Womack v. Union Pacific Railroad Company

Filing 54

MEMORANDUM OPINION that Defendants' Motion for Summary Judgment (ECF No. 35) should be GRANTED IN PART and DENIED IN PART. Signed by Honorable Susan O. Hickey on March 26, 2012. (mfr)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION

JAMES W. WOMACK

v.

PLAINTIFF

Case No. 4:09-CV-04116

UNION PACIFIC RAILROAD COMPANY

DEFENDANT

MEMORANDUM OPINION
Before the Court is a Motion for Summary Judgment filed by Defendant Union Pacific
Railroad Company. (ECF No. 35). Plaintiff has filed a response (ECF No. 49) and Defendant has
replied. (ECF No. 52). The Court finds the matter ripe for consideration.
BACKGROUND
Plaintiff James Womack served as a carman 1 for Defendant, Union Pacific Railroad
Company, for approximately eighteen (18) years before leaving in March 2009. On July 20,
2007, Plaintiff and another carman were performing routine inspections of two sections of
railway cars bound for Shreveport, Louisiana, when Plaintiff injured his neck and back
attempting to release a railcar handbrake. Defendant conducted an interview with Plaintiff after
the incident, in which Plaintiff indicated that he did not request maintenance on the handbrake
after it allegedly malfunctioned and that he did not think the harm was anyone’s fault. Plaintiff
worked light duty for approximately two weeks following his injury until taking a leave of
absence in August 2007. He had surgery on his neck in February 2008 and thereafter underwent
a work hardening program before returning to unrestricted work activity in June 2008. He
1

The Railroad Dictionary defines “carman” as one who “inspects and repairs railway
cars.” http://www.transportation-dictionary.org/Railroad-Dictionary/Carman (last visited January

worked until March 2009, had back surgery in April 2009, and has not since returned to work.
On October 27, 2009, Plaintiff filed a complaint against Defendant under the Federal
Employers Liability Act (“FELA”), 45 U.S.C. § 51 et seq, alleging that Defendant was both
negligent in failing to provide a safe work environment and strictly liable for violating the
Federal Safety Appliance Act (“SAA”), 49 U.S.C. § 20301 et seq., by failing to provide safe and
properly functioning handbrakes. 2 Plaintiff contends that Defendant’s acts caused, inter alia,
cervical and lumbar spine injuries, medical expenses, lost wages, and extreme pain and mental
anguish. He prays for judgment in his favor in the form of damages and costs.
STANDARD OF REVIEW
The standard of review for summary judgment is well established. The Federal Rules of
Civil Procedure provide that when a party moves for summary judgment:
The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.
Fed.R.Civ.P. 56(a); Krenik v. County of LeSueur, 47 F.3d 953 (8th Cir.1995). The Supreme
Court has issued the following guidelines for trial courts to determine whether this standard has
been satisfied:
The inquiry performed is the threshold inquiry of determining whether there is
a need for trial—whether, in other words, there are 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); see also Agristor Leasing v. Farrow,
826 F.2d 732 (8th Cir.1987); Niagara of Wisconsin Paper Corp. v. Paper Indus. Union-

26, 2012).
2
Plaintiff’s complaint also included a third count alleging repetitive trauma injuries under
FELA. On December 1, 2010, the Court granted Plaintiff’s motion to voluntarily dismiss that
claim.
2

Management Pension Fund, 800 F.2d 742, 746 (8th Cir.1986). A fact is material only when its
resolution affects the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. at 248. A
dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict
for either party. Id. at 252.
The Court must view the evidence and the inferences that may be reasonably drawn from
the evidence in the light most favorable to the nonmoving party. Enterprise Bank v. Magna
Bank, 92 F.3d 743, 747 (8th Cir.1996). The moving party bears the burden of showing that there
is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Id. The
nonmoving party must then demonstrate the existence of specific facts in the record that create a
genuine issue for trial. Krenik v. County of LeSueur, 47 F.3d at 957. A party opposing a properly
supported motion for summary judgment may not rest upon mere allegations or denials, but must
set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. at 256.
DISCUSSION
In its motion for summary judgment, filed June 22, 2011, Defendant argues that Plaintiff
has (1) failed to establish as a matter of law whether the handbrake’s accompanying railcar was
“in use” at the time of injury, pursuant to the SAA; and (2) failed to establish a triable dispute
under FELA as to whether Defendant could have reasonably foreseen that the particular
handbrake would cause harm. For the following reasons, the Court grants Defendant’s motion as
to Plaintiff’s SAA claim but denies its motion as to Plaintiff’s negligence claim under FELA.
SAA claim
FELA provides railroad employees with a cause of action against their employer for
injuries attributable to the employer’s violation of the SAA. Crane v. Cedar Rapids& I.C. Ry.

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Co., 395 U.S. 164, 166 (1969). In claims invoking the SAA, a plaintiff must show only a
statutory violation; the need to prove negligence is not required. Id. The SAA prohibits railroad
carriers from using vehicles on its railroad lines unless such vehicles are equipped with, among
other things, “efficient hand brakes[.]” 49 U.S.C. § 20302(a)(1)(B). Even if a deficiency in the
handbrakes exists, however, a plaintiff may not recover under the SAA unless he can show the
vehicle was “in use” at the time of injury. Id. at (a); see, e.g., Wright v. Arkansas & Missouri
R.R. Co., 574 F.3d 612, 620 (8th Cir. 2009). Whether the vehicle was in use is based on the
totality of circumstances at the time of injury. Wright, 574 F.3d at 621. The district court
determines if the vehicle was in use as a matter of law. Id. at 620.
Here, the record reflects that the railway car was not in use at the time Plaintiff attempted
to release the handbrake. In deposition testimony, Plaintiff indicated that on the night of his
injury, he and another carman were conducting a predeparture inspection of two lines of cars
before the train was assembled and sent to Shreveport. Plaintiff testified that the inspection
process was a nightly occurrence and involved looking over each car “to see . . . anything that’s
major” and to couple air hoses and release handbrakes. (ECF No. 37, Exh. 1 at 5). He further
testified that the section of cars had been “blue-flagged” at the time of injury with the track
switches locked on the north and south ends. Blue flagging is a procedure whereby the carman or
other railroad worker places a flashing blue light in the lead locomotive cab and a blue flag on
the track. The purpose is to alert others that the cars should remain stationary because they are
under inspection or maintenance. Plaintiff noted that it is not until after the carmen complete
their predeparture inspection routine—coupling hoses, testing the air brakes, and ensuring that
the handbrakes release—that the blue flags are removed. The train is thereafter handed over to
the train crew, who go about moving the cars. In this instance, Plaintiff had not completed the

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inspection process when his injury occurred. Plaintiff and another carman still had cars left that
required the coupling of air hoses and the release of handbrakes. The cars remained in a blue flag
status and the train had yet to be fully assembled.
Based on the totality of circumstances at the time of Plaintiff’s injury—namely, that the
cars were blue-flagged, immobile, and still under inspection—the Court finds that the train was
not in use as a matter of law. See Wright, 574 F.3d at 622 (noting that blue flagging is “widely
recognized throughout the railroad industry as a signal, warning crews not to move locomotives
in the surrounding area[]”). Accordingly, the SAA does not apply and Defendant cannot be held
strictly liable. Defendant’s motion for summary judgment as to Plaintiff’s strict liability claim is
granted.
FELA claim
Defendant further contends that summary judgment should be granted in its favor as to
Plaintiff’s FELA claim. Specifically, Defendant asserts that no factual dispute exists as to
whether it could have reasonably foreseen that the handbrake would cause harm. In response,
Plaintiff provides deposition testimony of retained expert John David Engle, who concluded that
the defect in the handbrake, by its nature, should have been discovered well before Plaintiff’s
injury. Viewing the evidence in a light most favorable to Plaintiff, the Court finds that Plaintiff
has established a question of fact as to whether Defendant possessed actual or constructive notice
of the handbrake defect before it allegedly caused harm.
To recover under FELA, an employee must show that his employer “breached its duty to
provide him with a reasonably safe workplace.” Martinez v. Union Pacific R. Co., 82 F.3d 223,
228 (8th Cir. 1996). Whether an employer breached its duty is measured by “the degree of care
that persons of ordinary, reasonable prudence would use under similar circumstances and by

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what these same persons would anticipate as resulting from a particular condition.” Ackley v.
Chicago & N.W. Transp. Co., 820 F.2d 263, 267 (8th Cir. 1987). The employer’s duty to provide
a safe workplace turns on whether the employee’s injury was reasonably foreseeable. See Peyton
v. St. Louis Southwestern Ry. Co., 962 F.2d 832, 833 (8th Cir. 1992) (“[T]he employer’s duty
under FELA to maintain a safe workplace turns in a general sense on the reasonable
foreseeability of harm.”) (citing Ackley, 820 F.2d at 267). In establishing foreseeability, the
employee must show that his employer possessed actual or constructive notice of the unsafe
condition. See, e.g., Szekeres v. CSX Transportation, Inc. 617 F.3d 424, 430-31 (6th Cir. 2010)
(“[N]otice under . . . FELA may be shown from facts permitting a jury to infer that the defect
could have been discovered by the exercise of reasonable care or inspection[.]”); Holbrook v.
Norfolk Southern Railway Co., 414 F.3d 739, 742 (7th Cir. 2005) (finding that a plaintiff must
show actual or constructive notice by employer before recovering under FELA); Sinclair v. Long
Island R.R., 985 F.2d 74, 77 (2d Cir. 1993) (“[T]he essential element of reasonable foreseeability
in FELA actions. . . requires proof of actual or constructive notice to the employer of the
defective condition that caused the injury.”).
Wayne Hunter, the Car Foreman who inspected the handbrake following the incident,
indicated in deposition testimony that maintenance reports showed that the handbrake’s brake
shoe was changed on June 25, 2007, less than a month before the July 20, 2007 incident. Hunter
indicated that if he had been the one replacing the brake shoe, he would have applied and
released the handbrake so as to discern whether the device was functioning properly:
Q.
. . .you would have figured that out when you were
changing the brake shoe, right?
A.
After I changed the brake shoe, I would have seen if there
was something wrong with hand brake.

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(ECF No. 49, Exh. 16 at 10).
In a deposition dated November 10, 2011, Plaintiff’s expert John David Engle observed
photographs and exhibits of the handbrake and indicated that the device displayed “telltale” signs
that should have alerted Defendant that a thorough inspection was needed. (ECF No. 49, Exh. 19
at 12). Engle noted that Defendant “bad ordered” the car on May 27, 2007, less than two months
before Plaintiff’s injury. According to Engle, a bad ordered car was required to be “inspected
from one end to the other for any AAR or FRA defects.” Id. at 13. He noted that Defendant
should have identified the handbrake as defective at that time:
Q.
Okay. Number 2 says Union Pacific should have
discovered that the handbrake was not efficient before July of 2007
and removed it from service. Do you see that?
A.

Yes, sir.

Q.

How would Union Pacific have discovered that?

A.
As recently as May of 2007 before this incident happened
when the car was bad ordered, this defect because of all the telltale
signs should have been found and corrected.
(ECF No. 49, Exh. 19 at 18). Engle further indicated that when a brake shoe is replaced, as was
done with this car on June 25, 2007, railroad custom and practice required the handbrake to be
inspected and tested. While Engle admitted he did not know whether Defendant tested the
handbrake during the June 2007 brake shoe replacement, he opined that because of nature of the
handbrake’s defect, someone should have discovered the problem at that time:
Q.
If someone did apply and release the handbrake [when the
brake shoe was replaced on June 25, 2007], could it have been
working properly?
A.

In my opinion, no.

Q.

Why is that?

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A.
Because all of these other things didn’t happen to this car
from June to July and go unnoticed.
(ECF No. 49, Exh. 19 at 22).
In response, Defendant states that Engle’s opinion should be excluded as speculative. The
Court disagrees. Rule 56(c)(4) requires that affidavits and declarations attached in support of or
in opposition to a summary judgment motion must be admissible in evidence before the district
court can properly consider them. Fed. R. Civ. P. 56(c)(4); see, e.g., DG & G, Inc. v. FlexSol
Packaging Corp. of Pompano Beach, 576 F.3d 820, 825-6 (8th Cir. 2009) (district court has
broad authority in controlling supplementation of summary judgment record). The starting point
for analyzing expert testimony is Federal Rule of Evidence 702, which provides:
If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form
of an opinion or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.
Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786
(1993), the Court is to perform a “gatekeeping” function and insure that proffered expert
testimony is both relevant and reliable. See Penney v. Praxair, Inc., 116 F.3d 330, 333 (8th Cir.
1997). This gatekeeping function applies to all expert testimony, not just testimony based in
science. Kudabeck v. Kroger Co., 338 F.3d 856, 860 (8th Cir. 2003) (citing Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 147 (1999)).
Engle’s opinions draw from his experience in the railroad industry. He has “[m]ore than
16 years of extensive railroad mechanical and management knowledge.” (ECF No. 49, Exh. 5 at
1). He possesses training as a welder, switchman, locomotive engineer, and conductor. He has

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presented programs and seminars related to railroad safety, and he is a member of the Air Brake
Committee of the Association of American Railroads. Engle has served as a student mechanic
carman, a railroad technical instructor, and an air brake superintendent. He has also provided
consulting services for the railroad and welding industries.
Engle’s deposition testimony indicates that his opinions are based on provided exhibits
that depict the handbrake. The Court finds that these exhibits provided Engle with a sound
foundation upon which he could then utilize his technical experience in formulating an opinion
about the handbrake. Defendant possessed the opportunity to cross-examine Engle at the
deposition as to his background and opinions and has provided no factual support for its
assertion that Engle’s conclusions should not be considered. For purposes of the summary
judgment record, the Court accepts Engle’s deposition testimony.
Viewed in a light most favorable to Plaintiff, the Court finds that a question of fact
remains as to whether Defendant possessed actual or constructive notice of the allegedly
defective handbrake before the July 20, 2007 incident. Engle opined that this type of defect
would not have arisen between the time the brake shoe was replaced and when the incident
occurred. Hunter testified that if he were the one replacing the brake shoe, he also would have
tested the handbrake as per custom—but the question remains as to whether the person who
actually replaced the brake shoe on this particular car also examined and tested the handbrake.
While Plaintiff has not produced definitive evidence showing that the handbrake was defective
before the incident, he has produced testimony raising factual questions as to whether Defendant
knew or should have known that the handbrake was malfunctioning and in need of attention
when it replaced the brake shoe—or when it originally bad ordered the car in May 2007. That
issue, in the Court’s view, is better resolved by a jury. Accordingly, Defendant’s motion for

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summary judgment as to Plaintiff’s second claim is denied.
CONCLUSION
Based on the foregoing, the Court finds that Defendants’ Motion for Summary Judgment
(ECF No. 35) should be and hereby is GRANTED IN PART and DENIED IN PART. An order
of even date, consistent with this opinion, shall issue.
IT IS SO ORDERED, on this 26th day of March, 2012.
/s/ Susan O. Hickey
Hon. Susan O. Hickey
United States District Judge

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