The opinion of the court was delivered by: Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Plaintiff Thomas Sieczka ("Plaintiff" or "Sieczka") filed suit against Defendants Canadian Pacific Railway System, Canadian Pacific Railroad, Canadian Pacific Railroad d/b/a SOO Line Railroad Co., and CP Rail (collectively "Defendants") alleging that Defendants violated the Federal Employers Liability Act ("FELA"), 45 U.S.C. § 51 et seq. Presently before the Court is Defendants' motion for summary judgment . For the reasons set forth below, that motion is granted. Also before the Court is Defendants' motion to strike exhibits attached to Plaintiff's Local Rule 56.1(b)(3)(C) Statements of Fact . That motion is denied.
The Court takes the relevant facts from the Defendants' Local Rule ("L.R.") 56.1(a)(1)(3) statements of material fact ("Defs. SOF") [25-2], Plaintiff's Response to Defs. SOF ("Pl. Resp.") , Plaintiff's L.R. 56.1(b)(3)(C) statement of material facts ("Pl. SOF") , and Defendants' reply to Plaintiff's SOF ("Defs. Reply") .*fn1
Plaintiff was employed by Defendants as a carman. Defs. SOF ¶ 4. On April 15, 2004, he reported to work at Canadian Pacific's Bensenville Yard for the third shift, which lasted from 11 p.m. to 7 a.m. Id. Plaintiff had worked the same shift, in the same train yard, for approximately twenty-eight years. Id. His first assignment that night required him to inspect a train on track F-2 in the F Yard at the Bensenville Yard. Defs. SOF ¶ 6. He was accompanied on that assignment by a co-worker, John Dingeldein ("Dingeldein"). Id. During the inspection on track F-2, Dingeldein indicated that he required assistance removing an air hose. Defs. SOF ¶ 6. While Dingeldein held up a lantern to illuminate the work area, Plaintiff crouched down, planted his feet between the rails of the track on the rail ties and the ballast, and attempted to remove the air hose with a wrench. Defs. SOF ¶ 7.*fn2 While there were lights in the F yard, they "weren't that great," so Plaintiff needed the lantern light to perform the job. Defs. SOF ¶ 8; Pl. SOF ¶ 7. With the lantern light, Plaintiff could see the surface on which was standing. Id. That surface consisted solely of ballast and rail ties. Id.
The ballast on which Plaintiff and Dingeldein were standing while attempting to repair the air hose was loose. Pl. SOF ¶ 12. It took approximately twenty minutes to remove the air hose. Defs. SOF ¶ 10. During the time that Plaintiff was changing the air hose, he shifted his footing, alternating between crouching and standing. Id. It is not clear whether Dingeldein also attempted to remove the air hose in Plaintiff's presence, although Plaintiff was solely responsible for the eventual removal.*fn3 At some point, while pulling up to remove the hose, the ballast shifted from underneath him, and Plaintiff's injury occurred. Pl. SOF ¶ 37.
Plaintiff did not immediately complain to Dingeldein that he had injured his knee. Defs. SOF ¶ 12. Dingeldein had no recollection of Plaintiff sustaining an injury that night. Defs. SOF ¶ 14. Plaintiff continued to work the remainder of his shift on April 15-16 and inspected another train. Defs. SOF ¶ 15. Plaintiff did not report the existence of any problem related to the size or condition of the ballast on the evening of the alleged injury, but he did report to his supervisor, Michael Headtke ("Headtke") on the night of his injury that he had tweaked his knee. Defs. SOF ¶ 16; Pl. SOF ¶ 24. Headtke did not complete any paperwork, nor did he require Plaintiff to complete any paperwork reporting the injury on the night of incident. Pl. SOF ¶ 27. Headtke was unaware, until after the incident, that a personal injury report was required. Pl. SOF ¶ 28. Plaintiff did prepare a report of injury on April 18, 2004 in which he stated in the "details of injury/illness" that he twisted his knee, but he made no mention of a problem with the ballast. Defs. SOF ¶ 20; Pl. SOF ¶ 30. Headtke did not ask Plaintiff to go into details beyond the twisted knee because he thought that the information included in the report "was good enough." Pl. SOF ¶ 30. Headtke filled out a supervisor's supplement to the personal injury report when he met with Plaintiff on April 18, 2004, and Plaintiff did not complaint about the size or condition of the ballast at that time. Defs. SOF ¶ 21. Headtke's employer never walked him through the process involved in completing the supervisor's supplement before he filled out the report on this incident. Pl. SOF ¶ 31. Plaintiff also provided a statement of the injury to a claims agent associated with his employer and made no mention of a problem with the size or condition of the ballast in that statement. Defs. SOF ¶ 22.
Defendants use two types of ballast in the train yard where Plaintiff allegedly was injured: 21/2 " and 3/4 ". Pl. SOF ¶ 1. The 3/4 " ballast is used on walkways because it is more suitable for that purpose. Pl. SOF ¶¶ 2, 4. The 21/2 " ballast is used for surfacing track to support the ties and the rails. Pl. SOF ¶ 6; Defs. SOF ¶ 26. A carman walking on either side of the F-2 track would encounter the 21/2 " ballast. Pl. SOF ¶ 5; Defs. Resp. ¶ 5. Prior to Plaintiff's alleged injury, both Dingeldein and Plaintiff had complained about the walking conditions in the F yard. Pl. SOF ¶¶ 10, 36, 38.
Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether there is a genuine issue of fact, the Court "must construe the facts and draw all reasonable inferences in the light most favorable to the nonmoving party." Foley v. City of Lafayette, Ind., 359 F.3d 925, 928 (7th Cir. 2004). To avoid summary judgment, the opposing party must go beyond the pleadings and "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (internal quotation marks and citation omitted). Summary judgment is proper against "a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 252.
Because the FELA is a remedial statute, courts liberally construe the statute in railroad workers' favor. Lisek v. Norfolk and Western Ry. Co., 30 F.3d 823, 831 (7th Cir. 1994). At the same time, however, the Seventh Circuit recently stressed that "[a]lthough the FELA is often said to require only slight evidence of negligence, * * * that is not what the statute says." Coffey v. Northeast Illinois Reg'l Commuter R.R. Corp., 479 F.3d 472, 476 (7th Cir. 2007) (emphasis added). Instead, pointing to a recent Supreme Court decision, the court of appeals reiterated that "'[a]bsent express language to the contrary, the elements of a FELA claim are determined by reference to the common law.'" Id. (quoting Norfolk S. Ry. Co. v. Sorrell, 127 S.Ct. 799, 805 (2007)).
The FELA permits a railroad employee to recover damages for injuries "resulting in whole or in part from the negligence" of the railroad or its agents "or by reasons of any defect or insufficiency, due to its negligence, in its * * * track, [or] roadbed." 45 U.S.C. § 51. Because "the elements of a FELA claim are determined by reference to the common law" (Coffey 479 F.3d at 476), Plaintiff must show the existence of a triable issue of fact as to the elements of duty, breach, foreseeability, and causation. Fulk v. Illinois Cent. R.R. Co., 22 F.3d 120, 124 (7th Cir. 1994). Although the common law standard has been relaxed in FELA cases as to the element of causation, the other elements must be established under traditional common law standards. Coffey, 479 F.3d at 476). Thus, as the Seventh Circuit categorically has stated, "[a] FELA Plaintiff who fails to produce even the slightest evidence of negligence will lose at summary judgment." Williams v. Nat'l R.R. Passenger Corp., 161 F.3d 1059, 1061-62 (7th Cir. 1998); see also Coffey, 479 F.3d at 477 (affirming grant of summary judgment for railroad and noting that "plaintiff, in short, has failed to make a prima facie case of negligence").
A railroad is under a general duty to furnish employees with a safe workplace. McGinn v. Burlington Northern R.R. Co., 102 F.3d 295, 300 (7th Cir. 1996). To establish a breach of that duty, the plaintiff must show circumstances which a reasonable person would foresee as creating a potential for harm. McGinn, 102 F.3d at 300; see also Williams, 161 F.3d at 1062. In addition, because liability is limited to those dangers that are reasonably foreseeable, the plaintiff must show that the employer had actual or constructive notice of the condition. Williams, ...