Martin Jaranowski v. Indiana Harbor Belt Railroad Company ( 2023 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-2437
MARTIN JARANOWSKI,
Plaintiff-Appellant,
v.
INDIANA HARBOR BELT RAILROAD COMPANY,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:20-cv-00484-APR — Andrew P. Rodovich, Magistrate Judge.
____________________
ARGUED JANUARY 18, 2023 — DECIDED JULY 5, 2023
____________________
Before HAMILTON, JACKSON-AKIWUMI, and LEE, Circuit
Judges.
HAMILTON, Circuit Judge. Plaintiff-appellant Martin
Jaranowski worked as a conductor for defendant-appellee In-
diana Harbor Belt Railroad Company for twenty-two years.
While operating a railroad switch in October 2020, plaintiff
seriously injured his neck. He sued the railroad under the
Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq.,
alleging that he was injured because the railroad failed to
2 No. 22-2437
maintain the switch properly. He accused the railroad of or-
dinary negligence and negligence per se based on alleged vi-
olations of Federal Railroad Administration (FRA) Track
Safety Standards. See 49 C.F.R. Part 213.
The district court concluded that Jaranowski had failed to
present evidence that would support a finding that the rail-
road had actual or constructive notice of any defect in the
switch before plaintiff was injured. The court granted sum-
mary judgment to the railroad on Jaranowski’s claim for ordi-
nary negligence and his claim for negligence per se, finding
that the federal Track Safety Standards are violated only
when a railroad has actual or constructive notice of track de-
fects. We reverse. We agree with the district court that actual
or constructive notice is required to violate the federal Track
Safety Standards. We also find, however, that plaintiff pre-
sented sufficient evidence to create a genuine dispute as to
whether the railroad at least should have known that the
switch was defective before plaintiff was injured.
I. Factual and Procedural History
A. Facts Relevant to Summary Judgment
Plaintiff Jaranowski was employed as a conductor at Indi-
ana Harbor Belt Railroad’s Michigan Avenue Yard in East
Chicago, Indiana. His duties included operating or “throw-
ing” manually operated railroad switches. On October 26,
2020, while moving switch MA 27 from left to right,
Jaranowski felt unexpected resistance in the switch followed
by a strong pain in his neck and arm and tingling in his fin-
gers. He was diagnosed with a spinal cord injury, and two
months later, he underwent neck surgery. Jaranowski’s injury
No. 22-2437 3
left him permanently unable to lift more than 20 pounds or to
perform overhead work.
At the heart of a railroad switch is a lever about three feet
long. By moving this lever, the operator is able to move short
lengths of rail, which switch trains from one track to another.
Switch MA 27 has such a lever with a handle at the end. The
lever rests in a “switch keeper” when the switch is in a fixed
and latched position. To operate the switch, the conductor
disengages the latch with his foot, which releases tension and
causes the lever to rise a few inches. Applying steady force,
the conductor then walks the switch over to the opposite side
and engages the latch to keep the switch in a fixed position.
As the operator walks the switch from one side to the other,
“switch points” in the rails are shifted into the desired posi-
tion to switch trains from one track to another.
The railroad has a qualified track inspector inspect switch
MA 27 monthly, as federal regulations require. See 49 C.F.R.
§ 213.235. Switch MA 27 was inspected on October 15, 2020,
eleven days before Jaranowski was injured. The inspection re-
port for that date noted no defect. Previous inspection reports
of MA 27, going back to April 30, 2019, likewise showed no
defect or issue with the switch. Jaranowski himself operated
MA 27 without incident on October 22, four days before he
was injured. Before throwing the switch on October 26, 2020,
he looked at the switch points and saw no large debris in the
points.
The day Jaranowski was injured, the railroad’s director of
safety, Eric Ritter, inspected switch MA 27. Ritter found that
the switch was in good working condition, but his report
noted that the amount of force required to operate the switch
lessened substantially after he lubricated the switch as part of
4 No. 22-2437
his inspection. Pushing the handle down, for example, re-
quired 126 pounds of force before lubrication but only 55
pounds of force afterwards.
Plaintiff retained Alan Blackwell, a qualified track inspec-
tor, as an expert witness. Blackwell submitted a report and
testified by affidavit in opposition to the railroad’s motion for
summary judgment. Blackwell identified several possible
causes of Jaranowski’s injury. He noted that photographs of
switch MA 27 taken by the railroad shortly after plaintiff’s in-
jury show debris, dirt, mud, ballast, and vegetation in the “tie
cribs,” which is where the connecting rod and switch rods are
located. According to Blackwell, debris and vegetation in this
location can interfere with the operation of the switch. The
railroad’s Ritter agreed that debris in the tie crib could affect
the switch, and he testified that if he were to see a switch in
the condition depicted in the photographs, he would order his
crew to clean it up. Blackwell also noted that the photographs
showed that the switch points were skewed and that fasten-
ings that should keep the switch components in place were
missing.
Blackwell personally inspected switch MA 27 on July 16,
2021, nine months after Jaranowski’s injury. The day before
his scheduled inspection, three maintenance workers for the
railroad spent roughly 40 minutes cleaning and maintaining
the switch. Ritter later explained that the railroad’s crew knew
the switch was going to be inspected and that they wanted to
make sure it was in “good order.” During his inspection,
Blackwell noted that the switch appeared to have been re-
cently lubricated and that there was no debris or vegetation
in the tie cribs. Yet even after the clean-up and maintenance,
and consistent with photographs taken after Jaranowski was
No. 22-2437 5
injured, Blackwell observed that the switch points were
skewed and that several fastenings were loose or missing.
Blackwell also found excessive “lost motion” when the
switch was moved from left to right, the same direction
Jaranowski moved the switch when he was injured. “Lost mo-
tion” refers to a lag between movement of the switch handle
and movement of the switch points in the rails. With lost mo-
tion, when the operator walks the switch handle from one
side to the other, the switch points do not move right away.
During his inspection, Blackwell discovered that the switch
points on MA 27 did not move during the first half of the han-
dle’s journey. The switch points started to move only when
the handle was at roughly a 90-degree angle. They completed
their entire movement during the second half of the handle’s
journey. Blackwell explained that when switches are not
properly maintained, they become difficult to operate, which
means that the conductor must apply additional force to
throw the switch, which in turn can lead to musculoskeletal
injuries.
Blackwell concluded that the railroad had failed to pro-
vide a safe place for Jaranowski to work. He found that the
railroad had failed to maintain switch MA 27 properly so that
it could be operated without undue force and excessive lost
motion. He also concluded that the railroad had failed to re-
move debris and vegetation from the tie cribs and that it failed
to ensure fastenings were in place and secure. Blackwell fur-
ther opined that the railroad had failed to perform detailed,
monthly inspections “in a manner that ensured the switch
was safe for operation.” Finally, he concluded that the rail-
road had violated several federal Track Safety Standards.
6 No. 22-2437
B. Proceedings in the District Court
Jaranowski sued Indiana Harbor Belt Railroad under the
FELA, alleging that the railroad’s negligence caused his in-
jury. He accused the railroad of ordinary negligence and of
negligence per se for its alleged violations of the federal Track
Safety Standards.
The railroad moved for summary judgment, arguing that
Jaranowski could not establish that the railroad had actual or
constructive notice of any defect in switch MA 27. Under 28
U.S.C. § 636(c), the parties consented to adjudication by a
magistrate judge, who first granted the railroad’s motion in
part and denied it in part. Jaranowski v. Indiana Harbor Belt R.R.
Co., No. 2:20-cv-484, 2022 WL 2065022, at *1 (N.D. Ind. June 8,
2022). In that decision, the magistrate judge found that
Jaranowski had not shown a genuine dispute of fact as to
whether the railroad had actual or constructive notice that the
switch was defective. The judge therefore concluded that the
railroad was entitled to summary judgment on Jaranowski’s
claim of ordinary negligence. Id. at *4. Because the railroad’s
opening brief on summary judgment had not addressed
Jaranowski’s claim of negligence per se, the court took no ac-
tion on that claim. Id. at *1 & n.2, and *4.
The railroad then moved for reconsideration of the district
court’s order. It argued that the federal Track Safety Stand-
ards are violated only when the railroad has actual or con-
structive notice of the violation. Because the court had already
determined that Jaranowski could not establish that the rail-
road had such notice that MA 27 was defective, the railroad
argued that it was also entitled to summary judgment on the
claim for negligence per se. The magistrate judge agreed that
notice is required to violate the federal Track Safety
No. 22-2437 7
Standards, and he granted summary judgment to the railroad
on Jaranowski’s remaining claim and entered final judgment
for the railroad. Jaranowski v. Indiana Harbor Belt R.R. Co., No.
2:20-cv-484, 2022 WL 3042236, at *3 (N.D. Ind. Aug. 2, 2022).
Jaranowski has appealed on both claims.
II. Analysis
We review the district court’s grant of summary judgment
de novo, viewing the evidence and drawing all reasonable in-
ferences in Jaranowski’s favor. Khungar v. Access Community
Health Network, 985 F.3d 565, 572 (7th Cir. 2021). Summary
judgment is proper “if the movant shows that there is no gen-
uine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dis-
pute about a material fact is genuine “if the evidence is such
that a reasonable jury could return a verdict for the nonmov-
ing party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). Substantive law determines which facts are material.
Id.Jaranowski makes two arguments on appeal. First, he ar-
gues that the evidence establishes a genuine dispute as to
whether the railroad had actual or constructive notice that
switch MA 27 was defective. Second, he contends that notice
of a purported defect is not necessary to establish a violation
of the federal Track Safety Standards that would establish
negligence per se.
A. Genuine Dispute as to Notice
The FELA provides: “Every common carrier by railroad …
shall be liable in damages to any person suffering injury while
he is employed … for such injury or death resulting in whole
or in part from the negligence of any of the officers, agents, or
8 No. 22-2437
employees of such carrier.” 45 U.S.C. § 51. To prevail on his
FELA claim, the plaintiff must prove “the traditional common
law elements of negligence, including foreseeability, duty,
breach, and causation.” Abernathy v. Eastern Illinois R.R. Co.,
940 F.3d 982, 988 (7th Cir. 2019), quoting Fulk v. Illinois Central
R.R. Co., 22 F.3d 120, 124 (7th Cir. 1994). To establish that his
injury was foreseeable, the plaintiff “must show that the em-
ployer had actual or constructive notice” of the conditions he
alleges were dangerous. Holbrook v. Norfolk Southern Ry. Co.,
414 F.3d 739, 742 (7th Cir. 2005).
Because the Act was written “to offer broad remedial relief
to railroad workers,” the plaintiff’s burden under the FELA is
“significantly lighter than in an ordinary negligence case.”
Holbrook, 414 F.3d at 741–42. Under the FELA, “a railroad will
be held liable where ‘employer negligence played any part,
even the slightest, in producing the injury.’” Id. at 742, quoting
Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500, 506 (1957). Con-
sequently, “a trial judge must submit an FELA case to the jury
when there is even slight evidence of negligence.” Harbin v.
Burlington Northern R.R. Co., 921 F.2d 129, 131 (7th Cir. 1990).
Viewed through the summary judgment lens, plaintiff’s
evidence would allow a reasonable jury to find that the rail-
road at least should have known that switch MA 27 was de-
fective in one or more ways before plaintiff was injured. First,
Blackwell, a certified track inspector with decades of experi-
ence, studied photographs of the switch taken soon after
Jaranowski was injured and concluded that vegetation and
debris in the tie cribs could have interfered with the switch’s
operation. The photographs show two plants, each roughly
the height of the rail, as well as several water bottles, a cup,
and other debris in the tie cribs. The railroad’s own safety
No. 22-2437 9
director testified that if he had seen the switch in the condition
depicted in the photographs, he would have ordered a crew
to clean it up.
The railroad argues, however, that even if the vegetation
interfered with the switch’s operation, there is no evidence
that the railroad knew or should have known of its presence.
The switch was inspected eleven days before Jaranowski was
injured, and that inspection report indicated no defects in the
switch. The parties draw different conclusions from this fact.
The railroad asks us to take the inspection report at face value,
inferring that the switch was actually in good condition on the
date of inspection, so that any defect in the switch must have
arisen in the eleven days between the inspection and plain-
tiff’s injury. Plaintiff argues, however, that a jury could con-
clude that the vegetation shown in the photographs could not
possibly have grown in just eleven days. He insists that the
only reasonable explanation, and certainly one reasonable ex-
planation, is that the railroad’s October 15th inspection just
missed the problems because it was not performed with rea-
sonable care.
In deciding a motion for summary judgment, the court
does “not make credibility determinations, weigh the evi-
dence, or decide which inferences to draw from the facts;
these are jobs for a factfinder.” Johnson v. Advocate Health &
Hospitals Corp., 892 F.3d 887, 893 (7th Cir. 2018), quoting
Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003). Our only task
is to determine whether there is a genuine dispute of material
fact requiring a trial. Id. We conclude that a reasonable jury
could accept Jaranowski’s account of the facts and conclude
that the railroad’s prior inspection was performed without
due care.
10 No. 22-2437
The district court reasoned that vegetation in the tie cribs
could not have provided notice to the railroad because, before
operating the switch, Jaranowski checked to ensure that there
was no large debris in the switch points. Jaranowski, 2022 WL
2065022, at *3. The court reasoned that if the vegetation did
not put Jaranowski himself on notice before he operated the
switch, the same vegetation could not have put the railroad
on notice a few days earlier. Id. Keeping our focus on the
standard for summary judgment, we respectfully disagree.
Jaranowski was a conductor in the railroad’s Transportation
department. He was not a qualified track inspector, and he
was not trained to identify track defects. A reasonable jury
could conclude that a trained inspector acting with reasonable
care would discover defects that a conductor performing a
brief scan might not.
Second, in addition to vegetation and debris in the tie
cribs, plaintiff’s expert Blackwell identified other defects in
switch MA 27. The switch points were skewed, switch fasten-
ings were loose or missing, and the switch operated with ex-
cessive lost motion. Again, the railroad argues that even if the
switch was defective in the ways Blackwell describes, plaintiff
has not presented evidence suggesting that the railroad knew
or should have known of those defects. Plaintiff insists that
the railroad should have discovered these defects during its
regular inspections, and he argues a jury could infer that the
inspections were performed negligently. It is true that infer-
ences “that are supported by only speculation or conjecture
will not defeat a summary judgment motion,” Carmody v.
Board of Trustees of the Univ. of Illinois, 893 F.3d 397, 401 (7th
Cir. 2018), quoting Design Basics, LLC v. Lexington Homes, Inc.,
858 F.3d 1093, 1099 (7th Cir. 2017), but plaintiff here offers
more.
No. 22-2437 11
Plaintiff’s expert Blackwell personally inspected switch
MA 27 on July 16, 2021, one day after a three-person crew
spent 40 minutes cleaning and maintaining the switch. The
railroad’s Ritter admitted that the crew was there to ensure
the switch was in good condition before Blackwell’s inspec-
tion, and the crew left the switch well lubricated and entirely
free of debris and vegetation. Given Ritter’s testimony, a rea-
sonable jury could infer that the crew spent more time and
effort cleaning and maintaining the switch before Blackwell’s
inspection than is spent on an ordinary switch inspection. Yet,
even despite those unusual efforts, Blackwell still discovered
missing fastenings, skewed switch points, and excessive lost
motion. A jury could reasonably conclude that the railroad’s
October 15th inspection likewise should have discovered de-
fects in the switch but did not. We thus find sufficient evi-
dence to submit to a jury the question whether the railroad at
least should have known before plaintiff’s injury that switch
MA 27 was defective.
B. Notice and the Federal Track Safety Standards
As an alternative theory of liability, Jaranowski argues
that even if the railroad did not have actual or constructive
notice of the defective switch, the defective switch established
negligence per se because the track violated federal Track
Safety Standards. In an FELA action, “the violation of a stat-
ute or regulation … automatically constitutes a breach of the
employer’s duty and negligence per se and will result in liabil-
ity if the violation contributed in fact to the plaintiff’s injury.”
Schmitz v. Canadian Pacific Ry. Co., 454 F.3d 678, 683 (7th Cir.
2006), quoting Walden v. Illinois Central Gulf R.R., 975 F.2d 361,
364 (7th Cir. 1992). Although we have found a genuine factual
dispute for trial on the issue of actual or constructive notice,
12 No. 22-2437
the negligence per se theory would, according to Jaranowski,
call for jury instructions that do not require him to prove ac-
tual or constructive notice of the defective switch.
Jaranowski contends he can show negligence per se by
showing violations of various Track Safety Standards that
caused his injury. Specifically, he argues the evidence can
show violations of 49 C.F.R. § 213.5(a) (requiring track owners
to comply with Track Safety Standards or to halt operations
on noncompliant track); § 213.37(c) (requiring that vegetation
on or near track be controlled so as not to interfere with rail
workers’ duties); § 213.133(a) (requiring that switch fasten-
ings be intact and maintained so that components stay in
place); § 213.135(e) (requiring that each switch be operable
“without excessive lost motion”); and § 213.233(b) and (d) (re-
quiring visual track inspections and immediate remedy of all
defects).
The railroad contends that the federal Track Safety Stand-
ards are violated only when the owner of the track has actual
or constructive notice of the alleged violation. We agree. Sec-
tion 213.5(a) provides that any track owner who “knows or
has notice that that track does not comply with the require-
ments of this part” shall bring the track into compliance or
halt operations on the track. 49 C.F.R. § 213.5(a). Failure to do
so may result in civil penalties imposed by the Federal Rail-
road Administrator. §§ 213.15(a) and 213.5(d).
In its final rule adopting the Track Safety Standards in
1998, the FRA explained that the Track Safety Standards are
enforced only against a track owner “‘who knows or has no-
tice’ that the track does not meet compliance standards.”
Track Safety Standards, 63 Fed. Reg. 33,992, 33,995 (June 22,
1998). Compared to other railroad safety regulations, this
No. 22-2437 13
knowledge element is “unique to the track regulations.” Id.Generally, railroads are strictly liable if they fail to comply
with FRA regulations. The final rule for the Track Safety
Standards explained, however, that the FRA included a notice
requirement for the track regulations because it recognized
that railroads, even when exercising reasonable care, cannot
prevent all track defects, which may occur suddenly due to
changing traffic patterns or weather and may arise in remote
areas. The regulation therefore provides that railroads “are
held liable for non-compliance or civil penalties for only those
defects that they knew about or those that are so evident the
railroad is deemed to have known about them.” Id.Jaranowski acknowledges that the notice requirement in
§ 213.5 must be satisfied before the Federal Railroad Admin-
istrator may impose civil penalties, but he insists that a rail-
road’s failure to comply with Track Safety Standards, when it
results in employee injury, is actionable under the FELA even
if the railroad lacked notice of the defect. He argues that the
text of the track regulations at issue in this case, for example,
49 C.F.R. § 213.135(e), includes no notice requirement. That
provision states: “Each switch stand and connecting rod shall
be securely fastened and operable without excessive lost mo-
tion.” 49 C.F.R. § 213.135(e). The final rule, however, distin-
guishes between track defects and violations of the Track
Safety Standards. The rule explains that without the “knows
or has notice” language found in § 213.5, “any defect found
by an FRA inspector could be written as a violation,” regard-
less of whether the railroad knew or should have known of
the defect. 63 Fed. Reg. at 33,996. It is therefore a track defect
if a switch operates with excessive lost motion, see 49 C.F.R.
§ 213.135(e), but it is not a violation of the Track Safety
14 No. 22-2437
Standards unless the railroad knew or should have known of
that defect and failed to correct it.1
A railroad does not violate the federal Track Safety Stand-
ards unless it has actual or constructive notice of the alleged
defect. To prevail on his claim of negligence per se,
Jaranowski must establish that the railroad violated a track
regulation, which in turn requires him to show that the rail-
road had actual or constructive notice of the alleged defect. As
we found above, however, there is sufficient evidence in the
record for a reasonable jury to find that the railroad knew or
should have known of defects in switch MA 27. Summary
judgment should not have been granted to defendant on this
claim.
Conclusion
Because the record shows a genuine dispute as to whether
the railroad at least should have known that switch MA 27
was defective at the time plaintiff was injured, the judgment
of the district court is REVERSED and the case is
REMANDED to the district court for further proceedings con-
sistent with this opinion.
1The Eleventh Circuit reached the same conclusion in a non-prece-
dential decision. Swoope v. CSX Transportation, Inc., 666 F. App’x 820, 823–
24 (11th Cir. 2016).