Judge: Gregory Keosian, Case: 21STCV01033, Date: 2023-09-14 Tentative Ruling

Case Number: 21STCV01033    Hearing Date: September 14, 2023    Dept: 61

Defendant Union Pacific Railroad Company’s Motion for Summary Adjudication is GRANTED as to the second cause of action under the Locomotive Inspection Act, and is DENIED as to the first cause of action for negligence.

Defendant to provide notice.

I.                   OBJECTIONS

Plaintiff submits objections to the declaration of David Williams submitted in support of Defendant’s motion for summary adjudication. These objections are OVERRULED.

Plaintiff also objects to alterations made to Defendant’s motion, made when the motion was re-filed on June 28, 2023, after a prior motion for summary adjudication was taken off-calendar with the transfer of this case to Department 61. Plaintiff cites no authority for the argument that such alterations cannot be made in a new motion, when the first motion was never ruled upon. This objection too is OVERRULED.

II.                SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.”  (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment.  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.  (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.  (Aguilar, supra, 25 Cal.4th at 850.)  The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.  (Ibid.)  To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence.  (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Defendant Union Pacific Railroad Company (Defendant) moves for summary adjudication of the first and second causes of action contained in Plaintiff Edgar Acevedo’s (Plaintiff) First Amended Complaint (FAC).[1] Defendant argues that the second cause of action brought under the Federal Locomotive Inspection Act (LIA) cannot proceed, as no triable issues exist as to whether a defect existed in the derailed locomotive at issue, and said derailment did not cause Plaintiff any injury. (Motion at pp. 4–8.) Defendant also argues that the first cause of action for negligence, brought under the Federal Employers’ Liability Act (FELA), cannot proceed, as there are no triable issues as to whether Defendant was actually or constructively on notice of any defects in the chair, which broke when Plaintiff sat on it. (Motion at pp. 8–10.)

The court will address the first cause of action first, which is brought under FELA:

FELA is a broad remedial statute based on fault and is intended by Congress to protect railroad employees by doing away with certain common law tort defenses. FELA imposes upon a railroad a continuing and nondelegable duty to use reasonable care to provide railroad employees a safe place to work. It holds railroad employers liable for the injury or death of railroad employees that results, in whole or in part, from the railroad's negligence or that of its agents.

(Woods v. Union Pacific Railroad Co. (2008) 162 Cal.App.4th 571, 577, internal quotation marks, alterations, and citations omitted.)

The [FELA] plaintiff must make out a prima facie case of negligence on the part of the employer, including the element of reasonable foreseeability. To recover, the plaintiff must prove that the railroad, with the exercise of due care, could have reasonably foreseen that a particular condition could cause injury. The defendant's duty is measured by what a reasonably prudent person should or could have reasonably anticipated as occurring under like circumstances.

(Albert v. Southern Pacific Transportation Co. (1994) 30 Cal.App.4th 529, 534, internal quotation marks and citations omitted.) “Absent foreseeability, negligence is not established under FELA and without a showing of negligence, recovery is not permitted.” (Id. at p. 536.)

The facts that Defendant presents are these. Plaintiff was injured after a chair broke in Defendant’s Commerce Yard office causing him to fall out of his seat sometime after a locomotive derailment occurred in the yard. (Plaintiff’s separate Statement of Undisputed Material Facts (PUMF) No. 2.) During his deposition, when questioned whether any of Defendant’s employees knew of the bolt that had fallen out of the chair (which evidently had caused the collapse), Plaintiff answered, “No,” noting that Defendant’s employees spotted the bolt after the chair collapsed, and further stating that he had not talked to anyone from Defendant regarding the incident after it occurred. (Motion Exh. F at pp. 80–81.) Thus Defendant contends that the chair’s collapse was not foreseeable, and thus negligence cannot be established under FELA. (Motion at p. 10.)

Plaintiff in opposition presents the following evidence. Per Defendant’s Code of Operating Rules, “Railroad property must be kept in a clean, orderly, and safe condition.” (Dupont Decl. Exh. 11, Rule 1.24.) Per Defendant’s Safety Rules, “Unsafe chairs or benches must not be used.” (Acevedo Decl. Exh. 12, Rule 70.11.) Plaintiff also presents the declaration of Leonard J. Backer, an expert in the field of commercial furniture use. (Backer Decl. ¶¶ 3–5.) Backer comes to several conclusions based on his review of discovery materials and inspection of the chair at issue:

1.      The chair at issue was not designed for use in a commercial facility that operates 24-hours per day, 365 days per year, as was the case in the office at issue (Backer Decl. ¶ 14);

2.      The chair was not reasonable safe for use in the setting in which it was used (Backer Decl. ¶¶ 15–17);

3.      The chair was subjected to excessive wear and tear over an extended period, which “would have been evident to Defendant if it had performed any inspection of the chair before it broke on the date of the incident” (Backer Decl. ¶¶ 18, 22);

4.      The chair was in a dilapidated condition on the day it broke and was not safe for use (Backer Decl. ¶ 19);

5.      The chair broke when Plaintiff sat in it because the screw-in-bolt worked its way out over time from the metal threaded sleeve insert, and at the point of failure, the chair was missing a wooden dowell and was not properly glued at the point of failure. (Backer Decl. ¶¶ 20, 22.)

Backer states that the chair had visible damage to it, including scrapes and gouges on various frame components, separation at certain joint connection points, scarring at the bottom parts of the legs, nylon glides excessively warn down, the upholstery torn away in various places, a missing wood dowel, and missing plastic frame accessory caps. (Backer Decl. ¶ 22.)

Plaintiff also points to Defendant’s response to interrogatories, in which it admitted that no inspection or maintenance had been conducted as tot eh chair at issue. (Dupont Decl. Exh. 4.)

This evidence is sufficient to create triable issues of fact as to the foreseeability of the condition that caused Plaintiff’s injury. Defendant’s safety guidelines recognize the dangers posed by unsafe office equipment, and specifically chairs. Plaintiff’s expert opines that the chair exhibited visible signs of wear, tear, and decrepitude. Defendant acknowledged in interrogatories that the chair was never inspected. Accordingly, Defendant’s motion for summary adjudication is DENIED as to the first cause of action.

Defendant submits two arguments against Plaintiff’s second cause of action, brought under the LIA. That act states as follows:

A railroad carrier may use or allow to be used a locomotive or tender on its railroad line only when the locomotive or tender and its parts and appurtenances--

(1) are in proper condition and safe to operate without unnecessary danger of personal injury;

(2) have been inspected as required under this chapter and regulations prescribed by the Secretary of Transportation under this chapter; and

(3) can withstand every test prescribed by the Secretary under this chapter.

(49 U.S.C. § 20701.)

The import of the above Act — a supplement to FELA — is to “impose[] strict liability on railroad carriers for violations of its safety standards.” (Horibin v. Providence & Worcester R. Co. (D. Mass. 2005) 352 F.Supp.2d 116, 119, citing Urie v. Thompson (1949) 337 U.S. 163, 188 [stating that the LIA and a companion act “dispense, for the purposes of employees' suits, with the necessity of proving that violations of the safety statutes constitute negligence; and making proof of such violations is effective to show negligence as a matter of law.”].) A plaintiff suing under the LIA therefore must show either that the locomotive at issue was not “in proper condition and safe to operate,” or that the employer “fail[ed] to comply with regulations issued by the FRA.” (McGinn v. Burlington Northern R. Co. (7th Cir. 1996) 102 F.3d 295, 299.)

Also, since a claim under LIA is essentially a claim under the FELA, with special provisions for establishing liability for unsafe locomotives, the element of causation remains the same. (See 45 U.S.C. § 51 [creating liability for “injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier”].)

Defendant argues first that no claim under the LIA may be stated, as post-derailment inspections of the handbrake on the locomotive at issue showed that when the correct button was pressed, the handbrake applied. (Motion at p. 4; PUMF No. 1.)[2] Defendant further argues that Plaintiff cannot claim that his injury resulted from any unsafe condition of the locomotive, as Plaintiff’s injury was caused by a faulty office chair that he sat in hours after the accident occurred. (Motion at pp. 5–8.)

This court need not address the existence of a defect in the locomotive at issue, because Plaintiff’s injury was not caused by any defect in the locomotive as a matter of law. The most pertinent analysis of causation under FELA was set out in CSX Transportation, Inc. v. McBride (2011) 564 U.S. 685, in which the U.S. Supreme Court affirmed the expansive causation standard applicable to FELA claims: “Under [FELA] 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.” (CSX Transp., Inc. v. McBride (2011) 564 U.S. 685, 692.) The court held it was no error to instruct a jury determining causation according to this language, and affirmed that FELA does not employ the “proximate cause” analysis customarily employed in tort law. (Id. at p. 700.) Or rather, conventional formulations of proximate cause do not describe “the test for proximate causation applicable in FELA suits,” which asks whether the railroad’s “negligence played any part in causing the injury.” (Ibid., internal quotation marks and alterations omitted.)

Even as the Court held that ordinary tort analysis of proximate cause was inapplicable to FELA claims, it disclaimed any intent to allow FELA claims to proceed on “but for” causation alone. “Properly instructed on negligence and causation, and told, as is standard practice in FELA cases, to use their ‘common sense’ in reviewing the evidence, juries would have no warrant to award damages in far out ‘but for’ scenarios. Indeed, judges would have no warrant to submit such cases to the jury.” (Id. at p. 704, internal citations and quotation marks omitted.)

The court cited two cases, implicitly characterized as “far out but for” scenarios that had rightly been dismissed. (Ibid.) The first was Nicholson v. Erie Railroad Company (2d. Cir. 1958) 253 F.2d 939, in which a railyard employee claimed that the defective condition was the lack of women’s restrooms at the railyard. This lack of restrooms caused her, upon being dismissed from duty, to seek out the lavatory on a nearby passenger train car, where, upon exiting the lavatory, she was “struck by something carried by one of the passengers who had previously boarded the train.” (Nicholson, supra, 253 F.2d at p. 940.) The other case, Moody v. Boston and Maine Corp. (1^st Cir. 1990) 921 F.2d 1, involved a railroad employee who suffered a heart attack — allegedly caused by stressful working conditions — while on a camping trip, “four days off from work.” (Moody, supra, 921 F.2d at p. 2.)

The import of the above authority is that FELA’s proximate cause element is highly expansive, extending liability wherever the railroad’s negligence “played any part in causing the injury.” (McBride, supra, 564 U.S. at p. 700, internal quotation marks and alterations omitted.) This is not a strict “but for,” standard, and courts have “no warrant” to submit “far out ‘but for’ scenarios” to the jury. (Id. at p. 704.) The court’s role in such claims is thus limited to excluding such “far out” scenarios.

Although triable issues exist as to Plaintiff’s negligence claim based on a defect in the office chair, no triable issues exist as to whether the alleged defect in the locomotive “played any part” in causing his injury. The derailment of the locomotive occurred at 3:10 a.m. (Defendant’s Responsive Separate Statement to Plaintiff’s Separate Statement of Additional Material Facts (DAMF) No. 9.) Plaintiff does not contend to have been injured in this derailment. Plaintiff thereafter remained on the scene of the derailment for some time, and was then taken to an office for drug and alcohol testing. (DAMF No. 10.) Finally, at 6:45 a.m., Plaintiff was taken into the office where the chair was located, and was injured when the defective chair collapsed under him. (DAMF No. 10.) No defect in the train played any part in Plaintiff’s subsequent injury. This case bears a strong resemblance to those cases held up by the McBridge court, in which the court properly found no causation as a matter of law, even under FELA’s expansive causation standard.

Plaintiff cites the case of Szekeres v. CSX Transp., Inc. (6th Cir. 2013) 731 F.3d 592, 596, in which the court reversed a grant of summary judgment based on causation, when the Plaintiff, after standing on muddy ground as part of his job duties, was prevented from accessing a nearby train lavatory by virtue of its unsanitary condition, and was injured when his muddy shoes slipped in the search for another lavatory. (Szekeres, supra,  731 F.3d at p. 596.) The trial court had relied on the facts of Nicholson for the proposition that an injury sustained elsewhere due to the lack of suitable lavatories at the job site could not have been caused by an employer’s negligence (Id. at p. 597.) The appellate court reversed, finding Nicholson distinguishable, in that the Nicholson plaintiff had been dismissed from work and sustained her injury off-site after being struck by another passenger on a train. (Id. at p. 600.) By contrast, the Szekeres plaintiff was at work when he slipped, and the injury occurred without any intervening cause. (Ibid.)

The Szekeres decision, however, does not stand for the proposition that any injury on a worksite is actionable under FELA if it shares any but-for causal relationship with a prior incident of negligence. To the contrary, worksite injuries caused by negligence have been held to be beyond the scope of FELA if they are wholly beyond the scope of consequences foreseeably resulting from the negligence. (See Hernandez v. Trawler Miss Vertie Mae, Inc. (4th Cir. 1999) 187 F.3d 432, 438 [“[I]t was not foreseeable that the winch in any way could implicate a seaman's failure to duck when going through a doorway that presumably he had gone through hundreds of times before without incident. A seaman's failure to duck is no more a foreseeable risk from a defective winch than is a seaman's biting his tongue or stubbing his toe.”].) Unlike Plaintiff here, the Szekeres plaintiff was injured while looking for a bathroom to substitute for the filthy one that his employer had provide for him. He was not injured by a faulty chair, hours later, during a meeting to discuss the terrible state of the employer’s restrooms. It is this latter situation that Plaintiff presents.

The motion is therefore GRANTED as to the second cause of action.