Preston v. BNSF Railway Company

Filing 57

Order on Motion for Partial Summary Judgment 36 . Genuine issues of material fact exist as to whether Defendant violated the FSAA and is strictly liable. Plaintiff's Motion is denied. Please access entire text by document number hyperlink. Ordered and Signed on 08/28/2009 by Magistrate Judge Mark D. Clarke. (rsm)

FlLEV09 AUG 28 08:41USDC-oRM

IN T H E U N I T E D S T A T E S D I S T R I C T C O U R T F O R T H E D I S T R I C T OF O R E G O N

M A T T H E W T. P R E S T O N , Case N u m b e r C V 08-3045-CL Plaintiff, v.

ORDER
B N S F RAILWAY COMPANY, a D e l a w a r e corporation. Defendant.

C l a r k e , M a g i s t r a t e Judge: P l a i n t i f f M a t t h e w T. Preston, an Oregon resident, brings this action for negligence a g a i n s t D e f e n d a n t B N S F R a i l w a y C o m p a n y ( " B N S F " ) , a D e l a w a r e C o r p o r a t i o n , for n e g l i g e n c e in violation o f the Federal Employers' Liability Act (FELA), 45 U . S . c . § 51, et seq., a n d t h e Federal Safety Appliance Act (FSAA), 49 U.S. C. § 20301, et seq. This Court has federal question j u r i s d i c t i o n pursuant to 28 U.S.C. § 1331. P l a i n t i f f filed this m o t i o n for partial summary j u d g m e n t seeking "an O r d e r establishing t h a t r a i l c a r B N S F 4 0 2 1 7 2 w a s ' i n use' for p u r p o s e s o f t h e [ F S A A ] a n d t h a t B N S F v i o l a t e d t h e F S A A a n d is strictly liable under [FELA]." (Pl.'s Mot. for Partial Summ. J. Re: F S A A Violation 1-2.) F o r t h e r e a s o n s s e t f o r t h b e l o w , t h e m o t i o n i s d e n i e d .

I.

Standards for Summary Judgment
Pursuant to Rule 56(c), summary j u d g m e n t "should be rendered, i f t h e pleadings, the

discovery and disclosure materials o n file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to j u d g m e n t as a matter o f l a w . " Fed. R. Civ. P. 56(c); see Freeman v. Oakland Unified Sch. Dist., 291 F.3d 6 3 2 , 6 3 6 (9th Cir. 2002). T h e c o u r t c a n n o t w e i g h t h e evidence o r determine t h e t r u t h b u t m a y o n l y d e t e r m i n e w h e t h e r there is a genuine issue o f fact. Playboy Enters .. Inc. v. Welles, 279 F.3d 7 9 6 , 8 0 0 (9th Cir. 2002). A n issue o f fact is genuine " ' i f the evidence is such that a reasonable j u r y could return a verdict for the nonmoving party.'" Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9 th Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The moving p a r t y must carry the initial burden o f proof. Celotex Corp. v. Catrett, 477 U.S. 3 1 7 , 3 2 2 - 2 4 ( 1 9 8 6 ) . T h e m o v i n g p a r t y m e e t s t h i s b u r d e n b y i d e n t i f y i n g f o r t h e c o u r t portions o f the record o n file which demonstrate the absence o f any genuine issue o f material fact. Id.; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). In assessing whether a p a r t y has m e t its burden, the court views the evidence i n the light m o s t favorable to the non-moving party. Allen v. City o f Los Angeles, 66 F.3d 1052, 1056 (9th Cir. 1995). All reasonable inferences are drawn i n favor o f the non-movant. Gibson v. County o f Washoe, 290 F.3d 1175, 1180 (9th Cir. 2002). I f t h e m o v i n g p a r t y m e e t s its b u r d e n w i t h a p r o p e r l y s u p p o r t e d m o t i o n , t h e b u r d e n t h e n shifts to the opposing party to present specific facts which show there is a genuine issue for trial. Fed. R. Civ. P. 56(e)(2); Auvil v. CBS "60 Minutes", 67 F.3d 8 1 6 , 8 1 9 (9th Cir. 1995); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 & n.4 (1986). Summary j u d g m e n t should b e Order 2

granted for the movant, i f appropriate, in the absence o f any significant probative evidence tending to support the opposing party's theory o f t h e case. Fed. R. Civ. P. 56(e); THI-Hawaii, Inc. v. First Commerce Fin. Corp., 627 F.2d 9 9 1 , 9 9 3 - 9 4 (9th Cir. 1980); First Nat'l Bank: v. Cities Servo Co., 391 U.S. 2 5 3 , 2 9 0 (1968). Conc1usory allegations, unsupported b y factual material, are insufficient to defeat a motion for summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposing party must, b y affidavit or as otherwise provided b y Rule 56, designate specific facts which show there is a genuine issue for trial. Devereaux, 263 F.3d at 1076.

II.

Facts
P l a i n t i f f alleges he was i n j u r e d w h i l e w o r k i n g on r a i l c a r B N S F 401272. T h e t r a i n

originated in either Vancouver or Pasco, Washington. I t traveled to Wishram, Washington, and then to Bend, Oregon. (Statement o f Undisputed Material Facts in Supp. o f P l . ' s Mot. for Partial Summ. J. Re: FSAA Violation (UPl.'s CSMF Re: FSAAU) ~ 2.) On January 7 , 2 0 0 8 , Plaintiff, acting as conductor, and Tony Hessler, as engineer, reported to the Bend, Oregon depot to pick up the train. I t was a mixed freight train, and Preston's crew added two locomotives. (Pl.'s CSMF Re: FSAA ~ 3.) T h e t r a i n r e c e i v e d a C l a s s 1 B r a k e I n s p e c t i o n and T e s t and a p r e - d e p a r t u r e s a f e t y appliance inspection at the point o f origin (either Vancouver or Pasco). The safety appliance inspection included inspecting the safety appliances o f the railcars, locomotives, and brakes and performing an air brake test. (Pl.'s CSMF Re: FSAA ~ 4.) This is performed b y a car man but may occasionally be performed b y trainmen. (Pl.'s CSMF Re: FSAA ~ 4.)
T o c o n t i n u e o n t h e freight t r a i n trip, P r e s t o n w a s t o r e l e a s e t h e r a i l c a r h a n d b r a k e s o n t h e

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train and hook up the air hoses between the new locomotives and the first railcar. The locomotive engineer completes a Class III brake test to make sure there is air throughout the cars. Upon completion o f the test, the train departs from Bend to continue its trip to Klamath Falls, Oregon. (PI.'s CSMF Re: FSAA ~ 6.) Preston alleges that he was injured on a hopper car, BNSF 402172, trying to release its hand brake. (PI.'s CSMF Re: FSAA ~ 6.) BNSF disputes the nature and extent o f P l a i n t i f f s injuries and whether the hand brake at issue was the mechanism that brought about P l a i n t i f f s rotator c u f f tear. (BNSF Railway Company's Am. Resp. to PI.'s Statement o f Undisputed Material Facts and Statement o f Relevant Material Facts: SAA Violation ("Def.'s RCSMF Re: FSAA") ~7.) BNSF accepts, for the purposes o f this motion only, that the hand brake starts at the 9 o'clock position and is released when it is moved to the 12 o'clock position, as P l a i n t i f f asserts. (Def.'s RCSMF Re: FSAA ~ 7; PI.'s CSMF Re: FSAA ~ 7.) P r e s t o n a s s e r t s t h a t t h e h a n d b r a k e w o u l d n o t release w h e n t h e l e v e r w a s p r o p e r l y m o v e d into the 12 o'clock position. He pulled on the lever to release the brake. He felt a twinge in his left shoulder and pull on his right side. Preston believes that this action caused his injury. (PI. 's CSMF Re: FSAA ~ 7.) BNSF disputes, however, the nature and extent o f P l a i n t i f f s injury and whether the hand brake was the mechanism that brought about P l a i n t i f f s rotator c u f f tear. (Def.'s RCSMF Re: FSAA ~ 9.) BNSF accepts for the purposes o f this motion only that P l a i n t i f f felt a twinge in his left shoulder. (Def.'s RCSMF Re: FSAA ~ 9.) Plaintiff asserts that while attempting to release the hand brake, he stood to the right side o f the hopper, facing it, and used his left hand to pull the release lever clockwise while holding onto the hopper car with his right arm. (Pl.'s CSMF Re: FSAA ~10.) Defendant clarifies Order 4

Plaintiffs actions, "on the date o f the incident, Plaintiff crossed over the end platform from left to right, faced the rear o f the car, held a vertical bar with his right hand on the right, reached over the handbrake with his left arm and hand, and pulled the quick release lever from a 9 o'clock position to a 12 o'clock position." (Def. 's RCSMF Re: FSAA ~ 8A. I) Defendant refers to BNSF Trainmen, Yardmen & Engineer Rule S13.6.3 that states employees are to stand on the brake step or crossover platform to operate the hand brakes. Employees are to apply hand brakes b y standing on the left side o f the brake with their left foot on the ladder run and right foot on the brake platform, grasping the ladder rung or top handhold with their left hand and operate the brake with their right hand. (Def.'s RCSMF Re: FSAA ~ 9A.) Plaintiff is not sure i f h i s hand was on the vertical bar or the horizontal bar. He asserts he did maintain three-point contact while attempting to apply the handbrake. (PI.'s Reply to Def.'s Additional Facts
~8.)

I n releasing the handbrake in this manner, he could use both arms contracting to share the

forces. Prior to the incident, Preston injured his right shoulder and was still experiencing reaIted residual pain. Preston felt a twinge in his left shoulder at this time, but he thought he had also pulled his right side muscles. Preston was able to continue working and finished his shift. (PI. 's CSMF Re: FSAA ~ 10.) Preston alleges that he suffered a 90 percent-plus tear on his left rotator c u f f and o t h e r i n j u r i e s t h o u g h h e did n o t r e a l i z e t h e s e v e r i t y o f h i s i n j u r i e s a n d c o n t i n u e d working. (PI.'s CSMF Re: FSAA ~ 10.) BNSF disputes these facts. (Def.'s RCSMF Re: FSAA
~

10.) P l a i n t i f f also alleges that he had to t u m the wheel counterclockwise. Turning the wheel

I Defendant added its additional relevant material facts to its RCSMF, its numbering beginning with ~ 1. To avoid confusion, the court refers to these additional facts as ~ l A , ~2A, etc.

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in this direction is necessary to release this type o f hand brake when the release lever does not work. When Plaintiff turned the wheel, the resistance did not decrease, and it was difficult to t u m the wheel. According to Plaintiff, the wheel should have provided less resistance the more it was counter-rotated, but this did not occur. A quarter t u m allows the wheel to spin freely with less resistance. (PL's CSMF Re: FSAA ~ 11.) Defendant denies P l a i n t i f f s statements on this topic. (Def.'s RCSMF Re: FSAA ~ 11.) Preston completed his work for the day and went home. After going to bed, he woke up with left shoulder pain which was severe enough that he went to the emergency room. (PL's CSMF ~ 12.) He was in considerable pain and given medication. (PL's Reply to Def.'s Additional Facts ~ 10.) Two weeks after the incident, P l a i n t i f f h a d arthroscopic surgery o n his left shoulder. (PL's Reply to Def.'s Additional Facts ~ 10.) P l a i n t i f f also received a medical examination from Dr. John G. Maurer on January 21, 2009. Plaintiff characterizes this as an adverse medical examination. (PI. 's Reply to Def. 's Additional Facts ~ 10.) Defendant explains, "Dr. Maurer noted the mechanism described b y Plaintiff was that o f a slow, gradual pull with no sudden change in mechanical linkages o r in the forces applied to his left shoulder; that the surgical findings reveal an etiology consistent with degenerative changes rather than the product o f recent trauma." (Def.'s RCSMF Re: F S A A ~
lOA.)

Following his visit to the emergency room, he reported his injury in a "Employee Personal Injury/Occupational Illness Report." (PL's CSMF Re: FSAA ~ 12; PL's Reply to Def.'s Additional Facts ~ 2.) He stated he injured his rotator c u f f while untying a brake and that the incident was caused b y the improper maintenance o f brake equipment due to a defective Order 6

automatic release on the brake. ( P l . ' s Reply to Def.'s Additional Facts ~ 2.) Plaintiff acknowledged that he is required to report defective equipment to railroad officials. Equipment believed to have caused or have the potential to cause injury should b e removed from service. (Def. 's RCSMF Re: FSAA ~ 2A.) Defendant asserts that P l a i n t i f f was required to report to the BNSF radio dispatcher that the hand brake allegedly injured his shoulder, b u t he did not. N o r did Plaintiff immediately report to his supervisor that he believed there was something wrong with the handbrake. Plaintiff did not report the condition o f the hand brake to the replacement crew or hostlers who took control o f the train and railcar following his shift. (Def.'s RCSMF Re: FSAA ~ 3A, 4A, 5A.) BNSF asserts that it conducted an inspection o f the hand brake on the morning after P l a i n t i f f reported the incident. According to the inspection report, the hand brake was found to operate normally and to b e in good condition. (Def.'s RCSMF Re: FSAA ~ 1A.) The Klamath Falls Yard BNSF car department conducted an automatic single car test, replaced a defective air brake valve, tightened the crossover, and repaired a side bearing. No repairs involved the hand brake at issue. (Def.'s RCSMF Re: FSAA ~ 6A.) Defendant has produced and reviewed 71 pages o f maintenance records reflecting the repair and maintenance history from October 16, 2001, through the date o f the alleged injury. There have been no substantive repairs performed on the hand brake after 2008. (Def.'s RCSMF Re: FSAA ~ 7A.) Preston asserts this type o f hand brake has continual problems in that a percentage o f them fail to release properly, and this is a common occurrence. Based on his personal experience, P l a i n t i f f was not overly concerned about the problem with the hand brake release at Order 7

the time. (Pl.'s CSMF Re: FSAA ~ 13.) Defendant asserts BNSF is without sufficient infonnation to c o n f i n n P l a i n t i f f s personal experience and denies these statements and P l a i n t i f f s assertion that he "did not think too much about the problems . . . . " (Def.'s RCSMF Re: FSAA ~ 13.) P l a i n t i f f asserts that the brakes were "in emergency" on the train at the time o f t h e alleged injury and when the original engines were uncoupled from the cars in order to insert two locomotives. Placing the brakes "in emergency" makes it easier to release railcar hand brakes. Preston alleges that although the brakes were "in emergency" it was not easier to release the brakes. (PI.'s CSMF Re: FSAA ~ 14.) The train at issue here was on Cascan Track 1, next to the mainline. There are four tracks and the mainline at the Klamath Falls location. No yard crew was involved in the preparation to continue the train trip from Bend to Klamath Falls. Preston and the engineer were considered the transportation train crew for this train. (Pl.'s CSMF Re: FSAA ~ 15-16.)
III. P l a i n t i f f s Motion Is Denied

P l a i n t i f f asks the Court to order (1) that the railcar was in use for the purposes o f the FSAA and (2) that BNSF violated the FSAA in not providing efficient hand brakes and is strictly liable under FELA. (PI.'s Mot. for Partial Summ. J. Re: FSAA Violation ("PI's FSSA Mot.") 1.) Defendant does not dispute, for purposes o f this motion, that the Railcar was "in use" at the time the P l a i n t i f f claims he was injured. However, Defendant disputes that BNSF is strictly liable and argues that it is a question for the j u r y whether BNSF violated the FSAA and whether the alleged violation caused the alleged injury. (Def. BNSF Railway Company's Resp. to Pl.'s Mot. for Summ. J. Re: FSAA Violation ("Def.'s FSAA Resp.") 1-3.) Order 8

The complaint alleges an action under FELA, which is governed b y federal law. Drie v. Thompson, 337 U S . 163, 174 (1949) ("What constitutes negligence for the statute's purposes is a federal question, not varying in accordance with the differing conceptions o f negligence applicable under state and local law for other purposes. Federal decisional law formulating and applying the concept governs. ").

A.

Railroad Companies Are Subject to Strict Liability for Injuries to Their Employees Resulting From Their Negligence

Congress enacted the FELA and FSAA to protect individuals who are injured resulting from accidents on interstate railroads and from defective railroad appliances. The Supreme Court recognized the Acts' "humanitarian purposes [and the] accepted standard o f liberal construction in order to accomplish those objects . . . . " Drie, 337 U S . at 180-81 (1949). The FSAA was enacted for "all who need protection from dangerous results due to maintenance or operation o f congressionally prohibited defective appliances." Coray v. So. Pac. Co., 335 D.S. 520, 522-23 (1949). The FSAA "impose[ s] an absolute duty on railroad carriers to maintain the required safety equipment on their vehicles . . . . the [FSAA] provide the basis for the claim and the FELA provides the remedy." Beissel v. Pittsburgh and Lake Erie R.R. Co., 801 F.2d 143, 145 (1986).

It is "supplemental to [FELA], having the purpose and effect o f facilitating employee recover
[sic], not o f restricting such recovery or making it impossible." Drie, 337 U S . at 189. The FSAA states, "a railroad carrier may use or allow to be used on any o f its railroad lines - a vehicle only i f it is equipped with . . . secure sill steps and efficient hand brakes . . . " 49 U S . C . § 20302. To recover for violation o f the FSAA, a plaintiff must show (1) that the statute Order 9

was v i o l a t e d a n d (2) t h a t h e suffered injuries resulting i n w h o l e o r i n p a r t from t h e d e f e c t i v e equipment. 45 U . S . C . § 51 2 ; Coray, 335 U.S. at 524.

B.

There Are Genuine Issues o f Material Fact Regarding Defendant's Strict Liability Under FELA

P l a i n t i f f argues t h a t D e f e n d a n t v i o l a t e d the F S A A a n d is thus strictly liable for his i n j u r i e s . H e c o n t e n d s t h e r e a r e n o g e n u i n e i s s u e s o f m a t e r i a l fact a s t o w h e t h e r t h e c a r w a s i n u s e a n d w h e t h e r D e f e n d a n t e q u i p p e d the c a r w i t h a n efficient handbrake, as r e q u i r e d b y statute. (Mem. i n Supp. o f P I . ' s Mot. for Partial Summ. J. Re: F S A A V i o l a t i o n ("PI's F S S A M e m . " ) 1-2.) P l a i n t i f f also a r g u e s t h a t c a u s a t i o n s h o u l d n o t b e c o n s i d e r e d o n s u m m a r y j u d g m e n t : " [ a ] n y d i s p u t e B N S F m a y h a v e a s t o t h e m a g n i t u d e o r p e r m a n e n c y o f t h e s e i n j u r i e s g o e s t o t h e measure o f damages, n o t causation." (PI. 's R e p l y i n Supp. for Partial Summ. 1. Re: F S A A V i o l a t i o n ("PI.'s R e p l y R e : F S A A " ) 4 . ) D e f e n d a n t d i s a g r e e s . B N S F d o e s n o t d i s p u t e t h a t t h e c a r w a s " i n u s e " for p u r p o s e s o f t h i s motion. I t disputes that B N S F violated the F S A A b y providing an inefficient handbrake a n d that t h e h a n d b r a k e at i s s u e d i d n o t f u n c t i o n i n the n o r m a l manner. (Def.'s F S A A Resp. 2 - 3 . ) B N S F also a r g u e s t h a t i t is for t h e j u r y to d e c i d e i f P l a i n t i f f s i n j u r y w a s c a u s e d b y t h e h a n d b r a k e .
1.

Violation o f F S A A

T h e F S A A r e q u i r e s d e f e n d a n t to use v e h i c l e s t h a t are e q u i p p e d w i t h a n e f f i c i e n t h a n d b r a k e . 49 U.S.C. § 20302(a)(1)(B). "Efficient m e a n s adequate i n p e r f o r m a n c e , p r o d u c i n g

2 F E L A states, " E v e r y c o m m o n c a r r i e r b y r a i l r o a d s h a l l b e l i a b l e i n d a m a g e s to a n y p e r s o n s u f f e r i n g injury while he is employed b y such carrier in such commerce for such injury o r death resulting i n whole o r i n p a r t y f o r t h e n e g l i g e n c e o f a n y o f t h e o f f i c e r s , agents o r e m p l o y e e s o f s u c h c a r r e i r , o r b y r e a s o n o f a n y d e f e c t o r insufficiency, due to its negligence in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment." 45 U.S.C. § 51.

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properly d e s i r e d effect. I n e f f i c i e n t m e a n s n o t p r o d u c i n g o r n o t c a p a b l e o f p r o d u c i n g t h e d e s i r e d effect; i n c a p a b l e ; i n a d e q u a t e . " S p o t t s v. B a l t i m o r e & O.R. Co., 102 F . 2 d 160, 162 ( 7 t h Cir. 1938). A h a n d b r a k e is i n e f f i c i e n t i f t h e r e is " a failure t o function, w h e n o p e r a t e d w i t h d u e c a r e , in the n o r m a l , natural, a n d usual m a n n e r . " Myers v. Reading, 331 U.S. 4 7 7 , 483 (1947). P l a i n t i f f a r g u e s t h a t t h e C o u r t s h o u l d d e t e r m i n e , as a m a t t e r o f l a w , t h a t D e f e n d a n t " e q u i p p e d c a r B N S F 4 0 2 1 7 2 w i t h a n inefficient h a n d brake." (Pl.'s Mot. for P a r t i a l S u m m . J. Re: F S A A V i o l a t i o n 2.) P l a i n t i f f c o n t e n d s t h a t h e " n e e d n o t s h o w a n a c t u a l b r e a k o r v i s i b l e d e f e c t " to p r o v e failure to function. (Pl.'s Mot. for P a r t i a l S u m m . J. Re: F S A A V i o l a t i o n 2.) P l a i n t i f f cites D i d i n g e r v. P e n n s y l v a n i a R. Co., 3 9 F . 2 d 798 ( 6 t h Cir. 1930), i n w h i c h t h e c o u r t h e l d t h a t t h e p l a i n t i f f n e e d n o t s h o w t h e s p e c i f i c r e a s o n w h y t h e b r a k e failed: " t h e f a c t t h a t i t d i d n o t h o l d d e m o n s t r a t e s its inefficiency." Id. at 799. D e f e n d a n t a r g u e s t h a t D i d i n g e r is d i s t i n g u i s h a b l e f r o m t h e facts h e r e a n d t h a t t h e i s s u e o f the e f f i c i e n c y s h o u l d go to t h e j u r y . (Def. B N S F Ry. Coo's Resp. to Pl.'s Mot. for S u m m . J. Re: F S A A V i o l a t i o n 3,8.) I n Didinger, p l a i n t i f f appealed a directed v e r d i c t t h a t w a s g i v e n a f t e r p l a i n t i f f g a v e h i s o p e n i n g s t a t e m e n t to t h e j u r y . T h e S i x t h C i r c u i t e v a l u a t e d w h e t h e r t h e p l a i n t i f f h a d p r e s e n t e d e n o u g h e v i d e n c e s u c h t h a t a r e a s o n a b l e j u r y c o u l d find for t h e p l a i n t i f f . T h e p l a i n t i f f p r e s e n t e d e v i d e n c e t h a t t h e b r a k e d i d n o t hold, and the c o u r t c o n c l u d e d t h e p l a i n t i f f s e v i d e n c e w a s s u f f i c i e n t to p r o c e e d . T h e S i x t h C i r c u i t d i d not, h o w e v e r , d e t e r m i n e as a m a t t e r o f l a w t h a t t h e p l a i n t i f f h a d s h o w n t h e b r a k e t o b e i n e f f i c i e n t b u t m e r e l y t h a t t h e p a r t i e s s h o u l d p r o c e e d t o trial. "It is p o s s i b l e that, u p o n hearing, t h e defendant m i g h t h a v e m e t the s h o w i n g o f inefficiency b y e v i d e n c e t h a t t h e b r a k e e q u i p m e n t w a s i n g o o d order, o r b y o t h e r e v i d e n c e t e n d i n g to s h o w t h a t

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the a c c i d e n t h a p p e n e d through the m a n n e r o f handling. " Id. at 800. O t h e r c a s e s a l s o s u p p o r t D e f e n d a n t ' s argument. T h e S u p r e m e C o u r t h i g h l i g h t e d t h e i m p o r t a n t role o f the j u r y i n Myers v. Reading, Company, 331 U.S. 477 (1947), w h e r e the p l a i n t i f f s u e d f o r d a m a g e s u n d e r F E L A for p e r s o n a l i n j u r i e s r e s u l t i n g f r o m a h a n d b r a k e t h a t w a s n o t efficient u n d e r F S A A . Id. at 482. " A railroad subject to [FSAA] m a y b e found liable i f t h e j u r y r e a s o n a b l y c a n i n f e r from the evidence . . . . " Id. at 482-83. I n T e x a s and Pacific R a i l w a y C o m p a n y v. Griffith, 265 F . 2 d 4 8 9 (5th Cir. 1959), the F i f t h C i r c u i t e x p l a i n e d t h a t t h e p l a i n t i f f s credibility c a n b e i s s u e i n the F S A A strict l i a b i l i t y cases. I n o r d e r to r e c o v e r u n d e r t h e F S A A , t h e p l a i n t i f f m u s t s h o w t h a t t h e d e f e n d a n t v i o l a t e d the act. S o m e t i m e s this violation can b e s h o w n simply b y evidence o f the brake's faulty performance. S o m e t i m e s the p r o o f o f the violation is contingent o n the p l a i n t i f f s t e s t i m o n y as to w h a t h a p p e n e d . W h e n a v i o l a t i o n is e s t a b l i s h e d b y t h e p l a i n t i f f s t e s t i m o n y , c r e d i b i l i t y m a y b e an issue for the jury. A defendant m a y show that the b r a k e p r o p e r l y w o r k e d b e f o r e a n d / o r after t h e i n c i d e n t t o p r e s e n t e v i d e n c e o f c r e d i b i l i t y . T h e s a m e e v i d e n c e is n o t u s e d o n c e a v i o l a t i o n h a s b e e n established. The F i f t h Circuit explained, "[t]he evidence as to the c o n d i t i o n b e f o r e a n d after the accident is m a t e r i a l in enabling the j u r y to decide w h e t h e r the p l a i n t i f f s t e s t i m o n y as to the b r a k e s l i p p i n g w a s c r e d i b l e . T h e e v i d e n c e is i m m a t e r i a l , u n d e r t h e [ F S A A ] o n c e t h e i n j u r e d e m p l o y e e h a s s h o w n n o n - c o m p l i a n c e o n t h e p a r t o f t h e r a i l r o a d , t h a t is, f a i l u r e , t o f u r n i s h a n efficient, functioning brake." Id. at 493. Similarly, i n R i c h a r d s o n v. Consolidated Rail Corp., 17 F . 3 d 213 (7th Cir. 1994), s u p e r s e d e d b y a m e n d m e n t to Fed. R. Civ. Pro. R 26, the S e v e n t h Circuit explained,

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It is true that Conrail would be liable i f the hand brake did n o t properly function at t h e t i m e o f t h e i n c i d e n t , r e g a r d l e s s o f w h e t h e r it w o r k e d p r o p e r l y b e f o r e a n d after. However, R i c h a r d s o n bears the b u r d e n o f p r o v i n g that the h a n d b r a k e w a s n o t working efficiently w h e n he was injured, and his testimony is n o t conclusive. Because Conrail disputes whether the brake malfunctioned, it is allowed to present evidence o f t h e brake's condition at times other than the incident i n order to challenge Richardson's allegations. I t was then up to the j u r y to m a k e d e t e r m i n a t i o n s o f c r e d i b i l i t y and w e i g h t h e evidence i n d e c i d i n g w h e t h e r R i c h a r d s o n m e t h i s b u r d e n i n p r o v i n g t h a t t h e b r a k e d i d n o t w o r k e f f i c i e n t l y at t h e t i m e o f t h e incident.

rd. at 217. The same principles apply here. To grant partial summary j u d g m e n t on this issue would result i n the Court making a c r e d i b i l i t y determination. I n support o f his motion, P l a i n t i f f p r o v i d e s his d e c l a r a t i o n o f w h a t occurred w h e n he attempted to release the hand brake. (Mem. i n Supp. o f P l . ' s Mot. for Partial Summ. J. Re: F S A A Violation 7.) This issue, however, is purely factual and n o t a matter for summary judgment. As Defendant points out, "Plaintiff thus wants the court to decide, as a matter o f l o w , that BNSF violated the F S A A on his w o r d alone." (Def. B N S F Ry. Coo's Resp. to Pl.'s Mot. for Summ. J. Re: F S A A Violation 3.) T h e C o u r t agrees w i t h Defendant; " p l a i n t i f f c a n n o t e s t a b l i s h a n F S A A v i o l a t i o n b y B N S F as a matter o f law based only o n his testimony where . . . other competent evidence in the record shows that the hand brake functioned properly before and after p l a i n t i f f used it." (Def. B N S F Ry. Coo's Resp. to Plo's Mot. for Summ. J. Re: F S A A Violation 8.) 2. Causation o f Injury

A f t e r t h e p l a i n t i f f s h o w s t h e F S A A was v i o l a t e d , h e m u s t n e x t s h o w t h a t h e w a s i n j u r e d in part b y the defective equipment. BNSF argues the issue o f causation is also for the j u r y to decide. P l a i n t i f f argues that under FELA the standard is whether BNSF's violation played any

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part in causing P l a i n t i f f s injuries. The Court has denied summary judgment for Plaintiff on the issue o f the FSAA violation.
I t is unnecessary to discuss causation.

IV.

Conclusion
Genuine issues o f material fact exist as to whether Defendant violated the FSAA and is

strictly liable. P l a i n t i f f s motion is denied.

D A T E D this

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L',

d a y o f August, 2 0 0 9

M A R K D. CLARKE U n i t e d States M a g i s t r a t e J u d g e

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