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WALLENBERG v. BURLINGTON NORTHERN R.R. CO.

July 24, 1997

STUART W. WALLENBERG and JULIE WALLENBERG, his wife, Plaintiffs,
v.
BURLINGTON NORTHERN RAILROAD COMPANY, a corporation and THE BELT RAILWAY COMPANY OF CHICAGO, a corporation, Defendants.



The opinion of the court was delivered by: MANNING

 This matter comes before the court on the motions of defendant the BELT Railway Company of Chicago for summary judgment on Count I of plaintiffs' amended complaint pursuant to Federal Rule of Civil Procedure 56 and of defendant Burlington Northern Railroad Company for summary judgment on Count I of plaintiffs' amended complaint, also pursuant to Federal Rule of Civil Procedure 56. Defendant Burlington Northern has also filed a motion to strike plaintiff's 12N statement. For the following reasons, each defendant's motion will be denied. As each party has filed a separate motion, the memorandum will address each motion separately. *fn1"

 BACKGROUND

 Plaintiffs Stuart and Julie Wallenberg bring this cause of action in three counts. Count I is brought by plaintiff Stuart Wallenberg pursuant to the Federal Employers Liability Act, 45 U.S. Code, Section 51-60, and is directed to BNRR and BELT. Count II is a supplemental common law negligence action brought by Stuart Wallenberg against BELT. Count II is a derivative claim brought by Julie Wallenberg for loss of consortium. Neither Count II or III is the subject of the instant motion.

 Under the FELA, a covered railroad is liable for negligently causing the injury or death of any person while he or she is 'employed' by the railroad. Kelley v. Southern Pacific Company, 419 U.S. 318, 95 S. Ct. 472, 42 L. Ed. 2d 498 (1974). Count I of the complaint asserts that plaintiff was employed by defendant BNRR as an engineer. On or about February 28, 1994, he was assigned to BNRR job 359T which required him to deliver a train from Cicero to the BELT at Bedford Park and to return a train back to Cicero. As plaintiff and his assigned crew were making preparations to return a train back to Cicero, the BELT dispatcher allegedly told them they were running out of time *fn2" and directed them to get a cab back to Cicero. Enroute to the cab, plaintiff was injured as he walked across an area that he alleges had an "inordinate accumulation of ice of long duration covered with an unnatural accumulation of snow concealing the ice". Plaintiff fell and injured himself in this area.

 The BELT is owned exclusively by a group of nine railroad companies. The various railroads, of which BNRR is a member, need to interchange railcars with each other. Rather than each of these railroads separately interchanging a few railcars at a time, the BELT performs that operational activity for its owner railroads. Defendant BNRR was operating its train in the BELT yard, tracks and yard premises under an agreement authorized by Illinois statute 60 ILCS 35/1. Thus, plaintiff alleges that he has a cause of action against both defendants under the Federal Employers Liability Act.

 I. The BELT Railway Company of Chicago

 Defendant BELT asserts that plaintiff Stuart Wallenberg is not employed by BELT, nor is he compensated by BELT or on BELT's payroll. Further, BELT asserts that BELT and its employees neither possessed nor exercised any supervision or control over the job duties of Wallenberg, his crew or his supervisors. As such, defendant asserts that BELT is not an "employer" of the plaintiff Stuart Wallenberg and thus FELA confers no liability against the BELT.

 In response, plaintiff asserts that the evidence in the case establishes that BELT had the right to and did exercise supervision and control over plaintiff sufficient to establish an employee relationship with BELT for the purposes of FELA.

 A. FELA

 Section 1 of FELA provides that "every common carrier by railroad...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". 45 U.S.C. Section 51. Traditionally, the United States Supreme Court has liberally construed FELA to further Congress' remedial goal. Consolidated Rail Corporation v. Gottshall, 512 U.S. 532, 114 S. Ct. 2396, 129 L. Ed. 2d 427 (1994). In Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S. Ct. 443, 1 L. Ed. 2d 493 (1957), the Supreme Court held that a relaxed standard of causation applies under FELA. "Under this statute 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. at 506, 77 S. Ct. at 448.

 Even though FELA is to be liberally construed, it does not mean that it is a workers' compensation statute. The Supreme Court has insisted that FELA "does not make the employer the insurer of the safety of his employees while he is on duty. The basis of his liability is his negligence, not the fact that injuries occur". Ellis v. Union Pacific R.Co., 329 U.S. 649, 653, 67 S. Ct. 598, 600, 91 L. Ed. 572 (1947). While the issue of "what constitutes negligence for the statute's purposes is a federal question", we have made clear that this federal question generally turns on principles of common law: "the Federal Employers Liability Act is founded on common-law concepts of negligence and injury, subject to such qualifications as Congress has imported into these terms". Urie v. Thompson, 337 U.S. 163, 182, 69 S. Ct. 1018, 1030-1031, 93 L. Ed. 1282. Those qualifications are the modification or abrogation of several common-law defenses to liability, including contributory negligence and assumption of the risk. See 45 U.S.C. Section 51, 53-55. Only to the extent of these explicit statutory alterations is FELA "an avowed departure from the rules of the common law". Sinkler v. Missouri Pacific R. Co., 356 U.S. 326, 329, 78 S. Ct. 758, 762, 2 L. Ed. 2d 799 (1958). Thus, although common-law principles are not necessarily dispositive of questions arising under FELA, unless they are expressly rejected in the text of the statute, they are entitled to great weight in our analysis. Buell, 480 U.S. 557, 568, 107 S. Ct. 1410, 1416-1417, 94 L. Ed. 2d 563. (Need full cite).

 FELA is meant to provide a broad remedial framework for railroad workers and in light of that purpose, is to be liberally construed in their favor. Atchison, Topeka & Santa Fe Ry. v. Buell, 480 U.S. 557, 562, 107 S. Ct. 1410, 1414, 94 L. Ed. 2d 563 (1987); Kulavic v. Chicago & Illinois Midland Ry. Co., 1 F.3d 507, 512 (7th Cir. 1993). Plaintiffs' burden in a FELA action is therefore significantly lighter than it would be in an ordinary negligence case. In a FELA action, the railroad is liable if "the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury...." Harbin v. Burlington N. R.R. Co., 921 F.2d 129, 131 (7th Cir. 1990).

 In Anderson v. Liberty Lobby, 477 U.S. 242, 252-55, 106 S. Ct. 2505, 2512-13, 91 L. Ed. 2d 202 (1986), the Supreme Court established that this evidentiary standard should bear on the review of this court for summary judgment. Harbin, 921 F.2d at 130-31. Specifically, the lightened burden of proof means a correspondingly easier task for a plaintiff defending a summary judgment motion. Harbin, 921 F.2d at 131. Since a plaintiff proceeding under FELA has such a low burden at trial, he or she can survive a motion for summary judgment "when there is even a slight evidence of negligence". Harbin, 921 F.2d at 131.

 FELA was 'enacted because Congress was dissatisfied with the common-law duty of the master to his servant. The statute supplants that duty with the far more drastic duty of paying damages for injury or death at work due in whole or in part to the employer's negligence". Rogers v. Missouri Pac. R.R. Co., 352 U.S. 500, 507, 77 S. Ct. 443, 449, 1 L. Ed. 2d 493 (1957).

 This does not in any way mean that a FELA plaintiff is impervious to summary judgment. If the plaintiff presents no evidence whatsoever to support the inference of negligence, the summary judgment motion of a railroad should be granted. See Deutsch v. Burlington Northern R.R. Co., 983 F.2d 741, 744 (7th Cir. 1992), cert. denied, 507 U.S. 1030, 113 S. Ct. 1845, 123 L. Ed. 2d 470. Neither the Federal Rules of Civil Procedure nor the Northern District of Illinois' Local Rules governing summary judgment are suspended in a FELA case just because of the plaintiffs' lightened burden as to negligence. Lisek v. Norfolk and Western Railway Company, 30 F.3d 823 (7th Cir. 1994). Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment must be granted if there is "no genuine issue as to any material fact". Fed.R.Civ. P. 56(c).

 In Count I of his complaint, plaintiff asserts that defendants BELT and BNRR were careless and negligent in one or more ways which caused injury to him. In essence, he asserts that defendants failed to exercise ordinary care to furnish plaintiff with a reasonably safe place in which to work and failed to use reasonably safe methods in the maintenance of the yard. He further alleges that defendants failed to inspect the yard when an ordinary inspection would have disclosed that the yard surface was covered with an "inordinate accumulation of melted and refrozen ice and snow of long duration", which allegedly could have been treated with abrasives and chemicals sufficient to avoid plaintiffs' injury. Plaintiff also asserts that defendants failed to apply such abrasives and chemicals to the accumulation of ice and snow when they knew or should have known that employees required to work in the yard would be subjected to injury. He next asserts that defendants also failed to warn plaintiff of the ice which was concealed under the snow when a timely warning would have averted accident and injury. Lastly, he avers that defendants failed to provide a means to safely transport the crew to the cab site.

 In his 12N statement, plaintiff expands these allegations. Specifically, in his 12N(3)(a) statement, Plaintiff asserts that he was hired by Burlington Northern in 1972 and has worked for the Burlington Northern since 1977. During the course of his employment, plaintiff was instructed to perform service for the benefit of Burlington Northern and the BELT, on the BELT's property. On February 27, 1994, plaintiff allegedly reported to the Burlington Northern yardmaster. The Burlington Northern yardmaster was in charge of plaintiff and his crew. However, once plaintiff entered the property of the BELT, plaintiff asserts that he was under the direction and control of the BELT's yardmasters and train masters.

 Plaintiff alleges that he was injured while walking from the track designed by the BELT as the place where cabs must report. Plaintiff allegedly slipped, fell and sustained serious injuries.

 In his 12N(3)(b) statement, plaintiff specifies in more detail the alleged negligence on the part of defendant BELT. Following are relevant excerpts from plaintiffs' 12N(3)(b) statement:

 
10. Plaintiff went on duty on February 27, 1994 at approximately 11:00 p.m. and was injured on February 28, 1994 between 9:30 a.m. and 10:00 a.m. At the time of his accident and injury, Plaintiff had worked less than twelve (12) hours.
 
11. The BELT exercised direction and control over Burlington Northern crew members assigned to work at ...

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