Wilks v. BNSF Railway Company

Filing 166

OPINION AND ORDER by Magistrate Judge Kimberly E. West denying 104 Motion for Summary Judgment. (adw, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
SAMANTHA WILKS,
Plaintiff,
v.
BNSF RAILWAY COMPANY,
a corporation,
Defendant.

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Case No. CIV-18-080-KEW

OPINION AND ORDER

This matter comes before the Court on Defendant’s Motion for
Summary Judgment (Docket Entry #104).

On March 17, 2015 at 1:45

a.m., Plaintiff Samantha Wilks (“Wilks”) began her shift as the
locomotive engineer operating train U-CAKAVD0-09 for the owner,
Defendant BNSF Railway Company (“BNSF”) hauling rock on a run from
Madill, Oklahoma towards Tulsa, Oklahoma.
run was David McKee (“McKee”).

The conductor on the

At approximately 6:08 a.m., the

knuckle on the last, rear-facing locomotive, designated as BNSF
7295, broke.

Wilks radioed the emergency to the dispatcher and

McKee put on personal protective equipment to check the train.
At 6:13 a.m., McKee informed Wilks about the broken knuckle
between the last locomotive and the first railcar.

Thereafter,

McKee tied down the railcar brakes to prevent the cars from rolling
and instructed Wilks to pull the locomotives ahead to make the

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required minimum 50 foot clearance.
locomotive engines were set.

The hand brakes on the three

Wilks notified McKee that the train

was “set and centered,” which was required to make certain working
between the first railcar and the last locomotive was safe.

Wilks

remained on the locomotive holding a lantern for McKee below.
McKee attempted to knock out the cotter pin holding the knuckle
with a hammer.

McKee made several attempts to remove the cotter

pin; however, with each hit of the hammer, the knuckle pin would
spin making it harder for McKee to remove the cotter pin.
At 6:47 a.m., the dispatcher “toned up” wanting to know the
status of the repair.

Wilks believed from her experience in

working with dispatchers every day that the dispatcher’s tone
indicated he was “anxious” because “it’s [the dispatcher’s] job to
get trains moving.”

At 6:53 a.m., Road Foreman of Engines Bob

Beals radioed to let Wilks know that he was coming to help with
the cotter pin.
McKee and Wilks discussed “how [Wilks] was going to stand,
how [McKee] was going to stand, what needed to be done to hold the
cotter pin in place so we can beat the knuckle pin, how we were
going to hold the knuckle pin to get the cotter pin out.”

They

decided that “[Wilks] was going to hold the top of the knuckle pin
to keep it from spinning while he hit it, while he hit the cotter
pin.”

Wilks held the top of the knuckle pin with her gloved hand
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which kept the knuckle pin still while McKee used the hammer and
chisel to remove the cotter key.
After McKee hit the cotter key five or six times the metal
was vibrating such that Wilks’ hand was slipping, so she wanted to
get a better grip.
mid-swing.

When McKee hit the key, Wilks’ hand slipped and her

back popped.
asked

if

Wilks told McKee to hold on while he was in

Wilks stated, “Ow, that’s going to hurt,” and McKee

Wilks

repositioned.

was

all

right.

She

said,

“yes”

and

they

Wilks had no more contact with the knuckle after

she slipped and experienced pain in her back.
At 7:30 a.m., Heath Patrick, a carman from the Mechanical
Department, radioed asking where the train was located and stated
he was on his way to help with the knuckle.

Sometime thereafter

and before either Heath Patrick or Bob Beals arrived, McKee decided
that since the E type of knuckle was not working, he would install
an F type knuckle.

When Bob Beals arrived at 7:40 a.m., McKee had

properly installed the F type knuckle.

Wilks had returned to the

locomotive and did not participate in the installation of the F
type knuckle.
Wilks had previously been involved in a motor vehicle accident
on December 5, 2014 when a transport van associated with her work
was struck from behind at a stop sign.

She was treated for neck

and upper back pain and discharged the same day.
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Later, she

reported lower back pain.

Wilks received a settlement for the

accident.
Wilks was also involved in a motor vehicle accident on August
15, 2015 when her truck struck a concrete barrier.

She reported

back pain from her lower back up to her shoulder blades.
Wilks’ last day of work for BNSF was March 17, 2015.

She

reported her injury from the knuckle replacement on March 20, 2015.
She received a letter from BNSF dated May 16, 2018 wherein her
voluntary relinquishment of her position was accepted under the
collective bargaining agreement, stating that her medical leave
expired on February 21, 2018 and she had “not furnished any
documentation to justify [her] absence since that date.”
On March 15, 2018, Wilks filed the Complaint in this case
alleging (1) BNSF was negligent in various specified respects in
violation of the Federal Employers’ Liability Act (“FELA”); and
(2) BNSF violated the Federal Safety Appliance Act (“FSAA”) in the
use of the coupler in this case thereby subjecting it to strict
liability, all resulting and causing Wilks’ injuries alleged in
this case.
Under Federal Rule of Civil Procedure 56(c), summary judgment
shall be granted if the record shows that, "there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law."
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The moving party has the burden

of showing the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 255354, 91 L.Ed.2d 265 (1986).

A genuine issue of material fact exists

when "there is sufficient evidence favoring the non-moving party
for a jury to return a verdict for that party."

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11,
91 L.Ed.2d 202 (1986).

In determining whether a genuine issue of

a material fact exists, the evidence is to be taken in the light
most favorable to the non-moving party.

Adickes v. S.H. Kress &

Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970).
Once the moving party has met its burden, the opposing party must
come forward with specific evidence, not mere allegations or
denials of the pleadings, which demonstrates that there is a
genuine issue for trial.

Posey v. Skyline Corp., 702 F.2d 102,

105 (7th Cir. 1983).
BNSF seeks summary judgment in several respects pertaining to
the claims asserted by Wilks.

Namely, BNSF contends (1) Wilks has

not demonstrated a viable claim under the FSAA as the device which
allegedly caused her injury was not covered by the FSAA; (2) Wilks
has not proved BNSF was negligent under FELA; and (3) Wilks is
limited in her recovery of damages due to her inability to claim
damages

attributable

to

two

other

accidents

and

because

she

voluntarily resigned her employment with BNSF by operation of the
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collective bargaining agreement in place.

The Court will address

each argument in turn.
FSAA Claim
FSAA is considered an amendment to the FELA.

It does not

create an independent cause of action, but railroad employees may
recover for a violation of the FSAA under FELA.

Makovy v. Kansas

City Southern Co., 339 F.Supp.3d 1242, 1245 (E.D. Okla. 2018)
citing Crane v. Cedar Rapids & Iowa City Ry. Co., 395 U.S. 164,
166 (1969).

In order to prevail on her claim under the FSAA, 49

U.S.C. §§ 20301-20306, Wilks must only prove a statutory violation
and not negligence.

She “must prove that the statutory violation

was a causative factor contributing in whole or in part to the
accident that caused [her] injuries.”

Id. citing Grogg v. Mo.

Pac. R.R. Co., 841 F.2d 210, 212 (8th Cir. 1988).
BNSF attempts to draw a distinction between the cotter key on
which Wilks’ was working from the overall knuckle or coupler of
which the cotter key is a component or associated part.

BNSF

contends that the cotter key is not specifically identified under
the covered safety appliance list contained at 42 U.S.C. § 20302
and, therefore, it cannot be held liable under the FSAA.
In a well-reasoned and well-written opinion from Judge Ronald
White from this District, BNSF’s position finds no merit.
White wrote in Makovy, supra at 1245-46:
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Judge

As to statutory violation, the Supreme Court
has held as a matter of law that the failure
of couplers to remain coupled until released
constitutes a violation of 49 U.S.C. §
20302(a)(1)(A).
See O'Donnell v. Elgin,
Joliet & E. Ry. Co., 338 U.S. 384, 70 S.Ct.
200, 94 L.Ed. 187 (1949). A broken knuckle
causing couplers to separate thus falls within
the Court's reasoning.
See Kukowski v. Soo
Line R.R. Co., 2018 WL 834235, *14 (D.Minn.
2018)(“Under the clear language of O'Donnell,
a knuckle which fails to remain coupled until
released constitutes a per se violation of the
FSAA”).
No dispute in the facts exist that the failure of the knuckle
occurred, causing the last locomotive and the first railcar to decouple.

Moreover, Heath Patrick testified that the cotter key

holds the pin in place which, in turn, holds the knuckle on the
drawbar.1

BNSF draws too fine a distinction between the component

parts of this assembly.

The fact the knuckle broke and the removal

of the cotter key was required for its replacement brings any
defect in these parts under the umbrella of the FSAA.

This does

not require the adoption of the “but for” theory of causation
rejected by the United States Supreme Court in CSX Transp. Inc. v.
McBride, 564 U.S. 685 (2011).

Rather, a jury should be permitted

to determine whether the failure of the knuckle and its component
parts in violation of the FSAA caused or contributed to Wilks’
injury.

See Makovy, supra at 1246-47 (“The Supreme Court stated

1 Patrick Depo., Wilks’ Exh. No. 13, p. 23, ll. 9-25, p. 24, ll. 1-12.

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that the causal link was ‘hardly farfetched,’ but that those courts
observed

that

the

evidence

did

not

show

mere

‘but-for

causation’.”); see also Richards v. Consol. Rail Corp., 330 F.3d
428 (6th Cir. 2003)(“[I]f as a result of a defective appliance a
plaintiff is required to take certain actions and he or she is
injured

while

taking

those

actions,

the

issue

generally should be submitted to a jury.”).

of

causation

This Court cannot

conclude that the replacement of the allegedly defective knuckle
is an “incidental condition or situation in which the accident
otherwise caused results in such injury” as urged by BNSF.
cotter

key

replacement

was

part

which

and

parcel

allegedly

to

the

resulted

knuckle
in

and

Wilks’

The

knuckle
injury.

Consequently, the matter of causation under the FSAA will be left
to the deliberations of the jury empaneled at trial.
Negligence Under the FELA
BNSF next asserts that Wilks has no evidence of negligence on
its part such that she may prevail under the FELA.

Wilks' FELA

claim alleges that BNSF is liable under 45 U.S.C. § 51, which
provides:
Every common carrier by railroad . . . shall
be liable in damages to any person suffering
injury while he is employed by such carrier .
. . 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
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insufficiency, due to its negligence, in its
cars, engines, appliances, machinery, track,
. . . or other equipment.
45 U.S.C. § 51.
In order to prevail on her claim under the FELA, Wilks must
prove:
(1)

the employee was injured within the scope
of his employment,

(2)

the employment was in furtherance of the
employer’s
interstate
transportation
business,

(3)

the employer was negligent, and

(4)

the employer’s negligence played some
part in causing the injury for which the
employee seeks compensation under FELA.

Ezell v. BNSF Ry. Co., 949 F.3d 1274, 1279–80
(10th Cir. 2020) citing Van Gorder v. Grand
Trunk W. R.R., 509 F.3d 265, 269 (6th Cir.
2007) and Volner v. Union Pac. R.R., 509 F.
App'x
706,
708
(10th
Cir.
2013)
(unpublished)(adopting
Van
Gorder’s
elements).
An “essential ingredient” of an FELA claim is whether the
harm was reasonably foreseeable by the employer.

Gallick v.

Baltimore & Ohio Railroad Co., 372 U.S. 108, 117 (1963)(citation
omitted).

BNSF “may not be held liable if it had no reasonable

way of knowing that the hazard, which caused [Wilks’] injury,
existed.”

Brown v. CSX Transportation, Inc., 18 F.3d 245, 249

(4th Cir. 1994)(citations omitted); see also, Williams v. National

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R.R. Passenger Corp., 161 F.3d 1059, 1062 (7th Cir. 1998).
In demonstrating causation, the United States Supreme Court
has found a “relaxed standard of causation applies to FELA.”
Transp. Inc. v. McBride, 564 U.S. at 691-92.

CSX

Under FELA's relaxed

standard of causation, “the test of a 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. at 692.

BNSF first contends that it had no knowledge of the broken or
defective knuckle and, therefore, could not be held liable in
negligence.
Larry Hanke.

Wilks offers the testimony of her expert witness,
After inspecting the knuckle, Mr. Hanke determined

that the defect in the knuckle was visible and could have been
discovered prior to it breaking with a proper inspection.2

This

evidence is sufficient to bring the question of the reasonable
foreseeability of the defect before the trier of fact.
Additionally, evidence has been presented that Wilks and
McKee felt at least some time pressure from the dispatcher and
that Wilks may have not been adequately trained in the preferred
method for removal of the cotter key utilizing the appropriate

2 Hanke Depo., Wilks Exh. No. 6, p. 38, l. 8 through p. 40, l. 24; p. 56,
ll. 5-13; p. 62, ll. 17-20.

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equipment.

Some evidence has also been provided that Wilks and

McKee should have had additional equipment to assist their removal
of the cotter key and replacement of the knuckle.

To that end,

the question of whether BNSF was negligent in failing to provide
a safe work environment should be presented to the jury for
adjudication.
Limitation on Damages
BNSF asserts that Wilks’ damages are limited because she
suffered injuries in two separate motor vehicle accidents – one
before the subject incident and one after.

Clearly, a FELA claim

must be brought within three years of the day the claim accrues.
45 U.S.C. § 56; Matson v. Burlington N. Santa Fe R.R., 240 F.3d
1233, 1235 (10th Cir. 2001).

Although she does not appear to

contest the matter, Wilks cannot recover damages for injuries which
are attributable to either the 2014 motor vehicle accident.

She

also cannot recover in this action for any damages arising from
the 2018 accident since it has not been plead.
BNSF also contends Wilks cannot recover for damages accruing
after August of 2018 when Wilks was deemed to voluntarily quit her
employment with BNSF.
agreement

between

the

BNSF asserts that the collective bargaining
union

that

represents

Wilks

and

other

railroad employees provides that member will provide periodic
documentation to justify their continued leave of absence and that
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the failure to provide such documentation results in the automatic
voluntary resignation of employment.
While disputing the evidence BNSF relies upon to assert she
voluntarily resigned under the terms of the collective bargaining
agreement, Wilks ultimately contends it does not affect her ability
to recover damages for a loss of earning capacity as a result of
BNSF’s violation of the FSAA and its negligence under FELA.
Nothing in the record before this Court indicates Wilks could still
perform her engineer job with BNSF.
reinstatement

as

a

part

of

Moreover, she does not seek

her

relief

in

this

action.

Consequently, the circumstances of her resignation or termination
are

irrelevant

to

the

trial

of

this

case.

An

element

of

recoverable damages in a FELA case includes a loss of future wages
or reduction in earning capacity.

Compton v. BNSF Ry. Co., 2009

WL 1765968, at *1 (N.D. Okla. June 16, 2009).

Whether Wilks was

voluntarily terminated by operation of the bargaining agreement
has no bearing on the recoverability of these damages, should Wilks
adequately prove her entitlement to such damages.
IT IS THEREFORE ORDERED that Defendant’s Motion for Summary
Judgment (Docket Entry #104) is hereby DENIED, except to the extent
that Wilks cannot claim damages from injuries attributable to the
2014 or 2018 motor vehicle accidents.

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IT IS SO ORDERED this 17th day of June, 2020.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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