Valyou v. CSX Transportation, Inc.
Filing
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MEMORANDUM DECISION & ORDER: that deft's 38 Motion for Summary Judgment is DENIED; that a pretrial conference is scheduled for July 17, 2019 at 10:30 a.m. at the chambers of the undersigned. Signed by Magistrate Judge Daniel J. Stewart on 6/14/2019. (see)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MICHAEL S. VALYOU,
-v-
Plaintiff,
CSX TRANSPORTATION, INC.,
16-CV-424
(DJS)
Defendant.
APPEARANCES:
OF COUNSEL:
NAUMES LAW GROUP, LLC
Attorney for Plaintiff
2 Granite Avenue, Suite 425
Milton, MA 02186
ROBERT T. NAUMES, ESQ.
NIXON PEABODY LLP
Attorney for Defendant
677 Broadway
10th Floor
Albany, NY 12207
ANDREW C. ROSE, ESQ.
BURNS WHITE LLC
Attorney for Defendant
48 26th Street
Burns White Center
Pittsburgh, PA 15222
T. H. LYDA, ESQ.
DANIEL J. STEWART
United States Magistrate Judge
MEMORANDUM DECISION and ORDER 1
This action was brought under the Federal Employers’ Liability Act (“FELA”), 45
U.S.C. § 51, et. seq., for injuries suffered by Plaintiff while in Defendant’s employ. Dkt.
No. 1, Compl. Plaintiff claims that he was injured as a result of Defendant’s negligence.
Id. at ¶ 3. Defendant now moves for summary judgment under FED. R. CIV. P. 56. Dkt.
No. 38. Plaintiff opposes the Motion. Dkt. No. 39. For the reasons that follow,
Defendant’s Motion for Summary Judgment is denied.
I. FACTUAL BACKGROUND
On August 29, 2013, Plaintiff was employed by Defendant as a machinist. Compl.
at ¶ 2. On that date, Plaintiff was directed to inspect and qualify CSX locomotive 8867
(“the Locomotive”). Dkt. No. 38-5 at pp. 4-5. 2 While Plaintiff was working on the
Locomotive, it exploded causing serious injuries to Plaintiff. Compl. at ¶ 4. The parties
offer differing views of the facts and circumstances underlying Plaintiff’s work on the
Locomotive and the subsequent explosion. Those differing facts are discussed here only
briefly to highlight the disputed factual questions that are discussed in more detail in Point
III, infra.
As noted, Plaintiff alleges that he was directed to inspect and qualify CSX
locomotive 8867. Dkt. No. 38-5 at pp. 4-5. Plaintiff testified that qualifying a locomotive
entailed “check[ing] out the problem to see if there is a problem with it.” Id. at p. 5.
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The parties have consented to have the undersigned handle all further proceedings in this matter. Dkt. No. 22.
The parties have each submitted excerpts from various depositions. For ease of reference citation to those
depositions throughout this Decision are made simply to docket numbers and the pagination provided by the Court’s
CM/ECF system.
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Defendant maintains that crankcase overpressure had been reported regarding the
Locomotive. Id. Crankcase overpressure is a dangerous condition involving “hot gases
being generated inside the crankcase.” Id. Plaintiff had been trained on how to address
crankcase overpressure and had dealt with it before on other locomotive engines. Id. at
p. 6.
As part of the process of qualifying the Locomotive, Plaintiff started it and
permitted it to run while conducting certain inspections. Id. at p. 8. Plaintiff conducted
two tests on the engine using a manometer to test pressure inside the Locomotive. Id. at
pp. 8-9; Dkt. No. 39-5 at p. 3. Those tests showed no pressure in the Locomotive. Dkt.
No. 38-5 at pp. 8-9. After the engine had run for a period of time, Plaintiff opened a top
deck cover and the explosion soon followed. Id. at p. 13. Defendant maintains that
Plaintiff should not have opened the top deck cover without first stopping the engine and
permitting a mandatory fifteen-minute cooling off period. Dkt. No. 38-6 at p. 6. Plaintiff
contends that this cooling off period applies only to crankcase covers, which he did not
open, and not to the top deck cover. Dkt. No. 38-5 at p. 12.
CSX Safety Alert # 51 expressly prohibited employees from starting an engine
when it had been “Dead on Arrival” prior to performing numerous preliminary operations.
Dkt. No. 39-9. Locomotive 8867 arrived in the Selkirk, New York rail yard the prior day
“Dead on Arrival.”
Dkt. No. 39-6 at p. 6.
Plaintiff’s supervisor was aware the
Locomotive had been Dead on Arrival. Id. Plaintiff maintains that this information was
not made available to him prior to working on the Locomotive. Dkt. No. 39-3, Pl.’s Dep.
at ¶ 8. He further asserts that had it been, he would have refused to attempt to qualify the
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Locomotive. Id. at ¶ 10. Locomotive 8867 had a history of maintenance issues including
abnormal oil sample tests. Id. at ¶ 8. Plaintiff was unaware of this history at the time he
was working on the Locomotive. Id. at ¶ 10.
II. SUMMARY JUDGMENT UNDER FELA
Pursuant to FED. R. CIV. P. 56(a), summary judgment is appropriate only where
“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 burden to demonstrate through
“pleadings, depositions, answers to interrogatories, and admissions on file, together with
[ ] affidavits, if any,” that there is no genuine issue of material fact. F.D.I.C. v.
Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986)).
To defeat a motion for summary judgment, the non-movant must set out specific
facts showing that there is a genuine issue for trial and cannot rest merely on allegations
or denials of the facts submitted by the movant. FED. R. CIV. P. 56(c); see also Scott v.
Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) (“Conclusory allegations or denials are
ordinarily not sufficient to defeat a motion for summary judgment when the moving party
has set out a documentary case.”); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522,
525-26 (2d Cir. 1994). To that end, sworn statements are “more than mere conclusory
allegations subject to disregard . . . they are specific and detailed allegations of fact, made
under penalty of perjury, and should be treated as evidence in deciding a summary
judgment motion” and the credibility of such statements is better left to a trier of fact.
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Scott v. Coughlin, 344 F.3d at 289 (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.
1983) and Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)).
When considering a motion for summary judgment, the court must resolve all
ambiguities and draw all reasonable inferences in favor of the non-movant. Nora
Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). “[T]he
trial court’s task at the summary judgment motion stage of the litigation is carefully
limited to discerning whether there are any genuine issues of material fact to be tried, not
to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not
extend to issue-resolution.” Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d
1219, 1224 (2d Cir. 1994).
This ordinary summary judgment standard is considerably more plaintifffriendly in FELA cases. In FELA cases, the standard for summary
judgment is liberally construed in light of the strong federal policy in favor
of letting juries decide cases arising under FELA. Accordingly, a FELA
case must not be dismissed at the summary judgment phase unless there is
absolutely no reasonable basis for a jury to find for the plaintiff.
Curran v. Long Island R.R. Co., 161 F. Supp. 3d 253, 256-57 (S.D.N.Y. 2016) (internal
quotations and citations omitted). As a result, “an employer seeking summary judgment
on FELA claims has ‘a particularly heavy burden.’” Monington v. CSX Transp., Inc.,
2012 WL 716285, at *3 (N.D.N.Y. Mar. 6, 2012) (quoting Wahlstrom v. Metro-North
Commuter R.R. Co., 89 F.Supp.2d 506, 514 (S.D.N.Y.2000)).
III. DISCUSSION
“To succeed on a claim under FELA, a plaintiff ‘must prove the traditional
common law elements of negligence.’” Hewitt v. Metro-N. Commuter R.R., 244 F. Supp.
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3d 379, 384 (S.D.N.Y. 2017) (quoting Tufariello v. Long Island R.R. Co., 458 F.3d 80,
87 (2d Cir. 2006)). This requires the plaintiff to establish “duty, breach, foreseeability,
and causation.” Tufariello v. Long Island R.R. Co., 458 F.3d at 87; see also Peterson v.
Pan Am Railways, Inc., 2015 WL 2451227, at *7 (N.D.N.Y. May 21, 2015).
Defendant raises several issues on this Motion. It first argues that it did not breach
any duty of care owed to Plaintiff. Dkt. No. 38-2, Def.’s Mem. of Law at pp. 8-10. Next,
Defendant contends that because Plaintiff was the sole cause of the accident resulting in
his injuries, it is not liable under FELA. Id. at pp. 10-12.
A. Defendant’s Breach of Duty
“Defendant had a duty to provide its employees with a safe workplace.” Cogan
v. Nat. R.R. Passenger Corp., 2015 WL 1417130, at *9 (N.D.N.Y. Mar. 27, 2015) (citing
Tufariello v. Long Island. R.R. Co., 458 F.3d at 91). “An employer breaches its duty to
provide a safe workplace when it knows or should know of a potential hazard in the
workplace, yet fails to exercise reasonable care to inform and protect its employees.”
Gallose v. Long Island R.R. Co., 878 F.2d 80, 84-85 (2d Cir. 1989). “Reasonable care is
determined in light of whether or not a particular danger was foreseeable.” Syverson v.
Consol. Rail Corp., 19 F.3d 824, 826 (2d Cir. 1994).
Plaintiff specifically alleges that Defendant failed to properly maintain
Locomotive 8867. Compl. at ¶ 4. In the months leading up to the explosion, maintenance
records indicate that the Locomotive had abnormal oil samples, including evidence of
metal contamination, problems with its fuel injection system, and other indications of
problems with the engine. Dkt. 39-5 at pp. 18-19; Dkt. No. 39-4 at p. 4. Defendant’s
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own employee testified that a faulty bearing was a contributing factor to the explosion
and that this failure could have happened over a long period of time or very quickly. Dkt.
No. 38-6 at pp. 6-8. While Defendant may be able to show that it acted reasonably in
addressing these maintenance issues leading up to the events giving rise to this litigation,
and thus prove to a jury that it did not breach its duty to provide Plaintiff with a safe
workplace, it has not made that showing as a matter of law here and, therefore, is not
entitled to summary judgment on this basis. In Sinclair v. Long Island R.R., the Second
Circuit stated “[w]e have held that whether the railroad used reasonable care in furnishing
its employees a safe place to work is normally a question for the jury.” 985 F.2d 74, 77
(2d Cir. 1993) (internal quotation and citation omitted). On this record, whether CSX
properly maintained Locomotive 8867 is clearly a question that should be left to the jury.
The Court notes that questions of fact are also present as to Defendant’s argument
that it properly trained Plaintiff how to perform his job safely, in particular with regard to
the handling of crankcase overpressure. Def.’s Mem. of Law at p. 9. Plaintiff certainly
received training from Defendant and did testify to handling other cases of crankcase
overpressure in the past. Dkt. No. 38-5 at p. 6. The record on this Motion, however,
presents questions of fact about the particular situation presented to Plaintiff on August
29th.
Defendant’s submissions are clearly premised on the theory that crankcase
overpressure was the primary maintenance issue Plaintiff faced on the date in question,
focus on the policies and procedures for dealing with that problem, and base its argument
against liability on Plaintiff’s failure to properly address that type of mechanical problem.
Def.’s Mem. of Law at pp. 9-10. Several facts, however, raise questions as to whether
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crankcase overpressure was, in fact, the primary mechanical issue that day or, at the very
least, whether that should have been apparent to Plaintiff in the moments leading up to
the Locomotive exploding.
As noted, Plaintiff denies being aware of facts that he contends would have been
significant to the performance of his assigned task, including prior oil sample test results
and the fact that the Locomotive had been Dead on Arrival prior to him working on it.
Pl.’s Aff. at ¶¶ 8-10. Whether the failure to provide Plaintiff this information constituted
a breach of Defendant’s duty to Plaintiff is also a question for the jury. Sinclair v. Long
Island R.R., 985 F.2d at 77. Plaintiff also testified that he conducted pressure tests on the
Locomotive that, to him, suggested the lack of a crankcase pressure issue. Dkt. No. 38-5
at pp. 8-9. Defendant’s witnesses concede that the cause of the explosion was related to
a bad bearing in the engine. See Dkt. No. 38-6 at pp. 6-7. Taken together, these facts
present factual questions best resolved by the jury as to whether the Locomotive was
properly maintained by CSX and whether the explosion was caused specifically as a result
of Plaintiff’s actions or other underlying defects in the Locomotive of which Plaintiff may
not have been aware. See Syverson v. Consol. Rail Corp., 19 F.3d at 826 (“Reasonable
care is determined in light of whether or not a particular danger was foreseeable.”).
B. Plaintiff’s Alleged Contributory Negligence
Defendant also argues that Plaintiff’s “own failure to use reasonable care is a bar
to this FELA lawsuit.”
Def.’s Mem. of Law at p. 10.
Defendant concedes that
contributory negligence does not bar recovery under FELA, though it may result in a
reduction in damages. Id. at pp. 10-11; see also Norfolk S. Ry. Co. v. Sorrell, 549 U.S.
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158, 160 (2007). It instead argues that Plaintiff was the “sole cause” of his injuries and
thus it cannot be liable to Plaintiff for those injuries. Def.’s Mem. of Law at p. 11 (citing
cases). Plaintiff counters that Defendant has failed to carry its burden to show that he was
the sole cause of his injuries. Pl.’s Mem. of Law at pp. 14-16. The Court agrees with
Plaintiff and concludes that questions of fact preclude finding as a matter of law that
Plaintiff was the sole cause of the incident underlying his injuries.
“If, in fact, Plaintiff’s own negligence were the sole cause of his injury, he would
not be able to recover under FELA.” Waggoner v. Ohio Cent. R.R., 2007 WL 4224217,
at *10 (S.D. Ohio Nov. 27, 2007), modified on other grounds, 2007 WL 4615788 (S.D.
Ohio Dec. 31, 2007). “FELA’s extremely lenient causation standard requires only that
the plaintiff show that ‘the negligence of the employer played any part, however small,
in the injury or death which is the subject of the suit.’” Romero v. CSX Transp., Inc.,
2008 WL 5156677, at *9 (D.N.J. Dec. 9, 2008) (quoting Rogers v. Mo. Pac. R.R. Co.,
352 U.S. 500, 508 (1957)). Viewed under this standard, the evidence submitted on this
Motion does not unequivocally establish that Plaintiff was the sole cause of his injury.
Defendant asserts that Plaintiff was the sole cause of the explosion as a result of a
number of actions he took or failed to take. See Def.’s Mem of Law at pp. 11-12. A
discussion of the facts related to these actions, however, illustrates that questions of fact
exist.
Defendant, for example, asserts that Plaintiff was negligent in opening the
crankcase cover on the Locomotive after running the engine without giving it sufficient
time to cool. See Dkt. No. 38-1 at ¶¶ 19-20. Plaintiff, however, contends that he opened
the “top deck cover” which he did not believe required a cooling off period. Dkt. No. 389
5 at p. 11. Timothy Healey, CSX’s Director of Locomotive Engineering and formerly its
Director of Mechanical Systems, Dkt. No. 38-7 at p. 2, testified when asked about CSX
policies and rules that “[i]t’s not a violation to open a top deck cover.” Dkt. No. 39-5 at
p. 29.
This testimony is buttressed by Dan Lisowsky, Defendant’s Rule 30(b)(6)
representative, who testified that it was not per se a violation of any rule to open the top
deck of the Locomotive. Dkt. No. 38-6 at p. 14. This evidence does not establish that
opening the deck cover was either negligent or the sole cause of the accident.
Defendant also contends that Plaintiff was negligent because he “failed to review
locomotive 8867’s shopping history, failure history and oil lab history as required by
CSXT’s instructions.” Def.’s Mem of Law at p. 11. Plaintiff’s testimony, however, was
that the “work package” containing information regarding the oil records and other
relevant maintenance information was not made available to him on the day he was
working on the Locomotive. Dkt. No. 39-4 at p. 4; see also Dkt. No. 39-5 at p. 14 (noting
entire maintenance history not contained in “work package” provided to machinist).
Questions of fact, therefore, exist as to whether Plaintiff in fact had access to the
information Defendant claims Plaintiff failed to review.
Moreover, Plaintiff’s supervisors knew that locomotive 8867 was “Dead on
Arrival”. Dkt. No. 39-6 at p. 6. Plaintiff maintains that he was not made aware of this or
the fact that the Locomotive had a history of crankcase overpressure. Pl.’s Aff. at ¶ 8.
The record establishes that CSX Safety Alert # 51 provides specific instruction that “NO
attempt to will be made to start any locomotive received “Dead on Arrival.” Dkt. No. 399 (emphasis in original). Given the record evidence showing that Plaintiff’s supervisors
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knew of this history, but may have failed to advise Plaintiff, this too raises questions of
fact as to whether Plaintiff was the “sole cause” of the accident.
Cognizant of the fact that if “the negligence of the employer played any part,
however small, in the injury,” Rogers v. Mo. Pac. R.R. Co., 352 U.S. at 508, Plaintiff can
recover, these facts provide a sufficient basis on which to deny summary judgment. The
Court reaches no conclusion about the fault of the parties, but “even assuming one
concludes that the plaintiff’s negligence played a significant part in the accident, but was
not the sole cause of the mishap, the plaintiff still recovers.” Higgins v. Consol. Rail
Corp., 638 F. Supp. 254, 258 (D. Conn. 1986). Here, the evidence is sufficient to leave
that question to a jury.
IV. CONCLUSION
For the reasons stated herein, it is hereby
ORDERED, that Defendant’s Motion for Summary Judgment (Dkt. No. 38) is
DENIED; and it is further
ORDERED, that a Pretrial Conference is scheduled for July 17, 2019 at 10:30
a.m. at the Chambers of the undersigned; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum
Decision and Order upon the parties to this action.
Date: June 14, 2019
Albany, New York
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