Sean Ditton v. BNSF Railway Company et al

Filing 75

ORDER GRANTING IN PART DITTON'S MOTION FOR PARTIAL SUMMARY JUDGMENT 50 AND GRANTING IN PART BNSF'S MOTION FOR SUMMARY JUDGMENT 35 by Judge Jesus G. Bernal: (see document image for further details). (ad)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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12 SEAN DITTON,
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Plaintiff, )
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v.
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BNSF RAILWAY COMPANY,
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Defendant. )
________________________ )
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Case No.
CV 12-6932 JGB (JCGx)
ORDER GRANTING IN PART
DITTON'S MOTION FOR PARTIAL
SUMMARY JUDGMENT AND
GRANTING IN PART BNSF'S
MOTION FOR SUMMARY JUDGMENT

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20
Before the Court are cross motions for summary
21
judgment, or in the alternative, partial summary judgment
22
filed by Plaintiff Sean Ditton and Defendant BNSF
23
Railway.

(Doc. Nos. 35, 50.)

After considering the

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papers in support of and in opposition to the motions and
25
the arguments presented at the May 13, 2013 hearing, the
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Court GRANTS IN PART Plaintiff's motion and GRANTS IN
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PART Defendant's motion.
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1
2

I.

BACKGROUND

3
4 A.

Procedural Background

5
6

Plaintiff Sean Ditton ("Plaintiff" or "Ditton") filed

7 his complaint on August 10, 2012.
8 1.)

Defendant BNSF Railway Company answered on August

9 27, 2012.
10

("Compl.," Doc. No.

(Doc. No. 4.)

BNSF filed its Motion for Summary Judgment, or in the

11 alternative, Partial Summary Judgment, on March 18, 2013.
12 ("Def. Mot.," Doc. No. 35.)

In support of its Motion,

13 BNSF attached:
14

•

15
16

Statement of Uncontroverted Facts and
Conclusions of Law ("Def. SUF," Doc. No. 36);

•

Declaration of V. Alan Arshansky ("Arshansky

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Decl.," Doc. No. 37) attaching Exhibits A-D and

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I-O;

19

•

Declaration of Foster Peterson ("Peterson

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Decl.," Doc. No. 38) attaching his curriculum

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vitae as Exhibit E;

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23

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Declaration of Shane Cockshott ("Cockshott
Decl.," Doc. No. 39) attaching Exhibits F-H; and

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2

1

•

Separately Bound Volume of Exhibits attaching

2

all the exhibits testified to above ("Def.

3

Exhs.," Doc. No. 40).1

4
5

Ditton filed his opposition on March 25, 2013.

6 Opp'n," Doc. No. 45.)

("Pl.

Ditton filed the following

7 documents in support of his opposition:
8

•

9
10

Statement of Genuine Issues of Material Fact
("Pl. SGI," Doc. No. 54);

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Objections to Defendant's Proposed Statement of

11

Uncontroverted Facts ("Pl. Opp'n Obj.," Doc. No.

12

46); and

13

•

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Separately Bound Volume of Exhibits attaching
Exhibits 1-5 ("Pl. Opp'n Exhs.," Doc. No. 45-1).

15
16

On April 15, 2013, BNSF replied ("Def. Reply," Doc.

17 No. 63) and included the following supporting documents:
18

•

19
20

Objections to Plaintiff's Evidence in Support of
his Opposition ("Def. Reply Obj.," Doc. No 67);

•

Response to Plaintiff's Objections to Evidence

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in Support of BNSF's Motion ("Def. Resp.," Doc.

22

No 66);

23

•

24

Request for Judicial Notice ("RJN," Doc. No.
64);

25
1

Due to the volume of evidence filed in support of,
in opposition to, and in reply to each of the two
27 Motions, the Court does not enumerate each attached
Exhibit, but describes the documents in the evidentiary
28 citations as needed.
26

3

1

•

Declaration of V. Alan Arshansky ("Arshansky

2

Reply Decl.," Doc. No 65) attesting to Exhibits

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A-G; and

4

•

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Separately Bound Volume of Exhibits attaching
Exhibits A-G ("Def. Reply Exhs.," Doc. No. 68).

6
7

Ditton filed his cross Motion for Summary Judgment,

8 or in the alternative, Partial Summary Judgment on April
9 1, 2013.

("Pl. Mot.," Doc. No. 50.)

Although Plaintiff

10 styled his Motion as a Motion for Summary Judgment,
11 Plaintiff only provides argument and supporting evidence
12 regarding select elements of his second cause of action.
13 Therefore, the Motion is treated as one for Partial
14 Summary Judgment on his second claim for relief.
15 Pl. Mot. at 2; Pl. Reply at 2 n.1.)

(See

In support of his

16 Motion, he filed:
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•

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Conclusions of Law ("Pl. SUF," Doc. No. 52);
•

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Statement of Uncontroverted Facts and

Declaration of Gregory T. Yaeger ("Yaeger
Decl.," Doc. No. 51) attaching Exhibits A-F; and

•

Separately Bound Volume of Exhibits ("Pl.

22

Exhs.," Doc. No. 51-1) attaching the exhibits

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testified to in the Yaeger declaration.

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25

BNSF opposed on April 8, 2013 ("Def. Opp'n," Doc. No.

26 55) and included the following attachments:
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4

1

•

2
3

("Def. SGI," Doc. No. 56);
•

4
5

Statement of Genuine Disputes of Material Fact

Evidentiary Objections to Evidence ("Def. Opp'n
Obj.," Doc. No. 60);

•

Declaration of V. Alan Arshansky ("Arshansky

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Opp'n Decl.," Doc. No. 57) attaching Exhibits A-

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E, G-H;

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Decl.," Doc. No. 58);
•

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Declaration of Foster Peterson ("Peterson Opp'n

Declaration of Lawrence Keller ("Keller Decl.,"
Doc. No. 59) attaching Exhibit F; and

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Separately Bound Volume of Exhibits ("Def. Opp'n

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Exhs.," Doc. No. 61) attaching Exhibits A-H as

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testified to above.

15
16

Ditton replied on April 15, 2013 ("Pl. Reply," Doc.

17 No. 62) attaching his declaration ("Ditton Decl.," Doc.
18 No. 62-1).
19
20 B.

Complaint

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22

According to his Complaint, Ditton was employed by

23 BNSF at its La Mirada rail yard in Los Angeles,
24 California.

(Compl. ¶¶ 4-5.)

In September 2009, Ditton

25 alleges he attempted to operate a hand brake on a rail
26 car and it failed to operate properly.

(Compl. ¶ 9.)

27 a result of the incident, Ditton contends he suffered
28
5

As

1 injury to his back and left leg and subsequently to his
2 right knee.
3

(Compl. ¶¶ 9, 11.)

Ditton states two claims for relief.

The first

4 alleges that BNSF was negligent in violation of the
5 Federal Employer's Liability Act ("FELA") under 45 U.S.C.
6 § 51.

(Compl. ¶ 10.)

Ditton alleges that BNSF's

7 negligence includes: failing to provide Plaintiff with a
8 reasonably safe place to work, failing to provide
9 Plaintiff with reasonably safe equipment and procedures,
10 failing to provide sufficient and proper training to
11 Plaintiff, and other acts of negligence.

(Id.)

Second,

12 Ditton states a violation of the Federal Safety Appliance
13 Act ("SAA") under 45 U.S.C. § 20302 for strict liability
14 due to a defect in the hand brake.

(Compl. ¶ 16.)

15
16 C.

Motions for Summary Judgment

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18

BNSF's Motion seeks summary judgment on both of

19 Plaintiff's causes of action, including all potential
20 forms of negligence.

(Def. Mot. 2.)

Plaintiff moves for

21 summary judgment on select elements of his second cause
22 of action for strict liability under the SAA.
23 at 2.)

(Pl. Mot.

Plaintiff does not move for summary judgment on

24 the causation or damages elements of his SAA claim.

(See

25 Def. Opp'n at 1.)
26

Since the Motions rely on the same facts, evidence,

27 and legal arguments, the Court will consider them
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6

1 together.

The Court addresses the SAA claim first,

2 followed by the FELA claim.
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4

II.

LEGAL STANDARD2

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6

Federal Rule of Civil Procedure 56 empowers the Court

7 to enter summary judgment on factually unsupported claims
8 or defenses, and thereby “secure the just, speedy and
9 inexpensive determination of every action.”

Celotex

10 Corp. v. Catrett, 477 U.S. 317, 325 (1986).

Summary

11 judgment is appropriate if the “pleadings, depositions,
12 answers to interrogatories, and admissions on file,
13 together with the affidavits, if any, show that there is
14 no genuine issue as to any material fact and that the
15 moving party is entitled to judgment as a matter of law.”
16 Fed. R. Civ. P. 56(c).

A fact is material when it

17 affects the outcome of the case.

Anderson v. Liberty

18 Lobby, Inc., 477 U.S. 242, 248 (1986); Freeman v. Arpaio,
19 125 F.3d 732, 735 (9th Cir. 1997).
20

The party moving for summary judgment bears the

21 initial burden of establishing an absence of a genuine
22 issue of material fact.

Celotex, 477 U.S. at 323.

This

23 burden may be satisfied by either (1) presenting evidence
24 to negate an essential element of the non-moving party's
25 case; or (2) showing that the non-moving party has failed
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27

2

Unless otherwise noted, all references to “Rule”
28 refer to the Federal Rules of Civil Procedure.
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1 to sufficiently establish an essential element to the
2 non-moving party's case.

Id. at 322-23.

Where the party

3 moving for summary judgment does not bear the burden of
4 proof at trial, it may show that no genuine issue of
5 material fact exists by demonstrating that “there is an
6 absence of evidence to support the non-moving party's
7 case.”

Id. at 325.

The moving party is not required to

8 produce evidence showing the absence of a genuine issue
9 of material fact, nor is it required to offer evidence
10 negating the non-moving party's claim.

Lujan v. National

11 Wildlife Fed'n, 497 U.S. 871, 885 (1990); United
12 Steelworkers v. Phelps Dodge Corp., 865 F.2d 1539, 1542
13 (9th Cir. 1989).
14

However, where the moving party bears the burden of

15 proof at trial, the moving party must present compelling
16 evidence in order to obtain summary judgment in its
17 favor.

United States v. One Residential Property at 8110

18 E. Mohave, 229 F. Supp. 2d 1046, 1047 (S.D. Cal. 2002)
19 (citing Torres Vargas v. Santiago Cummings, 149 F.3d 29,
20 35 (1st Cir. 1998) (“The party who has the burden of
21 proof on a dispositive issue cannot attain summary
22 judgment unless the evidence that he provides on that
23 issue is conclusive.”)).

Failure to meet this burden

24 results in denial of the motion and the Court need not
25 consider the non-moving party's evidence.

One

26 Residential Property at 8110 E. Mohave, 229 F. Supp. 2d
27 at 1048.
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8

1

Once the moving party meets the requirements of Rule

2 56, the burden shifts to the party resisting the motion,
3 who “must set forth specific facts showing that there is
4 a genuine issue for trial.”

Anderson, 477 U.S. at 256.

5 The non-moving party does not meet this burden by showing
6 “some metaphysical doubt as to the material facts.”
7 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
8 475 U.S. 574, 586 (1986).

The United States Supreme

9 Court has held that “[t]he mere existence of a scintilla
10 of evidence in support of the non-moving party's position
11 is not sufficient.”

Anderson, 477 U.S. at 252.

Genuine

12 factual issues must exist that “can be resolved only by a
13 finder of fact because they may reasonably be resolved in
14 favor of either party.”

Id. at 250.

When ruling on a

15 summary judgment motion, the Court must examine all the
16 evidence in the light most favorable to the non-moving
17 party.

Celotex, 477 U.S. at 325.

The Court cannot

18 engage in credibility determinations, weighing of
19 evidence, or drawing of legitimate inferences from the
20 facts; these functions are for the jury.
21 U.S. at 255.

Anderson, 477

Without specific facts to support the

22 conclusion, a bald assertion of the “ultimate fact” is
23 insufficient.

See Schneider v. TRW, Inc., 938 F.2d 986,

24 990-91 (9th Cir. 1991).
25

Cross-motions for summary judgment do not necessarily

26 permit the judge to render judgment in favor of one side
27 or the other.

Starsky v. Williams, 512 F.2d 109, 112

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9

1 (9th Cir. 1975).

The Court must consider each motion

2 separately “on its own merits” to determine whether any
3 genuine issue of material fact exists.

Fair Housing

4 Council of Riverside County, Inc. v. Riverside Two, 249
5 F.3d 1132, 1136 (9th Cir. 2001).

When evaluating

6 cross-motions for summary judgment, the court must
7 analyze whether the record demonstrates the existence of
8 genuine issues of material fact, both in cases where both
9 parties assert that no material factual issues exist, as
10 well as where the parties dispute the facts.

See Fair

11 Housing Council of Riverside County, 249 F.3d at 1136
12 (citation omitted).
13
14

III. DISCUSSION

15
16 A.

Evidentiary Objections

17
18

Almost all of the objections appended to Plaintiff's

19 opposition, Defendant's opposition, and Defendant's reply
20 are on grounds of relevance under Federal Rule of
21 Evidence 401.
22 Reply Obj.)

(See Def. Opp'n Obj.; Pl. Opp'n Obj.; Def.
"Objections to evidence on the ground that

23 it is irrelevant, speculative, and/or argumentative, or
24 that it constitutes an improper legal conclusion are all
25 duplicative of the summary judgment standard itself" and
26 are thus "redundant" and unnecessary to consider here.
27 Burch v. Regents of Univ. of California, 433 F. Supp. 2d
28
10

1 1110, 1119 (E.D. Cal. 2006); see Anderson, 477 U.S. at
2 248 ("Factual disputes that are irrelevant or unnecessary
3 will not be counted.").

Thus, the Court does not rule on

4 any of the parties' relevance objections.
5

The Court also will not consider Defendant's

6 objections aimed at Plaintiff's characterizations of or
7 purported misstatements of the evidence as represented in
8 his SUF and SGI.

(See, e.g., Def. Opp'n Obj. ¶ 9

9 ("misstates testimony"); Def. Reply Obj. ¶ 39 (objecting
10 on completeness grounds under Fed. R. Evid. 106 and
11 misstatement of testimony)).

"Plaintiff's 'evidentiary

12 objections' to Defendant['s] separate statements of
13 undisputed facts are not considered because such
14 objections should be directed at the evidence supporting
15 those statements."

Hanger Prosthetics & Orthotics, Inc.

16 v. Capstone Orthopedic, Inc., 556 F. Supp. 2d 1122, 1126
17 (E.D. Cal. 2008); Dalton v. Straumann Co. USA Inc., No.
18 99-4579, 2001 WL 590038, at *4 (N.D. Cal. May 18, 2001)
19 (“Most of these objections to evidence are actually
20 objections to defendant's characterization of the
21 evidence in its ‘Statement of Undisputed Facts.’
22 Plaintiff's counsel objects that statements are vague or
23 compound as if he were objecting to questions asked in a
24 deposition.

But counsel is not objecting to evidence,

25 merely to defendant's characterization of the
26 evidence.”).
27
28
11

1

The only remaining objections are Defendant's

2 objections to the reports attached to the affidavits of
3 Wilson C. Hayes and Michael J. O'Brien submitted in
4 support of Plaintiff's opposition to Defendant's Motion.
5 ("Hayes Report.," Pl. Opp'n Exhs., Exh. 4b; "O'Brien
6 Report," Pl. Opp'n Exhs., Exh. 5b.)

Defendant objects to

7 the reports and the evidence relied on by the experts in
8 the reports on hearsay grounds and for lack of personal
9 knowledge.
10

(Def. Reply Obj. ¶¶ 22, 40, 41.)

The Hayes Report states the affiant's opinion on the

11 force required to release a hand brake, the cause of
12 Ditton's injuries, the reduction in force with the use of
13 a brake stick, and BNSF's negligence.
14 13.)

(Hayes Report at

The O'Brien Report opines on BNSF's compliance with

15 federal statues, BNSF's negligence, and the causes and
16 contributing factors to Ditton's accident.
17 Report at 2.)

(O'Brien

“At the summary judgment stage, [courts]

18 do not focus on the admissibility of the evidence's form.
19 We instead focus on the admissibility of its contents.”
20 Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003)
21 (citation omitted).

Since Hayes and O'Brien could

22 testify to their opinions as well as the relevant
23 portions of their reports from personal knowledge, the
24 reports themselves are not hearsay, nor do they lack
25 foundation.

See Fed. R. Ediv. 602, 801; Marceau v. Int'l

26 Bhd. of Elec. Workers, 618 F. Supp. 2d 1127, 1143 (D.
27
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12

1 Ariz. 2009).

The Court OVERRULES Defendant's objections

2 to the Hayes and O'Brien Reports.
3

However, the Court will not consider those portions

4 of the reports which rely on or cite to documents and
5 evidence not before the Court.

Written documents relied

6 upon by the affiants must be actually exhibited.

See

7 Freeman v. Kern County, Kern Med. Ctr., No. 1:07-CV-00219
8 TAG, 2008 WL 4003978, at *6 (E.D. Cal. 2008) (“‘This
9 means that if written documents are relied upon they must
10 actually be exhibited; affidavits that purport to
11 describe a document's substance or an interpretation of
12 its contents are insufficient.’”) (quoting 10A Charles
13 Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal
14 Practice & Procedure § 2722 (3d ed. 1998)).

Both the

15 Hayes and O'Brien Reports quote from various documents,
16 including medical records, depositions, manufacturer
17 standards, and newsletters, without attaching them.

"The

18 Court will not simply assume that the experts have
19 accurately quoted or characterized those documents."
20 Harris v. Extendicare Homes, Inc., 829 F. Supp. 2d 1023,
21 1027 (W.D. Wash. 2011).

Accordingly, the Court SUSTAINS

22 Defendant's objections to the evidence included in the
23 Hayes and O'Brien Reports to the extent it is not before
24 the Court.
25

The Court also will not consider the Deposition of

26 Lawrence Fleischer offered by Defendant in reply to its
27 Motion.

("Fleischer Depo.," Def. Reply Exhs., Exh. B.)

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13

1 The deposition was taken for a separate proceeding before
2 the United States District Court for the District of
3 Oregon in May 2009.

However, the deposition is not

4 properly authenticated pursuant to Federal Rule of
5 Evidence 901, as it was not signed by the deponent, a
6 notary public, or the court reporter.

See Orr v. Bank of

7 Am., NT & SA, 285 F.3d 764, 774 (9th Cir. 2002); Pavone
8 v. Citicorp Credit Servs., Inc., 60 F. Supp. 2d 1040,
9 1045 (S.D. Cal.1997) (excluding a deposition for failure
10 to submit a signed certification from the reporter).
11 Moreover, counsel in this action was not present at the
12 Fleisher deposition and therefore does not lay an
13 adequate foundation for Fleischer's testimony.

See

14 Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1182
15 (9th Cir. 1988) ("The foundation is laid for receiving a
16 document in evidence by the testimony of a witness with
17 personal knowledge of the facts who attests to the
18 identity and due execution of the document and, where
19 appropriate, its delivery.") (citation omitted).

For

20 these reasons, the Court excludes the deposition of
21 Lawrence Fleischer from its consideration of the Motions.3
22
23
24
25
26
27
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3

Defendant also requests that the Court take
judicial notice of the Fleischer deposition pursuant to
the Ninth Circuit's rule that a Court may take judicial
notice of court filings and proceedings in other courts
if they have a direct relation to the matters at issue.
See Biggs v. Terhune, 334 F.3d 910, 915 n.3 (9th Cir.
2003); United States ex rel. Robinson Rancheria Citizens
Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.
1992). However, the Court may not take judicial notice
of any matter that is in dispute and may not take notice
of the truth of the matters asserted therein. See Fed.
(continued...)
14

1
2 B.

Disputed and Undisputed Facts

3
4

Except as noted, the following material facts are

5 sufficiently supported by admissible evidence and are
6 uncontroverted.

They are “admitted to exist without

7 controversy” for purposes of the MSJ.

L.R. 56-3 (facts

8 not “controverted by declaration or other written
9 evidence” are assumed to exist without controversy); Fed.
10 R. Civ. P. 56(e)(2) (stating that where a party fails to
11 address another party's assertion of fact properly, the
12 court may “consider the fact undisputed for purposes of
13 the motion”).

Any facts that the Court finds are

14 disputed are clearly marked as such.
15
16

1.

The Incident

17
18

On September 2, 2009, BNSF employed Ditton as a

19 conductor working at a rail yard located in La Mirada,
20 California.

(Def. SUF ¶ 1; Pl. SGI ¶ 1.)

At

21 approximately 3:00am, Ditton arrived at the rail yard and
22 was assigned to switch out cars from inbound and outbound
23
24
25
26
27
28

3

(...continued)
R. Evid. 201(b); Lee v. City of Los Angeles, 250 F.3d
668, 690 (9th Cir. 2001). Defendant relies on the
Fleischer deposition to prove that BNSF was not aware
that brake sticks improved safety, which goes to a
material fact in dispute, namely BNSF's reasonableness in
not providing brake sticks. As such, the Court DENIES
Defendant's request for judicial notice of the Fleischer
deposition.
15

1 trains and to organize the cars in the yard.
2 2, 5; Def. SGI ¶¶ 2, 5.)

(Pl. SUF ¶¶

He was part of a three person

3 crew including a brakeman and engineer.

(Deposition of

4 Sean Ditton ("Ditton Depo.") 102:19-25, Pl. Opp'n Exhs.,
5 Exh. 1.)

Ditton completed his work within the confines

6 of the rail yard and his tasks did not involve the repair
7 or maintenance of any train or car.

(Pl. SUF ¶¶ 5-6;

8 Def. SGI ¶¶ 5-6.)
9

The final task of Ditton's shift involved switching

10 selected railcars onto track seven in order to line them
11 up for trains.

(Ditton Depo. 110:20-111:7.)

Once all

12 the proper cars were aligned, Ditton and his yard crew
13 ensured all the cars were connected, or coupled, and then
14 a locomotive would grab hold of the cars and pull them to
15 the proper track.

(Ditto Depo. 111:9-20.)

As the

16 locomotive began to slowly roll, Ditton heard that there
17 was a brake on one of the rear cars.

(Ditton Depo.

18 111:24-112:2.)
19

At that point, Ditton stopped the train and went to

20 release the vertical hand brake4 on the second to last
21 railcar of a train on track number seven.
22 Pl. SGI ¶ 4.)

(Def. SUF ¶ 4;

The railcar was part of an inbound train

23 and had not been set aside for repair or maintenance.
24 (Pl. SUF ¶7; Def. SGI ¶ 7.)

While standing on the

25 railcar ladder with his left foot on the bottom rung and
26
27

4

A "hand brake" is a "brake[] on cars and engines
28 that you manually twist or pump" to set and release the
brakes. (Ditton Depo. 87:13-20.)
16

1 his right foot on the car's platform, Ditton held onto
2 the ladder with his left hand and attempted to release
3 the quick release lever of the hand brake with his right
4 hand.

(Pl. SUF ¶ 8; Def. SGI ¶ 8.)

Although Ditton was

5 able to fully actuate the lever, the lever was "stuck" in
6 that it did not release the hand brake.
7 4; Ditton Depo. 131:18-23.)5

(Ditton Decl. ¶

Next, Ditton attempted to

8 release, or "untie," the brake wheel by hand.
9 Depo. 134:24-135:3.)

(Ditton

In order to untie the brake by

10 hand, Ditton grabbed the underside of the brake wheel
11 with his right hand and attempted to pull it in a
12 counterclockwise direction.

(Ditton Depo. 136:17-137:9.)

13 Ditton applied steady pressure, but he experienced
14 abnormally heavy resistance during the rotation of the
15 wheel.

(Ditton Depo. 137:15-24; 138:9-139:23.)

Although

16 Ditton admitted that some hand brake wheels require a
17 "pretty firm pull," this was one of the hardest hand
18
19

5

BNSF attempts to dispute the fact that Ditton was
20 able to fully actuate the brake release lever, and argues
that Ditton instead testified that the quick release
21 lever "would not move." (See Def. SGI ¶ 11.) However,
Ditton's deposition does not support this conclusion. At
22 best, the only relevant sections of the deposition which
may support this conclusion are statements by the
23 attorneys, not by Ditton himself. (See Ditton Depo.
132:13-19.) More importantly, Ditton subsequently
24 clarified any ambiguity in his deposition testimony with
a declaration where he unamibiguously indicates he was
25 able to fully actuate the handle. (Ditton Decl. ¶ 4.)
See Messick v. Horizon Indus., 62 F.3d 1227, 1231 (9th
26 Cir. 1995) (“[P]arty is not precluded from elaborating
upon, explaining or clarifying prior testimony elicited
27 by opposing counsel on deposition [and] minor
inconsistencies that result from an honest discrepancy, a
28 mistake, or newly discovered evidence afford no basis for
excluding an opposition affidavit.”).
17

1 brakes he untied in the approximately one-year he held
2 this position.

(Ditton Depo. 140:24-144:24.)

3 Nevertheless, Ditton was able to fully release the
4 vertical hand brake using the wheel.
5 10-13.)

(Ditton Depo. 145:

It did not require 100 percent of his strength,

6 and he did not feel it was necessary to call for
7 mechanical assistance.
8

(Ditton Depo. 195:13-25.)

Immediately after untying the brake, Ditton felt a

9 strain or pull in his lower back.
10 14.)

(Ditton Depo. 146:13-

Ditton left the rail yard without completing the

11 switching and without reporting his injury or that the
12 hand brake did not operate properly.
13 33; Pl. SGI ¶¶ 14-15, 33.)

(Def. SUF ¶¶ 14-15,

The following day Ditton

14 returned to work and asked his supervisor, Jason Girdler,
15 if he could have a light day due to the pain in his back
16 caused by the prior day's stuck brake, but Girdler
17 refused.

(Ditton Depo. 155:7-156:8.)

Ditton attempted

18 to work for approximately three hours, but left early to
19 see a doctor about his back pain.

(Ditton Depo. 156:10-

20 160:23.)
21

Ditton completed a BNSF employee injury report on

22 September 22, 2009.

(Def. SUF ¶ 17; Pl. SGI ¶ 17.)

23 Ditton is unable to identify the specific railcar or the
24 specific hand brake which caused his injury.
25 ¶¶ 18-19; Pl. SGI ¶¶ 18-19.)

(Def. SUF

However, Ditton is able to

26 describe that the car was filled with plastic and was
27 "destined for Setco," a BNSF customer.
28 114:11-15.)

(Ditton Depo.

There is no evidence to indicate that Ditton
18

1 or BNSF was aware of any report, problem, or complaint
2 with the car or hand brake that Ditton was working on at
3 the time of his injury.

(Ditton Depo. 151:5-8;

4 Deposition of Jason Girdler ("Girdler Depo.") 45:18-21,
5 Def. Exhs., Exh. O.)
6
7

2.

Rules and Regulations

8
9

A General Code of Operating Rules ("GCOR") for all

10 BNSF employees was in effect at the time of the incident.
11 (Cockshott Decl. ¶6.; GCOR, Def. Exhs., Exh. F.)

BNSF

12 also relies on a set of safety rules entitled the BNSF
13 TY&E Safety Rules ("TY&E").

(TY&E, Def. Exhs., Exh. G.)

14 Rule 1.4.7 of the TY&E states that if one person cannot
15 manually handle a load safely, he or she should obtain
16 mechanical assistance or stop and obtain the mechanical
17 means necessary to accomplish the task.
18 1.4.7.)

(TY&E ¶ S-

Rule 13.6.3 describes the body position

19 necessary to operate a vertical hand brake and mirrors
20 the position described in Ditton's deposition at the time
21 of the injury.

(TY&E ¶ S-13.6.3.)

Ditton admits he was

22 familiar with the GCOR and TY&E Rules at the time of the
23 incident.

("Pl. Resp. RFA" ¶¶ 18-19, Def. Exhs., Exh.

24 I.)
25
26

3.

Quick Release Lever

27
28
19

1

The quick release lever is designed to release an

2 applied hand brake.

(Pl. SUF ¶ 9; Def. SGI ¶ 9.)

In

3 other words, if a quick release lever is fully actuated,
4 it should disengage the hand brake, making it unnecessary
5 to use the wheel.

(Girdler Depo. 46:5-21; 48:13-17;

6 O'Brien Report at 7.)

However, there is uncontroverted

7 evidence that hand brake release levers commonly become
8 stuck.

(Girdler Depo. 46:13-15; Peterson Decl. ¶ 14;

9 Ditton Depo. 133:4-5.)

Plaintiff encountered numerous

10 stuck brake release levers over the course of his career
11 without sustaining injury. (Def. SUF ¶ 28; Pl. SGI ¶ 28.)
12

The testimony indicates that there are multiple,

13 sometimes conflicting reasons why a brake release lever
14 may become stuck.

Lawrence Keller, a carman who assists

15 with operations of rail equipment on the La Mirada yard,
16 and Foster Peterson, an expert witness and railroad
17 engineer,

both state that the most common reason for a

18 stuck lever or difficult to turn wheel is that the prior
19 user set the brake very tightly.
20 Peterson Opp'n Decl. ¶ 12.)

(Keller Decl. ¶ 7;

The testimony from Lawrence

21 Keller, Foster Peterson, Jack Osborne, Shane Cocksott,
22 and Chad Winholdt, all BNSF train operators, states that
23 a quick release lever's failure to release a railcar hand
24 brake does not "in and of itself," "necessarily," or "in
25 every case" constitute a defect of the hand brake.
26 (Keller Decl. ¶ 5; Peterson Opp'n Decl. ¶ 11; Deposition
27 of Jack Osborne ("Osborne Depo.") 29:16-25, Pl. Opp'n
28 Exhs., Exh. 3; Deposition of Shane Cockshott ("Cockshott
20

1 Depo.") 51:11-18, Pl. Opp'n Exhs., Exh. 2, as amended by
2 Errata Sheet, Def. Reply Exhs., Exh. E.; Deposition of
3 Chad Weinholdt ("Weinholdt Depo.") 23:7-12, Def. Reply
4 Exhs, Ex. B.)6

Ditton's expert, however, states that "if

5 operation of the quick release lever fails to effect
6 release of a hand brake, the hand brake is defective."
7 (O'Brien Report at 11.)
8

If a release lever is stuck and a mechanic has

9 inspected the handle and determined it does not work,
10 then the hand brake would be considered defective and the
11 entire apparatus would be replaced.
12 25:7-18.)

(Weinholdt Depo.

No repairs are made to quick release handles

13 because "it's all part of the hand brake."

(Id.)

14
15

4.

Proper Procedures and Training

16
17

There is uncontroverted evidence that Ditton received

18 training from BNSF on the operation of vertical hand
19 brakes, including how to tie and untie them.
20 38; Pl. SGI ¶ 38.)

(Def. SUF ¶

The contents of the training is

21 disputed.
22
23

6

Ditton attempts to dispute this testimony by
24 pointing to selected sections of the Weinholdt and
Cockshott depositions to assert that quick release levers
25 are defective when they fail to release the hand brake.
(See Pl. SUF ¶ 10.) When read in their totality,
26 Weinholdt and Cockshott's testimony do not support this
proposition. Both declarants subsequently qualified
27 their testimony to indicate that a brake is not defective
until a mechanic has determined that to be the case.
28 (See Weinholdt Depo. 23:14-24:21; Cockshott Depo. 51:1118, as amended by Errata Sheet.)
21

1

Specifically, the parties disagree over the proper

2 procedure to use when a quick release lever on a vertical
3 hand brake becomes stuck.

Some evidence indicates that

4 the proper procedure is to attempt the brake release
5 lever, then try to turn the wheel, and if both fail or
6 are difficult, to obtain assistance or report the issue.
7 For example, Rule 13.6.6 of the TY&E outlines the
8 procedure for releasing a vertical hand brake and states:
9 "[i]f the quick release lever does not release the brake,
10 operate the wheel with steady pressure.

If the wheel

11 does not easily release the brake, apply air to the car
12 or get help.

If the brakes still do not operate, bad-

13 order the car."

(TY&E ¶ S-13.6.6.)

Similarly, Jason

14 Girdler, an assistant train master at the La Mirada yard
15 at the time of the incident, testified that when a hand
16 brake lever is stuck, an operator can use the alternative
17 method of turning the brake wheel.
18 21.)

(Girdler Depo. 46:5-

If the hand brake lever fails and the wheel is

19 difficult to turn, an operator should report the issue to
20 the supervisor or mechanic on duty.

(Girdler Depo. 47:1-

21 7.)
22

Contrary evidence from other BNSF employees indicates

23 that the proper procedure is to cease operation of the
24 hand brake and report the issue once the release lever
25 fails to release the brake.
26 Cockshott Depo. 51:8-14.)

(Osborne Depo. 28:24-29:14;
There is evidence to show this

27 is the training all BNSF operating department personnel,
28
22

1 such as Ditton, should have received.

(Osborne Depo.

2 30:20-23; Cockshott Depo. 51:21-52:5.)
3
4

5.

Brake Stick

5
6

A brake stick is a tool that can be used to set and

7 release hand brakes from the ground.
8 19.)

(Hayes Report ¶

It is a retractable and expandable steel pole with

9 a hook on the end.
10 Decl. ¶ 12.)

(Ditton Depo. 109:10-12; Peterson

An operator stands on the ground, holds the

11 brake stick with both hands, places the hook between the
12 spokes of the hand brake wheel and pulls to release or
13 set the brake.
14

(Peterson Decl. ¶ 13.)

There is some dispute as to the purpose of a brake

15 stick.

Defendant produces evidence to show that brake

16 sticks are not intended to be used to release more
17 difficult hand brakes, nor are they to be used to operate
18 a hand brake release lever.

(Peterson Decl. ¶ 13.)

19 However, the testimony of Ditton and his expert witnesses
20 shows that using a brake stick reduces the force required
21 to release the brake wheel and reduces the loading on the
22 operator's lumbar spine.

(Hayes Report ¶ 19; Ditton

23 Depo. 166:20-167:7; O'Brien Report ¶ 24.)
24

Ditton never used a brake stick while he worked at

25 the La Mirada yard.

(Pl. Resp. RFA ¶ 29.)

Ditton's co-

26 workers, including Jason Girdler, Jack Osborne, and Shane
27 Cockshott, also have never seen brake sticks used at the
28 La Mirada yard.

(Girdler Depo. 45:14-17; Osborne Depo.
23

1 32:5-33:9; Cockshott Depo. 24:9-11.)

Although there is

2 no evidence to show that brake sticks have ever been used
3 at the La Mirada yard (Def. SUF ¶ 26; Pl. SGI ¶ 26),
4 there is uncontroverted evidence that BNSF uses brake
5 sticks at other yards it operates around the country
6 including in Montana and Denver.

(Cockshott Depo. 23:12-

7 14; Ditton Depo. 94:23-25; Girdler Depo. 20:16-22.)

BNSF

8 also provides some training on the use of the brake
9 sticks.
10

(Osborne Depo. 32:5-21.)

There is disputed evidence regarding whether Ditton

11 ever requested to use a brake stick while working at the
12 La Mirada yard.

Ditton testified that he asked Jack

13 Osborne, a trainmaster and one of his supervisors, to
14 procure brake sticks to use at the La Mirada yard in
15 order to make it less strenuous to set and release hand
16 brakes, but Osborne refused.

(Ditton Depo. 95:6-25.)

17 Osborne does not recall discussing brake sticks with any
18 personnel in Los Angeles, and does not recall any
19 operating department personnel requesting to use them.
20 (Osborne Depo. 32:25-33:9.)
21

The parties could not identify any BNSF safety rules,

22 GCORs, or federal regulations which require that hand
23 brakes be operated with the use of brake sticks.
24 SUF ¶¶ 29-30; Pl. SGI ¶¶ 29-30.)

(Def.

BNSF's expert also

25 states that the "universally accepted method for
26 operation of hand brakes has always been by hand" and not
27 with the aid of a brake stick.
28 41.)
24

(Def. SUF ¶ 41; Pl. SGI ¶

1
2 C.

Federal Safety Appliance Act

3
4

The Federal Safety Appliance Act ("SAA"), 49 U.S.C. §

5 20301 et. seq., was enacted in 1883 to address the
6 alarming number of railroad crewmen suffering injuries on
7 train equipment.

See Reed v. Philadelphia, Bethlehem &

8 New England R. Co., 939 F.2d 128, 130 (3d Cir. 1991).

It

9 “requires rail cars to be equipped with enumerated safety
10 features, such as certain types of couplers, brakes,
11 running boards, and handholds.”

Union Pacific R. Co. v.

12 California Public Utilities Com'n, 346 F.3d 851 (9th Cir.
13 2003).

The SAA does not create a private cause of

14 action, but railroad employees who allege that they have
15 been injured as a result of a safety violation may sue
16 under the Federal Employer's Liability Act ("FELA"), 45
17 U.S.C. § 51 et. seq.

See Crane v. Cedar Rapids & Iowa

18 City Ry. Co., 395 U.S. 164, 166 (1969).

Under the SAA, a

19 railroad is liable in strict liability when certain
20 equipment is not kept in the prescribed condition and
21 results in injury to an employee.

See id. (“In such

22 actions, the injured employee is required to prove only
23 the statutory violation and thus is relieved of the
24 burden of proving negligence.”) (internal citations
25 omitted); O'Donnell v. Elgin, J. & E. Ry. Co., 338 U.S.
26 384, 390 (1949).
27
28

1.

"Vehicle" Provision Applies
25

1

As currently enacted, the SAA applies to two primary

2 forms of rail transportation: vehicles and trains.
3 U.S.C. § 20302.

A "vehicle" is defined as a "car,

4 locomotive, tender7 or similar vehicle."
5 20301.

49

49 U.S.C. §

The "vehicle" provision applies here as it

6 pertains to individual railcars such as the one Ditton
7 was working on at the time of his injury.

See Williams

8 v. Norfolk S. Ry. Co., 126 F. Supp. 2d 986, 989 (W.D. Va.
9 2000) (applying the "vehicle" provision of the SAA to a
10 plaintiff who was attempting to release a hand brake on a
11 rail car).

By comparison, the SAA requires that "trains"

12 be equipped with "enough" cars with "power or train
13 brakes" to enable the engineer to control the train's
14 speed.

49 U.S.C. § 20302(a)(5)(A).

Clearly, this

15 provision of the SAA is irrelevant to the railcar which
16 allegedly caused Ditton's injury since there was only one
17 car at issue and it was stationary.

Therefore, the

18 vehicle provision of the SAA which directly references
19 "efficient hand brakes" as a required piece of safety
20 equipment is at issue in this case.
21 20302(a)(1)(A).

49 U.S.C. §

The relevant language of the vehicle

22 provision of the SAA states: "a railroad carrier may use
23 or allow to be used on any of its railroad lines . . . a
24 vehicle only if it is equipped with . . . efficient hand
25 brakes . . . ."

49 U.S.C. § 20302.

26
7

The American Heritage Dictionary defines "tender"
as a railroad car attached to the rear of a train and
28 designed to carry fuel and water. American Heritage
Dictionary (4th ed. 2009).
27

26

1
2

2.

Vehicle Was "In Use"

3
4

Citing Brady v. Terminal R. Ass'n of St. Louis, 303

5 U.S. 10, 13 (1938), the parties argue that the central
6 question is whether the car was "in use" in accordance
7 with the language of the SAA when Ditton was injured.

If

8 the car was not in use, the SAA does not apply and BNSF
9 cannot be liable in strict liability.

See id. at 15.

10 The Ninth Circuit has never discussed when a vehicle is
11 "in use" for the purposes of the SAA, and the parties
12 rely on unsettled case law in several other circuits for
13 their arguments.
14

First, the Court recognizes that the "in use" inquiry

15 is fact intensive and thus differs depending on whether
16 it is being applied to "trains" or "vehicles" within the
17 meaning of the statute.

Since at least 1910, the SAA has

18 had separate statutory provisions and separate safety
19 requirements for "vehicles" (formerly "cars") and
20 "trains."

Compare 45 U.S.C. §§ 1, 11 (1910), as cited

21 in Williams, 126 F. Supp. 2d at 989 with 49 U.S.C. §
22 20302 (1994).

As such, the Court cannot apply the "in

23 use" caselaw indiscriminately, but must be mindful of
24 whether the safety equipment applies to vehicles or
25 trains.

Compare Brady, 303 U.S. at 12 (applying the "in

26 use" requirement to cars) with United States v. Seaboard
27 Air Line R. Co., 361 U.S. 78, 80 (1959) (applying the "in
28 use" requirement to trains).
27

The Supreme Court

1 recognized the importance of this distinction in United
2 States v. Erie R. Co., 237 U.S. 402 (1915), where it
3 noted "[i]t will be perceived that the air-brake
4 provision deals with running a train, while the other
5 requirements relate to hauling or using a car. In one a
6 train is the unit and in the other a car."

Id. at

7 407-08.
8

Defendant relies on two tests for the "in use"

9 requirement developed by the Fourth and Fifth Circuits.
10 See Deans v. CSX Transp., Inc., 152 F.3d 326, 329 (4th
11 Cir. 1999) (applying a "multiple factors test" and
12 considering (1) the location of the train at time of
13 incident and (2) the activity of the injured party);
14 Trinidad v. Southern Pacific Transp. Co., 949 F.2d 187
15 (5th Cir. 1991) (applying the "bright line test" and
16 holding that a "train" is not "in use" until switching is
17 complete, the train is assembled, and all pre-departure
18 inspections are complete).

As noted by Plaintiff, a

19 handful of lower courts have derided these cases for
20 applying a uniform standard to the distinct statutory
21 provisions for vehicles and trains.

See White v. BNSF

22 Ry. Co., C09-5188RJB, 2010 WL 1186197, at *5 (W.D. Wash.
23 Mar. 23, 2010); Underhill v. CSX Transp., Inc., No. 1:0524 CV-196-TS, 2006 WL 1128619 (N.D. Ind. Apr. 24, 2006).
25 The Court finds the reasoning in these cases persuasive.
26 Moreover, given the discrete statutory language and
27 binding Supreme Court precedent, the Court need not rely
28 on these out-of-circuit cases here.
28

1

In multiple instances, the Supreme Court has

2 recognized the application of the SAA to cases in which
3 the employee was injured while operating a hand brake on
4 a railcar.

In Swinson v. Chicago, St. P., M. & O. Ry.

5 Co., 294 U.S. 529, 530 (1935), an accident occurred while
6 the employee was releasing a hand brake at the end of a
7 tank car and the grab iron he was standing on gave out
8 underneath him.

Id. at 530.

The Court upheld the

9 application of the SAA to the employee for his resulting
10 injuries.

Id. at 532.

Similarly, the facts in Myers v.

11 Reading Co., 331 U.S. 477 (1947), closely parallel those
12 here.

The plaintiff in Myers was working as a conductor

13 and in charge of a three person crew assigned to move a
14 string of cars onto a track, couple those cars to three
15 others, and then "tie the hand-brakes on."

Id. at 479.

16 Plaintiff noticed that one of the brakes was not properly
17 tied and he climbed onto the platform and tried to set
18 the brake by turning the wheel.

Id.

The brake wheel was

19 stiff at first, but then it kicked back and caused
20 plaintiff to fall.

Id. at 480-81.

Although the Court

21 did not directly address the "in use" requirement, the
22 Court upheld the SAA's "prohibition against the
23 respondent's using or permitting to be used, on its line,
24 any car not equipped with 'efficient hand brakes.'"
25 at 482.

Id.

Since the Supreme Court has applied the strict

26 liability requirements of the SAA to facts nearly
27 identical to those presented here, the Court finds that
28 the "vehicle" Ditton was on at the time of his injury was
29

1 "in use" for the purposes of the SAA.
2

Other key factors identified in Brady as relevant to

3 the "in use" requirement confirm the Court's holding.

In

4 Brady, the Court held that "[t]he car was still in use,
5 though motionless," and it was "not a case where a
6 defective car has reached a place of repair" or was
7 "withdrawn from use".

303 U.S. at 13.

Similarly here,

8 the railcar was motionless, but it was not on a track for
9 repair nor was it withdrawn from use.

The car was filled

10 with goods and was being prepared to join a customer's
11 train.

Moreover, Ditton's work did not involve any

12 maintenance or repair of the car.

Thus, the stated

13 purpose of the "in use" limitation – “to give railcar
14 operators the opportunity to inspect for and correct
15 safety appliance defects before the FSAA exposes the
16 operators to strict liability for such defects” – is not
17 implicated here because Plaintiff's task at the time of
18 the accident was not preparatory to an inspection or
19 repair of the railcar.

Phillips v. CSX Transp., Inc.,

20 190 F.3d 285, 288 (4th Cir. 1999).

There appears no

21 sound rationale for excluding application of the SAA in
22 this case.
23

BNSF argues that the railcar at issue cannot be

24 considered "in use" because Ditton was engaged in
25 switching out cars at the time of his injury and
26 "switching operations [are] not train movements within
27 the meaning of the [SAA]."

United States v. Seaboard Air

28 Line R. Co., 361 U.S. 78, 80 (1959).
30

BNSF further quotes

1 Seaboard for the principle that "[a] moving locomotive
2 with cars attached is without the provision of the act
3 only when it is not a train; as where the operation is
4 that of switching, classifying and assembling cars within
5 railroad yards for the purpose of making up trains."
6 at 81.

Id.

The inapplicability of this rule is evident from

7 the language itself.

As described by the Court, this

8 principle applies to "a moving locomotive with cars
9 attached," which is not at issue here where Ditton was on
10 a stationary car.

Moreover, this rule specifically

11 applies to "trains," not vehicles.

Just because a moving

12 locomotive with cars attached is not a train for the
13 purposes of the SAA does not mean a railcar cannot be
14 considered a vehicle for the purposes of the act.

This

15 understanding is confirmed by the facts at issue in
16 Seaboard where the Court examined the applicability of
17 the SAA provision requiring a "train" to have power
18 brakes on not less than 50 percent of its cars.
19 78.

Id. at

A nearly identical provision of the act is in effect

20 today under the SAA's regulation of "trains."
21 U.S.C. § 20302(a)(5)(B).

See 49

Thus, Seaboard dealt with the

22 "in use" requirement as it pertains to trains, not
23 vehicles.

Finally, BNSF ignores the language in Erie

24 where the Supreme Court noted that the "provisions
25 [applying to cars] are of broader application and embrace
26 switching operations as well as train movements, for both
27 involve a hauling or using of cars."
28 408.

Erie, 237 U.S. at

The Court thus finds that Seaboard is not
31

1 controlling here.

Instead, the fact that Ditton was

2 engaged in switching out cars at the time of his injury
3 indicates that the "vehicle" was "in use" and the SAA
4 applies.
5

Id.

If the Court were to exclude railcars engaged in

6 switching operations from the vehicle provision of the
7 SAA, the "efficient hand brake" section would be rendered
8 nearly useless.

Hand brakes are primarily used to stop

9 railcars during the switching of cars within the yard,
10 whereas air brakes are used to stop completed trains.
11 See 49 U.S.C. § 20302(a)(5)(A) (requiring trains to be
12 equipped with enough power or train brakes “so that the
13 engineer on the locomotive hauling the train can control
14 the train’s speed without the necessity of brake
15 operators using the common hand brakes for that
16 purpose”).

If the Court adopted BNSF's argument, it is

17 difficult to see when the "efficient hand brake"
18 provision would ever apply to a "vehicle" as anticipated
19 by the statutory language.

"Assuming Congress did not

20 intend to enact a nullity, this interpretation cannot be
21 correct."

See Williams, 126 F. Supp. 2d at 992

22 (rejecting BNSF's argument).
23

The Court GRANTS partial summary judgment to

24 Plaintiff as to the "in use" requirement of the SAA.
25
26

3.

Efficient Hand Brakes

27
28

As stated above, the SAA requires railroads to use
32

1 vehicles that are equipped with "efficient hand brakes."
2 49 U.S.C § 20302(a)(1)(B).

The Court now turns to

3 whether the hand brakes on the car at issue were
4 "efficient" within the meaning of the SAA.
5

"There are two recognized methods of showing the

6 inefficiency of hand brakes equipment.

Evidence may be

7 adduced to establish (1) some particular defect, or the
8 same inefficiency may be established by showing (2) a
9 failure to function, when operated with due care, in the
10 normal, natural, and usual manner."

Myers v. Reading

11 Co., 331 U.S. 477, 483 (1947).
12

Before the Court can address the test for efficiency,

13 it must address the fact that Ditton's claims are based
14 on an assertion that the quick release lever was
15 inefficient, not the hand brake itself.
16 10.)

(Pl. Reply at

The Court must determine whether the quick release

17 lever is in the category of safety appliances covered by
18 the SAA.

In Southern Pac. Co. v. Carson, 169 F.2d 734

19 (9th Cir. 1948), the court held that a "brake club,"
20 which was used to wind the brake wheel, was an essential
21 part of a "hand brake," and the hand brake provision of
22 the SAA therefore governed plaintiff's claim.
23 738.

Id. at

The court reasoned that "it can not rationally be

24 said that the brake club did not constitute a part of the
25 hand brake. The club was not a contrivance separate and
26 distinct from the brake, nor was it designed or used for
27 a purpose apart from the use of the brake.

On the

28 contrary, it was confessedly designed and used for a
33

1 purpose inseparable from the use of the braking
2 appliance."

Id. at 737.

Southern Pacific's reasoning

3 applies to Ditton's claims regarding the quick release
4 lever.

The undisputed facts show that quick release

5 levers are "all part of the hand brake."
6 Depo. 25:7-18.)

(Weinholdt

The lever was designed and used for a

7 purpose inseparable from disengaging the hand brake (Def.
8 SGI ¶ 9) and if a defect in the lever is reported, the
9 entirety of the hand brake is replaced (Weinholdt Depo.
10 25:7-18.).

It cannot rationally be said that the quick

11 release handle did not constitute a part of the hand
12 brake, and thus the hand brake provision of the SAA
13 governs Ditton's claim.

See also Johnson v. Union Pac.

14 R. Co., C-03-04574 RMW, 2004 WL 2403844, at *4 (N.D. Cal.
15 Oct. 27, 2004) (holding that an "air hose support strap
16 is part of the air brake system and thus a safety
17 appliance under the SAA").
18

Since the quick release lever is a safety appliance

19 under the SAA, then BNSF is subject to strict liability
20 if a defect in or failure of that appliance contributed
21 in fact to Ditton's injury.

See id.

Based on the

22 controverted evidence presented in Section III.B.3 supra,
23 the Court cannot find that the quick release lever was
24 defective.

The parties present conflicting testimony on

25 the issue of defect such that a reasonable juror could
26 find either that the quick release lever was or was not
27 defective at the time of the injury.
28

The alternate method for demonstrating inefficiency
34

1 requires evidence to establish that the brake release
2 lever failed to function when operated with due care, in
3 the normal, natural, and usual manner.
4 at 483.

Myers, 331 U.S.

The Court finds that the uncontroverted evidence

5 demonstrates that the quick release lever did not fail to
6 function in the "normal, natural, and usual manner."
7 Instead, the normal, natural, and usual manner of
8 operation of a brake release lever includes the common
9 occurrence that the lever will fail to release the brake.
10 Undisputed evidence demonstrates that brake release
11 levers commonly become stuck.

(Peterson Decl. ¶ 14.)

12 Ditton admits he encountered numerous stuck brake release
13 levers during his career.

(Pl. SGI ¶ 28.)

Thus, the

14 usual operation of the brake release lever includes the
15 possibility that it will fail to release the hand brake.
16 See Willis v. BNSF Ry. Co., 11-1208, 2013 WL 1000802, at
17 *5 (C.D. Ill. Mar. 13, 2013) (finding that the hand brake
18 did not fail to function where "[a]ll the witnesses have
19 acknowledged that the hand brake operated as it always
20 did and that slippage was normal and natural").
21

Based on the foregoing analysis, the Court DENIES

22 Plaintiff's motion for partial summary on his claim that
23 the hand brake was inefficient within the meaning of the
24 SAA.

Controverted evidence prevents the Court from

25 finding that the lever was defective as a matter of law,
26 and no reasonable juror could find that the brake release
27 lever failed to operate in the normal and usual manner.
28 Accordingly, Plaintiff and Defendant's motions for
35

1 summary judgment on the SAA claim are DENIED.
2
3 D.

Federal Employer's Liability Act

4
5

BNSF moves for summary judgment on Ditton's FELA

6 claim.

The Federal Employer's Liability Act ("FELA")

7 states in relevant part:
8

"Every common carrier by railroad . . . shall be
liable in damages to any person suffering injury
9
while he is employed by such carrier . . . for
10
such injury [] resulting in whole or in part
from the negligence of any of the officers,
11
agents, or employees of such carrier, or by
12
reason of any defect or insufficiency, due to
13
its negligence in its cars, engines, appliances,
. . . or other equipment."
14
15 45 U.S.C. § 51. FELA “is founded on common-law concepts
16 of negligence and injury, subject to such qualifications
17 as Congress has imported into those terms.” Urie v.
18 Thompson, 337 U.S. 163, 182 (1949). A FELA plaintiff
19 bears the burden of proving the existence of a duty owed
20 by the defendant, a breach of that duty, causation, and
21 damages. See Consol. Rail Corp. v. Gottshall, 512 U.S.
22 532, 538 (1994). Under the statute, a railroad breaches
23 its duty to its employees by failing to provide a safe
24 working environment if it knew or should have known that
25 it was not acting adequately to protect its employees.
26 Urie, 337 U.S. at 181–82.
27

The standard for receiving a jury trial is less

28 stringent in FELA cases than in common law tort cases.
36

1 Mullahon v. Union Pac. R.R., 64 F.3d 1358, 1363 (9th Cir.
2 1995).

This relaxed standard applies to both negligence

3 and causation determinations.

Pierce v. Southern Pac.

4 Transp. Co., 823 F.2d 1366, 1370 (9th Cir. 1987) (“A
5 reviewing court must uphold a verdict even if it finds
6 only ‘slight’ or ‘minimal’ facts to support a jury's
7 finding of negligence.”); Oglesby v. Southern Pac.
8 Transp. Co., 6 F.3d 603, 607 (9th Cir. 1993) ("Under [the
9 FELA] the test of a jury case is simply whether the
10 proofs justify with reason the conclusion that employer
11 negligence played any part, even the slightest, in
12 producing the injury.") (quotation omitted).

In order to

13 defeat summary judgment in FELA cases, the plaintiff need
14 only show that it is “not outside the possibility of
15 reason” that defendant was negligent.

Mendoza v.

16 Southern Pac. Transp. Co., 733 F.2d 631, 633 (9th Cir.
17 1984).
18

Ditton pursues his negligence claim against BNSF on

19 four grounds for: (1) failing to provide Plaintiff with a
20 reasonably safe place to work, (2) failing to provide
21 Plaintiff with reasonably safe equipment and procedures,
22 namely a brake stick, (3) failing to provide sufficient
23 and proper training to its employees, and (4) other acts
24 of negligence.

BNSF argues that summary judgment is

25 proper on Ditton's FELA claim because (1) he can not
26 establish the element of foreseeability, (2) he has
27 insufficient evidence to support his training claim, (3)
28 BNSF had no duty to provide Ditton with a brake stick,
37

1 (4) Ditton has not identified any other acts of
2 negligence, and (5) Plaintiff was the sole cause of his
3 injury.
4

The Court discusses these arguments in turn and finds

5 that controverted facts prevent the Court from entering
6 summary judgement on Plaintiff's FELA claim.
7
1.

Foreseeability

8
9
“[R]easonable foreseeability of harm . . . is an
10
essential ingredient of [FELA] negligence” as part of the
11
element of duty.

CSX Transp., Inc. v. McBride, 131 S.

12
Ct. 2630, 2643 (2011) (quotation omitted).

“[T]he

13
railroad's duties are measured by what is reasonably
14
foreseeable under like circumstances.”

Id. (citation

15
omitted).

“[I]f a person has no reasonable ground to

16
anticipate that a particular condition . . . would or
17
might result in a mishap and injury, then the party is
18
not required to do anything to correct the condition.”
19
Id. (citation and quotation omitted).
20
BNSF argues that since it did not have actual or
21
constructive notice of the alleged defect with the hand
22
brake on Ditton's car prior to the incident, Plaintiff's
23
injury was not reasonably foreseeable.

(Def. Mot. at

24
10.)

Defendant bases his argument on the idea that BNSF

25
needed to have notice of the particular defect on this
26
particular car in order to be held liable under FELA.
27
However, the foreseeability requirement under FELA cannot
28
38

1 be read so narrowly.

See Gallick v. Baltimore & O. R.

2 Co., 372 U.S. 108 (1963) (rejecting the argument that
3 "since there had been no similar incidents at this pool
4 in the past, the respondent had no specific reason for
5 anticipating a mishap or injury to petitioner" as "a far
6 too narrow a concept of foreseeable harm to negative
7 negligence under the Federal Employers' Liability Act");
8 Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 1158
9 (11th Cir. 2012) ("No authority exists for the
10 proposition that the failure to identify the rail car,
11 standing alone, provides a sufficient basis for summary
12 judgment in [defendant]'s favor.").

The lack of prior

13 reports or complaints regarding the subject hand brake
14 and Ditton's failure to specifically identify the car
15 causing his injury do not establish as a matter of law
16 that injury was not foreseeable.
17

BNSF did have actual or constructive notice that

18 brake release levers commonly get stuck and hand brake
19 wheels can be difficult to turn.

Multiple BNSF employees

20 testified and BNSF's own expert acknowledged that these
21 are routine occurrences.

The Court cannot find as a

22 matter of law that given this knowledge BNSF had no
23 reasonable grounds to anticipate that these conditions
24 could result in injury.

First, it is reasonable to

25 conclude that wheels which require a substantial amount
26 of force to unwind could cause injury.

Moreover, viewing

27 the facts in the light most favorable to Plaintiff, there
28 is evidence to show that release levers which fail to
39

1 disengage the brake are to be reported, and an operator
2 should not untie the brake using the wheel.

Assuming

3 that this is the proper procedure, it is reasonable to
4 assume that any use of the wheel would be improper due to
5 its potential for injury.

Plaintiff also provides

6 evidence to show that BNSF uses brake sticks at other
7 yards and this reduces the force necessary to turn a
8 brake wheel and the risk of spinal injury.

Finally, the

9 O'Brien Report indicates that "[h]and brake injuries are
10 a well-known, industry-wide issue."
11 14.)

(O'Brien Report at

From this knowledge, it is reasonable to conclude

12 that BNSF should have been aware of the need to
13 ameliorate the risks of injury from failed brake release
14 levers and operation of a brake wheel without a brake
15 stick.

The Court finds that this evidence raises a jury

16 question regarding foreseeability under FELA.
17

Plaintiff also convincingly argues that BNSF may be

18 considered to have constructive notice of dangers it
19 could have discovered through proper inspection prior to
20 the injury.

See Tappero v. S. Pac. Transp. Co., 859 F.2d

21 154 (9th Cir. 1988) (holding that a reasonable jury could
22 find that defendant was negligent for failing to
23 adequately inspect the rail); Williams v. Atlantic Coast
24 Line R. Co., 190 F.2d 744, 748 (5th Cir. 1951).

There is

25 not enough evidence for the Court to conclude that a
26 proper inspection would have uncovered the danger which
27 caused Ditton's injury.

Nevertheless, Plaintiff raises a

28 genuine issue which is best left for a jury to decide.
40

1

BNSF argues that Ditton chose an unsafe means to

2 perform his work, in violation of the GCOR and TY&E
3 safety rules, and therefore Ditton must show that the
4 railroad should have anticipated or reasonably expected
5 that he would choose the unsafe method.

(Def. Reply at 6

6 (citing Frizzell v. Wabash Ry. Co., 199 F.2d 153 (8th
7 Cir. 1952).)

Specifically, Rule 13.6.6 of the TY&E

8 states that if a wheel does not easily release, an
9 operator should apply air to the car or get help.

By

10 failing to follow this rule, BNSF contends Ditton chose
11 an unsafe means of performing his work.

However, a

12 violation of a safety rule or regulation may be evidence
13 that Ditton performed his work unsafely, but it does not
14 demonstrate per se unsafe behavior.

Cf. Robertson v.

15 Burlington N. R. Co., 32 F.3d 408, 410 (9th Cir. 1994)
16 (admitting safety standards as evidence of negligence in
17 a FELA case, but not as proof of negligence per se).
18 Considering the evidence in Plaintiff's favor, there is
19 competent evidence to show that Ditton was untying the
20 brake safely, as indicated by his proper body position
21 and his ability to successfully untie the brake using
22 steady pressure.

As such, the Court finds that a trier

23 of fact could reasonably conclude that Ditton was not
24 performing his work unsafely and the higher evidentiary
25 burden for foreseeability is not implicated.
26

Ditton's evidence is sufficient to create a genuine

27 issue of material fact as to what BNSF knew or should
28 have known about the dangers of stuck brake release
41

1 levers and laborious brake wheels.

Similarly appropriate

2 for a jury is the question of whether BNSF should have
3 taken measures, such as by providing brake sticks, to
4 reduce the dangers caused by these conditions.

See

5 Allenbaugh v. BNSF Ry. Co., 832 F. Supp. 2d 1260, 1263-65
6 (E.D. Wash. 2011).

Accordingly, the Court DENIES

7 Defendant's summary judgment motion on the ground that
8 Plaintiff's injuries were not reasonably foreseeable to
9 BNSF.
10
11

2.

Training

12
BNSF argues that it is entitled to summary judgment
13
on Plaintiff's inadequate training claim because
14
Plaintiff failed to show that BNSF's hand brake training
15
was insufficient.

The Court cannot grant summary

16
judgment on this claim.

The evidence indicates that

17
employees at BNSF received divergent training on how to
18
properly operate a vertical hand brake.

In many

19
instances, the BNSF employee training differed from the
20
procedure outlined in BNSF's safety rules.

Some

21
employees testified that they were trained to cease
22
operating the hand brake once the brake release lever
23
failed.

Plaintiff argues that if he received this

24
training it would have prevented his injuries because he
25
would not have attempted to turn the resistant wheel.
26
Cf. Dickerson v. Staten Trucking, Inc., 428 F. Supp. 2d
27
909, 915 (E.D. Ark. 2006).

Given that the training and

28
42

1 procedures differed widely, a reasonable finder of fact
2 could determine that some BNSF employees, including
3 Plaintiff, received inadequate training on the operation
4 of vertical hand brakes.

See Lynch v. Ne. Reg'l Commuter

5 R.R. Corp., 700 F.3d 906, 913 (7th Cir. 2012) ("[A] jury
6 could determine that the failure to provide training in
7 fence installation left the crew members ill-equipped to
8 adjust to non-standard conditions . . . .").
9

Since a dispute exists as to a material fact, namely

10 the contents of the provided training, the Court DENIES
11 Defendant's motion for summary judgment on Plaintiff's
12 inadequate training claim.
13
14

3.

Brake Stick

15
16

A railroad carrier's duties under the FELA includes

17 the duty to provide “reasonably safe and suitable tools,
18 machinery and appliances with which to work.”

Ragsdell

19 v. Southern Pac. Transp. Co., 688 F.2d 1281, 1283 (9th
20 Cir. 1982).

FELA contemplates that a carrier will

21 provide those tools necessary to eliminate those dangers
22 which could be removed by reasonable care on the part of
23 the employer.

Padgett v. Southern Ry., 396 F.2d 303, 306

24 (6th Cir. 1968).

Nevertheless, a railroad "is not

25 required to furnish the employee with the latest, best,
26 or most perfect appliances with which to work."

Chicago

27 & Northwestern Ry. Co. v. Bower, 241 U.S. 470, 474
28 (1916).

Ditton states a claim for relief on the ground
43

1 that BNSF reasonably should have provided him with a
2 brake stick to release hand brakes on the day of the
3 incident.
4

The Court finds that it must leave it to the jury to

5 determine whether BNSF should have supplied Ditton with a
6 brake stick to perform his task with reasonable safety.
7 The facts, viewed in Ditton's favor, indicate that the
8 use of a brake stick reduces the force required to
9 operate the hand brake wheel and reduces the loading on
10 the operator's lumbar spine.

Ditton also testified that

11 he specifically asked his superiors for a brake stick to
12 aid with tying and untying hand brakes, but he was denied
13 it.

Crucially, there is uncontroverted evidence to show

14 BNSF provided training on and offered brake sticks to
15 employees at other yards it operated around the country.
16 On this evidence, viewing it in Plaintiff's favor and in
17 light of FELA's relaxed burden, the Court finds that a
18 reasonable factfinder could find that BNSF breached its
19 duty to ensure that its workers were reasonably protected
20 from injury resulting from operation of resistant brake
21 wheels.

See Tufariello v. Long Island R. Co., 458 F.3d

22 80, 91 (2d Cir. 2006) (holding that plaintiff had
23 introduced sufficient facts to overcome summary judgment
24 on his claim that he required hearing protection to
25 prevent injury from exposure to loud train horns where he
26 testified that he asked his superiors for the safety
27 equipment and was denied it).
28

Defendant's argument that Plaintiff is asking BNSF to
44

1 provide him with the latest, best, or most perfect
2 equipment is unpersuasive.

(Def. Mot. at 13-14.)

BNSF

3 cannot reasonably argue that brake sticks are above and
4 beyond what is acceptable on most rail yards, since it
5 uses brake sticks at least at two of its own rail yards.
6 Defendant also argues that operating the hand brake by
7 hand is a universally accepted method, therefore brake
8 sticks are not reasonably necessary.

However, just

9 because a practice is commonly accepted does not mean it
10 is reasonably safe under the FELA.

See The T.J. Hooper,

11 60 F.2d 737 (2d Cir.1932) ("[I]n most cases reasonable
12 prudence is in fact common prudence; but strictly it is
13 never its measure; a whole calling may have unduly lagged
14 in the adoption of new and available devices.").
15

Because a reasonable juror could agree with Plaintiff

16 that BNSF should provide brake sticks in order to create
17 a reasonably safe work environment, the Court DENIES
18 Defendant's motion for summary judgment on Plaintiff's
19 brake stick claim.
20
21

4.

Other Acts of Negligence

22
23

Plaintiff has failed to provide any evidence to

24 establish that BNSF has committed unidentified "other
25 acts of negligence."

(Compl., ¶ 10.)

Plaintiff argues

26 that "discovery in this case is ongoing," and therefore
27 it would be premature to grant summary judgment on this
28 claim.

(Pl. Opp'n at 16-17.)
45

Plaintiff had nearly eight

1 months to conduct discovery before Defendant moved for
2 summary judgment.

In this particular case, the Court

3 finds that this is sufficient time in which to discover
4 at least a minimal showing of evidence to support a
5 claim.

See Beneficial Standard Life Ins. Co. v.

6 Madariaga, 851 F.2d 271, 277 (9th Cir. 1988) (summary
7 judgment affirmed where there were more than six months
8 between the initial appearance and summary judgment);
9 Brae Trans., Inc. v. Coopers & Lybrand, 790 F.2d 1439,
10 1443 (9th Cir. 1986) (a party cannot complain if it fails
11 to pursue discovery diligently before summary judgment).
12 Since Defendant has demonstrated that "there is an
13 absence of evidence to support [Plaintiff's] case," the
14 Court finds that no genuine issue of material fact
15 exists.
16

Celotex, 477 U.S. at 325.

The Court GRANTS Defendant's motion for summary

17 judgment on Plaintiff's claim that BNSF committed "other
18 acts of negligence."
19
20

5.

Sole Cause of Injury

21
22

Under the FELA, Plaintiff need only establish that

23 his injuries "result[ed] in whole or in part from the
24 negligence of [the railroad]."

45 U.S.C. § 51.

Based on

25 this language, the Supreme Court held that the standard
26 for causation under the FELA is whether the railroad's
27 negligence “played any part, even the slightest,” in
28 producing the injury.

Consol. Rail Corp. v. Gottshall,
46

1 512 U.S. 532, 543 (1994).

However, if the plaintiff's

2 negligence was the sole cause of the injury, then the
3 statutory violation could not have contributed “in whole
4 or in part” to the injury or death, and summary judgment
5 must be granted in favor of the railroad.

See Rogers v.

6 Missouri Pacific R. Co., 352 U.S. 500 504-05 (1957);
7 Beimert v. Burlington Northern, Inc., 726 F.2d 412, 414
8 (8th Cir. 1984).
9

BNSF argues that Plaintiff's alleged injury was

10 caused solely by Plaintiff's own negligence, and
11 therefore BNSF is absolved of liability.
12 17.)

(Def. Mot. at

BNSF rests this claim on the fact that Ditton's

13 actions do not wholly conform with TY&E Safety Rule
14 13.6.6 which states that "[i]f the wheel does not easily
15 release the brake, apply air to the car or get help."

By

16 continuing to pull the wheel once it was difficult, BNSF
17 argues, he violated this provision and therefore is the
18 sole cause of his negligence.
19

(Def. Mot. at 18.)

This argument is without merit.

Based on all of the

20 arguments described above, there is sufficient evidence
21 to show that it is at least reasonable that BNSF's
22 negligence contributed to Ditton's injuries.

Most

23 directly on point here, Ditton produces facts to show
24 that his training did not include the provision of Rule
25 13.6.6 above, therefore, BNSF could at least be
26 responsible in part for Ditton's injuries due to
27 inappropriate training.

Ditton also produced two experts

28 who opined that BNSF knew or should have known that
47

1 requiring trainmen to release brakes by hand put those
2 workers at substantial risk of injury.

(Hayes Report ¶

3 26.)
4

Given the low bar necessary to present a FELA case to

5 the jury, especially on the question of causation, the
6 Court DENIES Defendant's motion for summary judgment on
7 the basis that Plaintiff was the sole cause of his
8 injuries.

See Claar v. Burlington Northern R.R. Co., 29

9 F.3d 499, 503 (9th Cir.1994) (“under FELA the quantum of
10 evidence sufficient to present a jury question of
11 causation is less than it is in a common law tort
12 action”).
13

IV. CONCLUSION

14
15

For the foregoing reasons, the Court GRANTS IN PART

16 Defendant's motion for summary judgment and GRANTS IN
17 PART Plaintiff's motion for partial summary judgment.
18
19
20

5/21/13
Dated:

21

Jesus G. Bernal
United States District Judge

22
23
24
25
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48