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Cullivan v. Kansas City Southern Railway Co.

February 1, 2010


The opinion of the court was delivered by: J. Phil Gilbert District Judge


This matter comes before the Court on Defendant Kansas City Southern Railway Company's (hereinafter "KCSR") Motion for Summary Judgment (Doc. 11) and Memorandum (Doc. 12) in support thereof. Plaintiff Joseph Patrick Cullivan (hereinafter "Cullivan") filed a Memorandum (Doc. 15) in opposition to said filings, to which KCSR filed a Reply (Doc. 16). For the following reasons, the Court, inter alia, GRANTS KCSR'S motion insofar as it seeks dismissal of Cullivan's currently pleaded claim.


On July 2, 2009, Cullivan filed a one count Complaint (Doc. 2-1) in the Circuit Court of Madison County, Illinois, alleging violation of the Federal Employers' Liability Act (hereinafter "FELA") by KCSR. Following removal by KCSR, this matter became the domain of this Court. In a recent Memorandum and Order (Doc. 22) denying Cullivan's Motion to Remand (Doc. 9), the Court chronicled the relevant facts and procedural posture of this case; accordingly, they need not be repeated here. However, said order does bear great significance to analysis of the instant motion, as will be seen infra.


I. Summary Judgment Generally

Summary judgment is appropriate 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.Where the moving party fails to meet its strict burden of proof, a court cannot enter summary judgment for the moving party even if the opposing party fails to present relevant evidence in response to the motion. Cooper v. Lane, 969 F.2d 368, 371 (7th Cir.1992).

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); Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000). 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; accord Michas, 209 F.3d at 692.

II. FELA Generally

Drafted in the wake of the railroad boom of the early twentieth century, FELA's enactment stemmed from the belief that "justice demands that one who gives his labor to the furtherance of the [railroad] enterprise should be assured that all combining their exertions with him in the common pursuit will conduct themselves in all respects with sufficient care that his safety while doing his part will not be endangered." Sinkler v. Mo. Pac. R.R. Co., 356 U.S. 326, 330 (1958). In other words, FELA seeks to "provide broad remedial measures" to railroad employees. Walker v. Ne. Reg'l Commuter R.R. Corp., 225 F.3d 895, 897 (7th Cir. 2000) (citing Lisek v. Norfolk & W. Ry. Co., 30 F.3d 823, 831 (7th Cir. 1994)). The core of FELA has remained the same for over one-hundred years. It states, in relevant part, as follows:

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. . . resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.

45 U.S.C. § 51 (2006). To recover under this statute, a plaintiff must ultimately prove "the traditional common law elements of negligence, including foreseeability, duty, breach, and causation," although the "quantum of evidence necessary to establish liability under . . . FELA is lower than that required in an ordinary negligence action." Fulk v. Ill. Cent. R.R. Co., 22 F.3d 120, 124 (7th Cir. 1994).

III. Cullivan Was Not "Employed" by KCSR; Thus, His FELA Claim Must Fail

The prerequisite to a successful FELA claim is that it be brought by a railroad employee or former railroad employee against a rail carrier. 45 U.S.C. § 51 (2006). However, if nominally employed elsewhere, a plaintiff can establish such "employment" in one of three ways. Kelley v. S. Pac. Co., 419 U.S. 318, 324 (1974). "First the employee could be serving as the borrowed servant of the railroad at the time of his injury. Second, he could be deemed to be acting for two masters ...

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