SUMMARY: Plaintiff brought this claim under the FELA and moved for partial summary judgment on the issue of liability because defendant violated the Federal Safety Appliance Act, and that defendant was not entitled to the defense of contributory negligence. HELD: Plaintiff's motion for summary judgment was denied with respect to liability because plaintiff was the only witness to the incident, so causation was a question best left for determination by the jury. The motion was granted with respect to the defense of contributory negligence because a finding of a violation of the Safety Appliance Act would constitute negligence per se, to which the defense of contributory negligence would not apply.

Case Name: Keith Nelson v. Soo Line Railroad Company
Case Number: A3-99-83
Docket Number: 69
Date Filed: 4/7/00
Nature of Suit: 330

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHEASTERN DIVISION

MEMORANDUM AND ORDER

Plaintiff commenced this action on May 25, 1999, asserting a Federal Employers Liability Act (FELA) claim. Before the court is the plaintiff's motion for partial summary judgment on the issue of liability and the defense of contributory negligence. (Doc. #58.) After considering the parties' briefs and supporting evidence, the court denies the motion with regard to the issue of liability and grants the motion with respect to the defense of contributory negligence.

I. Background

On January 29, 1997, plaintiff was working for defendant as a conductor. One of plaintiff's duties as a conductor on the day of the incident was to pick up a railroad car at a siding directly off the main line around Manfred, North Dakota. Plaintiff was required to release handbrakes on cars that had to be moved in order to get to the car that needed to be transported. Plaintiff was climbing down from a hopper car, after releasing its handbrake, and allegedly stepped on an unsecured sill step (ladder rung) located on the hopper car, fell, and injured his shoulder.

II. Summary Judgment Standard

Summary judgment is appropriate if there is not a genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Pro. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Rule 56 of the Federal Rules of Civil Procedure "mandates the entry of summary judgment . . . against a party failing to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex, 477 U.S. at 322. If the moving party has supported its motion for summary judgment, the nonmoving party has an affirmative burden placed on it to go beyond the pleadings and show a genuine triable issue of fact. Commercial Union Ins. Co. v. Schmidt, 967 F.2d 270, 271 (8th Cir. 1992). However, the court considering a motion for summary judgment must view the evidence in the light most favorable to the nonmoving party who enjoys "the benefit of all reasonable inferences to be drawn from the facts." Vacca v. Viacom Broadcasting of Missouri, Inc. Et al., 875 F.2d 1337, 1339 (8th Cir. 1989)(citation omitted).

Summary judgment is improper if the court finds a genuine issue of material fact; however, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment . . ." Commercial Union Insurance Co. v. Schmidt, 967 F.2d 270, 271-72 (8th Cir. 1992)(citation omitted). The issue is whether "the evidence is sufficient to allow a reasonable jury to return a verdict for the nonmoving party." Landon v. Northwest Airlines, Inc., 72 F.3d 620, 624 (8th Cir. 1995).

III. Discussion

Plaintiff moves for partial summary judgment on two grounds. First, plaintiff argues that he is entitled to summary judgment on the issue of liability because defendant violated the Federal Safety Appliance Act (SAA), 49 U.S.C. § 20301, et seq., when one of its hopper cars on which plaintiff was required to climb was equipped with a defective sill step. Defendant admits that the sill step was missing a bolt and as a result was not in compliance with the SAA (doc. #64, pg. 5); however, defendant contends that its admission of non-compliance with the SAA does not end the inquiry. The court agrees.

Plaintiff in essence argues that the fact that defendant was in violation of the SAA is enough to find defendant liable for plaintiff's damages. Plaintiff alleges that on January 29, 1997, when he was working for defendant as a conductor, he was climbing off a hopper car and stepped on the defective sill step, which gave way, causing plaintiff to fall and injure his shoulder. Apparently there were no eyewitness to the fall. Plaintiff called some of his co-workers over to help him up and told them that he had lost his balance because the sill step was not positioned the way it should have been. In his brief, plaintiff goes into a lengthy analysis of the meaning of "secure" under SAA regulations in reference to the defective sill step; however, the defective state of the sill step is not the only at issue in the case. Defendant admits that the sill step was in violation of the SAA, but correctly asserts that is not the only element plaintiff must show in order to establish liability. It is not enough for plaintiff to establish that an SAA violation was "'in the air' at the time plaintiff [was] injured;" plaintiff must also establish injury and causation. Wilson v. Union Pacific Railroad Company, 56 F.3d 1226,1230 (10th Cir. 1995); Coleman v. Burlington Northern, Inc., 681 F2d 542, 544 (8th Cir. 1982)(indicating that if an injury occurs as a result of a safety violation, the railroad is liable). Although in a SAA/FELA action the causation element is relaxed and plaintiff need only establish that his injury was caused in whole or in part from the railroad's violation of the SAA, plaintiff must still establish causation. See Id. (stating that a relaxed causation requirement is not the same thing as no requirement at all). In a case such as this where the only witness to the incident is plaintiff himself, the question of causation is a question of fact best left for determination by the jury. The court denies plaintiff's motion for partial summary judgment with regard to the issue of liability.

The second argument raised by plaintiff is that defendant is barred from using the defense of contributory negligence in order to avoid liability. Defendant argues that the sole cause of plaintiff's injury was his own negligence and because of that defendant is entitled to use contributory negligence as a defense. The court disagrees. If plaintiff's claim were purely a negligence claim under FELA, then the defense of contributory negligence could be asserted to reduce plaintiff's recovery, although it still would not act as a bar to recovery. See 45 U.S.C. § 53. However, a SAA violation constitutes negligence per se, thus allowing the cause of action to be unfettered by the traditional common law restrictions on liability such as contributory negligence and assumption of the risk. Crane v. Cedar Rapids & Iowa City Ry., 395 U.S. 164, 166 (1969); See Wilson, 56 F.3d at 1229 (noting that a SAA violation constitutes negligence per se for purposes of employer liability). In this instance the very foundation of plaintiff's claim concerns defendant's violation of the SAA. If the jury finds that defendant's violation of the SAA was in whole or in part responsible for the injury to plaintiff, then as a matter of law plaintiff can not be held liable for being contributorily negligent. See Beimert v. Burlington Northern, Inc., 726 F.2d 412, 414 (8th Cir. 1984)(noting in footnote #3 that when a FELA claim is based on a SAA violation contributory negligence may not reduce damages).

On the other hand, if the jury finds, as defendant contends, that the sole cause of plaintiff's injury was his own negligence, defendant's SAA violation would not be a proximate cause of plaintiff's injury. The case would then turn on causation, not on contributory negligence. Plaintiff's negligence cannot be "contributory" if it is the sole cause of his injury. Therefore, contributory negligence is not available as a defense. As a matter of law the court finds that defendant is barred from using the defense of contributory negligence to reduce plaintiff's recovery, but it may attempt to avoid liability by arguing that plaintiff's negligence was the sole cause of his injury.

IV. Conclusion

In sum, the court finds that defendant has produced sufficient evidence to show that genuine issues of material fact exist in the case with respect to the issue of liability which must be resolved by the jury. Thus, the court denies plaintiff's motion for partial summary judgment on the issue of liability. In regard to the defense of contributory negligence, the court finds that as a matter of law defendant is barred from asserting the defense of contributory negligence and accordingly grants that portion of plaintiff's motion for partial summary judgment.

Dated: April _____, 2000.

Karen K. Klein
United States Magistrate Judge