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Kellogg v. BNSF Rail Way Co.

United States District Court, N.D. Illinois, Eastern Division

September 26, 2014

JOHN B. KELLOGG, Plaintiff,
v.
BNSF RAIL WAY COMPANY a/k/a BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, Defendant.

MEMORANDUM OPINION AND ORDER

EDMOND E. CHANG, District Judge.

After the train he was operating nearly collided with another due to a malfunctioning traffic signal, Plaintiff John B. Kellogg brought this negligence action against his employer, Burlington Northern Santa Fe Railway Company, under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51-60.[1] Both Kellogg and Burlington have moved for partial summary judgment. For the reasons given below, Kellogg's motion is granted and Burlington's motion is denied.

I. Background

On November 11, 2008, Kellogg was the conductor operating a Burlington freight train on a routine run from LaCrosse, Wisconsin to Cicero, Illinois.[2] PSOF ¶ 3. As the train rolled through Milledgeville, Illinois, where the railroad has only a single track, a green signal cleared Kellogg to guide the locomotive into a curving, mile-long stretch at 60 miles per hour. Id. ¶¶ 4-7. But all was not clear: it was then that Kellogg spotted the top of a tall container railcar in the distance above the tree-line-another train on the same track that should have been clear. Id. ¶ 7. The train's engineer immediately engaged the "emergency brake application" and the entire crew scrambled onto the train's exterior catwalk, getting ready to evacuate. Id. ¶ 8. Kellogg could not tell if the tree-obscured train ahead of them was sitting stationary or instead moving head-on towards them, and he hesitated between leaping off a train that was still running close to 60 miles per hour versus risking an imminent collision and a diesel-fueled explosion. Id. ¶ 9. It took 45 seconds for the train to come to a full stop. Id. ¶ 10. It did so some twenty car lengths short of the other train and, ultimately, Kellogg never jumped. Compl. ¶ 14.

The signal that had improperly failed to alert Kellogg to stop the train functioned through "pole line DC track circuits, " two sets of two steel wires each, normally kept in tension and two feet apart in order to prevent their currents from coming into contact. PSOF ¶¶ 11-13. On the day of the incident, the sets of wires had become wrapped together, creating an electrical charge that caused the signal to show green when it should have been red. Id. ¶¶ 15-16.

Although the parties do not dispute that the wire wrap was responsible for the "false proceed signal, " they characterize the facts surrounding the pole line's maintenance very differently. According to Burlington, it carried out monthly "ground tests" to ensure the signal circuitry was in working order. DSOF ¶ 2. Signal maintainers also physically inspected the pole line for issues or defects on a semiannual basis, including in February and September 2007 and in March and August 2008. Id. ¶¶ 4-7. Burlington signal crews walked near the pole line in question on October 8, 2008, specifically to inspect for sagging wires and wire wraps but evidently found no problem. Id. ¶ 8. A crew returned again with a week with the same result. Id. ¶ 9. On the day of the near-collision, thirteen trains traveled on the same track in the same direction as Kellogg's train without complication. Id. ¶ 10. Burlington therefore states that it had no notice of any problem before the day of the incident. Id. ¶ 11. The company reported the incident to the Federal Railroad Administration (FRA), whose report determined that the wire wrap had been the "result of severe storms." Id. ¶ 13.

In Kellogg's characterization of the events, Burlington received several "failure to clear" reports about the Milledgeville signal in the two months leading up to the "false proceed, " but ultimately failed either to properly check for or to fix wrapped wires. PSOAF ¶¶ 1, 10. According to Kellogg's expert, wire wraps from improper tension in pole lines, which become slacker over time, ordinarily take months, if not years, to develop. Id. ¶ 7. Kellogg also adds that although Burlington had in place a "post-storm inspection protocol, " this policy did not cover inspection of pole line wires. Id. ¶ 13.

Kellogg filed this lawsuit in October 2011, alleging that he had suffered emotional distress from the ordeal of the near-miss collision, as caused by Burlington's negligent signal upkeep. Compl. Burlington moved to dismiss the complaint, arguing that Kellogg could not raise a negligent infliction of emotional distress claim because he had never been in a physical "zone of danger." R. 9, Def.'s Mot. Dismiss at 2. This Court denied the motion, holding that the small margin of error before collision with the train ahead of him, an allegation accepted as true, had placed Kellogg in imminent threat of serious physical harm. R. 21, Mem. Op. and Order dated June 20, 2012 at 5-6. The case thus proceeded to discovery, and upon its completion, both parties moved for partial summary judgment. R. 52, Mot. Summ. J.; R. 56, Def.'s Resp. and Cross-Mot. Summ. J.

II. Standard of Review

Summary judgment must be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In evaluating summary judgment motions, courts must view the facts and draw reasonable inferences in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). The Court may not weigh conflicting evidence or make credibility determinations, Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 704 (7th Cir. 2011), and must consider only competent evidence of a type otherwise admissible at trial, Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009). The party seeking summary judgment has the initial burden of showing that there is no genuine dispute and that they are entitled to judgment as a matter of law. Carmichael v. Village of Palatine, 605 F.3d 451, 460 (7th Cir. 2010); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008). If this burden is met, the adverse party must then "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256.

III. Analysis

It is undisputed that under FELA, Burlington, as a "common carrier by railroad, " is liable for any injuries "resulting in whole or in part from the negligence of any of [its] officers, agents, or employees." 45 U.S.C. § 51. Liability, in turn, can be established where the injury results from a railroad's violation of a statutory or regulatory provision meant to protect worker safety-the principle of negligence per se. See Kernan v. Am. Dredging Co., 355 U.S. 426, 438-39 (1958); accord Schmitz v. Canadian P. Ry. Co., 454 F.3d 678, 683 (7th Cir. 2006) (" Kernan ... established a bright-line rule that a FELA employer's violation of a statutory or regulatory duty gives rise to FELA liability for a resulting employee injury[.]"). See also 45 U.S.C. §§ 53, 54(a).

Kellogg argues that the evidence shows, as a matter of law, that Burlington violated two such provisions-one, a FRA regulation requiring signal wires to be free of interference, and the other, a statute requiring the safe operation of signal systems. Pl.'s Mot. Br. at 4-6. Burlington believes that because the record demonstrates that the railroad complied with the plain language of the provisions, or alternatively because any non-compliance was attributable to unforeseeable weather, Kellogg cannot possibly satisfy his burden of establishing negligence. Def.'s Mot. Br. at 3-5, 9-10. The parties are therefore in agreement that the ...


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