The opinion of the court was delivered by: Reagan, District Judge
A. Introduction & Procedural Background
Anthony J. Incaprera sues the Union Pacific Railroad Company for an injury sustained in the course of his employment as a maintenance-of-way employee. Incaprera alleges that on October 19, 2007, he injured his back while shoveling large ballast rock. He claims, inter alia, that Union Pacific failed to provide him with a reasonably safe place to work, reasonably safe methods of work and adequate equipment. The Court's jurisdiction is based upon the Federal Employer's Liability Act, 45 U.S.C. §51-60 (FELA).
Union Pacific moves for summary judgment (Doc. 27), contending that it is entitled to judgment as a matter of law because Incaprera cannot prove breach, foreseeability or causation. The motion is fully briefed and ready for disposition. For the reasons discussed herein, the motion for summary judgment is DENIED.
Summary judgment is appropriate where the pleadings, discovery and disclosure materials on file and any affidavits show that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Estate of Suskovich v. Anthem Health Plans of Virginia, Inc., 553 F.3d 559, 563 (7th Cir. 2009), citing Fed. R. Civ. P. 56(c). Accord Breneisen v. Motorola, Inc., 512 F.3d 972 (7th Cir. 2008); Levy v. Minnesota Life Ins. Co., 517 F.3d 519 (7th Cir. 2008).
In ruling on a summary judgment motion, the Court construes all facts and reasonable inferences in the light most favorable to the non-moving party (here, Incaprera). Lloyd v. Swifty Transp., Inc., 552 F.3d 594, 600 (7th Cir. 2009); TAS Distributing Co., Inc. v. Cummins Engine Co., Inc., 491 F.3d 625, 630 (7th Cir. 2007); Reynolds v. Jamison, 488 F.3d 756, 764 (7th Cir. 2007).
The non-movant cannot rest on his pleadings, though. Rather, the non-movant must provide evidence on which the jury or court could find in his favor. Maclin v. SBC Ameritech, 520 F.3d 781, 786 (7th Cir. 2008). As the Seventh Circuit Court of Appeals explained earlier this year:
[T]he non-moving party must submit evidence that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 694 (7th Cir. 2006). The existence of merely a scintilla of evidence in support of the non-moving party's position is insufficient; there must be evidence on which the jury could reasonably find for the non-moving party.
Giant Screen Sports v. Canadian Imperial Bank of Commerce, 553 F.3d 527, 531-32 (7th Cir. 2009).
Because the FELA is a remedial statute, courts liberally construe the statute in railroad worker's favor. Lisek v. Norfolk and Western Ry. Co., 30 F.3d 823, 831 (7th Cir. 1994); Walker v. Northeast Regional Commuter R.R. Corp., 225 F.3d 895, 897 (7th Cir. 2000). Under the FELA, a railroad employee may recover damages for injury that results "in whole or in part from the negligence" of the railroad or its employees or "by reason of any defect or insufficiency, due to its negligence, in its ... track, roadbed,... or other equipment." 45 U.S.C. § 51 (emphasis added). "[T]his has been interpreted to mean that 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 or death for which damages are sought.'" Coffey v. Northeast Illinois Regional Commuter R. Corp. (METRA), 479 F.3d 472, 476 (7th Cir. 2007), quoting Rogers v. Missouri Pacific R.R., 352 U.S. 500, 506 (1957) (emphasis added in Coffey) (additional citation omitted). "The fact that there may have been a number of causes of the injury is ... irrelevant as long as one cause may be attributable to the railroad's negligence." Id., quoting Heater v. Chesapeake & Ohio Ry., 497 F.2d 1243, 1246-47 (7th Cir. 1974).
In order to prevail on a FELA claim, the plaintiff must prove the common law elements of duty, breach, foreseeability and causation. Id.; Williams v. Nat'l R. R. Passenger Corp., 161 F.3d 1059, 1062 (7th Cir. 1998). As a result, "[a] FELA Plaintiff who fails to produce even the slightest evidence of negligence will lose at summary judgment." Williams, 161 F.3d at 1061-62; 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").
Incaprera was hired by Union Pacific in its Maintenance of Way Department on May 31, 2006. He began working as a trackman but later trained as a machine operator on a Jackson Tamper machine. According to Incaprera, on the date of the alleged injury, October 19, 2007, he felt competent and qualified to work as a machine operator but was still in training. Doc. 28, Exh. A, 46:21-47:6 (Incaprera Dep.).
On October 19, Incaprera began his shift operating the tamper. Other machine operators behind Incaprera were using a ballast regulator and a backhoe.*fn1 At some point, the foreman sent the other machine operators home although some rock still needed to be cleared. Id., 110:15-22. The foreman ordered Incaprera to shovel the rock. Id., 110:20-22.Incaprera testified that he told the foreman that he did not want to shovel and that the ballast regulator should be used to clear the rock. Id. 110:24-111:5. He asserts that the foreman threatened to charge him with insubordination if he did not shovel, so he began to shovel despite the fact that the backhoe was sitting at the crossing he was working on. Id., 111:5-14; 113:3-7. According to Incaprera, the foreman yelled at him to work faster, "go, go, go, go, go, go," so Incaprera shoveled faster and with bigger loads to get the job done. Id., 116:15-24; 117:7; 136:22-23. He testified that the foreman began "screaming ... ...