DocketNumber: 13 Civ. 8452 (ER)
Citation Numbers: 161 F. Supp. 3d 253
Judges: Ramos
Filed Date: 2/9/2016
Status: Precedential
Modified Date: 7/25/2022
OPINION AND ORDER
Plaintiff Daniel Curran (“Plaintiff’) brings this action against Defendant Long Island Railroad Company (“LIRR”) under the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 51 et seq., for injuries suffered both while Plaintiff was drilling into a piece of buckled railroad track and subsequently during his physical therapy. LIRR has moved for summary judgment. (Doc. 9). For the following reasons, that motion is DENIED.
I. BACKGROUND
Plaintiff has been an LIRR employee since May 15, 2002, and worked specifically as a Signal Maintainer for roughly nine years prior to the injury he sustained on July 2, 2012. Def.’s Local Rule 56.1 Stmt, of Material Facts (“Def.’s 56.1”) (Doc. 12) ¶ 3.
Following his injury, Plaintiff was assigned two physical therapists within LIRR’s medical department, John Byrne (“Byrne”) and Frederic Ho (“Ho”), both LIRR employees. Pl.’s 56.1 ¶ 52.
Plaintiffs particular program, begun in August 2012, was intended to address his herniation and other conditions of his back more generally. Id. at ¶ 99. On September 5, 2012, Plaintiff commenced lifting exercises in which he lifted ten, eleven, fifteen, and then twenty pounds of weight. Id. at ¶ 105. On September 7, 2012, Byrne moved Plaintiff up to forty pounds of weight, but on September 10, 2012, Byrne’s notes stated that Plaintiff reported “exacerbation of pain in his low back which worsened” on September 7 and “hasn’t abated since that time,” as well as “stabbing pain, which he hadn’t experienced in several weeks.” Id. at ¶¶ 102-07. After cutting back weight-based exercises, Byrne slowly reintroduced weight-lifting into Plaintiffs routine over the next week and a half. On September 24, 2012, Plaintiff again was directed to lift thirty, forty, and fifty pounds of weight, despite having complained to Byrne about increased pain in his pelvic area and left leg on September 21, 2012. Id. at ¶¶ 108-13. On September 28, 2012, which was a Friday, Plaintiff progressed to lifting forty,
Byrne and Ho did not report to Plaintiffs treating orthopedist at any time during Plaintiffs participation in the program. Id. at ¶ 117. Both men had complete discretion in crafting Plaintiffs weight-lifting regime. Id. at ¶ 123. Both men knew Plaintiff had a herniation in his back prior to Plaintiffs starting the program. Id. at ¶ 126. Plaintiff now asserts that he was negligently treated on September 7, 2012 and over the four-day span from September 28 to October 1, 2012. Id. at ¶ 132.
II. LEGAL STANDARDS
A. Summary Judgment
To prevail on summary judgment, the movant must show that “there is no genuine dispute as to any material fact.” Fed. R. Civ. P. (“FRCP”) 56(a). “An issue of fact is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Senno v. Elmsford Union Free Sch. Dist., 812 F.Supp.2d 454, 467 (S.D.N.Y.2011) (citing SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir.2009)). “A ‘material’ fact is one that might ‘affect the outcome of the litigation under the governing law.’” Id. “The function of the district court' in considering the motion for summary judgment is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists.” Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir.2010).
The party moving for summary judgment is first responsible for demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Like here, where “the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant’s claim.” Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 204 (2d Cir.2009) (citing Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548). If the moving party meets its burden, “the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.” Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir.2008) (citing Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548). In deciding a motion for summary judgment, the Court must “ ‘construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.’ ” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir.2011) (quoting Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir.2004)).
B. FELA
“The ordinary summary judgment standard is considerably more plaintiff-friendly in FELA cases.” Kendall v. Metro-N. Commuter R.R., No. 12 Civ. 6015 (DLC), 2014 WL 1885528, at *2 (S.D.N.Y. May 12, 2014). “In FELA cases, the standard for summary judgment is ‘liberally construed’ in light of the ‘strong federal policy in favor of letting juries decide cases arising under FELA.’ ” Vasquez v. Metro-N. Commuter R.R., No. 12 Civ. 7390 (JPO), 2014 WL 1344597, at *1 (S.D.N.Y. Apr. 4, 2014) (quoting DeRienzo v. Metro. Transp. Auth., 237 Fed.Appx. 642, 644 (2d Cir.2007)). “Accordingly, a FELA case ‘must not be dismissed at the summary judgment phase unless there is absolutely no reasonable basis for a jury
Under FELA, “[e]very common carrier by railroad while engaging in [interstate commerce]... shall be liable in damages to any person suffering injury while he is employed by such carrier.. .for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars..., machinery, track..., or other equipment.” 45 U.S.C. § 51. There is no dispute that LIRR is a common carrier engaging in interstate commerce and thus subject to FELA, or that Plaintiff suffered injuries while employed by LIRR and acting within the scope of his employment. The core dispute is whether Plaintiffs injuries resulted “in whole or in part” from any negligence on the part of LIRR’s officers, agents, or employees.
“In FELA actions, the plaintiff must prove the traditional common law elements of negligence: duty, breach, foreseeability, and causation.” Tufariello v. Long Island R.R. Co., 458 F.3d 80, 87 (2d Cir.2006) (citing Sinclair v. Long Island R.R. Co., 985 F.2d 74, 77 (2d Cir.1993)). “Courts apply a more relaxed standard of both negligence and causation to FELA negligence claims than to those arising under common law.” Coale v. Metro-N. Commuter R.R. Co., 621 Fed.Appx. 13, 14 (2d Cir.2015) (citing Rogers v. Mo. Pac. R.R., 352 U.S. 500, 506, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957); Williams v. Long Island R.R., 196 F.3d 402, 406 (2d Cir.1999)). FELA is not a strict liability statute and a railroad is not an insurer for its employees, so Plaintiff must submit some evidence to support a finding of negligence— but jurors have “more latitude to infer negligence than at common law, such that the question can rarely be taken from them and decided by the court as a matter of law.” Id. (citing Williams, 196 F.3d at 407; Ulfik v. Metro-N. Commuter R.R., 77 F.3d 54, 58 (2d Cir.1996)).
“It is [indisputable] that [the LIRR] had a duty to provide its employees with a safe workplace.” Tufariello, 458 F.3d at 91 (citation and internal quotation marks omitted). “The question is whether it breached that duty. Under FELA, the LIRR did so if it knew or should have known of a potential hazard in the workplace, and yet failed to exercise reasonable care to inform and protect its employees,” including Plaintiff. Id. (citation and internal quotation marks omitted); see also DeRienzo, 237 Fed.Appx. at 645 (citing Ulfik, 77 F.3d at 58). “Elements that a trier of fact may consider in determining whether a risk is unreasonable... are (1) the likelihood that harm will eventuate and (2) the cost of preventing that harm, including the loss of any benefits the risk-creating behavior might yield.” Murphy v. Metro. Transp. Auth., 548 F.Supp.2d 29, 37-38 (S.D.N.Y.2008).
The standard for causation in FELA actions is particularly liberal. “FELA’s language on causation... is as broad as could be framed,” and thus, “in comparison to tort litigation at common law, a relaxed standard of causation applies under FELA.” CSX Transp., Inc. v. McBride, 564 U.S. 685, 131 S.Ct. 2630, 2636, 180 L.Ed.2d 637 (2011) (citations and internal quotation marks omitted). At the summary judgment stage, “ ‘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.’ ” Id. (quoting Rogers, 352 U.S. at 508, 77 S.Ct. 443) (emphasis added). Thus, Plaintiff need only point to evidence to support a finding
III. DISCUSSION
Plaintiff alleges three claims of negligence under FELA. The first relates to LIRR’s alleged failure to provide Plaintiff with a safe work space by negligently maintaining the track in a manner that allowed the heat kink to form. The second and third relate to the alleged negligent medical treatment performed by Byrne and Ho on, respectively, September 7, 2012 and September 28 to October 1, 2012. As explained further below, disputed issues of fact exist with regard to all three claims.
A. Heat Kink Claim
Relying extensively on the deposition testimony of Jeffrey Greabell (“Greabell”), who worked as an Assistant Supervisor in LIRR’s Track Department on July 2. 2012 and responded to the scene of the heat kink at issue here, Plaintiff argues that LIRR was “negligent in bringing about the heat kink.” Pl.’s Mem. L. Opp’n Def.’s Mot. Summ. J. (“Pl.’s Opp’n”) (Doc. 15) 5; Affidavit of Marc T. Wietzke (“Wietzke Aff.”) (Doc. 15, Ex. 1), Ex. A (“Greabell Tr.”). First, Greabell testified that the original installation of the track contained too much rail for that section. PL’s 56.1 ¶ 34 (citing Greabell Tr. at 41). Second, according to Greabell, before the heat kink was reported, a maintenance crew had been working on that portion of the track to replace cracked railroad ties.
Plaintiff argues that LIRR was negligent in allowing “8 separate cribs without ballast in the middle of summer in a curve with full speed train traffic.” PL’s Opp’n at 5. Since Plaintiff only responded to the heat kink and initiated drilling on July 2, 2012 because of LIRR’s negligence, Plaintiff reasons, that negligence caused Plaintiffs injuries, at least in part. Id.
In response, LIRR first argues that the heat kink was not a product of negligence but rather “a known recurrent track condition that arises in the normal course of track maintenance,” adding that “speculation as to what may have caused or contributed to the heat kink does not create a genuine triable issue of fact.” Def.’s Reply Mem. L. Supp. Mot. Summ. J. (“Def.’s Rep.”) (Doc. 19) 3. The Court finds this response unavailing. Given the dangers of track buckling, most obviously train derailment, there is little doubt that LIRR must exercise reasonable care to reduce the frequency of heat kinks and that a juror could ’ conclude that failure to do so constituted negligence. See Sompo Japan Ins. Co. of Am. v. Norfolk S. Ry. Co., 966 F.Supp.2d 270, 281 n. 7 (S.D.N.Y.2013) (noting that newspaper articles reporting derailments due to “sun kinks” made it clear that “railway companies can and should take reasonable precautionary measures to reduce the likelihood of accidents caused by a ‘sun kink’ ”), aff'd, 762 F.3d 165 (2d Cir.2014); see also Potrykus v. CSX Transp., Inc., No. 09 Civ. 744 (JGC), 2010 WL 2898782, at *4 (N.D.Ohio July 21, 2010) (holding that “a reasonable jury could conclude that defendant negligently maintained the ballast in breach of its duty to provide a reasonably safe workplace”) (citation omitted). Contrary to LIRR’s assertion, Plaintiffs case relies on more than bare “speculation” — a reasonable juror could easily infer from Greabell’s testimony and the LIRR track-maintenance document that the heat kink resulted from LIRR’s negligent track installation and/or its failure to properly support the track while replacing cracked ties.
LIRR also argues that there is no genuine issue of material fact with respect to causation, asserting, in so many words, that Plaintiff is relying an improperly expansive form of but-for causation to support his FELA claim. See Def.’s Rep. at 3 (“If plaintiff.', .had claimed that his back had seized up upon arriving by company vehicle at the job site, would plaintiff have claimed that he was only at the job site because of the heat kink and then there was therefore a genuine triable issue of fact?”). This argument too must fail, for the “causal link” in this case closely resembles those that the United States Supreme Court has already deemed to be premised on more than but-for causation, and “hardly farfetched.” McBride, 131 S.Ct. at 2641 n. 9. For example, the Supreme Court in McBride approved of the Sixth Circuit’s decision to send the causation issue to the jury in Richards v. Consol. Rail Corp., 330 F.3d 428 (6th Cir.2003), where “a defective break malfunctioned en route, and the employee was injured while inspecting underneath the train to locate the problem.” McBride, 131 S.Ct. at 2641 n. 9 (citing Richards, 330 F.3d at 431, 437).
Given FELA’s permissive standards and the record evidence here, the jury ..would have a reasonable basis to conclude that LIRR was negligent in allowing the heat kink to form, which played at least some part in Plaintiffs injuring his back while repairing that very heat kink. There thus remain genuine factual issues, and LIRR’s motion for summary judgment on Plaintiffs first claim is denied.
B. Physical Therapy Claims
Plaintiffs next two claims relate to two separate instances during which Plaintiff attended LIRR’s “work hardening” program. Plaintiff argues that the evidence demonstrates LIRR provided “inadequate medical treatment aggravating] a known physical condition,” and that “this aggravation acted in conjunction with neg
Although the two supervisors, Byrne and Ho, were not medical doctors, it is undisputed that they were providing medical-related services to Plaintiff at the behest of and for the benefit of LIRR. This case thus fits comfortably within the category of cases in which a railroad can be held liable for the negligence of its employee-doctor. See O’Donnell v. Pa. R.R. Co., 122 F.Supp. 899, 902 (S.D.N.Y. 1954) (“[A] railroad may, under the Federal Employers’ Liability Act, be liable for the negligence of a doctor in its employ, despite the fact that the doctor must inevitably exercise professional discretion in the examination and treatment of patients.”). Although “a railroad has no duty to ascertain whether an employee is physically fit for his job,.. .if it undertakes to give physical examinations, it is liable if it performs such undertaking negligently.” Fletcher v. Union Pac. R.R. Co., 621 F.2d 902, 909 (8th Cir.1980) (citing Isgett v. Seaboard Coast Line R.R. Co., 332 F.Supp. 1127, 1141 (D.S.C.1971)); see also Walsh v. Consol. Rail Corp., 937 F.Supp. 380, 391 (E.D.Pa.1996) (identifying “the railroad’s duty to conduct its medical examinations with the appropriate level of care”).
LIRR does not defend the specific programmatic decisions that Byrne and Ho made with respect to Plaintiff, nor does it argue that Byrne and Ho were not LIRR employees acting outside the scope of their employment when they supervised Plaintiffs program. Rather, LIRR contends only that Plaintiffs two claims related to his physical therapy “must be dismissed if the first cause of action arising out of the initial claim of injury on July 2, 2012 is dismissed on summary judgment.” Def.’s Rep. at 4; see also Def.’s Mem. L. Mot. Summ. J. (Doe. 11) 7 (arguing that dismissal of first claim breaks the “link” between Plaintiffs back injury and later negligence at medical facility).
Here, Plaintiff has marshalled evidence showing that Byrne and Ho had blanket discretion over Plaintiffs progression through the program, that Byrne and Ho knew about Plaintiffs original back injury, and that Plaintiff further aggravated his back while following Byrne and Ho’s instructions, despite complaining about his back pain. LIRR disputes none of this. There is thus a reasonable basis for a jury to find that LIRR is liable for Byrne and Ho’s negligence in instructing Plaintiff to 'undertake exercises that caused him to-aggravate his back pain injury. See, e.g., Dunn v. Conemaugh & Black Lick R.R., 267 F.2d 571, 577 (3d Cir.1959) (determin
IV. CONCLUSION
For the forgoing reasons, Defendant’s motion for summary judgment is DENIED. The parties are directed to appear for a status conference on March 11, 2016, at 10:30 A.M.
The Clerk of the Court is respectfully directed to terminate the motion (Doc. 9).
It is SO ORDERED.
. Plaintiff admits to every fact set forth in Defendant’s Local Rule 56.1 Statement of Malerial Facts. See Pl.’s Response and Counter-Statement of Facts (Doc. 16) ¶¶ 1-12.
. In laying out the facts regarding his physical therapy in his Rule 56.1 statement, Plaintiff marshals specific citations to the record for each fact. Defendant has not submitted a counterstatement admitting or denying these facts, nor does Defendant dispute any of these facts in its reply brief. The Court will thus treat these facts as undisputed for purposes of the motion.
. Railroad ties are the rectangular, concrete blocks that lie perpendicular to the rails. They are part of the mechanism by which railroad tracks disperse the load from a train wheel through the rail and into the ground.
. Ballast is material used to disperse the load from a train wheel into the ground, to keep the track in place and symmetrical under various types of loads imposed by different rolling equipment, to provide adequate drainage for the track, and to maintain “proper track crosslevel, surface, and alinement.” See 49 C.F.R. § 213.103.
. Richards was a case brought under the Federal Safety Appliances Act, but the Sixth Circuit explicitly extended its reasoning to apply in FELA cases as well, Richards, 330 F.3d at 437, and McBride, which approved of Richards, was also a FELA case, 131 S.Ct. at 26.34.
. Richards also discussed a number of cases with analogous causal links, all of which were submitted to the jury. 330 F.3d at 435-36 (discussing N.Y., New Haven & Hartford R.R. Co. v. Leary, 204 F.2d 461 (1st Cir.1953); Warning v. Thompson, 249 S.W.2d 335 (Mo. 1952); Hendrick v. CSX Transp., Inc., 575 So.2d 709 (Fla.Dist.Ct.App.1991)). Additionally, the Supreme Court in McBride expressly approved of Norfolk S. Ry. Co. v. Schumpert, 270 Ga.App. 782, 608 S.E.2d 236, 238-39 (2004), in which a coupling device fell off due to a negligently absent pin, and the plaintiff was injured while replacing that device. McBride, 131 S.Ct. at 2641 n. 9. These cases stand in contrast to significantly more tenuous chains of causation that approach invocation of but-for reasoning. See, e.g., Nicholson v. Erie R.R. Co., 253 F.2d 939, 940-41 (2d Cir.1958) (finding no triable causation issue where female employee working in railroad's shop, faced with railroad’s negligent failure to provide a female restroom within the shop,, was injured by passenger's suitcase while she looked for female restroom on stationary train); see also McBride, 131 S.Ct. at 2643 (describing Nicholson as a case involving a "far out 'but for’ scenario[ ]"); Niederhofer v. Ill. Cent. R.R. Co., No. 5-10-0392, 2011 WL 10501267, at *5 (Ill.App.2011) (analogizing to Nicholson and concluding that railroad's negligence for failure to clear accumulated snow and ice was "sufficiently disconnected” from plaintiff's injury, which occurred when plaintiff's repair truck suffered minor crash due to snow and ice, and plaintiff hurt his knee when disembarking because last step of truck was closer to ground than usual due to crash). The Sixth Circuit in Richards itself suggested, in a footnote, that even if the employee was required to get out and inspect the defective brake, were he to be “attacked by a rabid dog” or injure himself during a walk while waiting for the brake to be repaired, "[a] court reasonably could find no causation as a matter of law in these situations.” Richards, 330 F.3d at 437 n. 5.
. LIRR repeatedly makes reference to the fact that carrying and operating a rail drill was “within the essential physical activities required” of an LIRR employee in Plaintiff's position. See, e.g., Def.'s Rep. at 2. To the extent LIRR is attempting a defense resembling assumption-of-the-risk, the Court notes that the FELA statute explicitly abrogates this defense in FELA actions. See 45 U.S.C. § 54.
. LIRR also makes the factual point that the program Plaintiff undertook was voluntary and that "he could, and did, discontinue participating in the program,” Def.'s Rep. at 4, but nowhere does LIRR explain why Plaintiffs voluntary undertaking would insulate LIRR from FELA negligence liability in providing that program.