Judge: Anne Hwang, Case: 19STCV46029, Date: 2023-10-31 Tentative Ruling

Case Number: 19STCV46029    Hearing Date: October 31, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOVING PAPERS

1.      Notice of Motion

2.      Memorandum of Points and Authorities in Support

3.      Union Pacific Railroad Company’s Separate Statement of Undisputed Material Facts

4.      Table of Evidence in Support

5.      Compendium of Non-California Authorities

OPPOSITION PAPERS

1.      Plaintiff’s Opposition; Memorandum of Points and Authorities

2.      Plaintiff’s Response to Defendant’s Separate Statement

3.      Plaintiff’s Evidence and Appendix of Exhibits

REPLY PAPERS  

1.      Reply to Motion for Summary Judgment

2.      Separate Statement

3.      Objection to Plaintiff’s Evidence

BACKGROUND

On December 20, 2019, Plaintiff Joseph D. Pearson (Plaintiff) filed a complaint against Defendants Union Pacific Railroad Company and Does 1 to 20 under the Federal Employers’ Liability Act (FELA) (45 U.S.C. § 51 et seq.) and the Federal Safety Appliance Act (FSAA) (49 U.S.C. § 20301). The alleged injury occurred while Plaintiff was working for Defendant as a “brakeman” in a train yard. (Complaint ¶ 8.) Plaintiff alleges that Defendant breached its duty by failing “to maintain their equipment and premises.” The alleged breach resulted in Plaintiff using a “defective bleeding rod” which then caused injuries. (Id. ¶ 10.)

Defendant Union Pacific Railroad Company (Defendant) now moves for summary judgment, or in the alternative, summary adjudication, on the basis that no triable issues of fact exist. Specifically, under the FELA cause of action, Defendant argues Plaintiff cannot establish Defendant had notice of the hazard, or that it caused his injuries. Under the FSAA cause of action, Defendant argues the subject car was not “in use” and there was no defect on the bleeding rod.

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].)  Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise.  If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.  Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].)  Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.  Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].) 

EVIDENTIARY OBJECTION

As an initial matter, the Court notes that Plaintiff objected to Defendant’s evidence in their Separate Statement. The objections were not filed separately pursuant to California Rules of Court, rule 3.1354(b), and thus fail to be formatted correctly. Despite this, the Court acknowledges that Defendant’s Separate Statement cites to a Schroeder Declaration, when it appears its exhibits are attached to the Declaration of Simone Leighty. The Court will therefore cite to the Leighty Declaration when citing Defendant’s exhibits.

The Court declines to address Defendant’s objections to Plaintiff’s evidence because the Court does not rely on the evidence to reach the rulings herein.

DISCUSSION

Federal Employers’ Liability Act (FELA)

“While injured employees in California generally are entitled to workers’ compensation benefits regardless of whether the employer was at fault (Lab. Code, § 3200 et seq.), those benefits are not available to railroad employees who suffer on-the-job injuries. Instead, their right of recovery is governed by [the federal Employers’ Liability Act] FELA, which permits recovery only if the employer acted negligently.  [Citations.]  A FELA action may be brought in either federal or state court.  [Citations.]  ‘When, as here, a FELA action is brought in state court, state law governs procedural questions, while federal law governs substantive issues.  [Citation.]  State procedure does not apply, however, if it results in the denial of a federal right granted by Congress.’  [Citation.]”  (Fair v. BNSF Railway Co. (2015) 238 Cal.App.4th 269, 275 (Fair).)   

45 U.S.C. § 51 provides that a railroad employer is liable “to any person suffering injury while he is employed by such carrier in such commerce, … for such injury … resulting in whole or in part from the negligence of any of the offices, agents, or employees of such carrier….”  (45 U.S.C. § 51.)  The question of evidence required to establish that a railroad’s negligence caused the exposure is much less than in an ordinary negligence case.  (Harbin v. Burlington N. R.R. Co. (7th Cir. 1990) 921 F.2d 129, 131 (Harbin).)  “FELA imposes upon a railroad a continuing and nondelegable duty to use reasonable care to provide railroad employees a safe place to work.” (Woods v. Union Pacific Railroad Co. (2008) 162 Cal.App.4th 571, 577.)

“The standard under FELA is a relaxed one; to prove that a railroad breached its duty, a ‘plaintiff must show circumstances which a reasonable person would foresee as creating a potential for harm [and] then show that this breach played any part, even the slightest, in producing the injury.’ [citation omitted.] ‘It is well established that the quantum of evidence required to establish liability in a FELA case is much less than in an ordinary negligence action.’ [citation omitted] If the negligence of the employer ‘played any part, however small, in the injury,’ the employer is liable. [citation omitted] Neither assumption of the risk nor the contributory negligence of the employee bars recovery, if the injury was at least in part the result of the employer's negligence. (45 U.S.C. §§ 53, 54.)” (Fair, supra, 238 Cal.App.4^th at 275–76.)  

The parties set forth the following undisputed facts. On June 26, 2019, Plaintiff was working as a brakeman in Defendant’s Valla Yard in Santa Fe Springs, California. (UMF 1.) The Valla Yard is an industrial switching yard. (UMF 13.) Plaintiff was engaged in normal switching operations. (UMF 14.) At the time of the incident, Plaintiff was tasked with bleeding the air from the brakes on several railcars. (UMF 5.) Plaintiff was bleeding the air out of a string of hopper cars that were attached to each other. The string totaled seventeen hopper cars and two locomotives.

Plaintiff alleges that when he pulled the bleeding rod on hopper car “EUCX 887472,” the rod did not move, causing him to be propelled forward and suffer injury. (PF 15.) Later inspection revealed there was a piece of wood near the bleeding rod, which Plaintiff contends caused the rod to jam.

Defendant argues there is no dispute of triable fact that it had notice of the car’s hazardous condition (i.e. the piece of wood). Defendant also argues that Plaintiff cannot establish that the defect caused his injuries.

Defendant sets forth the following facts:

-          Plaintiff was responsible for performing visual inspections of the railcars. (UMF 4.)

-          At the time of the incident, Plaintiff was unaware of the wooden stick located near the bleed rod. (UMF 6.)

-          The bleed rod is housed within an inverted "U-bar" and requires minimal effort to pull or move. (UMF 7.)

-          At the time of the incident, the bleed rod did not require excessive pulling for Plaintiff to move it. (UMF 8.)

-          Plaintiff used reasonable effort when attempting to move the bleed rod. (UMF 9.)

-          The wooden stick was not wedged in place near the bleed rod. (UMF 10.)

-          The wooden stick did not impede the functionality of the bleed rod, which could have been pulled with normal, minimal effort. (UMF 11.)

Plaintiff offers the following facts:

-          From the day that the Subject Car arrived at its origination point, Defendant UP’s West Colton Yard, until the Incident occurred, the Subject Car was moved, switched, spotted, operated, and handled exclusively by Defendant UP’s railroaders and trainmen at Defendant UP’s West Colton Yard, Los Nietos Yard, and Valla Yard. (PAMF 3.)

-          After Plaintiff Pearson had bled the eight to ten rail cars that had gone by him without incident, he reached to pull the bleed valve rod on the Subject Car using reasonable and ordinary effort just as he had done thousands of times before the day of the Incident. (PAMF 14.)

-          To Plaintiff Pearson’s surprise, the bleed valve rod on the Subject Car was stuck and seized up which caused him to propel forward and be knocked off balance on the rock ballast surface. (PAMF 15.)

-          After assisting Plaintiff Pearson and attempting to get him medical help, conductor Wilson went back to look at the Subject Car. (PAMF 22.)

-          Conductor Wilson observed and photographed the bleed valve rod on the Subject Car which he had seen Plaintiff Pearson attempt to pull when the Incident occurred. (PAMF 23.)

-          Conductor Wilson saw that the bleed valve rod on the Subject Car was tampered with and had a piece of wood or stick which appeared to be jammed and wedged against the bleed valve rod within its retainer. (PAMF 24.)

-          A foreign piece of wood jammed in the bleed valve rod within the bleed valve rod retainer is an unusual, nonconforming condition of an operational device which is an essential part of the air brakes system. (PAMF 25.)

-          Throughout Plaintiff Pearson’s entire career with Defendant UP, having performed this same bleed off job thousands of times, he had never seen or encountered foreign material in the bleed valve rod and retainer. (PAMF 30.)

-          Only a sophisticated railroad employee involved in the handling, operation, and transportation of hopper rail cars would have any knowledge of, contact with, or reason to insert foreign material into the bleed valve rod within the retainer. (PAMF 33.)

-          The Subject Car was exclusively handled, moved, manipulated, tested, inspected, and spotted by Defendant UP’s employees while on Defendant UP and its customer’s rail tracks. (PAMF 34.)

-          Plaintiff Pearson was only one (1) of ten (10) or more of Defendant UP’s employees who held responsibilities at Defendant UP’s yard(s) and were involved in the transportation, movement, switching, and use of the Subject Car for the approximate 30-day period that the Subject Car was exclusively in Defendant UP’s control before the Incident occurred. (PAMF 35.)

Defendant has failed to meet its burden to show that there are no triable issues of fact that it did not have notice of the defect. Defendant’s facts, as outlined in their Separate Statement, do not address notice. They also do not dispute Plaintiff’s evidence which suggests that only an employee of Defendant would know to place the piece of wood near the bleeding rod and that the car was in Defendant’s control for thirty days.

Defendant relies on Deans v. CSX Transp., Inc. (4th Cir. 1998) 152 F.3d 326 for the proposition that summary judgment is proper if there is no evidence that an inspection would provide notice of the defect. In Deans, the only evidence produced was “the fact that a post-injury inspection of the hand brake demonstrated that it was defective.” (Id. at 330.) Here, however, the alleged defect was a piece of wood placed near the bleeding rod. A reasonable inference is that the defect was visible even from afar. Moreover, the subject car was exclusively within Defendant’s control for about 30 days. Defendant has set forth no evidence that it had no actual or constructive notice of a visible defect within its custody.

Therefore, Defendant’s motion for summary adjudication as to whether Defendant had notice of the defect is denied.

Regarding the issue of causation, Defendant has met its initial burden to show the absence of a triable issue of fact. Gavin Jenkins, Defendant’s Manager of Yard Operations, testified that based on the photographs, he believed the wood piece was not impeding the movement of the bleeding rod. (Leighty Decl., Exh D, Jenkins Depo. 47:14–21.)  Kevin Garcia, Defendant’s Director of Operations, testified that the wood piece near the bleeding rod had no effect on the ability to move the rod. (Leighty Decl., Exh. E, Garcia Depo. 47:14–22, 87:7–22.)  The burden shifts to Plaintiff.

Plaintiff has demonstrated there is a dispute of material fact. Plaintiff’s declaration, under penalty of perjury, states that the subject bleeding rod was stuck when he attempted to pull it. (Exh. B, Pearson Decl. ¶ 8–10.) Plaintiff has been employed by Defendant since 1997 and has performed this movement thousands of times before without incident. (Id. ¶ 3, 9.) There is also no indication that moveable bleeding rods on the other cars contained foreign objects near them. Additionally, Conductor Karl Wilson, with whom Plaintiff was working on the day of the incident, described the alleged defect as “the bleeding rod and a piece of wood stuck in it.” (Pl. Exh. F, Wilson Depo. 102:1–10.)  Plaintiff’s expert, who has worked for Defendant for 42 years as a trainman, brakeman, and switchman, testified that “[i]f foreign material such as a piece of wood is wedged or provides pressure against the bleed valve rod in any direction within the retainer, it can seize up or stick the bleed valve rod into a fixed position so that it will not pull out, push in or retract as intended in the normal functioning of the air brake system. By doing so you are altering and overriding its ability to properly control the air brake bleed valve for its intended functions.” (Pl. Exh. D, Nava Decl. ¶ 16A.)

Accordingly, considering the evidence in the light most favorable to Plaintiff, including all reasonable inferences, the Court finds that there are triable issues of fact regarding whether the alleged defect caused Plaintiff’s injuries. The Court therefore denies Defendant’s motion for summary adjudication as to the issue of causation.

Federal Safety Appliance Act (SSA)

“The SAA imposes on a railroad an absolute duty to provide and maintain safety appliances on its trains. [citation omitted] The act ‘has been liberally construed so as to give a right of recovery for every injury the proximate cause of which was a failure to comply with a requirement of the [a]ct.’ [citation omitted] When a violation of the SAA results in injury to an employee, the railroad is strictly liable for the injury. [citations omitted] The SAA thus dispenses ‘with the necessity of proving that violations of the safety statutes constitute negligence; and making proof of such violation is effective to show negligence as a matter of law.’ [citation omitted]” (Woods v. Union Pacific Railroad Co. (2008) 162 Cal.App.4th 571, 577.) The SAA is not an independent cause of action, but a plaintiff can use a SAA violation to recover through a FELA action. (Id.) Whether a particular railroad appliance comes within the purview of the SAA is a question of law. (Woods v. Union Pacific Railroad Co. (2008) 162 Cal.App.4th 571, 578.) “A jury question is presented under the FSAA if it can be reasonably concluded that the equipment failed to operate properly causing plaintiff's injury.” (Sheehy v. Southern Pac. Transp. Co. (9th Cir. 1980) 631 F.2d 649, 653.)

Defendant argues there was no defect on the bleeding rod.

Defendant sets forth the following facts:

-          The bleed rod is housed within an inverted "U-bar" and requires minimal effort to pull or move. (UMF 7.)

-          At the time of the incident, the bleed rod did not require excessive pulling for Plaintiff to move it. (UMF 8.)

-          Plaintiff used reasonable effort when attempting to move the bleed rod. (UMF 9.)

Plaintiff sets forth the following facts:

-          After assisting Plaintiff Pearson and attempting to get him medical help, conductor Wilson went back to look at the Subject Car. (PAMF 22.)

-          Conductor Wilson observed and photographed the bleed valve rod on the Subject Car which he had seen Plaintiff Pearson attempt to pull when the Incident occurred. (PAMF 23.)

-          Conductor Wilson saw that the bleed valve rod on the Subject Car was tampered with and had a piece of wood or stick which appeared to be jammed and wedged against the bleed valve rod within its retainer. (PAMF 24.)

Courts have suggested that under the FSAA, railroads are not under a positive duty to keep all appliances safe.  (See Collins v. Southern Pac. Co. (9th Cir. 1961) 286 F.2d 813, 815.) External materials that make appliances unsafe, without evidence that the appliances themselves are defective, do not violate the FSAA. For example, in Collins, the court held that the trial court properly dismissed a FSAA action where the plaintiff slipped on grease as he was ascending the ladder. (Id. at 813, 815–16 [“It would appear to be unreasonable under such circumstances that the railroad should at all times and under all circumstances be under a positive duty to maintain its cars in a safe condition (under the FSAA). Of course, under the general provisions of the Federal Employers' Liability Act, the railroad may be held responsible for negligence in the maintenance of its cars.”].) Similarly, here Plaintiff alleges the bleeding rod was defective under the FSAA due to the jammed piece of wood. This is analogous to the grease on the ladder in Collins because it is also an external material separate from the appliance.

Accordingly, considering the evidence in the light most favorable to Plaintiff, including all reasonable inferences, the Court finds that there are no triable issues of fact regarding whether the rod was defective. The Court therefore grants summary adjudication as to the alleged FSAA violation.

Because summary adjudication is granted, the Court declines to address Defendant’s alternative argument that the subject car was not “in use” under the FSAA.

CONCLUSION AND ORDER

Therefore, Defendant’s motion for summary adjudication as to Plaintiff’s claim under the Federal Safety Appliance Act is GRANTED.

Defendant’s motion for summary adjudication under the Federal Employers’ Liability Act cause of action is DENIED.

Defendant’s motion for summary judgment is DENIED.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.