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Wand v. Burlington Northern Santa Fe Railroad Co.

August 2, 2010


The opinion of the court was delivered by: Judge Joan H. Lefkow


James Wand filed a two-count complaint against BNSF Railway Company ("BNSF") for injuries suffered while working for BNSF as a conductor. Count I alleges a violation of the Safety Appliance Act (the "SAA"), codified at 49 U.S.C. § 20301 et seq., and Count II is a claim for negligence, both brought pursuant to the Federal Employers' Liability Act ("FELA"), codified at 45 U.S.C. § 51 et seq.*fn2 Before the court is Wand's motion for partial summary judgment on BNSF's liability and BNSF's second affirmative defense that Wand was either contributorily negligent or the sole proximate cause of his injuries as pertinent to Count I of his complaint. For the following reasons, Wand's motion [#26] is granted.


Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact, and the movant 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); Vision Church v. Vill. of Long Grove, 468 F.3d 975, 988 (7th Cir. 2006). To determine whether any genuine issue of fact exists, the court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed. R. Civ. P. 56(c). The court must not, however, make credibility determinations or weigh the evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986); Abdullahi v. City of Madison, 423 F.3d 763, 773 (7th Cir. 2005). The party seeking summary judgment bears the initial burden of proving there is no genuine issue of material fact. Celotex, 477 U.S. at 323. The court must construe all facts in the light most favorable to the non-movant and draw all reasonable inferences in that party's favor. Anderson, 477 U.S. at 255; Abdullahi, 423 F.3d at 773. The non-movant cannot, however, rest on bare pleadings alone but must use the above evidentiary tools to designate specific material facts showing a genuine issue for resolution at trial. Celotex,477 U.S. at 324; Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008). Neither the mere existence of "some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, nor "some metaphysical doubt as to the material facts" establishes a genuine issue for resolution at trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed. 2d 538 (1986). Such an issue exists only if a rational jury could rule for the non-movant based on the available evidence. Anderson, 477 U.S. at 252.


On July 11, 2008, Wand was employed by BNSF as a conductor at the Logistics Park-Chicago intermodal facility. Pl.'s Stmt. of Undisputed Facts ¶ 3, hereinafter "PSF ¶ ___." As a conductor, Wand was required to climb on and off the railcars, using ladders and handholds or grab irons attached to the railcars for that purpose.*fn3 PSF ¶ 4. Under BNSF's General Code of Operating Rules, employees were required to "check the condition of equipment or tools they use to perform their duties. Employees must not use defective equipment or tools until they are safe to use." Def.'s Additional Facts ¶ 26, hereinafter "DSF ¶ ___." Likewise, BNSF's Train, Yard and Engine Safety Rules required employees to "[i]nspect tools and equipment prior to use" and "[r]epair and remove from service those that fail inspection." DSF ¶ 27. Wand was trained in these rules. DSF ¶ 24.

At around 2:30 A.M. on July 11, 2008, Wand was at work in the Logistics Park-Chicago railyard, in an area where the lighting was poor. DSF ¶ 44; Ex. J to PSF at 86:1, hereinafter "Wand Dep." Wand approached a ladder that was mounted at a corner of a railcar in order to set a handbrake. PSF ¶ 5. The ladder had handholds or grab irons at the top of the two "ladder stiles" (that is, the vertical bars that comprised the sides of the ladder). *fn4 PSF ¶ 8. The ladder stiles were bolted to the railcar, DSF ¶ 61, but the right ladder stile had been damaged and subsequently repaired with a weld. PSF ¶ 17. The track lay on a raised trackbed of rock and gravel so that the stirrup at the bottom of the railcar's ladder was roughly five feet above ground. DSF ¶¶ 42, 43.

Only Wand has provided an account of what happened next. Prior to mounting the ladder, he did not physically test, grab, or shake the ladder. DSF ¶ 32. Wand put his left hand on the left handhold, his left foot in a stirrup, and then grabbed the right handhold at the top of the right ladder stile to pull himself onto the car. Wand Dep. 86-87. At this point, the ladder stile and attached handhold broke off the car, and Wand fell to the ground backwards.*fn5 PSF ¶¶ 7, 9.

After the accident, Wand reported his injury to David Hayward, the engineer on his train. PSF ¶ 10. Hayward examined Wand's back and found that "'pretty much the whole back' was red." Id. Hayward went to investigate the railcar, saw the right grab iron on the ground, and noticed that it had come off the railcar that Wand had attempted to climb. PSF ¶ 11; Ex. L to PSF at 15:22-16:14. Wand's injury was reported to Harold Kirman, the terminal manager and trainmaster on duty, and Wand subsequently was taken to a hospital. PSF ¶ 12. Kirman wrote up a report of the incident, PSF ¶ 13, and commissioned an inspection of the railcar by Michael Colesby, a general foreman at BNSF. Ex. G to PSF. Colesby examined the railcar and concluded that the ladder stile had "broken at [an] old weld" and that this had constituted an "improper repair" to the ladder. Id.

Wand claims that he "immediately felt pain in [his] lower back" on hitting the ground. Wand Dep. 91:2. The day after the accident, he was treated by a Dr. Arndt at the Quincy Medical Group, who referred him to Dr. Shawn Irvine, a chiropractor, id. at 111-12, whom Wand had previously seen for back pain on three occasions in 2004, 2005, and 2006.*fn6 Ex. V to DSF at 6-7, 19, 29. Wand states that Dr. Irvine tried to "pop his back," which only exacerbated Wand's pain. Wand Dep. 112-14. Wand returned to Dr. Arndt, who prescribed medication and physical therapy. Id. at 114-17. Wand found these treatments unhelpful and saw a Dr. Schoedinger in St. Louis at the recommendation of several associates. Id. at 118. By this time, Wand had "major, severe pain in [his] lower back and into [his] buttocks," occasionally "radiating downward" into his legs; he described the pain as "overwhelming." Id. at 121:13-19, 122:2. By the second time that Wand visited Dr. Schoedinger, he had also developed "severe," "excruciating," and "just terrible" headaches. Id. at 122. Wand had an MRI during his second visit to Dr. Schoedinger, id. at 131-32, and ultimately Dr. Schoedinger performed a cervical operation on Wand in January 2009. Id. at 127. The surgery eliminated Wand's headaches. Id. at 128. Wand continues to have limited range of motion in his neck. Id. at 128-31.


I. SAA Violation

FELA is a general negligence statute; it "neither prohibits nor requires specific conduct by a railroad." Waymire v. Norfolk & W. Ry. Co., 218 F.3d 773, 775 (7th Cir. 2000). The SAA is substantively, if not formally, an amendment to FELA, Urie v. Thompson, 337 U.S. 163, 189, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949),and imposes an absolute duty on railroads to provide safe equipment. DeBiasio v. Ill. Cent. R.R., 52 F.3d 678, 683 (7th Cir. 1995). The SAA does not create a private right of action, but rather allows employees injured by SAA violations to sue under FELA. Crane v. Cedar Rapids & Iowa City Ry. Co., 395 U.S. 164, 166, 89 S.Ct. 1706, 23 L.Ed. 2d 176 (1969).

In order to recover under FELA, a plaintiff must prove actual negligence by the defendant. The violation of a safety statute constitutes negligence as a matter of law under the SAA. Urie, 337 U.S. at 189 ("[The SAA] dispense[s], for the purposes of employees' suits, with the necessity of proving that violations of the safety statutes constitute negligence; and making proof of such violations is effective to show negligence as a matter of law."); Chi., Milwaukee, St. Paul & Pac. R.R. Co. v. Alva Coal Corp., 365 F.2d 49, 54 (7th Cir. 1966) ("[V]iolations of the Safety Appliance Acts constitute negligence per se."). Accordingly, an employee can recover under FELA for injuries caused in whole or in part by a violation of the SAA. See Crane, 395 U.S. at 166 ("[T]he injured employee is required to prove only the statutory violation and thus is relieved of the burden of proving negligence."). For liability to be found for an SAA violation, however, a plaintiff must also establish that his injury was caused by the violation. See Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500, 507 n.13, 77 S.Ct. 443, 1 L.Ed. 2d 493 (1957) ("Proof of violation of certain safety-appliance statutes without more proves negligence . . . . The only issue then remaining is causation."). "Plaintiffs' burden in a FELA action is . . . significantly lighter ...

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