McCormick v. New Orleans Public Belt Railroad Commission
ORDER & REASONS: New Orleans Public Belt Railroad Commission's 16 , 17 , Motions for Summary Judgment are DENIED. Signed by Judge Carl Barbier on 5/24/17. (sek)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
THE NEW ORLEANS PUBLIC
BELT RAILROAD COMMISSION
ORDER & REASONS
There are two motions for summary judgment before the Court.
(“Defendant”) Motion for Summary Judgment on Plaintiff’s 2013
Injury (R. Doc. 16). Second is Defendant’s Motion for Summary
Judgment on Plaintiff’s 2014 Injury (R. Doc. 17). Plaintiff, Troy
McCormick, filed oppositions (R. Docs. 20, 21) to Defendant’s
motions. Having considered the motions and legal memoranda, the
record, and the applicable law, the Court finds that the motions
should be DENIED.
FACTS AND PROCEDURAL BACKGROUND
This is a railroad worker’s personal injury action. Plaintiff
Defendant’s negligence. He argues that Defendant failed to provide
him with a reasonably safe place to work in violation of the
Federal Employer’s Liability Act, 45 U.S.C. § 51, et seq. (“FELA”),
and further alleges that Defendant violated the Federal Safety
Appliance Act, 49 U.S.C. § 20301, et seq. (“FSAA”).
Plaintiff was employed by Defendant as a railroad switchman. His
responsibilities generally included connecting and disconnecting
(“coupling” or “uncoupling”) railcars from each other. In March of
2013, Plaintiff was performing a railroad switch operation and
alleges that he suffered injuries when a fence near his work area
collapsed on him. Plaintiff alleges that when the fence collapsed
it trapped his left hand against the railcar which proceeded to
move forward. Although Plaintiff freed his hand, he alleges he
suffered extensive injuries that required him to undergo surgery.
Plaintiff asserts that this injury was a result of Defendant
failing to provide him with a reasonably safe place to work in
violation of the FELA.
Plaintiff also alleges that in June 2014 defective rail
equipment caused injuries to his left shoulder and bicep. In short,
Plaintiff alleges that one of Defendant’s employees attempted to
uncouple two railcars unsuccessfully, which caused Plaintiff to
have to uncouple the cars from the other railcar. While Plaintiff
successfully uncoupled the cars, Plaintiff alleges he injured his
left shoulder and ruptured his left bicep and had to undergo
surgery. Plaintiff asserts that these injuries were a result of
Defendant violating a federal safety statute and failing to provide
him with a safe place to work in violation of the FSAA and the
On March 4, 2016, Plaintiff filed suit against Defendant. On
March 25, 2017, Defendant filed the present motions for summary
judgment. Defendant argues that Plaintiff cannot prove that it was
negligent or that its negligence caused Plaintiff’s injuries.
Further, Defendant argues that to the extent that Plaintiff asserts
claims under the FSAA, Plaintiff did not plead a FSAA claim in his
complaint, and that the alleged violation of the FSAA did not cause
Plaintiff’s injury. Plaintiff argues that both of his injuries
were a direct result of Defendant’s negligence, and that his
complaint properly alleges a claim under the FSAA. Defendant’s
motions are now before the Court, without oral argument.
Summary judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R.
Civ. P. 56); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994). When assessing whether a dispute as to any material
fact exists, a court considers “all of the evidence in the record
but refrains from making credibility determinations or weighing
the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness
Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008). All reasonable
inferences are drawn in favor of the nonmoving party, but a party
cannot defeat summary judgment with conclusory allegations or
unsubstantiated assertions. Little, 37 F.3d at 1075. A court
ultimately must be satisfied that “a reasonable jury could not
return a verdict for the nonmoving party.” Delta, 530 F.3d at 399.
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the moving party “must
come forward with evidence which would ‘entitle it to a directed
verdict if the evidence went uncontroverted at trial.’” Int’l
Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir.
1991). The nonmoving party can then defeat the motion by either
countering with sufficient evidence of its own, or “showing that
the moving party’s evidence is so sheer that it may not persuade
the reasonable fact-finder to return a verdict in favor of the
moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in the
record is insufficient with respect to an essential element of the
nonmoving party’s claim. See Celotex, 477 U.S. at 325. The burden
then shifts to the nonmoving party, who must, by submitting or
referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest
upon the pleadings, but must identify specific facts that establish
a genuine issue for trial. See, e.g., id. at 325; Little, 37 F.3d
The March 2013 Incident
Plaintiff’s claim for relief for the March 2013 incident
arises exclusively under the FELA, 1 which imposes liability on
railroads for injuries to their employees. See Collins v. Union
Pac. R. Co., No. 14-2129, 2015 WL 4478040, at *4 n.6 (E.D. La.
July 22, 2015); Romero v. CSX Transp., Inc., No. 06-1783, 2008 WL
5156677, at *3 (D. N.J. Dec. 9, 2008). “In order to prevail in an
action under [the FELA,] the plaintiff must prove (1) that the
defendant is a common carrier by railroad engaged in interstate
commerce, (2) that he was employed by the defendant with duties
advancing such commerce, (3) that his injuries were sustained while
he was so employed, and (4) that his injuries resulted from the
defendant’s negligence.” Frank v. Kan. City S. Ry. Co., No. 71341, 2008 WL 2789052, at *2 (E.D. La. July 17, 2008) (citing
Weaver v. Mo. Pac. R.R. Co., 152 F.3d 427, 429 (5th Cir. 1998)).
A railroad must provide its employees with a reasonably safe work
45 U.S.C. § 51 provides:
Every common carrier by railroad while engaging in commerce between
any of the several States or Territories . . . shall be liable in
damages to any person suffering an injury while he is employed by
such carrier in commerce . . . for such injury . . . resulting in
whole or in part from the negligence of any of the officers, agents,
or employees of such carrier, or by reason of any defect or
insufficiency, due to its negligence, in its cars, engines,
appliances, machinery, track, roadbed, works, boats, wharves, or
other equipment. . . .
environment, and a railroad is considered negligent under the FELA
if it knew, or should have known, that its conduct was inadequate
to protect its employees. Huffman v. Union Pac. R.R., 675 F.3d
412, 417 (5th Cir. 2012) (citing Urie v. Thompson, 337 U.S. 163,
178-79 (1949) (interior alterations in original)). Railroads are
responsible for “injury or death resulting in whole or part from
[their] negligence,” Collins, 2015 WL 4478040, at *4, and the
causal standard under the FELA is “very low” compared to the
traditional negligence proximate cause standard, Romero, 2008 WL
5156677, at *3. The FELA “departs from common law negligence
traditional negligence standard.” Id. at *3 (citing Sinkler v. Mo.
Pac. R.R. Co., 356 U.S. 326 (1958)). Under the FELA, railroads are
liable for an employee’s injuries or death if the railroad “played
a part—no matter how small—in bringing about the injury.” Huffman,
675 F.3d at 417 (emphasis added) (citing CSX Transp., Inc. v.
McBride, 564 U.S. 685 (2011)).
And, under the FELA, an employee’s
contributory negligence will not bar his recovery, but may be
considered to diminish recovery in proportion to his or her fault.
Romero, 2008 WL 515667, at *3 (citing 45 U.S.C. § 53; Norfolk S.
Ry. Co. v. Sorrell, 549 U.S. 158, 167 (2007)).
Plaintiff alleges that on March 18, 2013, he was injured while
“picking up” a set of railcars. Plaintiff alleges that a privacy
fence in close proximity 2 to his work area suddenly collapsed on
him while he was conducting a train movement. Plaintiff alleges
that he raised his left hand to prevent the fence from hitting his
face, but the fence pinned his hand against the moving railcar.
Plaintiff asserts that he ran with the moving train car to free
his hand, but sustained severe injuries to his left hand and thumb
that required immediate surgical repair. Plaintiff alleges that
the fence at issue was bent and damaged throughout his employment
with Defendant, and that the fence could not be latched or locked
because of its dilapidated condition.
Defendant argues that the fence at issue was in good condition
prior to this incident, and that Plaintiff was injured when the
wind caused the gate to blow open because it was not latched or
locked. Defendant asserts that regardless of the condition of the
fence, Plaintiff was responsible for inspecting the area, securing
the gate so the fence would not blow open, and ensuring his
surroundings were safe. Defendant also argues that Plaintiff was
trained to inspect the area around him prior to performing his
work, and that his claims that the fence was in poor condition and
collapsed suddenly on him do not create genuine issues of fact for
trial, because he was solely responsible for inspecting the area
around him before performing his work. Defendant further contends
The fence was approximately three to four feet from the railroad track.
that the fence could not have been damaged prior to this incident
because neither Plaintiff nor any other employee reported that the
Plaintiff’s injury was entirely unforeseeable. Finally, Defendant
Due to the liberal construction and interpretation of FELA
claims, a plaintiff’s FELA claim should only be dismissed on
summary judgment “when there is a complete absence of probative
facts supporting the plaintiff’s position.” Howard v. Canadian
Nat’l/Ill. Ctr. R.R., 233 F. App’x 356, 357-58 (5th Cir. 2007)
(unpublished) (noting that “the test of sufficiency of the evidence
in FELA cases is very much like the Alabama rule which provides
that if there is a scintilla of evidence a jury question is
presented.”). “The ultimate fact question is whether the railroad
exercised reasonable care in creating a reasonably safe working
condition.” Rivera v. Union Pac. R.R. Co., 378 F.3d 502, 507 (5th
Cir. 2004). There is not a complete absence of probative fact
supporting Plaintiff’s position in this case. While Defendant
contends that the fence at issue was in good condition prior to
the incident, 3 the foreman at the time of this incident, John
McCrossen, Jr., testified that he is not aware of a single instance
Defendant submitted the affidavit of TCI’s Facility Manager, Earl Jones, who
attests that the fence at issue was in “very good condition up until the gate
was damaged” in the March 2013 incident. R. Doc. 16-4 at 1-2.
in which Defendant conducted an inspection at the site where
Plaintiff was injured, 4 and Plaintiff testified in his deposition
that the fence at issue was “broken” 5 from the time he began working
for Defendant in 2012. 6 Thus, there is a genuine issue of fact as
to whether the fence was in good or poor condition prior to the
incident, which in turn may determine whether Defendant exercised
reasonable care in creating a reasonably safe working environment.
See id. Defendant further argues that Plaintiff was responsible
for ensuring that his work space was safe, and that Plaintiff must
not have ensured that his area was clear prior to conducting the
stretch. 7 However, Plaintiff suggests that his area was secure and
hazard-free prior to telling the foreman or conductor to stretch
the railcars, 8 but after the stretch began, the fence collapsed on
him. 9 Thus, there is also a factual issue as to whether Plaintiff
ensured that his area was clear prior to performing his duties.
Defendant also contends that the cause of the accident was
Plaintiff’s failure to latch or lock the fence. Defendant submitted
the accident report from the March 2013 incident, which described
R. Doc. 16-6 at 7.
R. Doc. 16-3 at 18.
6 Id. at 26; R. Doc. 20-2 at 8.
7 See R. Doc. 16-3 at 37-38. Plaintiff agrees that it is his job to observe his
surrounding and to ensure that he can perform his duties safely.
8 See id. at 38. To ensure that train cars are or are not secured to one another,
Defendant’s railroad employees engage in a “stretching” maneuver. Essentially,
the switchman attempts to connect or disconnect the train cars and then tells
the conductor or the foreman to “stretch” the cars. If the cars are connected,
then the stretch will move all of the connected railcars. If the cars are
properly, or improperly, disconnected, then only some of the railcars will move.
9 Id. at 35-37.
the injury as occurring in the following manner: “While trying to
shore gate out of the way—left hand got caught between the gate
and moving rail.” 10 The accident report lists the “cause of the
accident” as “gate not latched/locked.” 11 However, the person who
created the accident report, John McCrossen, Sr., does not recall
how he determined that this was the cause of the accident, never
spoke with Plaintiff about what happened prior to creating the
accident report, does not recall whether he took any witness
statements prior to creating the accident report, did not know the
condition of the fence prior to creating the accident report, and
acknowledge that this was what in fact occurred. 12 Additionally,
Plaintiff testified that he could not latch or lock the fence
because it was dilapidated, 13 and that the fence could not move
because of its condition. 14 Again, the jury will determine whether
the fence was in good or poor condition prior to this incident and
whether the fence could have, or should have, been latched or
Plaintiff’s version of events and determines that the fence was in
R. Doc. 16-5.
R. Doc. 20-4 at 4-6.
R. Doc. 16-3 at 22.
Id. at 24.
disrepair, it may also find that a prior inspection of the fence
would have revealed its allegedly defective condition. If so, the
jury may also determine that Defendant was negligent in failing to
Montgomery v. CSX Transp., Inc., No. 14-1520, 2017 WL 219369, at
*6 (D. Md. Jan. 19, 2017) (citing Deans v. CSX Transp., Inc., 152
F.3d 326, 330 (4th Cir. 1998) (“FELA imposes on a railroad carrier
a duty to take reasonable precautions to inspect the workplace and
protect its employees from possible danger. . . . A FELA Plaintiff
must provide evidence to show that an earlier inspection would
have revealed or cured the problem , or that that the railroad
added)). Defendant’s defense may be that it was never informed of
the poor condition of the fence or that the fence should have been
latched or locked. But the cause of Plaintiff’s March 2013 injury,
and any comparative fault that may be attributed to him, are
questions of fact that must be resolved by the jury. See McBride,
564 U.S. at 703 (“Reasonable foreseeability of harm . . . is an
essential ingredient of FELA negligence. The jury, therefore, must
be asked, initially: Did the carrier fail to observe that degree
of care which people of ordinary prudence and sagacity would use
under the same or similar circumstances?” ) (emphasis added); see
also Huffman, 675 F.3d at 418 (“If an injury has multiple causes,
it is sufficient if the railroad’s “negligence played a part—no
matter how small—in bringing about the injury.”); Frank, 2008 WL
2789052, at *3-4 (noting that summary judgment in favor of the
defendant was unwarranted under the FELA even if the overall weight
of the evidence presented favored the defendant’s version of
The 2014 Incident
In 2014, Plaintiff allegedly injured his bicep and shoulder
while attempting to uncouple two railcars. Plaintiff alleges that
Defendant is liable for these injuries because it violated the
FSAA and failed to provide him with a reasonably safe place to
work under the FELA. “In FELA actions based on a railroad’s safety
interpreting it strike an even more employee-favorable balance in
terms of adjusting responsibility for the loss.” Romero, 2008 WL
5156677, at *3. While the FELA generally requires a plaintiff to
prove the common law elements of negligence, this “requirement is
malfunction in violation of the FSAA.” Id. (citing Affolder v. New
York, C. & St. L.R. Co., 339 U.S. 96, 97 (1950)). Further, “a
contributory negligence by the plaintiff.” Id. (citing Eckert v.
Aliquippa & S. R.R. Co., 828 F.2d 183, 186 (3d Cir. 1987)).
Plaintiff’s argument may be summarized as follows: At the
time of the incident, Plaintiff was working for Defendant and was
assigned to uncouple railcars. Plaintiff and Clarence “Sonny”
Boudloche were attempting to uncouple two railcars. To uncouple
connected railcars have a cut lever, so the employee may pull
either railcar’s cut lever to disconnect the railcars from one
another. Boudloche unsuccessfully attempted to pull the cut lever
several times on one of the railcars. Plaintiff alleges that the
“knuckle pin,” which is a part of the “coupler,” which connects
the two railcars, was not working properly. After Boudloche was
unsuccessful in uncoupling the railcars, Plaintiff went to the
other connected railcar and pulled the cut lever. When Plaintiff
pulled this cut lever he successfully uncoupled the railcars, but
he ruptured his bicep and injured his shoulder in the process.
Plaintiff alleges that because the first cut lever did not function
properly and he was forced to go around the railcars to pull the
other cut lever, which then resulted in his injuries, Defendant
violated the FSAA and is per se negligent and liable for his
Defendant first argues that Plaintiff’s complaint does not
plead a cause of action under the FSAA, and second, Defendant
contends that Plaintiff did not injure his bicep or shoulder on
the allegedly defective equipment, but rather injured himself
while pulling a different “cut lever” which operated normally.
Plaintiff’s complaint provides that Defendant “violated railroad
safety regulations enacted for the safety of its employees, which
renders [Defendant] strictly liable under the provisions of FELA
and U.S. Supreme Court precedent.” 15 Plaintiff could have been
clearer in alleging a strict-liability claim under the FSAA, but
Richardson v. BNSF Ry. Co., No. 13-5415, 2014 WL 347047, at *2-3
(E.D. La. Jan. 28, 2014) (holding that “a FELA employer’s violation
of a statutory or regulatory duty gives rise to FELA liability for
a resulting employee injury.”); see also Magelky v. BNSF Ry. Co.,
579 F. Supp. 2d 1299, 1304-05 (D. N.D. 2008 ) (“The [FSAA] does
not create a private cause of action, but employees who allege
that they have been injured as a result of a safety violation may
sue under FELA.”). Accordingly, the Court will next address whether
Defendant violated the FSAA and should be held negligent per se
“To recover for a violation of the [FSAA], a plaintiff must
show: (1) the statute was violated; and (2) the violation was ‘a
causative factor contributing in whole or in part to the accident’
that caused her injuries.” McGowan v. Wis. Cent. Ltd., No. 040170, 2005 WL 2077355, at *3 (E.D. Wis. Aug. 26, 2005) (citing
Richards v. Consol. Rail Corp., 330 F.3d 428, 432 (6th Cir. 2003);
Grogg v. Mo. Pac. R.R. Co., 841 F.2d 210, 212 (8th Cir. 1988));
R. Doc. 1 at 5 (emphasis added).
see also Coray v. S. Pac. Co., 335 U.S. 520, 523 (1949) (“In this
case where undisputed evidence established that the train suddenly
stopped because of defective air-brake appliances, petitioner was
entitled to recover if this defective equipment was the sole or
contributory proximate cause of the decedent employee’s death.”).
Plaintiff having to go around the railcars to pull the other
railcar’s cut lever to uncouple the railcars. “A plaintiff can
establish the railroad’s liability for an accident involving a
coupling mechanism by either (1) providing evidence that the two
cars failed to couple automatically upon impact or (2) showing a
defect in the coupling equipment.” Loy v. Norfolk S. Ry. Co., 112
F. Supp. 3d 795, 803 (N.D. Ind. 2015) (citing DeBiasio v. Ill.
“plaintiff need not identify a specific defect” but must only
identify a specific piece of equipment covered by the FSAA which
he alleges is defective. Id. (citing Myers v. Reading Co., 331
U.S. 477, 483 (1947)). Here, Plaintiff alleges that the cut lever
R. Doc. 21 at 2. Plaintiff’s memorandum incorrectly cites the provision of
the FSAA which he argues Defendant violated. Plaintiff cites to 49 U.S.C. §
20302(a)(1)(B), but his memorandum in fact provides the text of 49 U.S.C. §
20302(a)(1)(A). 49 U.S.C. § 20302(a)(1)(B) appears to be inapplicable to
Plaintiff’s 2014 incident because it did not involve “sill steps and efficient
uncouple after several attempts and Plaintiff was forced to go
around 17 the railcars to uncouple them. Accordingly, there is at
least a genuine issue of fact as to whether the coupler or cut
lever was defective, which, if proven, is a violation of 49 U.S.C.
§ 20302(a)(1)(A). See Mahl, 406 F.2d at 1203-04 (“The failure of
a coupler to uncouple due to a defect therein is sufficient to
establish liability under the [FSAA], regardless of whether it was
necessary for the employee to go between the ends of the cars. .
. . If the switchman operates the coupler with due care in the
normal manner, the jury can decide that the coupler is defective
in violation of the Act by virtue of its failure to release after
several attempts.” (emphasis added)); see also DeBiaso, 52 F.3d at
684 (finding that the plaintiff produced sufficient evidence of a
49 U.S.C. § 20302(a)(1)(A) violation where the Plaintiff testified
that the coupler did not function properly and had to be manually
lifted to uncouple the railcars); see also Hoemmelmeyer v. CSX
Transp., Inc., No. 4-166, 2005 WL 2124259, at *5 (S.D. Ohio Aug.
30, 2005) (denying defendant’s motion for summary judgment because
17 It is immaterial that Plaintiff did not actually go between the two cars but
instead went around them. See Davis v. Wolfe, 263 U.S. 239, 242-43 (1923)
(quoting Louisville R.R. v. Layton, 243 U.S. 617, 621 (1917) (noting that the
FSAA makes “clear that the liability in damages to employees for failure to
comply with the law springs from it being made unlawful to use cars not equipped
as required—not from the position the employee may be in or the work which he
may be doing at the moment when he is injured. . . . [C]arriers are liable to
employees in damages whenever the failure to obey these safety appliance laws
is the proximate cause of injury to them when engaged in the discharge of
duty.”); see also, Mahl, 406 F.2d at 1203 (noting that it was “not necessary
for the Plaintiff to show that he had to go between the cars in order to uncouple
them” in order to show a violation of the FSAA).
it found factual issues as to what sort of inspection the defendant
conducted, whether such inspection included the cut-lever that
allegedly injured the plaintiff, and the extent of the plaintiff’s
Finally, Defendant argues that Plaintiff cannot prove that
the allegedly defective coupler or cut lever caused his injuries
because Plaintiff was only injured after the cut lever and coupler
causation and whether Plaintiff’s injuries resulted “in whole or
in part” from Defendant’s violation of the FSAA is an issue of
fact left for the jury. The Supreme Court has made clear that “if
the jury determines that the defendant’s breach” played a part in
producing Plaintiff’s injury, it may find in Plaintiff’s favor.
Carter, 338 U.S. at 435 (emphasis added). Accordingly, while
allegedly defective coupler and cut lever, whether these devices
were defective and caused Plaintiff’s injury are issues of fact
that must be resolved by the jury. Therefore, summary judgment is
inappropriate on Plaintiff’s FSAA and FELA claims for the 2014
injury, because if the jury determines that Defendant violated the
FSAA then Defendant also violated the FELA. See Ill. Cent. Gulf
R.R. Co. v. Int’l Paper Co., 824 F.2d 403, 405 (5th Cir. 1987) (“A
railroad is strictly liable under the FELA for injury caused by a
violation of the SAA.”) (citing Crane v. Cedar Rapids & Iowa City
Ry. Co., 395 U.S. 164, 166 (1969)).
IT IS HEREBY ORDERED that the New Orleans Public Belt Railroad
Commission’s Motions for Summary Judgment (R. Docs. 16, 17) are
New Orleans, Louisiana this 24th day of May, 2017.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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