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August 19, 2003


The opinion of the court was delivered by: Ian Levin, Magistrate Judge


Plaintiff Jesus Martinez (hereinafter "Plaintiff') brings a one count Second Amended Complaint against Defendant Burlington Northern and Santa Fe Railway Company (hereinafter "Defendant") under the Federal Employers' Liability Act (hereinafter "FELA"), 45 U.S.C. § 51 et seq., seeking damages for personal injuries sustained while employed by Defendant. Pending before the Court is Plaintiff's motion for partial summary judgment as to the issue of liability in the cause. For the reasons hereinafter set forth, the Court grants Plaintiff's motion.


Plaintiff was employed by Defendant as a section foreman from August of 1979 through May of 2000. (Pl.'s LR56.1(a)(3) St. ¶ 1; Martinez Dep. at 19-21.) As a section foreman, Plaintiff was responsible for maintaining, repairing and building railroad tracks. (Id. ¶ 1.)

On the morning of May 4, 2000, Plaintiff reported to work at Defendant's Corwith railroad yard. (Pl's LR56.1(a)(3) St. ¶ 2.) Plaintiffs work assignment that day entailed lubricating, [ Page 2]

maintaining, and inspecting railroad tracks and switches. (Martinez Dep. at 33, 40-41.) Espiridion Soto (hereinafter "Soto"), a roadway worker, was assigned to Plaintiffs switch maintenance crew that morning. (Pl.'s LR56.1(a)(3) St. ¶ 5.) Plaintiff and Soto were the sole crew members assigned to clean, oil and maintain the switches for Corwith Yard on May 4, 2000. (Id.)

Plaintiff conducted a job briefing with Soto at the storehouse in Corwith Yard before they started cleaning switches on May 4, 2000, (Def.'s LR56.1(b)(3)(B) St. ¶ 28.) During this job briefing, Plaintiff assigned Soto to serve as his lookout while he [Plaintiff] was brooming and inspecting switches. (Id.) After the job briefing, Plaintiff and Soto went to the south end of the railroad yard to begin their work at switch number 235. (Pl.'s LR56.1(a)(3) St. ¶ 6; Martinez Dep. at 48-49.)

At switch number 235, Plaintiff worked in between the rails inspecting for nail blocks and any loose bolts or objects that could have been stuck in between the track's points. (Pl.'s LR56. 1(a)(3) St. ¶ 10.) This required Plaintiff to work between the rails, sweeping and inspecting the switch. (Id.) As Plaintiff was sweeping and cleaning switch number 235, Plaintiff looked up at Soto and saw that Soto was looking at him [Plaintiff] and not watching for oncoming trains. (Id. ¶ 11; Pl.'s Resp. to Def.'s LR56.1(b)(3)(B) St. ¶ 33.) Plaintiff was subsequently struck by the drawbar of a silently approaching lead railroad car which knocked him down between the rails and ran over his right foot severely crushing it and permanently injuring him. (Pl.'s LR56.1(a)(3) St. ¶ 12; Pl.'s Ex. B.) Plaintiff also suffered a head laceration as a result of the accident. (Pl.'s Ex. B.)


Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine [ Page 3]

issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P.56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has produced evidence to show that it is entitled to summary judgment, the party seeking to avoid such judgment must affirmatively demonstrate that a genuine issue of material fact remains for trial. LINC v. Fin. Corp. v. Onwuteaka, 129 F.3d 917, 920 (7th Cir. 1997).

In deciding a motion for summary judgment, a court must "review the record in the light most favorable to the nonmoving party and . . . draw all reasonable inferences in that party's favor." Vanasco v. National-Louis Univ., 137 F.3d 962, 964 (7th Cir. 1998). See also Anderson v. Liberty Lobby, Inc., 477 US. 242, 255, 106 S.Ct 2505, 91 L.Ed.2d 202 (1986). Nevertheless, the nonmovant may not rest upon mere allegations, but "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). See also Linc, 129 F.3d at 920. A genuine issue of material fact is not shown by the mere existence of "some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, 106 S.Ct 2505, 91 L.Ed.2d 202, or by "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, a genuine issue of material fact exists only if "a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Anderson, 477 U.S. at 252, 106 S.Ct. 2505, 91 L.Ed.2d 202. Therefore, if the court concludes that "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial,'" and summary judgment must be granted, Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348, 89 L.Ed.2d 569 (quoting First Nat'I Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). [ Page 4]


Plaintiff argues that there is no genuine issue of material fact(s) with respect to the issue of Defendant's liability herein. The basis of Plaintiff's argument is that Defendant breached its duty to Plaintiff when it violated Federal Railroad Administration (hereinafter "FRA") safety regulations and this breach of duty indisputably caused Plaintiff's injury, certainly in part. Plaintiff, therefore, asserts that causation has been established as a matter of law and that a trial only on the issue of damages is warranted. Defendant, on the other hand, contends that Plaintiff's ...

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