Holloway v. Union Pacific Railroad Company

Filing 55

OPINION MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendants Motion for Summary Judgment, [Doc. No. 30 ], is granted. A separate judgment is entered this same date. Signed by District Judge Henry Edward Autrey on 7/13/17. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHAEL L. HOLLOWAY,

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Plaintiff,
v.
UNION PACIFIC RAILROAD CO.,
Defendant.

CASE NO. 4:15CV1741 HEA

OPINION, MEMORANDUM AND ORDER
Plaintiff is suing his employer, Defendant Union Pacific Railroad, for
alleged violations of the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq.
Defendant has moved for summary judgment, [Doc. No. 30]. Plaintiff opposes the
Motion. For the reasons set forth below, the motion will be granted.
Facts and Background
The following facts are not disputed, unless otherwise noted. Plaintiff
claims to have suffered the injury at issue in this case on December 17, 2012, while
moving a generator from Union Pacific's depot in Scott City, Missouri, to another
building. Plaintiff alleges in his complaint that Union Pacific was negligent in that
it (1) failed to provide a reasonably safe place to work; (2) failed to provide
reasonably safe equipment; (3) failed to properly instruct, educate, or train its
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employees; (4) failed to warn Plaintiff of dangers that confronted him; (5) failed to
provide proper supervision and training; (6) failed to adopt or enforce safe customs
and practices; and (7) assigned plaintiff work that was unsafe.
Plaintiff began his career with Defendant in 1979. He joined the signal
department in 1988. In 2011, he became a Signal Forman.
Before his incident occurred, Plaintiff had been told to move several
generators out of the depot at Scott City because they contained gasoline and
should not be kept in an occupied building. He was first told to move the
generators in June or July of 2012, which was about six months before his incident.
Plaintiff was again told in a meeting on December 13, 2012, that the generators
needed to be moved.
When plaintiff started work on December 1 7, 2012, he did not initially plan
on moving any generators. Plaintiff arrived at work at around 7:00 a.m.,
participated in a conference call that lasted about ninety minutes, and then checked
his email and filled out an expense report and some other paperwork. It was not
until about 10:00 or 10:30 a.m. on December 17, 2012, when he decided to move
one of the generators. Plaintiff decided to move the generator on December 17,
2012, because he was worried about being disciplined and he wanted to be able to
say that he had at least started on the task of moving the generators.

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Plaintiff decided to move one of the two small generators that he thought he
could move by himself. To move the generator, Plaintiff first got it out of the depot
and loaded it onto his pickup truck, using a pallet as a "makeshift ramp" to help
him get the generator into the bed of the truck. After loading the generator in his
truck, plaintiff then drove his truck one hundred yards or so over to the signal
cabinet where he had decided to put the generator. He then slid the generator out of
the pickup and dropped it on the ground. After dropping the generator on the
ground, Plaintiff dragged the generator over to the door of the signal cabinet, got
beside it, and pushed it up to the edge of the door. He was going to lift the
generator and drag it inside the signal cabinet but, as he squatted down, he felt pain
in his back.
Plaintiff testified that he had sufficient time to do the job of moving the
generator safely. At the time of his incident, Plaintiff was moving at a safe speed
and was not rushing. He was alert, attentive, and focused on the task of moving the
generator.
Plaintiff claims that the railroad should have provided a ramp or assistive
devices like a boom on his truck, a two-wheeled dolly, or a forklift. He also claims
that he should have been provided with additional help.
Plaintiff assigned the task of moving the generators to himself. No one at
the railroad gave Plaintiff instructions on how to move the generators, or said that
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they had to be moved by a certain day. No one at the railroad prevented plaintiff
from getting help, a boom, a ramp, a dolly, or a forklift, for the purpose of moving
the generators. All decisions on how the generator was going to be moved were
made by Plaintiff.
Before his incident, Plaintiff did not anticipate any problems with the task of
moving the generator. Plaintiff completed a "lone worker job briefing" before his
incident in which he determined that he did not need any special tools or lifting
devices to do the job safely. The only risk Plaintiff identified in his "lone worker
job briefing" was the need to use proper lifting techniques-he did not identify risks
like the lack of a ramp or the need for additional help or assistive devices.
Before his incident occurred, Plaintiff had never complained that he needed
a ramp, boom, dolly, forklift, or additional help, to move the generator. Plaintiff
did not try to obtain any special tools before moving the generator. He did not try
to obtain a ramp, boom, dolly, or forklift, before moving the generator. Even
though there were about ten members of a maintenance-of-way gang in the depot
on the morning of his incident, Plaintiff did not ask anyone to help him move the
generator.
At the time of his incident, plaintiff was a supervisor over numerous
employees and had authority to direct them to do the work or to assist him in doing
the work. Plaintiff believed before he started moving the generator on the day of
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his incident that he could move the generator by himself, without any special tools,
and do so safely without injuring himself.
Before his incident, Plaintiff had moved generators by himself, and he did so
without injuring himself. Plaintiff believed he could move the generator safely on
the day of his incident, just as he had done in the past. According to plaintiff, ". . .
I've moved generators before by myself, I didn't see any reason I couldn't move it
at this time by myself. . . . I didn't see any reason that it would be different this
time."
Standard of Review
Summary judgment is proper if the movant shows that there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as a
matter of law. See Fed. R. Civ. P. 56(a). The movant bears the initial responsibility
of informing the Court of the basis for the motion, and must identify those portions
of the record which the movant believes demonstrate the absence of a genuine
issue of material fact. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th
Cir. 2011) (en banc). If the movant does so, the nonmovant must respond by
submitting evidentiary materials that set out specific facts showing that there is a
genuine issue for trial. Id.
On a motion for summary judgment, facts must be viewed in the light most
favorable to the nonmoving party only if there is a genuine dispute as to those
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facts. Id. Credibility determinations, the weighing of the evidence and the drawing
of legitimate inferences from the evidence are jury functions, not those of a judge.
Id. But the nonmovant must do more than simply show that there is some
metaphysical doubt as to the material facts. Id. In order to show that disputed facts
are material, the party opposing summary judgment must cite to the relevant
substantive law in identifying facts that might affect the outcome of the suit. Quinn
v. St. Louis County, 653 F.3d 745, 751 (8th Cir. 2011). The existence of a mere
scintilla of evidence in support of the nonmovant's position will be insufficient;
there must be evidence on which the jury could conceivably find for the
nonmovant. Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782, 791-92 (8th
Cir. 2011). Where the record taken as a whole could not lead a rational trier of fact
to find for the nonmoving party, there is no genuine issue for trial. Torgerson, 643
F.3d at 1042.
Discussion
Plaintiff has sued Defendant, alleging violations of the Federal Employers'
Liability Act (FELA). His primary allegation is that Defendant breached its nondelegable duty to provide Plaintiff with a reasonably safe place to work, which
contributed to his December 2012 workplace injury.
Plaintiff’s FELA claim is premised on his December 2012 injury, in which
he allegedly hurt his back while moving a generator. According to Plaintiff, that
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injury was due in whole or in part to Defendant’s negligence in failing to provide
him with adequate assistance; in failing to provide him with proper tools or
equipment; in removing two wheels from the generator; using threats to apply
unreasonable pressure to Plaintiff; and in storing the generators in an unsafe
location, thus making it necessary for Plaintiff to move them. Defendant moves
for summary judgment, arguing that it was not negligent in any respect and that the
injury was not reasonably foreseeable, and therefore not actionable.
Enacted in 1908, FELA provides railroad employees with a federal cause of
action for injuries “resulting in whole or in part from the negligence” of the
railroad. 45 U.S.C. § 51. The statute imposes upon employers a continuous duty to
provide a reasonably safe place to work. Cowden v. BNSF Ry. Co., 690 F.3d 884,
889 (8th Cir. 2012). FELA is to be liberally construed, but it is not a workers'
compensation statute, and the basis of liability is “negligence, not the fact that
injuries occur.” Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 543 (1994).
So, Plaintiff must prove the customary common law elements of a negligence
claim: duty, breach, foreseeability, and causation. Crompton v. BNSF Ry. Co., 745
F.3d 292, 296 (7th Cir. 2014); Tufariello v. Long Island R. Co., 458 F.3d 80, 87
(2d Cir. 2006).
However, the Court applies a relaxed standard of causation under the FELA.
CSX Transp., Inc. v. McBride, 564 U.S. 685 (2011). “Under [FELA] the test of a
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jury case is simply whether the proofs justify with reason the conclusion that
employer negligence played any part, even the slightest, in producing the injury or
death for which damages are sought.” Id.
Defendant has submitted a Statement of Uncontroverted Material Facts in
support of its Motion for Summary Judgment, in which Defendant sets forth
specific references to deposition testimony. Plaintiff does not specifically respond
to Defendant=s Statement of Uncontroverted Facts, rather, Plaintiff has filed an
opposition to summary judgment with his own Statement of Facts. This, however,
is insufficient to controvert Defendant=s Statement of Uncontroverted Material
Facts.
Pursuant to this Court’s Local Rule 7-4.01(E),
Every memorandum in opposition [to a motion for summary judgment] shall
include a statement of material facts as to which the party contends a genuine issue
exists. Those matters in dispute shall be set forth with specific references to
portions of the record, where available, upon which the opposing party relies. The
opposing party also shall note for all disputed facts the paragraph number from
movant=s listing of facts. All matters set forth in the statement of the movant shall
be deemed admitted for purposes of summary judgment unless specifically
controverted by the opposing party.
Plaintiff testified in his deposition that he had previously moved generators
by himself without injury. He did not anticipate any trouble in moving the
generator, and that he could move it safely. He admits he had sufficient time to
move the generator and that at the time, he was moving at a safe speed at the time

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of his injury. He further testified that no one told him how to move the generator,
nor that he could not use additional equipment or help. He did not ask for help nor
did he assign employees whom he supervised the task of moving the generator or
helping him move the generator. He completed a “lone worker job briefing” in
which he determined that he did not need any special tools or lifting devices to
perform the job safely. Plaintiff cannot, in hindsight reassess his decisions in order
to establish Defendant’s liability.
Likewise, Plaintiff fares no better on his claim that Defendant removed the
wheels from the generator. There is no evidence that this particular generator
originally had wheels. Plaintiff’s sole support for this claim is an unauthenticated
parts list which indicates that certain generators could have wheels. Speculation
can never overcome facts; Plaintiff’s argument is pure speculation with respect to
Defendant’s “removal” of the wheels.
Plaintiff admits he had sufficient time within which to move the generators.
He did not do so from June or July, 2012 until December 17, 2012. Plaintiff’s
claim that he was being pressured into moving the generators is belied by the facts
regarding the assignment of transporting the generators to the actual performance of
the task.
Similarly, Plaintiff’s claim that he was being unreasonably pressured is
neither supported by admissible evidence nor reasonable in light of his testimony
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that he had had sufficient time within which to move the generators. Nowhere does
Plaintiff explain the lack of movement prior to December, 2012. Rather, Plaintiff
attempts to blame Defendant for the lack of movement, while the record establishes
that Plaintiff began moving the generator because he was confronted by Johnson for
his procrastination. He wanted to at least show some action in moving the
generators when he attempted to move the first generator on December 17, 2012.
Finally, Plaintiff argues that the generators should not have been stored in an
unsafe location, which in turn required the movement of the generators to an
unoccupied building. As Defendant correctly argues, this first time argument in
response to summary judgment cannot carry Plaintiff’s shifted burden. This claim
was not included in the allegations of negligence in Plaintiff’s Complaint. As such,
Plaintiff cannot now set out a newly alleged claim to avoid summary judgment.
Holman v. Coca-Cola Enterprises, Inc., 4:05CV1032 HEA 2006 WL 2460795, at
*5 (E.D. Mo. August 23, 2006), aff’d, 258 F.App’x 919 (8th Cir. 2007).
Furthermore, even assuming Plaintiff could raise the storage issue, this fact
has nothing to do with the cause of Plaintiff’s injury. The injury would have
occurred regardless of where the generators were stored and whether that storage
was a safe location or not.
Plaintiff’s claim of foreseeability also fails. Plaintiff had previously moved
generators by himself. He admitted that he did not think he needed additional help
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or additional equipment. Defendant had provided training on proper lifting
techniques. While Plaintiff argues that this demonstrates that Defendant could have
foreseen his injury, Defendant’s position is clearly correct. Because Defendant
provided the training, it would be reasonable to believe that Plaintiff would have
assessed the situation and asked for help if he thought, through the training he had
previously had, that he needed assistance by way of equipment or manpower.
Plaintiff himself decided when and how to move the generator. Plaintiff believed
moving the generator himself was safe; Defendant cannot therefore be regarded as
having been able to foresee something for which Plaintiff made the salient
decisions.
Viewing the facts in the light most favorable to Plaintiff, clearly there are no
disputed facts that could give rise questions for a jury to resolve. The facts
establish that Defendant was neither negligent nor could have foreseen Plaintiff’s
injury. Under the FELA, Defendant is entitled to judgment as a matter of law.
Conclusion
Based upon the foregoing analysis, Defendant’s Motion for Summary
Judgment will be granted. Plaintiff has failed to specifically controvert
Defendant’s Motion with admissible evidence that Defendant was negligent under
the Federal Employer’s Liability Act.
Accordingly,
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IT IS HEREBY ORDERED that Defendant’s Motion for Summary
Judgment, [Doc. No. 30], is granted.
A separate judgment is entered this same date.
Dated this 13th day of July, 2017.

________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGEy

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