Kevin Smith v. Union Pacific Railroad Company

Filing 36

ORDER signed by District Judge Troy L. Nunley on 12/23/14 ORDERING that Defendant's MOTION for SUMMARY JUDGMENT 29 is GRANTED; CASE CLOSED. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KEVIN SMITH,

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Plaintiff,

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No. 2:12-cv-00656-TLN-CKD

v.

ORDER

UNION PACIFIC RAILROAD
COMPANY,
Defendant.

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This matter is before the Court on a motion for summary judgment brought by Defendant

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Union Pacific Railroad Co. (“Defendant” or “Union Pacific”). (Def. Not. and Mot. Summ. J.,

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ECF No. 29.) Plaintiff Kevin Smith (“Plaintiff”) filed an opposition on December 30, 2013.

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(Pl.’s Mem. P.&A. in Response to Def.’s Mot. Summ. J., ECF No. 30.) Defendant filed a reply

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in response to Plaintiff’s Response on January 3, 2014. (Def’s Reply, ECF No 32.)1 The Court

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has carefully considered the briefing supplied by both parties. For the reasons set forth below,

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Defendant’s Motion for Summary Judgment (ECF No. 29) is hereby GRANTED.

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On January 10, 2014, Plaintiff filed a Motion for Leave to File Sur-Reply (ECF No. 33) and Defendant
opposed Plaintiff’s motion (Def’s Opp’n to Motion for Sur-Reply, ECF No. 34). Because the arguments contained
within these motions are not relevant to the Court’s decision, Plaintiff’s Motion for Leave to File Sur-Reply (ECF
No. 33) is hereby DENIED.

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I.

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Plaintiff was hired by Defendant in February of 1995. (See Greenidge Decl. in Supp. of

BACKGROUND

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Def.’s Mot. for SJ, Ex. C. Pl’s Dep., ECF No. 29-3 at 17:25–18:02.) Plaintiff worked as a

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brakeman-switchman until June of 1995, when he was “promoted to go into engine service.” (Pl’s

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Dep., ECF No. 29-3 at 18:3–13.) After being promoted into engine service, Plaintiff worked as a

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through freight locomotive engineer until he was promoted into management in 2005. (Pl’s Dep.,

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ECF No. 29-3 at 11:19–21; 18:07–18.) After completing manager training in 2006, Plaintiff was

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promoted to Manager of Yard Operations (“MYO”). (Pl’s Dep., ECF No. 29-3 at 11:19–21.)

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Near the end of 2008, Union Pacific temporarily assigned Plaintiff to work a derailment

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near Elko, Nevada. (Pl’s Dep., ECF No. 29-3 at 43:06–13.) Plaintiff arrived in Elko on or about

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December 31, 2008. (Pl’s Dep., ECF No. 29-3 at 48:09–12.) During the first two weeks that

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Plaintiff was in Elko, the weather was snowy and icy. (Pl’s Dep., ECF No. 29-3 at 56:25–57:6;

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66:2–10; 67:23–68:9; 105:2–5; 125:13–126:5.) On January 15, 2009, the third week of Plaintiff’s

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employment in Elko, Plaintiff reported to work as a post derailment supervisor. (Compl., ECF

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No. 1 at ¶ 7.) Plaintiff was aware of snow falling in quantities sufficient to cause him to turn on

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his windshield wipers as he drove to the Elko Yard. (Reply to Def’s Statement of Undisputed

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Facts (“SUF”), ECF No. 30-1 at ¶ 1.) At or around 5:50 a.m., Plaintiff “got out of his vehicle,

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planted his feet, turned to close the door, and slipped on ice that was on the ground.” (ECF No.

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30 at 4 (citing Pl’s Dep., ECF No. 29-3 at 64–65); see also Pl’s Reply to Def’s SUF, ECF No. 30-

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1 at ¶¶ 1, 15–16.) Plaintiff struck his head, laid on the ground for some time, got up, saw stars,

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and felt dizzy and groggy. (ECF No. 30 at 4 (citing Pl’s Dep., ECF No. 29-3 at 64–65).)

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Plaintiff subsequently brought this action against Defendant pursuant to the Federal

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Employers’ Liability Act (FELA) seeking redress for his injuries. (ECF No. 1.) Plaintiff’s

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Complaint alleges that Defendant was negligent under FELA because it failed to provide a safe

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work environment. (ECF No. 1 at ¶ 8–9.) Plaintiff seeks damages for: (1) physical pain and

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suffering and mental anguish in the past and future; (2) lost earnings; (3) past and future medical

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expenses; (4) past and future physical impairment; (5) past and future physical disfigurement; and

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(6) reasonable and necessary vocational rehabilitation services in the future. (ECF No. 1 at ¶ 10.)
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II.

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Summary judgment is appropriate when the moving party demonstrates no genuine issue

LEGAL STANDARD

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as to any material fact exists, and therefore, the moving party is entitled to judgment as a matter

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of law. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Under

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summary judgment practice, the moving party always bears the initial responsibility of informing

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the district court of the basis of its motion, and identifying those portions of “the pleadings,

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depositions, answers to interrogatories, and admissions on file together with affidavits, if any,”

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which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v.

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Catrett, 477 U.S. 317, 323 (1986). “[W]here the nonmoving party will bear the burden of proof

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at trial on a dispositive issue, a summary judgment motion may properly be made in reliance

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solely on the pleadings, depositions, answers to interrogatories, and admissions on file.” Id. at

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324 (internal quotations omitted). Indeed, summary judgment should be entered against a party

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who does not make a showing sufficient to establish the existence of an element essential to that

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party’s case, and on which that party will bear the burden of proof at trial.

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If the moving party meets its initial responsibility, the burden then shifts to the opposing

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party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec.

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Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585–87 (1986); First Nat’l Bank of Ariz. v. Cities

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Serv. Co., 391 U.S. 253, 288–89 (1968). In attempting to establish the existence of this factual

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dispute, the opposing party may not rely upon the denials of its pleadings, but is required to

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tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in

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support of its contention that the dispute exists. Fed. R. Civ. P. 56(c). The opposing party must

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demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the

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suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and that

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the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for

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the nonmoving party. Id. at 251–52.

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In the endeavor to establish the existence of a factual dispute, the opposing party need not

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establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual

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dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at
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trial.” First Nat’l Bank, 391 U.S. at 288–89. Thus, the “purpose of summary judgment is to

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‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for

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trial.’” Matsushita, 475 U.S. at 587 (quoting Rule 56(e) advisory committee’s note on 1963

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amendments).

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In resolving the summary judgment motion, the court examines the pleadings, depositions,

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answers to interrogatories, and admissions on file, together with any applicable affidavits. Fed.

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R. Civ. P. 56(c); SEC v. Seaboard Corp., 677 F.2d 1301, 1305–06 (9th Cir. 1982). The evidence

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of the opposing party is to be believed, and all reasonable inferences that may be drawn from the

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facts pleaded before the court must be drawn in favor of the opposing party. Anderson, 477 U.S.

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at 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s

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obligation to produce a factual predicate from which the inference may be drawn. Richards v.

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Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985), aff’d, 810 F.2d 898 (9th Cir.

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1987). Finally, to demonstrate a genuine issue that necessitates a jury trial, the opposing party

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“must do more than simply show that there is some metaphysical doubt as to the material facts.”

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Matsushita, 475 U.S. at 586. “Where the record taken as a whole could not lead a rational trier of

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fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Id. at 587.

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III.

ANALYSIS

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FELA makes railroads liable for any “injury or death resulting in whole or in part from the

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negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect

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or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed,

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works, boats, wharves, or other equipment” suffered by the railroad’s employees. 45 U.S.C.A. §

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51 (West). To recover on a FELA claim, a plaintiff must establish: (1) that the railroad was

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negligent under FELA; (2) that the railroad’s negligence caused the plaintiff’s injuries; and (3)

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that his injuries were reasonably foreseeable to the railroad. Adams v. CSX Transp. Inc., 899 F.2d

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536, 539 (6th Cir. 1990) (citation omitted). Defendant contends that Plaintiff cannot establish

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negligence, the first prong.

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The standard of care in an FELA action is as follows: “The employer is not held to an
absolute responsibility for the reasonably safe condition of the place, tools, and appliances, but
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only to the duty of exercising reasonable care to that end.” Baltimore & O.S.W.R. Co. v. Carroll,

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280 U.S. 491, 496 (1930); see also Atl. Coast Line R. Co. v. Dixon, 189 F.2d 525, 527 (5th Cir.

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1951) (“The employer’s duty to its employees is to use reasonable care and prudence to the end

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that the place in which they are required to work, and the appliances with which they work, are

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reasonably suitable and safe for the purpose, and in the circumstances, in which they are to be

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used. The test is not whether the tools to be used and the place in which the work is to be

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performed are absolutely safe, nor whether the employer knew the same to be unsafe, but whether

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or not the employer has exercised reasonable care and diligence to make them safe.”).

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Although the Ninth Circuit has not spoken on this matter, the prevailing holding among

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other circuit courts is that railroads generally are not liable to their employees for injuries

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resulting from temporary weather conditions such as ice and snow. Raudenbush v. Baltimore &

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O.R. Co., 160 F.2d 363, 366 (3d Cir. 1947); McGivern v. Northern Pac. Ry. Co., 132 F.2d 213,

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217 (8th Cir. 1942); Detroit, T & I. R. Co. v. Banning, 173 F.2d 752, 755 (6th Cir.), cert. denied,

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338 U.S. 815 (1949); see also Allen v. Soo Line R. Co., No. IP 98-904 C B/S, 2001 WL 1222183,

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at *6 (S.D. Ind. Apr. 4, 2001); Stephens v. Metro-N. Commuter R.R., 204 A.D.2d 945, 946

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(1994). Nonetheless, a railroad company is required to take additional precautions in heavily

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trafficked areas such as yards and terminals when such temporary climatic conditions exist. Fort

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Worth & Denver City Ry. Co. v. Smith, 206 F.2d 667, 669 (5th Cir. 1953); Raudenbush, 160 F.2d

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at 366–67. “It is of course the duty of an employee to exercise reasonable and ordinary care for

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his own safety. If the employee’s negligence was the sole proximate cause of his injury, he

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cannot recover.” Atl. Coast Line R. Co., 189 F.2d at 527. Where the employer and employee are

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both guilty of negligence, the employee may recover, but his damages will be diminished in

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proportion to the amount of negligence attributable to the employee. Id. (citing Louisville & N.R.

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Co. v. Davis, 75 F.2d 849 (6th Cir. 1935); Chesapeake & O. Ry. Co. v. Richardson, 116 F.2d 860

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(6th Cir. 1941); Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 (1943)). Where the

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dangerous condition is created by the employee negligently using, or negligently failing to use,

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appliances provided by the employer, the employer is not liable. Id. (citing Wood v. Davis, 290 F.

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1 (5th Cir. 1923). “Nor is it actionable negligence that an employer fails to anticipate lack of care
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on the part of an employee.” Id. (citing McGivern v. Northern Pac. Ry. Co., 132 F.2d 213, 217

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(8th Cir. 1942).

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In the instant action, Plaintiff fell getting out of his vehicle in the parking lot. Defendant

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contends that it was not negligent because it had a weather policy which provided periodic and

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as-needed applications of salt to snowy and icy areas and further that Plaintiff did not avail

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himself of the snow spikes that Defendant provided for employees. (ECF No. 29 at 6–7.) In

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opposition, Plaintiff alleges that Defendant cannot show that it salted the parking lot and thus

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adhered to its policy. (Pl’s Reply to Def’s SUF, ECF No. 30-1 at ¶¶ 4–5.) Additionally, Plaintiff

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contends that although he knew that others wore snow spikes, Defendant never offered him snow

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spikes or gave him training as to Defendant’s weather policy. (Pl’s Reply to Def’s SUF, ECF No.

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30-1 at ¶¶ 6–7.) Plaintiff avers that upon being sent to Elko, the only contact information he was

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given was the phone number of Randy Grasmick. (Pl’s Dep., ECF No. 29-3 at 46:17–47:18.)

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Plaintiff alleges that during his time at Elko, he called Mr. Grasmick numerous times to get

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information, and that those calls were never returned. (Pl’s Dep., ECF No. 29-3 at 47:19–48:05;

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119:20–120:08.)

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At the outset, the Court notes that the parties all agree that the weather was snowy and icy

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on the morning of January 15, 2009. The weather at that time of year in Elko consisted of

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constant snow and ice. The Court is not apprised of whether Defendant salted the parking lot the

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day before Plaintiff’s accident or not. Nonetheless, the Court finds that this fact is not dispositive

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and thus declines to further address this matter.

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The fact is that Defendant was aware that the weather was hazardous and thus employed

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the policy of providing its employees snow spikes to help mitigate the inclement weather. (Pl’s

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Reply to Def’s SUF, ECF No. 30-1 at ¶ 1.) The Court finds Plaintiff’s assertions that he was

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prevented from acquiring snow spikes due to not having the necessary contact information

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insincere. Plaintiff testified that prior to working in Elko, he was aware of the need for snow

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spikes in some job locations and that the company provided them:

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Okay. I was aware of those products [snow spikes] because I’ve
seen them in the machine there in Roseville, but I’ve never had to
use them because I guess those were for the crews that were going6

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when they worked going over the mountain. I guess they got the
spikes out of the machine in Roseville.

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(ECF No. 29-3 at 71:01–06.) Furthermore, Plaintiff’s inability to contact Mr. Grasmick did not

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prevent him from seeking information from his co-workers. Plaintiff worked at Elko with other

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employees for two weeks prior to the incident. Nothing prevented him from asking them where

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he could obtain his snow spikes or asking for another company contact. Plaintiff’s testimony

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makes it clear that he would not have availed himself of the option. When asked whether he ever

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requested snow spikes or snow footwear from anyone at the company, Plaintiff answered “no.”

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(ECF No. 29-3 at 73:10.) In fact, Plaintiff stated that the thought never crossed his mind:

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You know, that never really crossed my mind. You know. I
thought I was fleet footed and agile. You know what I mean? You
know. I’m not going to fall or slip out here, you know. Good
shape, military, you know. It just never crossed my mind, honestly.
Just never thought about it.

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(ECF No. 29-3 at 73:15–21.) Plaintiff worked in Elko for two weeks prior to the incident. (Pl’s

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Reply to Def’s SUF, ECF No. 30-1 at ¶ 9.) Plaintiff has continually argued that everyone was on

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notice as to the conditions due to the constant snow. (ECF No. 30 at 16–17.) Plaintiff saw that

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the other employees had snow spikes. (Pl’s Reply to Def’s SUF, ECF No. 30-1 at ¶ 8.) There

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was nothing that stopped Plaintiff from inquiring as to the appropriate contact person in Elko.

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The truth of the matter is that Plaintiff didn’t think he needed to avail himself of the option. Had

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he done so, his injury could have been prevented. The case law clearly dictates that “temporary

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conditions produced by the employee negligently using, or negligently failing to use, appliances

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provided by the employer, are not defects for which the employer is liable.” Atl. Coast Line R.

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Co., 189 F.2d at 527; see also McGivern, 132 F.2d at 217–18 (holding that a defendant who

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provided instruments or utensils to remove snow and ice was not liable for a plaintiff’s accident

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where he failed to use such utensils). An employer is not liable for failing to anticipate lack of

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care on the part of its employee. See Atl. Coast Line R. Co., 189 F.2d at 527; McGivern, 132 F.2d

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at 217. Because Plaintiff failed to avail himself of the safety equipment provided by Defendant,

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he cannot show negligence on the part of Defendant. As such, Defendant’s Motion for Summary

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Judgment (ECF No. 29) is GRANTED.

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IT IS SO ORDERED.

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Dated: December 23, 2014

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Troy L. Nunley
United States District Judge

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