Fields v. BNSF Railway Company

Filing 295

ORDER by Magistrate Judge Kimberly E. West granting in part and denying in part 155 Plaintiff's MOTION in Limine to Prohibit Evidence or Argument Concerning Assumption of Risk and BNSF Railway Company's Empowerment Rule. (adw, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
DARRYL E. FIELDS,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
BNSF RAILWAY COMPANY,
a corporation,
Defendant.

Case No. CIV-16-213-KEW

O R D E R
This matter comes before the Court on Plaintiff’s Motion in
Limine to Prohibit Evidence or Argument Concerning Assumption of
the Risk and BNSF Railway’s Empowerment Rule (Docket Entry #155).
Plaintiff

seeks

to

preclude

Defendant

BNSF

Railway

Company

(“BNSF”) from introducing evidence that Plaintiff was “empowered”
to not to perform any unsafe task or to use other equipment.
Plaintiff

contends

that

this

is

a

veiled

assertion

of

the

assumption of the risk defense which is not available in FELA
cases.
BNSF
assumption

acknowledges
of

the

risk

the

case

defense.

authority
It

that

asserts,

precludes
however,

the
that

contributory negligence is available as a defense to the FELA claim
brought against it by Plaintiff which would include the assertion
of various safety rules and whether Plaintiff abided by those rules
during the incident resulting in his injury.

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While the contributory negligence defense is not available to
BNSF for the FSAA claim, it is a valid and available defense to
the FELA negligence claim to reduce damages.
City

Southern

Co.,

339

2018)(citations omitted).

F.Supp.3d

1242,

Makovy v. Kansas
1248

(E.D.

Okla.

The methodology in permitting evidence

of contributory negligence while excluding evidence tending to
demonstrate assumption of the risk was addressed in Miller v. BNSF
Ry. Co., 2017 WL 2001678, at *2 (D. Colo. May 11, 2017).

The Court

recognized the distinction as follows:
.
.
.
courts
have
distinguished
between
[contributory negligence and assumption of the risk] by
noting that evidence of contributory negligence is that
which shows “a careless act or omission on the
plaintiff's part tending to add new dangers to
conditions that the employer negligently created or
permitted to exist,” as opposed to evidence of
assumption of risk, which is “an employee's voluntary,
knowledgeable acceptance of a dangerous condition that
is necessary for him to perform his duties.”
Id. citing Taylor v. Burlington N. R.R. Co., 787 F.2d
1309, 1316 (9th Cir. 1986).
The Miller court also addressed the use of “empowerment rules”
or the violation of BNSF safety rules to prove contributory
negligence.

The Court precluded BNSF from introducing “evidence

that Plaintiff assumed an inherent risk merely by performing his
duties” and required any safety rule that BNSF alleges Plaintiff
violated

in

considering

specific and objective.”

contributory
Id.

negligence

to

be

“both

This Court will require the same

and will provide limiting instructions to the jury to clarify its
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consideration of the contributory negligence defense, should the
evidence admitted at trial warrant such instructions.
IT IS THEREFORE ORDERED that Plaintiff’s Motion in Limine to
Prohibit Evidence or Argument Concerning Assumption of the Risk
and BNSF Railway’s Empowerment Rule (Docket Entry #155) is hereby
GRANTED to the extent that BNSF will not be permitted to assert
the defense of Plaintiff’s assumption of the risk.

The Motion is

DENIED as it relates to prohibiting evidence of contributory
negligence or evidence that Plaintiff violated specific safety
rules which resulted in or contributed to his injury.
IT IS SO ORDERED this 28th day of September, 2021.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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