ORDER AND REASONS
HELEN G. BERRIGAN, District Judge.
Before the Court is a motion for summary judgment filed by the Defendant, Kansas City Southern Railway Co. ("KCS"), to dismiss claims brought against it by Plaintiffs John R. Scott ("Scott") and Larry Selvage ("Selvage") (collectively "Plaintiffs") under the Federal Employers Liability Act ("FELA"). Plaintiffs oppose the motion. The motion is before the Court on the briefs, without oral argument. After considering the memoranda, the record, and the applicable law, the Court GRANTS Defendant's motion for the reasons herein.
This is a case about a railroad collision. On November 30, 2004, defendant Kenneth Bourg was driving a big-rig truck over the railroad grade crossing at Riverbend Boulevard. in St. Charles Parish, Louisiana, when the lowboy trailer he was pulling became lodged on the tracks.
The KCS train rounding the curve was under the control of Plaintiffs Scott and Selvage, and a third individual not a party to this action. Rec. Doc. 360-2, p. 2. Scott was the engineer on the lead locomotive and Selvage was in the second locomotive, completing paperwork. Rec. Doc. 370-19, p. 65. Because Selvage was in a trailing car at the time of the collision, he did not witness the incident and, other than being aware that the locomotive's brakes were engaged prior to impact, he had no notice of the impending crash. Id. at 66. Just before the train struck the trailer, Scott got out of his seat and crouched behind the engineer's console for protection. Rec. Doc. 360-8, p. 130. Scott alleges injuries resulting from being thrown around the interior of the locomotive upon impact, specifically to his neck and back. Rec. Doc. 370, p. 3. In the second locomotive, Selvage was thrown to the floor upon impact. His car then derailed and overturned, requiring emergency personnel to free him. Rec. Doc. 370-19, pp. 69-70. Selvage alleges injuries to multiple parts of the left side of his body. Id.
Plaintiffs' claims against KCS are brought under the Federal Employers Liability Act ("FELA"), 45 U.S.C. § 51 et seq.
Law and Analysis
Ordinarily, summary judgment is only proper when the record indicates that there is no "genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED.R.Civ.P. 56. A genuine issue of fact exists only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also, Taita Chem. Co. v. Westlake Styrene Corp., 246 F.3d 377, 385 (5th Cir.2001). When considering a motion for summary judgment, this Court "will review the facts drawing all inferences most favorable to the party opposing the motion." Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir.1986).
The party moving for summary judgment bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its initial burden, however, "the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial." Engstrom v. First Nat'l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir.1995). In order to satisfy its burden, the nonmoving party must put forth competent evidence and cannot rely on "unsubstantiated assertions" and "conclusory allegations." See Hopper v. Frank, 16 F.3d 92 (5th Cir.1994); Lujan v. Nat'l. Wildlife Fed'n., 497 U.S. 871, 871-73, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 649 (5th Cir.1992).
The "initial burden" imposed on the moving party has two parts: the burden of production and the ultimate burden of persuasion. Celotex, 477 U.S. at 330, 106 S.Ct. 2548.
The Court notes, however, that the rules of the summary judgment game are different when the nonmoving party is a FELA plaintiff. As the Fifth Circuit recently articulated, in a FELA case, "the plaintiffs burden of proof is `featherweight.'" Howard v. Canadian Nat'l./Illinois Cent. R.R., 233 Fed.Appx. 356, 357 (5th Cir.2007). The court observed that its precedents "clearly establish that in this Circuit, a judgment as a matter of law against the [FELA] plaintiff is appropriate `only when there is a complete absence of probative facts' supporting the plaintiffs position." Id. (quoting Rivera v. Union R. Co., 378 F.3d 502, 506 (5th Cir.2004)). In Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.1969) (en banc) (overruled in other respects by Gautreaux v. Scurlock Marine, 107 F.3d 331, 336 (5th Cir.1997)), the court held that "the FELA `complete absence of probative facts' standard is in sharp contrast to the more demanding test applicable in other civil cases." Howard, 233 Fed.Appx. at 357 (quoting Boeing, 411 F.2d at 374-75). Namely, where surviving a motion for directed verdict ordinarily requires the nonmoving party to show a "conflict in substantial evidence to create a jury question," as opposed to offering an insufficient "mere scintilla of evidence," in FELA cases, "the jury's power to engage in inferences must be recognized as being significantly broader." Id. at 357-58.
The Fifth Circuit recognized that the "congressional intent in enacting the FELA was to secure jury determinations in a larger portion of cases than would be true of ordinary common law actions" andthat a "`trial by jury is part of the remedy in FELA cases.'" Id. at 357 (quoting Boeing, 411 F.2d at 371). So, FELA plaintiffs can survive dispositive motions by offering evidence which would be insufficient to overcome a similar motion in an ordinary civil case. Accordingly, the Court proceeds with the understanding that the evidentiary standards in FELA cases are "highly favorable to the plaintiff" and that the Court must be as demanding of the defendant moving for summary judgment as it is "protective of the plaintiffs right to a jury trial." Rivera, 378 F.3d at 506 (quoting Wooden v. Missouri Pac. R.R. Co., 862 F.2d 560, 561 (5th Cir.1989)).
The standards for establishing negligence liability under the FELA are also far more permissive than they are in common law negligence actions. In a decision relied upon by the Fifth Circuit, the Supreme Court stated the governing principles in FELA cases:
Plaintiffs contend that KCS's motion for summary judgment must be denied because KCS fails to address Plaintiffs' claim, introduced in their amended complaints, that KCS failed to provide a safe crossing. Rec. Doc. 370, p. 8. That failure, the Court notes, results from KCS having moved for judgment on the wrong pleadings, i.e. Plaintiffs' pre-amendment complaints. In reply to Plaintiff's opposition, KCS submits that it is "entitled to the benefit of this Court's prior ruling regarding crossing design issues as set forth in the Motion for Summary Judgment to Dismiss Affirmative Defenses." Rec. Doc. 388, p. 2, fn. 1. Here, KCS refers to this Court's August 6, 2007 ruling, granting summary judgment in favor of defendant Prudential Insurance Company of America ("Prudential"). See Kansas City S. Ry. Co. v. Nichols Const. Co., 2007 WL 2265513 (E.D.La. Aug. 6, 2007) (Berrigan, J.). That ruling, recently affirmed by the Fifth Circuit, recognized that, through an Act of Dedication ("Act"), Prudential transferred to the Parish of St. Charles all responsibility for the roadway over the railroad. Id. at *3. By dedicating the crossing over to the public, Prudential was "relieved of any further responsibility under the terms of the [Public Road Crossing Agreement]." Id. Furthermore, the Court held that, through the Act, Prudential unambiguously agreed to "assign, transfer, dedicate, and convey unto St. Charles Parish all of its rights, title and interest in and to the Agreements with ... Louisiana & Arkansas Railway Company."
Finally, it is clear that Scott and Selvage are aware of both the Prudential-L & A Public Road Crossing Agreement and the Act of Dedication of the roadway to the Parish of St. Charles, including all of the rights and obligations affected by the Act. Rec. Doc. 73, pp. 11-12; Rec. Doc. 104, pp. 11-13. Plaintiffs' amended complaints allege that St Charles Parish assumed full responsibility for the maintenance and operation of the railroad crossings through the Act as well as compliance with any other obligations established in the agreement between KCS and Prudential. Id. Plaintiffs further claim that St. Charles Parish is liable to them for any and all damages resulting from the railroad collision as a result of its failure to fulfill those obligations, or, alternatively, that it is responsible for the design, construction, and maintenance of the roadway and incurs liability that way. Id. Given the recent rulings of this Court and the Fifth Circuit, not to mention Plaintiffs' own admissions of St. Charles Parish's exclusive control over the site of the collision, there is no question of material fact surrounding KCS's alleged negligent failure to provide a safe crossing. Therefore, summary judgment is warranted on Plaintiffs' claim that KCS negligently failed to provide and maintain a safe crossing.
The Court turns now to the question of whether KCS was negligent in failing to provide Plaintiffs' with a safe workplace, namely by not equipping its locomotives with seat belts, padding, and other safety features. Again, the applicable standard in cases arising out the FELA is whether a plaintiff can show some evidence, however slight, that a railroad employer's negligence caused his workplace injuries. The tried and true showing of a `genuine issue of material fact' is not required of a FELA plaintiff seeking to survive summary judgment and have his case tried before a jury. Boeing Co. v. Shipman, 411 F.2d 365, 371, 374-75 (5th Cir.1969). KCS relies primarily on the Fifth Circuit's decision in Lane v. R.A. Sims, 241 F.3d 439 (5th
The plaintiff in Lane argued that the FRSA's goals of national uniformity in railroad safety laws did not preclude an excessive speed claim under FELA because the two statutes are not meant to conflict. Id. That is to say, according to the plaintiff in Lane, the FRSA only establishes minimum safety requirements and does not preclude a finding of FELA negligence if "reasonable railroads would have taken additional precautions to prevent injury to their employees." Id. (emphasis in original). The Fifth Circuit rejected this argument. Taking into account Congress' goal of establishing nationally uniform safety standards and citing holdings from other jurisdictions that FRSA compliance precludes FELA liability, the court found that summary judgment on Lane's excessive speed claim was warranted. Id. at 443 (citing Waymire v. Norfolk & W. Ry. Co., 65 F.Supp.2d 951, 955 (S.D.Ind.1999), aff'd, 218 F.3d 773 (7th Cir.2000), holding that a railroad could "at one time be in compliance with federal railroad safety standards with respect to certain classes of plaintiffs yet found to be negligent under the FELA with respect to other classes of plaintiffs for the very same conduct."). The Fifth Circuit held that allowing Lane's FELA claim to proceed would have the undesirable and untenable effect of making "the railroad safety regulations established under the FRSA virtually meaningless" and "would further undermine uniformity." Id. at 444.
Plaintiffs argue that KCS's reliance on Lane is misguided. Lane concerned a railroad's compliance with a section of the FRSA that explicitly mandated a specific maximum speed for locomotives, while the question in the instant case is whether the
In Weaver, the Fifth Circuit considered whether a railroad's full compliance with the Locomotive Inspection Act ("LIA") could preclude a finding of negligence. 152 F.3d at 428-29. The plaintiff in Weaver was a train engineer who was injured when someone threw a bottle through an open window of the engine car, hitting him in the head and rendering him unconscious. 152 F.3d at 428. Weaver sued his employer under the FELA, alleging that the railroad was negligent by creating an unsafe workplace by failing to air condition the engine car, forcing Weaver to have his window open, and by failing to alert Weaver to the risk of projectiles entering the car. Id. The railroad argued that Weaver's negligence claims were "preempted" by the railroads's compliance with regulations promulgated under the LIA, namely 49 C.F.R. § 229.119(b) and (d) (1998). Id. at 429. Those regulations provided for cab windows providing unobstructed views and for heating and ventilation, but neither required air conditioning. Id. The Court rejected the railroad's preemption argument, noting as an initial matter that the preemption doctrine was not at issue because the case concerned the interaction of two federal statutes, the LIA and the FELA. Id. (citing Texas Manufactured Hous. Ass'n. v. City of Nederland, 101 F.3d 1095, 1099 (5th Cir.1996)). The court then held that the LIA regulations with which the railroad was in full compliance were not premised on providing safety from the type of harm that befell the plaintiff worker. Id. at 430. Because the purpose of those regulations was only to ensure proper ventilation, a minimum temperature, and an unobstructed view, the LIA did not completely occupy the field of locomotive-employee safety. The court held, therefore, that "compliance with the LIA and accompanying regulations is not determinative of [the railroad's] negligence under FELA" for injuries unassociated with ventilation, temperature, or view. Id. Plaintiffs suggest that this Court should read Weaver to hold that regulatory compliance does not preclude tort liability and argue that the factual similarity between Weaver and the instant case, i.e. that both concern 49 C.F.R. § 229, makes it a better guide than Lane. Rec. Doc. 391-3, pp. 2-3.
Contrary to assertions by both parties, the Court does not find itself in the position of choosing which Fifth Circuit decision to follow, because Lane and Weaver do not provide differing opinions on how a district court should interpret the relevant railroad regulations and apply them in a FELA case. Lane and Weaver, both authored by Judge Barskdale, are consistent in their statutory interpretation and in their findings of claim preclusion, and the Court can follow the collective guidance of the two decisions in forming its own. The Court first recognizes, consistent with the
The rule emerging from Lane and Weaver appears to be that the types of dangers and precautions contemplated by a railroad safety regulation are determinative of whether or not a railroad's compliance with regulations will shield it from liability. More to the point, if an employee's injuries come about in a way not contemplated by a safety regulation, then the railroad's compliance with that regulation might not preclude its having failed to exercise a reasonable standard of care. See also Tufariello v. Long Island R. Co., 458 F.3d 80, 86 (2nd Cir.2006) (holding that a railroad employee could bring a negligence claim against his employer for hearing loss resulting from long-term exposure to train horns because no FRSA preclusion existed where the FRSA only prescribed minimum sound levels for warning devices on trains).
It is difficult to conceive that a regulation requiring that cab seats be "securely mounted and braced" could be intended to provide anything other stability and security
The Court is mindful that the FRSA does not always preclude FELA claims, as in cases where no complied with regulations are meant to guard against the injury suffered by the plaintiff and the railroad's having exercised a reasonable standard of care becomes a material fact question. However, the facts before the Court in this case, taken with governing statutes that the Court has been charged to interpret, are highly unfavorable to Plaintiffs' claims. The controlling regulations were complied with in full by KCS, and the Court finds that 49 C.F.R. § 229.119(a) was intended to provide railroad employees with safe seating. Moreover, there is precious little evidence in the record to indicate that the presence of seat belts would have changed the outcome of the crash to the extent that a jury could find that the absence of seat belts was the cause of Plaintiffs injuries.
The Court is also bound to follow the Fifth Circuit's decision in Lane v. R.A. Sims, Inc., despite Plaintiffs' urging, to the contrary, that Weaver v. Missouri Pac. R.R. Co. should control. Finding that a FELA plaintiffs "excessive-speed negligence claim" was precluded by the railroad's compliance with FRSA speed limit regulations, the court in Lane established that FELA negligence claims against a railroad whose regulatory compliance satisfies the regulation's intended safety purpose cannot withstand a motion for summary judgment. Lane, 241 F.3d at 443. The Fifth Circuit also advised that a court must consider the underlying goal of the FRSA and accompanying regulations of establishing uniformity in "every area of railroad operations." 49 U.S.C. § 20101. In the court's words,
Lane, 241 F.3d at 443-44. Such is the case here. If the Court were to hold that a question exists as to KCS's negligent failure to equip its trains with seat belts and other safety devices specifically not
For the reasons stated above, it is ORDERED that KCS's motion for summary judgment is GRANTED. Rec. Doc. 360.