Allan Barritt v. Union Pacific Railroad Company

Filing 28

MEMORANDUM RULING re 17 MOTION for Summary Judgment filed by Union Pacific Railroad Co. Signed by Judge Terry A Doughty on 9/11/2018. (crt,Crawford, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION

ALLAN BARRITT

CIVIL ACTION NO. 17-1044

VERSUS

JUDGE TERRY A. DOUGHTY

UNION PACIFIC RAILROAD CO.

MAG. JUDGE KAREN L. HAYES

RULING
Pending before the Court is a Motion for Summary Judgment [Doc. No. 17] filed by
Defendant Union Pacific Railroad Co. (“Union Pacific”). Union Pacific moves for summary
judgment on Plaintiff Allan Barritt’s (“Barritt”) claims under the Federal Employers’ Liability Act
(“FELA”), 45 U.S.C. §§ 51-60, contending that his claims are subsumed by regulations under the
Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20101. Barritt filed a memorandum in
opposition to the motion. [Doc. No. 23]. Union Pacific filed a reply memorandum [Doc. No.
27].
For the following reasons, the Motion for Summary Judgment on Liability is DENIED.
I.

FACTS AND PROCEDURAL HISTORY
Barritt was employed by Union Pacific as a Manager of Operating Technology. On

September 23, 2014, he was riding a locomotive to evaluate the job performance of the engineer
and conductor. Barritt instructed the engineer to stop at the siding off the mainline in Swartz,
Louisiana, near milepost 490.5. Barritt disembarked the locomotive and, based on differing
statements, either (1) took two steps and fell, (2) placed his feet on the ground and slipped as he
took his first step, or (3) got both feet on the ground, turned around, and then his foot gave way or

the ground gave way beneath is foot, and he slipped. Under the various scenarios, Union Pacific
contends that Barritt challenges the condition of the ballast-covered area1 near the railroad track
that is part of the track support structure. Barritt, however, contends that he fell on the walkway,
not the track support ballast.
As a result of his fall, Barritt broke his ankle, and he contends that this injury has ended
his career with Union Pacific.
On August 17, 2017, Barritt brought this FELA suit against Union Pacific seeking to
recover for permanent injuries, pain and suffering, lost wages, medical expenses, and loss of the
ability to work, labor, and enjoy the normal pursuits of life.
On July 19, 2018, Union Pacific filed the instant Motion for Summary Judgment. On
August 27, 2018, Barritt filed a memorandum in opposition to the motion. [Doc. No. 23].
On September 10, 2018, Union Pacific filed a reply.. [Doc. No. 27].
Briefing is now complete, and the Court is prepared to rule.
II.

LAW AND ANALYSIS
A.

Standard of Review

Under Federal Rule of Civil Procedure 56(a), A[a] party may move for summary judgment,
identifying each claim or defense--or the part of each claim or defense--on which summary
judgment is sought. The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.@
The moving party bears the initial burden of informing the court of the basis for its motion by

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Ballast is the material used to support the track structure and support drainage and
normally consists of crushed rocks.
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identifying portions of the record which highlight the absence of genuine issues of material fact.
Topalian v. Ehrmann, 954 F.2d 1125, 1132 (5th Cir. 1992); see also Fed. R. Civ. P. 56(c)(1) (AA
party asserting that a fact cannot be . . . disputed must support the assertion by . . . citing to
particular parts of materials in the record . . . ). A fact is Amaterial@ if proof of its existence or
nonexistence would affect the outcome of the lawsuit under applicable law in the case. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is Agenuine@ if
the evidence is such that a reasonable fact finder could render a verdict for the nonmoving party.
Id.
If the moving party can meet the initial burden, the burden then shifts to the nonmoving
party to establish the existence of a genuine issue of material fact for trial. Norman v. Apache
Corp., 19 F.3d 1017, 1023 (5th Cir. 1994). In evaluating the evidence tendered by the parties, the
Court must accept the evidence of the nonmovant as credible and draw all justifiable inferences in
its favor. Anderson, 477 U.S. at 255. However, “a party cannot defeat summary judgment with
conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence.” Turner v.
Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (citing Anderson, 477 U.S. at
248).
2.

FELA and FRSA

Union Pacific moves the Court for summary judgment, arguing that Barritt is preempted
from proceeding with his FELA claims under the FRSA. Barritt opposes the motion, responding
that Union Pacific improperly analyzes his claim under preemption, which applies to state law,
but, in fact, this is an issue of two federal laws. He argues further that there is an issue of fact as
where he injured himself, on the walkway or the ballast. Finally, he contends that, regardless, he
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has claims remaining that Union Pacific failed to comply with the ballast regulations and that its
employees acted negligently in dropping him off at an unsafe location. Union Pacific replies that
Barritt fell on the ballast, binding Fifth Circuit precedent set the standard of care for this case under
the federal regulations pertaining to ballasts, that Union Pacific complied with the ballast
regulations, and, therefore, Barritt cannot raise a genuine issue of material fact for trial.
“The FELA provides the exclusive remedy for a railroad employee injured as a result of
his employer’s negligence.” Lane v. R.A. Sims, Jr., Inc., 241 F.3d 439, 442 (5th Cir. 2001) (citing
Wabash R.R. Co. v. Hayes, 234 U.S. 86, 89, 34 S.Ct. 729, 58 L.Ed. 1226 (1914); Janelle v.
Seaboard Coast Line R.R. Co., 524 F.2d 1259, 1261 (5th Cir. 1975)). “It authorizes an injured
railroad employee to recover damages from his employer for ‘injury or death resulting in whole or
in part from the [railroad's] negligence.’” Id. (citing 45 U.S.C. § 51).
As the United States Court of Appeals for the Fifth Circuit has explained:
In a FELA case the plaintiff's burden of proof is “featherweight” and “[o]ur
precedents clearly establish that in this Circuit, a judgment as a matter of law
against the plaintiff in a FELA suit is appropriate ‘only when there is a complete
absence of probative facts’ supporting the plaintiff's position.” Rivera v. Union R.
Co., 378 F.3d 502, 506 (5th Cir.2004) (citation omitted).
As we noted in Boeing Company v. Shipman, 411 F.2d 365 (5th Cir. 1969) (en
banc), overruled in other respects, Gautreaux v. Scurlock Marine, 107 F.3d 331,
336 (5th Cir.1997) (en banc), the FELA “complete absence of probative facts”
standard is in sharp contrast to the more demanding test applicable in other civil
cases, namely that “[o]n motions for directed verdict ... the Court should consider
all the evidence-not just that which supports the non-mover’s case-... A mere
scintilla of evidence is insufficient to present a question for the jury.... There must
be a conflict in substantial evidence to create a jury question.” Boeing, at 374-75.
On the other hand, “the congressional intent in enacting the FELA was to secure
jury determinations in a larger proportion of cases than would be true of ordinary
common law actions ... ‘trial by jury is part of the remedy in FELA cases.’ ” Id. at
371 (citation omitted). Under the FELA, “‘the jury’s power to engage in inferences
must be recognized as being significantly broader than in common law negligence
actions.’ ” Id. (quoting with approval Chicago, Rock Island and Pacific Railroad
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Co. v. Melcher, 333 F.2d 996, 999-1000 (8th Cir.1964)). Moreover, in Boeing we
observed “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.” Id. at 373 n. 9.

Howard v. Canadian Nat'l/Illinois Cent. R.R., 233 F. App’x 356, 357–58 (5th Cir. 2007)
The Federal Railway Safety Act (“FRSA”) was enacted to “promote safety in every area
of railroad operations and reduce railroad related accidents and incidents.” 49 U.S.C. § 20101.
The FRSA contains an express preemption provision, which states that “Laws, regulations, and
orders related to railroad safety and laws, regulations, and orders related to railroad security shall
be nationally uniform to the extent practicable.” 49 U.S.C. § 20106. However, the FRSA
preempts only state laws, regulations and lawsuits. See id. Thus, a FELA action is not expressly
preempted by the FRSA.
However, the Federal Railroad Administration (“FRA”) has enacted regulations pertaining
to track safety. Specifically, the FRA has enacted regulations pertaining to ballast. See 49
C.F.R. § 213.103.
In the Supreme Court case of POM Wonderful LLC v. Coca–Cola Company, 134 S.Ct.
2228 (2014), the Supreme Court considered the intersection of two federal laws, both of which
address labeling.

The Lanham Act made actionable the deceptive and misleading use of

trademarks, among other items. The Federal Food, Drug, and Cosmetic Act (“FDCA”) addresses
the health and safety of the public by, among other actions, prohibiting the misbranding of food
and drink. In POM Wonderful, the distributor of a pomegranate-blueberry juice blend brought
suit against the Coca-Cola Company, alleging that its name, label, marketing, and advertising
misled consumers to believe that its Minute Maid juice blend was primarily pomegranate and
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blueberry when it was predominantly apple and grape juices. POM brought suit under the
Lanham Act, but Coca-Cola argued that the FDCA precluded challenges to the name and label of
the juice blend. The district court granted partial summary judgment to Coca-Cola, and the Ninth
Circuit affirmed in relevant part. However, the Supreme Court granted certiorari to consider
“whether a private party may bring a Lanham Act claim challenging a food label that is regulated
by the FDCA.”

Id. at 2236.

The Supreme Court made clear that a case addressing the

intersection between two federal statutes “is not a pre-emption case,” but the “alleged preclusion
of one cause of action under one federal statute by the provisions of another federal statute.” Id.
Applying the rules of statutory construction, the Supreme Court rejected Coca-Cola’s argument
that the goal of uniformity provided through labeling requirements under the FDCA precluded
suits alleging unfair competition based on misleading labels under the Lanham Act. Id. at 2239–
40.
Applying these principles to the facts herein, the Court finds that Barritt has raised genuine
issues of material fact for trial.
1.

Location of Barritt’s Injury

First, the Court finds that Barritt has raised a genuine issue of material fact for trial based
on the location of his injury. He asserts that he was injured on the walkway, not the track support
ballast, and, therefore, the ballast regulations are inapplicable, regardless of the interplay between
the FRSA and FELA. Given a FELA plaintiff’s “featherweight” burden, the Court agrees.
Union Pacific will have the opportunity to attack the alleged inconsistency of his accounts of his
fall on cross-examination, but Barritt is entitled to present his version of events to the jury.

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2.

Union Pacific’s Compliance with Applicable Regulation

Second, even if the accident occurred on the track support ballast, the Court finds that
Barritt may proceed with his claim that Union Pacific failed to comply with the applicable FRSA
regulations. Union Pacific relies on the Fifth Circuit’s decision in Lane v R.A. Sims, Jr., 241 F.3d
439 (5th Cir. 2001), to support its contention that Barritt cannot pursue a negligence claim under
FELA if it complied with the applicable ballast regulations. Barritt contends that Lane was
implicitly overruled by POM Wonderful. Regardless, however, the parties dispute whether Union
Pacific did, in fact, comply with the track ballast regulations. Even under the express preemption
provision of the FRSA applicable to state law claims, a plaintiff may pursue a cause of action
“seeking damages for personal injury . . . alleging that a party . . . has failed to comply with the
Federal standard of care established by a regulation or order issued by the Secretary of
Transportation (with respect to railroad safety matters).”

49 C.F.R. § 20106(b)(1)(A).

Therefore, the Court finds that there is also a genuine issue of material fact for trial on this claim.2
III.

CONCLUSION
For the reasons set forth above, Union Pacific’s Motion for Summary Judgment is

Based on these conclusions, the Court declines to reach any of the parties’ remaining
arguments. If necessary, the parties may engage in further motion practice prior to trial.
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DENIED.
MONROE, LOUISIANA, this 11th day of September, 2018.

TERRY A. DOUGHTY
UNITED STATES DISTRICT JUDGE

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