MONCREASE v. NEW JERSEY TRANSIT RAIL OPERATIONS, INC.
Filing
31
OPINION. Signed by Judge Kevin McNulty on 3/30/2016. (nr, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ZENOLA MONCREASE,
Civ. No. 12-6698 (KM)
Plaintiff,
OPINION
V.
NEW JERSEY TRANSIT RAIL
OPERATIONS, INC.,
Defendant.
KEVIN MCNULTY, U.S.D.J.:
Plaintiff, Zenola Moncrease, brings this suit against defendant New
Jersey Transit Rail Operations, Inc. (“NJ Transit”) relating to a workplace injury
she suffered while employed by NJ Transit. Moncrease asserts claims under
the Federal Employers’ Liability Act (“FELA”), 45 U.S.C.
Federal Locomotive Inspection Act (“LIA”), 49 U.S.C.
§ 51 et seq., and the
§ 20701 et seq. (Dkt. No. 1
(“Cplt.”)) 1
Before the Court is plaintiff’s motion for partial summary judgment. (Dkt.
No. 26) Plaintiff requests a determination that NJ Transit violated LIA. She also
asks the Court to bar defendant’s use of a contributory negligence defense. (See
Dkt. Nos. 26-2 p. 1; 26-4) For the reasons discussed below, I will grant
plaintiff’s motion for partial summary judgment.
I. BACKGROUND
On December 10, 2010, Moncrease was working as a conductor on an NJ
1
Plaintiff also brings a claim under the Federal Safety Appliances Act (“FSAA”),
§ 20301 et seq., which is not at issue on this motion. (See Cplt. ¶ 2)
49 U.S.C.
1
Transit train traveling in New Jersey. (Cplt. ¶10; Dkt. No. 26-2 P. 1)2 As part of
her duties, plaintiff operated a “trap door.” (Dkt. No. 26 p. 2) The trap door is
lowered or raised depending on the height of the platform at a particular
station. At a station with a high platform, the trap door is lowered to serve as a
walkway for passengers entering and leaving the train. At stations with low
platforms, the trap door remains raised, leaving exposed a stairwell that
passengers use to board and exit. (Id.)
At the time of Moncrease’s injury, the train was stopped at a highplatform station, and Moncrease was lowering the trap door located on the first
car of the train. (Id. p. 3) This was the first time that Moncrease had attempted
to raise or lower this particular trap door during the trip. (Id. p. 3) To close the
trap door, Moncrease had to release a “switch or latch,” which is spring
activated. Moncrease alleges that when she attempted to use the switch/latch,
it “snapped back” and caught half of her right middle finger between the
release and another part of the trap door. (Id. pp. 3-4) She contends that the
switch/latch was defective and that had it been working properly “the release
should have returned to its normal position, but without a snapping force.” (Id.
p.4)
Moncrease reported her injury to other members of the crew. She also
directed the NJ Transit mechanical team to the car. The train did not leave the
station until the mechanical team had repaired or replaced the switch. (Id.)
Moncrease asserts that the injury to her finger has caused issues for
years. Symptoms include “throbbing, swelling
...
and major sensitivity.” (Dkt.
No. 26-5 pp. 42, 52-53) The injury caused ongoing discoloration of the fingertip
and fingernail, and Moncrease has undergone surgery in an effort to relieve her
symptoms. (Id. pp. 53, 55)
Plaintiff’s Statement of Material Facts refers to the date of injury as September
10, 2013, which appears to be an error. (See Cplt. ¶ 2; Dkt. No. 28)
2
2
II. DISCUSSION
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides that summary judgment
should be granted “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.”
FED. R. Civ. p. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000). In
deciding a motion for summary judgment, a court must construe all facts and
inferences in the light most favorable to the nonmoving party. See Boyle v.
County of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998) (citing
Peters v. Delaware River Port Auth. of Pa. & N.J., 16 F.3d 1346, 1349 (3d Cir.
1994)). The moving party bears the burden of establishing that no genuine
issue of material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322—
23 (1986). “[Wlith respect to an issue on which the nonmoving party bears the
burden of proof
...
the burden on the moving party may be discharged by
‘showing’—that is, pointing out to the district court—that there is an absence
of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325.
Once the moving party has met that threshold burden, the non-moving
party “must do more than simply show that there is some metaphysical doubt
as to material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986). The opposing party must present actual evidence that
creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at
248; see also FED. R. CIV. p. 56(c) (setting forth types of evidence on which
nonmoving party must rely to support its assertion that genuine issues of
material fact exist). “[U]nsupported allegations
...
and pleadings are insufficient
to repel summary judgment.” Schoch v. First Fid. Bancorporation, 912 F.2d 654,
657 (3d Cir. 1990); see also Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138
(3d Cir. 2001) (“A nonmoving party has created a genuine issue of material fact
if it has provided sufficient evidence to allow ajury to find in its favor at trial.”).
If the nonmoving party has failed “to make a showing sufficient to establish the
3
existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial
...
there can be ‘no genuine issue of
material fact,’ since a complete failure of proof concerning an essential element
of the nonmoving party’s case necessarily renders all other facts immaterial.”
Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992) (quoting Celotex,
477 U.S. at 322—23).
B.
FELA and LIA
FELA governs recovery for work-related employee injuries in the railroad
industry. Withrow v. CSX Transp., Inc., Civ. No. 07-4 18, 2008 WL 5101150, at
*2 (S.D. Ohio Nov. 28, 2008). FELA’s “prime purpose” is “protection of railroad
employees.” Id. (quoting Urie v. Thompson, 337 U.S. 163, 191, 69 S.Ct. 1018,
93 L.Ed. 1282 (1949)). It provides a cause of action when the employer’s
negligence “in whole or in part” causes the employee’s injury. Id. (citing 45
U.S.C.
§ 51).3
LIA is an amendment to FELA. Deso v. CSX Transp., Inc., 790 F.Supp.2d
1, 7 (N.D.N.Y. 2011). In relevant part, LIA provides:
A railroad carrier may use or allow to be used a locomotive or
tender on its railroad line only when the locomotive or tender and
its parts and appurtenances
are in proper condition and safe to
operate without unnecessary danger of personal injury.
...
49 U.S.C.
§ 20701. “The Supreme Court and Congress have emphasized that
the statute is to be liberally construed in light of its prime purpose to protect
employees and others by requiring the use of safe equipment.” Withrow, 2009
WL 5101150, at *3 (citing Lilly v. Grand T.WR. Co., 317 U.S. 481, 485, 63 S.Ct.
In relevant part, FELA provides:
Every common carrier by railroad while engaging in commerce
shall be
liable in damages to any person suffering injury while he is employed by
such carrier in such commerce
for such injury or death 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.
45 U.S.C. § 51.
...
...
4
347, 87 L.Ed. 411 (1943)).
LIA does not, however, create an independent cause of action for injured
parties. See Delaware & Hudson Ry. Co. v. KnoedlerMfrs., Inc., 781 F.3d 656,
664-65 (3d Cir.) cert. denied, 136 S. Ct. 54, 193 L. Ed. 2d 30 (2015); Newton v.
Norfolk S. Corp., Civ. No. 05-01465, 2008 WL 55997, at *7 (W.D. Pa. Jan. 3,
2008). Rather, a plaintiff must seek relief for a violation of LIA through FELA.
See Frass v. S. Pac. Transp. Co., 810 F. Supp. 189, 190-91 (S.D. Miss.
1993)(”Because the Locomotive Boiler Inspection Act does not create an
independent cause of action for personal injuries, claims raised under that act
must be brought pursuant to FELA.
.
.
Generally, a FELA claim requires proof of common law negligence. Deso,
790 F.Supp.2d at 7. However, “[pjroof that the defendant violated LIA
establishes FELA negligence per se.” Id. at 8 (internal quotations and citations
omitted). Therefore, a plaintiff bringing a FELA claim premised on an LIA
violation “need not prove the traditional negligence elements of foreseeability,
duty, and breach.” Id. (citations omitted). She must, however, still establish
causation in order to prevail under FELA. Id. Causation is established when a
plaintiff proves that she “suffered injuries resulting in whole or in part from the
statutory violation [of LIA].” Withrow, 2009 WL 5101150, at *3
Here, plaintiff has requested summary judgment on the narrow issue of
whether NJ Transit violated LIA. Plaintiff has not moved for summary judgment
on the larger question of liability under FELA. Therefore, I set aside the issue of
causation.
C.
Violation of LIA
Because I find that there are no issues of material fact in dispute as to
whether NJ Transit violated LIA, I will grant plaintiff’s motion for summary
judgment as to a LIA violation.
LIA was formerly known as the “Boiler Inspection Act.” See Deso, 790
F.Supp.2d at 7 n.h.
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“LIA applies to trains and locomotives that are ‘in use’ and ‘on line.”
Withrow, 2009 WL 5101150, at *3 (citing 49 U.S.C. § 20701). It covers “any
employee engaged in interstate commerce who is injured by reason of a
violation of the Act.” Id. (internal quotations and citation omitted). Defendant
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does not dispute that these basic requirements of LIA are met. (See Dkt. No 28
¶ 2 (admitting that Moncrease was working on a NJ Transit train traveling in
New Jersey at the time of her injury)).
Nor does NJ Transit dispute that the release mechanism which plaintiff
alleges caused her injury is a “part[]” or “appurtenance[J” of a “locomotive,”
subject to the coverage of LIA. See Dkt. No. 28 (making no challenge to the
applicability of LIA); see also Bolden v. Southeastern Pennsylvania
Transportation Authority, 872 A.2d 230, 232 (Pa. Comm. Ct. 2005), affd, 589
Pa. 402, 909 A.2d 797 (2006)(door closing mechanism located in locomotive car
was a “part and appurtenance” under LIA); Monheim v. Union R.R. Co., 788
F.Supp.2d 394, 402 (W.D. Pa. 2011)(LIA “extends to the design, the
construction, and the material of every part of the locomotive and tender and of
all appurtenances,” and “[a] radio housed in the locomotive constitutes a part
or appurtenance of the locomotive.”)
6
Similarly, NJ Transit does not dispute plaintiff’s claim that the release
mechanism was not “in proper condition and safe to operate without
unnecessary danger of personal injury.” 49 U.S.C.
§ 20701; see also Monheim,
The statute states that “[a]ny employee of a carrier, any part of whose duties as
such employee shall be the furtherance of interstate or foreign commerce; or shall, in
any way directly or closely and substantially, affect such commerce
be considered
as being employed by such carrier in such commerce and shall be considered as
entitled to the benefits of this chapter.” 45 U.S.C. § 51.
...
6
A “locomotive” is defined under the statute as “a piece of on-track rail
equipment, other than hi-rail, specialized maintenance, or other similar equipment,
which may consist of one or more units operated from a single control stand with one
or more propelling motors designed for moving other passenger equipment; with one
or more propelling motors designed to transport freight or passenger traffic, or both; or
without propelling motors but with one or more control stands. 49 C.F.R. § 238.5.
Plaintiff states that the train in this case was an “MU locomotive,” which is defined
under the act as “rail rolling equipment self-propelled by any power source and
intended to provide transportation for members of the general public.” Id.
6
788 F. Supp. 2d 394 at 400.
Indeed, defendants admit that the release was defective. For example,
defendants admit that the following facts, among others, are not in dispute:
(1) {A]t the time of the accident, the release switch or latch
...
did not
operate normally because it was defective or broken. (Dkt. Nos. 26, 28
17)
¶J
(2) The release switch or latch did not remain in the “out” position. Instead it
“snapped back” and did not let go of Plaintiff’s hand.... (Id. ¶J 18)
(3) The release or latch was not supposed to snap back as it did when
Plaintiff used it and was injured. Had it been functioning properly, the
release should have returned to its normal position, but without a
snapping force. A properly functioning trap door switch or latch would
never function as it did when Plaintiff was injured. (Id. ¶j 24)
Plaintiff also submits an array of evidence supporting the conclusion that
the release mechanism was defective and unsafe. NJ Transit again admits that
plaintiff has correctly characterized this evidence, and it submits no evidence of
its own.
For example, plaintiff submits an Investigation Report setting forth the
conclusions of the committee that investigated plaintiff’s injury. That report
states:
A mechanical inspection revealed the release to be defective, which
was adjusted at the Hoboken Terminal. Based on the
circumstances of the incident the committee determined that the
employees’ actions did not contribute to the severity of the injury.
(Dkt. No. 26-10) Plaintiff also submitted testimony by Sean Kushnir, a
supervisor at the Hoboken station who was a member of the investigative
committee. Kushnir testified that the mechanical department informed him
that “the equipment was defective” and that the accident was caused by
“damaged equipment.” (Dkt. Nos. 26, 28
7
¶f
31; 26-9 p. 2)
Plaintiff also submitted paperwork completed by Joseph Kopin, who
inspected and repaired the car. Mr. Kopin’s paperwork indicated that defects
were found, that it was “[vjery hard to release trap door from latch,” and that
repairs were made. (Dkt. Nos. 26, 28
¶J
35; 26-14) Moreover, she submitted
testimony from Mr. Kopin, confirming that he had found that something was
wrong with the trap door. (Dkt. Nos. 26, 28
¶J
36; 26-15 p. 5)
Plaintiff submitted testimony from Daniel Tepper, a safety supervisor. He
corroborated that inspection of the trap door release mechanism found it to be
defective and that it was very hard to release from the latch. (Dkt. No. 26-13
pp. 2-3) She also submitted testimony from Andrew Mercoliano, a NJ Transit
Trainmaster who testified that the release or latch “was defective” and “didn’t
work properly.” (Dkt. Nos. 26, 28
¶J
39; 26-17 p. 3)
In response, NJ Transit has submitted no evidence of its own to
undermine the conclusion that the release was defective and unsafe, and thus
in violation of LIA. Accordingly, I find that defendant has not raised a material
issue of fact as to whether a violation of LIA occurred, and I will grant summary
judgment in plaintiff’s favor on this issue. See Withrow, 2009 WL 5101150, at
*45 (finding no issue of material fact that defendant
violated LIA where
defendant “offered no affirmative evidence or testimony contradicting the
evidence provided by the Plaintiff”).
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D. Contributory Negligence
Plaintiff also requests summary judgment on the issue of contributory
negligence. She asks the Court to rule that she cannot be found contributorily
negligent as a matter of law. (See Dkt. No. 26 p. 2) As discussed supra, LIA
does not offer an independent source of relief—liability must be pursued under
FELA. I therefore interpret plaintiff’s request as one to bar a defense of
The only issue that defendant appears to dispute is causation. NJ Transit does
not argue that it did not violate LIA, only that “causation must still be proved” in order
for plaintiff to establish FELA liability. (Dkt. No. 28 p. 1) However, FELA liability (and
the causation element necessary to establish it) are not at issue on plaintiff’s motion.
(SeeDkt. Nos. 26-1, 26-4)
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8
contributory negligence on the ultimate issue of FELA liability. I will grant that
request for partial summary judgment on that narrow issue. However, as
discussed below, I caution plaintiff that this does not render evidence of her
negligence, if any, irrelevant.
Plaintiff relies on 45 U.S.C.
§ 53, which contains the general rule that
under FELA, contributory negligence of the employee may reduce damages but
not bar recovery. However, as plaintiff notes, the statute also contains a caveat
applicable to FELA cases, like this one, premised on negligence per Se: “[Njo
such employee who may be injured or killed shall be held to have been guilty of
contributory negligence in any case where the violation of such common carrier
of any statute enacted for the safety of employees contributed to the injury or
death of such employee.” 45 U.S.C. § 53 (emphasis added).
LIA is surely a statute “enacted for the safety of employees,” id., and I
have already found that it was violated. This FELA action alleges negligence per
se based on that statutory violation. In such a case, the applicability of a
contributory negligence defense is tied up with the issues of causation and
ultimate liability. Where causation is proven and liability is established, an
award for the plaintiff cannot be reduced because of plaintiff’s contributory
negligence.
Causation, however, has not been decided on this summary judgment
motion; indeed, plaintiff has specifically postured her motion so as to leave that
question of causation for the jury. (See Dkt. No. 26-4) But if the finder of fact,
considering the FELA claim, should find that plaintiff’s injuries were caused at
least in part by the defect on the release mechanism, then the defense of
contributory negligence cannot be applied to reduce any damages award. See
Lilly, 17 U.S. at 491, 63 S.Ct. at 353-54 (“Since petitioner’s injuries were the
result of respondent’s violation of the Boiler Inspection Act, the partial defense
of contributory negligence
[is] not available....”); Eckert v. Aliquzppa &
Southern Railroad Co., 828 F.2d 183, 186 (3d Cir. 1987)(”[Ujnder 45 U.S.C.
...
§
53, if a violation of a safety statute is the cause of an employee’s injury, an
9
award cannot be reduced for contributory negligence.”). And I so rule as
8
a
matter of law.
That does not mean, however, that any negligence on the part of plainti
ff
has no relevance. For example, should a jury find plaintiff was solely
responsible for her own injury, that finding would be inconsistent with
a
finding that NJ Transit’s negligence caused it. See Walden u. Illinois
Central
Gi4fR.R., 975 F.2d 361, 364 (7th Cir. 1992)(”Proof that the employee’s own
negligence was the sole cause of his or her injury is a valid defense becaus
e it
eliminates the possibility that the regulatory violation contributed in whole
or
in part to the injury.”) That, however, is an issue of fact not presented
by this
motion.
Accordingly, I find that a defense of contributory negligence cannot be
submitted to the jury in relation to plaintiff’s FELA negligence per se claim
premised on a LIA violation. I note, however, that defendant, on the issue
of
causation, may still assert that plaintiff herself was the sole cause
of her
injury.
III. CONCLUSION
For the foregoing reasons, I will grant plaintiff’s motion for partial
summary judgment. An appropriate order is filed with this opinion.
Dated: March 30, 2016
Newark, New Jersey
ArJ
KEVIN MCNULTY
United States District Judge
8
Plaintiffs own brief recognizes this, stating that “where a railroad employee’s
injuries are caused by the railroad’s violation of a federal safety statute, such
as the
Federal Locomotive Inspection Act, the employee may not be found to have been
contributorily negligent.” (Dkt. No. 26 P. 2) (emphasis added). Again, plaintiff has
not
requested that this Court resolve the issue of causation, which will be left to
the jury.
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