Rita Guerrero, individually and as the Special Administrator of the Estate of Celso N. Guerrero, Plaintiff-Appellant,
BNSF Railway Company, Defendant-Appellee.
May 28, 2019
from the United States District Court for the Central
District of Illinois. No. l:17-cv-01044-MMM-JEH - Michael M.
Wood, Chief Judge, and Bauer and Easterbrook, Circuit Judges.
the legal question we must resolve in this case is a sad
story: as Celso Guerrero was trying to drive to his job at
BNSF Railway through a snowstorm early one morning, his car
skidded, it collided with a snowplow, and he was killed. His
widow, Rita Guerrero, who appears on her own behalf and as
administrator of her late husband's estate, is seeking
compensatory money damages from BNSF. (Our references in this
opinion to Guerrero refer to Celso Guerrero, unless the
context requires otherwise.) The district court concluded
that Guerrero was not acting within the scope of his
employment when the fatal accident occurred, and thus the
Federal Employer's Liability Act (FELA) does not apply to
the case. In our view, the question of work status is a close
one, but it is one that we need not resolve. No jury could
find that BNSF was negligent in any action it took or failed
to take with respect to Guerrero, and so on that ground we
affirm the district court's judgment.
our account of the undisputed facts from the district
court's opinion, recognizing that this case was resolved
through a motion for summary judgment, and so (as the
district court also did), we accept the facts in the light
most favorable to the opponent of the motion, Guerrero.
Guerrero was a machine operator for BNSF. His normal schedule
required him to work from Monday through Friday, but he was
subject to possible overtime work at other times. His primary
duty was track repair, but he was also expected to perform
other tasks as needed, including snow removal. On Saturday,
January 31, 2015, Guerrero received a telephone call around
6:00 p.m. from Nick Burwell, the BNSF Roadmaster in charge of
track maintenance for the Galesburg, Illinois, railyard and
surrounding area. Burwell told Guerrero that a significant
snowstorm was expected, and so he was looking for employees
to clear snow from the tracks starting the next morning at
7:00 a.m. at the Galesburg facility. In mak- ing these calls,
Burwell followed a union seniority list. Guerrero was not
required to accept this work opportunity, but he did. From
that point onward, we can assume that BNSF was relying on him
to show up at the assigned time, and he at a minimum would
have had to notify the company if he no longer wanted to
accept the extra work.
his personal vehicle, Guerrero left his home in Kewanee,
Illinois (about 40 miles northeast of Galesburg) at 5:00 a.m.
on February 1. The predicted snowstorm was underway, and it
was snowing hard as Guerrero drove along Illinois Route 34.
The National Weather Service documented at least four, but
likely closer to eight, inches of snow cover along his route.
Interactive Snow Information, Modeled Snow Depth for 2015
February 1, 12:00 UTC, The National Weather
Service's National Operational Hydraulic Remote Sensing
(Physical Element "Snow Depth"; Date "February
1, 2015, 12:00 UTC"; City, ST "Galesburg,
IL"). While heading southbound, near Oneida, his car
slid on the roadway, spun across the median, and collided
with a snow-plow being operated by the Illinois Department of
Transportation (IDOT); the plow was in the northbound lane.
Guerrero was severely injured and died the next day in the
hospital. Illinois State Trooper Carrie Worsfold responded to
the collision. Commenting that "I was the plow, it felt
like," she recalled that the road was completely covered
with snow-maybe three inches or more.
Guerrero, suing in her own right and for Guerrero's
Estate, filed this action under the FELA, 45 U.S.C.
§§ 51-59. Asserting that her husband was killed
while he was on duty and acting within the scope of his
employment, she sought compensatory damages. BNSF took issue
with her assertion that Guerrero was on duty at the time of
his injury; it contended that he was merely commuting to
work, as he did for his normal shift every day, and that
commuting falls outside the scope of employment in this
situation. BNSF argued in the alternative that no trier of
fact could find that BNSF was negligent either by act or
omission, and that this was an independent reason for
judgment in its favor. On BNSF's motion for summary
judgment, the district court ruled that Guerrero's fatal
injury occurred at a time when he was not acting within the
scope of his employment. The FELA thus did not apply-a
conclusion to which the judge attached jurisdictional
significance. Without addressing BNSF's negligence
argument, the judge granted summary judgment in BNSF's
favor, presumably with prejudice, since the judgment document
does not specify otherwise and makes no mention of a
jurisdictional ground for dismissal. See Fed. R. Crv. P.
41(b); Swanigan v. City of Chicago, 775 F.3d 953,
959 n.2 (7th Cir. 2015). Guerrero has appealed.
the parties spend most of their time arguing over the
district court's finding about scope of employment, we
have much less to say about that, and more to say about
BNSF's alternate, negligence-based argument. The reason
is simple: it appears to us that there are disputed issues of
material fact on the ...