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Guerrero v. BNSF Railway Co.

United States Court of Appeals, Seventh Circuit

July 17, 2019

Rita Guerrero, individually and as the Special Administrator of the Estate of Celso N. Guerrero, Plaintiff-Appellant,
v.
BNSF Railway Company, Defendant-Appellee.

          Argued May 28, 2019

          Appeal from the United States District Court for the Central District of Illinois. No. l:17-cv-01044-MMM-JEH - Michael M. Mihm, Judge.

          Before Wood, Chief Judge, and Bauer and Easterbrook, Circuit Judges.

          WOOD, CHIEF JUDGE.

         Behind 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.

         I

         We take 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.

         Celso 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.

         Driving 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 Center, https://www.nohrsc.noaa.gov/interac-tive/html/map.html (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.

         II

         Rita 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.

         III

         Although 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 ...


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