaint regarding locomotive cab safety features, and those claims are dismissed. The motion
is granted based on pleading sufficiency standards as to paragraph 6(c). The motion is denied
without prejudice in all other respects.
SO ORDERED this the 19th day of June, 2014.
Kristine G. Baker
United States District Judge
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