The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on the Motion for Summary Judgment (Doc. 32) and Memorandum of Law in Support thereof (Doc. 33) filed by Defendant Union Pacific Railroad Company ("Union Pacific"). Plaintiff David P. Gibbs ("Gibbs") has responded (Doc. 36), and Union Pacific has replied (Doc. 39). Gibbs alleges that Union Pacific is liable under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § § 51 et seq., for injury incurred on July 24, 2007, and for cumulative trauma injury sustained throughout the course of Gibbs' employment with Union Pacific. For the following reasons, the Court DENIES in part and GRANTS in part Union Pacific's motion.
I. Summary Judgment Standard
Summary judgment is proper where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine 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 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Spath, 211 F.3d at 396.
In responding to a summary judgment motion, the nonmoving party may not simply rest upon the allegations contained in the pleadings but must present specific facts to show that a genuine issue of material fact exists. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 322-26; Johnson v. City of Fort Wayne, 91 F.3d 922, 931 (7th Cir. 1996). A genuine issue of material fact is not demonstrated by the mere existence of "some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, or by "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (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.
Taken in the light most favorable to Gibbs, the evidence establishes the following facts. Gibbs worked in railroading as a signalman/signal maintainer for Union Pacific. Signalmen sometimes work as members of a signal gang due to heavy lifting associated with the job. Also, to ease the physical strain of its employees, Union Pacific had boom trucks to assist in setting up a signal mast or picking up a signal house. The availability and use of such boom trucks depended on the time afforded completion of a specific task.
On July 24, 2007, as part of a six-man signal gang, Gibbs' job duties included the installation of new gates and weights at a railroad crossing. This represented approximately the sixth time that Gibbs had been given such an assignment. On that date, Gibbs wore all available safety equipment with the exception of a back brace, which had never been furnished by Union Pacific nor requested by Gibbs. Gibbs had not made Union Pacific aware of his prior history of back problems. There were two trucks at the job site with lifting apparatuses, and at least one of these trucks carried a working boom. Gibbs wanted to use a boom truck and/or to attach a strap to the gate to assist in adjusting the weights; however, due to a supervisor and other co-workers that did not take well to suggestions, Gibbs never verbalized such desires. In fact, Gibbs kept most suggestions to himself at work, as his input was always shot down.
While lifting and holding a weight in an effort to adjust it onto a gate (the weight had already been placed on the gate by Gibbs' co-workers), Gibbs experienced pain in his lower back. Gibbs testified that the weight weighed approximately two-hundred pounds. Roughly ten minutes later, he expressed such discomfort to a co-worker, Tyler. Although Gibbs had been on uneven, freshly excavated terrain at the time of his injury, he had not slipped, tripped, or fallen. At the time of his injury, Gibbs had been working in the same area as Tyler and another co-worker, Zack, although he asked neither for assistance in lifting/adjusting the weight. Following his ten-hour shift, Gibbs went to a hospital emergency room for treatment of his pain and ultimately had to undergo surgery.
On an accident report filled out two days later, Gibbs attributed the aforesaid injury to "bad footing and lack of manpower."*fn1 With respect to "lack of manpower," Gibbs felt that an eight-man signal gang would have been more appropriate than the six assigned, as things could get "chaotic" due to the many aspects of the job. (Gibbs Dep. 100:1-2.) Gibbs admits that, at the time of his injury, he was exerting excessive force but felt physically capable of performing the task. Gibbs further admits that he did not ask for help from Tyler, Zack, or any other co-workers. Further, Gibbs admitted that his action or inaction on July 24 violated three Union Pacific Safety Rules, including rules on safe lifting, lifting with two or more employees, and attaining proper footing and proper grip.
In addition to the injury sustained on July 24, 2007, Gibbs asserts a claim of cumulative injury against Union Pacific. In his complaint, Gibbs states that he sustained such injury "as a result of jolting, walking on uneven ballasts, climbing, lifting, carrying, repetitive motion and overuse and awkward positioning, working long and excessive hours, working without adequate and proper personal protective equipment, [manpower assistance, and/or tools and equipment throughout the course of his career with Union Pacific]." (Gibbs Compl. ¶ ¶ 15-16.) He first noticed pain from this injury during a one-time job in November 2006, as he pulled and jerked a wire while on top of a pole. Specifically, Gibbs experienced pain in his arm, elbow, and neck simultaneously. While the pain in his arm and elbow went away following treatment by a chiropractor, Gibbs' neck pain persisted until surgery in January 2008 and still somewhat lingers to this day. In his deposition, Gibbs admitted that this specific pulling and jerking "probably pretty much" caused any longstanding pain in his neck. (Gibbs Dep. 35:12-18.) He never filed an injury report regarding the November 2006 incident.
Gibbs has presented two claims under FELA. First, Gibbs alleges that he incurred injury to his lower back, hips, and legs on July 24, 2007, while employed by Union Pacific and attempting to adjust weights on a railroad gate. And, second, Gibbs alleges that he sustained cumulative trauma injury to ...