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US District Court :EMPLOYMENT | LABOR - FELA employment; when rail car in use

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Edward Kobe,
Plaintiff,
Civ. No. 06-3439 (RHK/RLE)
MEMORANDUM OPINION
AND ORDER
v.
Canadian National Railway Company,
a Canadian Corporation, d/b/a The Duluth,
Winnipeg and Pacific Railway, and The Duluth,
Winnipeg and Pacific Railway Company, a
domestic corporation,
Defendants.
Michael W. Unger, Attorney at Law, PLLC, Minneapolis, Minnesota, for Plaintiff.
Diane P. Gerth, Julius W. Gernes, Scott H. Rauser, Spence, Ricke, Sweeny & Gernes,
P.A., St. Paul, Minnesota, for Defendants.
INTRODUCTION
Plaintiff Edward Kobe alleges that he was injured during his employment with
Defendants Canadian National Railway Company (CN) and its subsidiary The Duluth
Winnipeg and Pacific Railway Company (DWP). Kobes Complaint asserts claims
under the Federal Employers Liability Act (FELA) and the Federal Safety Appliance
Act (FSAA). The following motions are before the Court: (1) Defendant CNs Motion
for Summary Judgment, arguing that the Court should dismiss it from this case because it
did not employ Kobe within the meaning of FELA; (2) Defendant DWPs Motion for
2
Partial Summary Judgment, arguing that the rail vehicle involved here was not in use
when Kobe was injured; and (3) Kobes Motion for Partial Summary Judgment, arguing
that the rail car was in use at the time of his injury and that Defendants are liable under
FELA for violating the FSAA. For the reasons set forth below, the Court will deny
Defendants Motions and grant Kobes Motion.
BACKGROUND
I. The Parties
Kobe has worked as a freight-train conductor since the 1970s. (Kobe Supp. Aff. at
2.) DWP is a wholly owned subsidiary of the Grand Trunk Corporation (GTC), a
non-operating holding company. (Novak Aff. at 3.) GTC is a wholly owned
subsidiary of CN, a Canadian corporation, headquartered in Montreal, Quebec. ( Id. at
4.)
II. The Accident
On September 5, 2003, Kobe and engineer Bill Leggate were assigned to take train
No. 118 from Rainer, Minnesota, to Duluth, Minnesota, where another crew would
replace them. (Unger Aff. Ex. 1 at 152, Ex. 5 at 32.) This train had originated at the
Symington Yard in Winnipeg, Canada, and was destined for Chicago, Illinois. ( Id. Ex. 5
at 27.) Train No. 118 had completed its pre-departure inspections when the train was
assembled at the Symington Yard. ( Id. at 28-29.) The train contained priority freight and
therefore was not to be delayed as it moved from station to station. ( Id. Ex. 1, at 152, Ex.
5 at 27-28.) Nevertheless, as the train entered the United States from Canada, U.S.
customs officials at the border placed a hold on one of its rail cars. ( Id. Ex. 1 at 152.)
3
Consequently, Kobe and Leggate had to remove or set out that hold car before the
train could continue to its destination. (Id. at 149-50.)
To accomplish this, the crew broke apart the train, moved it onto a side track, and
left the customs hold car on the side track. (Id. at 151, 157.) The crew then
reconnected the rest of the train; in doing so, the engineer noted that he could not
recharge, or pressurize, the air brake system (which runs by connecting air hoses from car
to car throughout the length of the train). (Id. at 151-52, 155.) Kobe then inspected the
train to determine the cause of the problem and discovered that the last car of the train,
No. 7421, had a leaking vent valve. (Id. at 150, 159.) Kobe was unable to fix the
problem, requiring the crew to remove this rail car to a side track. ( Id. at 161.) To
accomplish this, the crew moved the train past the switch leading to the side track and
Kobe directed the engineer to back the train onto the side track. (Id. at 163.) Kobe then
boarded the rail car by stepping on a sill step.1 (Id.) In the process of boarding, the sill
step gave way and Kobe fell from the train and was injured. (Id.)
Photographs of the rail vehicle after the accident revealed a bolt missing from the
left end of the sill step. (Id. at Ex. 8.) A CN mechanical manager arrived at the scene
two days later to inspect the sill step and confirmed that it was broken and was missing
a bolt. (Unger Aff. Ex. 2 at 14.) This action against CN and DWP followed.
1 Sill steps are provided so that a person climbing on or off the car has an intermediate step to
help boost him to the rail car or lower him to the ground. Grimming v. Alton & S. Ry. Co., 562
N.E.2d 1086, 1089 (Ill. App. Ct. 1990).
4
STANDARD OF DECISION
Summary judgment is proper if, drawing all reasonable inferences in favor of the
nonmoving party, there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). The moving party bears the burden of showing that the
material facts in the case are undisputed. Celotex, 477 U.S. at 322; Mems v. City of St.
Paul, Dept of Fire & Safety Servs., 224 F.3d 735, 738 (8th Cir. 2000). The Court must
view the evidence, and the inferences that may be reasonably drawn from it, in the light
most favorable to the nonmoving party. Graves v. Ark. Dept of Fin. & Admin., 229
F.3d 721, 723 (8th Cir. 2000); Calvit v. Minneapolis Pub. Schs., 122 F.3d 1112, 1116
(8th Cir. 1997). The nonmoving party may not rest on mere allegations or denials, but
must show through the presentation of admissible evidence that specific facts exist
creating a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986); Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).
ANALYSIS
I. Whether CN was Kobes Employer
FELA places liability on a rail carrier for any person suffering an injury while he
is employed by such carrier in commerce . . . . 45 U.S.C. 51 (emphasis added). CN
argues that it should be dismissed from this action because it did not employ Kobe within
the meaning of FELA at the time he was injured. (Defs. Mem. at 5-8.) In response,
Kobe argues that at a minimum, the record establishes that CN was his employer, or that
5
a genuine issue of material fact exists with respect to this issue, requiring it to be resolved
by a jury. (Pl.s Mem. at 9-11.)
Whether a company is an employer for purposes of FELA is a fact question for
the jury. Baker v. Tex. & Pac. Ry. Co., 359 U.S. 227, 228 (1959). The U.S. Supreme
Court has established the standard for determining whether an individual is employed
by a railroad within the meaning of FELA. Kelley v. S. Pac. Co., 419 U.S. 318, 322-26
(1974). A plaintiff can establish employment with a railroad under FELA even while
nominally employed by another if he is: (1) a borrowed servant of the railroad, (2) a
servant acting for two masters simultaneously, or (3) a subservant of a company that was
in turn a servant of the railroad. Id. at 324. Similarly, the Eighth Circuit has held that the
overriding consideration in determining employee status under FELA is whether the
railroad had control of (or the right to control) the worker in the performance of his or her
job. Vanskike v. ACF Indus., Inc., 665 F.2d 188, 198 (8th Cir. 1981).
Here, CN argues that it has never employed Kobe in any capacity. (Novak Aff. at
6.) It points to Kobes W-2 IRS forms for the years 1997-2004, which listed DWP, not
CN, as his employer. (Novak Aff. at 5.) Kobe, however, has always considered
himself as an employee of both DWP and CN. (Gerth Aff. Ex. D. at 72-73.) Kobe also
asserts that CN had control of, or the right to control, the performance of his job. For
example, CN provided him with his daily work assignments and the equipment or tools
needed to perform his job. (Kobe Resp. Aff. at 2.) CN also provided Kobe with a
rulebook that included safety rules and a set of instructions on how he is to perform his
job, including recommended practices for remaining injury-free on the railroad. ( Id. Ex.
6
7.) In addition, the collective bargaining agreement (CBA) that governed the terms and
conditions of Kobes employment provided that it was [a]n agreement between
Canadian National Railway, CN, and its employees represented by the United
Transportation Union (on the former DWP). (Unger Resp. Aff. Ex. 6 at 1, 41.) The
CBA defined the Company as Canadian National/Duluth, Winnipeg, and Pacific
Railway Ltd. and the CBA was Approved under a column labeled For the CN by,
among others, an official described as V.P.-Labor Relations North America. ( Id. at 5-
6.) Kobes immediate supervisors also wore clothing with the CN logo/name. (Kobe
Resp. Aff. at 2.)
At the time of Kobes injury, he was supervised by Chad Anderson,
superintendent of the Wisconsin West Zone of CN. ( Id. Ex. 10 at 8-14.) Anderson
prepared Kobes injury report, which had the heading CN U.S. Properties and indicated
that such form must be completed by each employee injured on duty before leaving
company property . . . . (Id. Ex. 10 at Dep. Ex.) (emphasis added).) Furthermore, a risk
management employee of CN has handled matters related to Kobes medical care,
disability status, and wages. (Kobe Resp. Aff. at 3.)
In light of the foregoing, and when viewed in the light most favorable to Kobe, a
reasonable jury could conclude that CN was Kobes employer at the time of his injury.
Indeed, a reasonable jury could also find that both CN and DWP were Kobes employers.
Vanskike, 665 F.2d at 199. Accordingly, the Court will deny CNs Motion and will
submit this issue to the jury for resolution.
7
II. Standard for Liability under the FSAA and FELA
The FSAA does not create an independent cause of action; FELA, however,
allows employees injured by violations of the FSAA to sue for damages. Crane v. Cedar
Rapids & Iowa City Ry. Co., 395 U.S. 164, 166 (1969). The FSAA provides different
safety requirements for rail vehicles, locomotives, and trains. A railroad carrier is
allowed to use a vehicle on its lines only if it is equipped with couplers, secure sill
steps, efficient handbrakes, secure ladders, and secure running boards. 49 U.S.C.
20302(a)(1- 3). A locomotive may only be used if it is equipped with a powerdriving
wheel brake and appliances for operating the train-brake system. 49 U.S.C.
20302(a)(4). A railroad carrier may use a train on its lines only if enough of the
vehicles in the train are equipped with power or train brakes so that the engineer on the
locomotive hauling the train can control the trains speed without the necessity of brake
operators using the common hand brakes for that purpose. 49 U.S.C. 20302(a)(5).
The FSAA creates an absolute duty on the railroad -- a railroad is liable for an
injury resulting from a violation of the FSAA, even if it was not negligent. Brady v.
Terminal R.R. Assn, 303 U.S. 10, 13 (1938). However, as a threshold matter, liability
only exists under the FSAA if a defective rail car was in use at the time of the incident.
Id. at 13. A determination of whether a rail car is in use is a question of law for the
Court. Steer v. Burlington N., Inc., 720 F.2d 975, 977 n.4 (8th Cir. 1983).
Here, the applicable safety provision requires that a rail vehicle may only be used
if it is equipped with secure sill steps. 49 U.S.C. 20302(a)(1)(B). Therefore, the Court
must determine whether the rail vehicle was in use at the time of Kobes injury. The
8
Eighth Circuit has not specifically addressed the appropriate analysis for determining
whether a rail vehicle is in use. However, it has held that [l]ocomotives being serviced
in a place of repair are not in use within the meaning of the Boiler Inspection Act.
Steer, 720 F.2d at 976 n.3 (noting that the analysis of in use under the FSAA is
applicable to a construction of the Boiler Inspection Act). Indeed, the Eighth Circuit
found that [c]ongressional intent and the case law construing the statute clearly exclude
those injuries directly resulting from the inspection, repair, or servicing of railroad
equipment located at a maintenance facility. Id. at 976 (emphasis added) (quoting
Angell v. Chesapeake and Ohio Ry. Co., 618 F.2d 260, 262 (4th Cir. 1980)).
In Steer, the plaintiff was in the process of repairing the locomotive off the main
track when he was injured. Id. at 976. Notably, the Eighth Circuit distinguished this
situation from one in which the defective rail car was in the process of being disengaged
for removal to a repair area. Id. at n.2 (citing Chicago Great W. R.R. Co. v. Schendel,
267 U.S. 287, 289 (1925) (finding that FSAA applied where plaintiff was injured during
attempt to detach damaged car and move it to side track)).
A review of the case law outside this jurisdiction shows that courts have applied
various approaches to determining the in use standard. The Fifth Circuit has
established a bright-line rule for determining whether a train is in use. Trinidad v. S. Pac.
Transp. Co., 949 F.2d 187 (5th Cir. 1991). In Trinidad, the plaintiff was injured while
performing an air-brake inspection prior to the departure of a train. Id. at 188. The Fifth
Circuit held that a train is not in use until the train is fully assembled and the crew has
completed its pre-departure inspections. Id. at 188-89.
9
In contrast, the Fourth Circuit rejected Trinidads bright-line test and adopted a
multi-factor test for determining in use status. See Deans v. CSX Transp. Inc., 152
F.3d 326, 329 (4th Cir. 1998); see also Phillips v. CSX Transp., Inc., 190 F.3d 285, 289
(4th Cir. 1999) (applying Deans approach). In Deans, the plaintiff was releasing the
handbrakes on the rail vehicles so that the train could depart, but was injured when one of
the handbrakes failed to work correctly; the crew had not yet completed its pre-departure
inspections. Deans, 152 F.3d at 328. However, the court held that a determination of
whether a train is in use should not be based solely on whether the crew has completed
their pre-departure inspections because such a bright-line rule is too simplistic to
accurately reflect the multitude of steps required -- and various sequences in which these
steps may be taken -- to prepare a train for departure. Id. at 329. The court reasoned
that a more consistent and fairer result is reached by looking at a number of different
factors, rather than simply at the completion or noncompletion of pre-departure tests.
Id. The court indicated that the primary factors in determining whether a train is in use
are the location of the train at the time of the accident and the activity of the injured
party.2 Id.
2 In Phillips, the court applied Deans and found that the plaintiff was injured at the end of the
switching process, rather than at the beginning of the departure process and held that the train
was not in use because the FSAA does not apply to train cars involved in switching operations.
Id. at 289-90 (citing United States v. Seaboard Air Line R.R., Co., 361 U.S. 78 (1959)).
However, other courts have found this to be an inaccurate statement of the law. See e.g.,
Williams v. Norfolk S. Ry. Co., 126 F. Supp. 2d 986, 992 (W.D. Va. 2000) ([T]his quote is an
overly broad statement that is inessential to the courts decision in Phillips. Indeed, it appears to
be a misstatement of the holding of Seaboard.); see also Hoemmelmeyer v. CSX Transp., Inc.,
No. 1:04-CV-00166, 2005 WL 2124259, at *5 (S.D. Ohio Aug. 30, 2005) ([F]rom the inception
of the FSAA, the safety of railroad workers involved in switching operations was clearly the
10
However, in Underhill v. CSX Transp., Inc., No. 1:05-CV-196-TS, 2006 WL
1128619, at *3-6 (N.D. Ind. Apr. 24, 2006), the court carefully analyzed Trinidad, Deans
and Phillips, and found that when a case involves a safety requirement that is applicable
to a rail vehicle, the question is whether th[at] vehicle was in use and cases deciding
whether a train was in use have limited relevance. Underhill, 2006 WL 1128619, at *4.
The court reasoned that this distinction is important because under the FSAA, there are
separate in use inquiries depending on whether the usage of a vehicle, locomotive, or
train is at issue. Id. Notably, Deans and Phillips both involved FSAA requirements
applicable to rail vehicles, but neither case distinguished between a train being in use
versus a rail vehicle being in use. Id. at *5. Indeed, both cases merely considered factors
that were relevant in analyzing whether a train was in use and not whether a rail vehicle
was in use. Id. As Underhill correctly points out, both Deans and Phillips
looked at whether [the] departure of a train was imminent[,] [but] [t]his
factor has no application as to whether a vehicle was in use, as a plain
understanding of the word use suggests a vehicle used to assemble a train
is in use, whether the train is about to leave or not. The factors cited as most
important by Deans and Phillips, the activity of the party when he was
injured and the location of the train or vehicle, are important factors, but
must be considered in the context of the use of a vehicle, not the use of a
train.
Id. (internal citations omitted). Thus, the court in Underhill adopted the multi-factor
approach set forth by the Fourth Circuit, but explained that such factors must be
object of Congress. Clearly, Supreme Court and lower court precedent demonstrates this is the
case.) (citing cases).
11
considered in the context of whether the usage of a vehicle, locomotive, or train is at
issue.
Here, Kobe argues that the rail vehicle was in use at the time of his injury and that
the Court should adopt the reasoning in Underhill and Schendel. In Schendel, the
Supreme Court found that the use, movement, or hauling of the defective car [to a side
track] . . . had not ended at the time of the accident because it was done so that the train
could continue to its destination. Schendel, 267 U.S. at 291-92. Defendants, however,
assert that the rail vehicle was not in use because it was located within the limits of a
railyard and the removal of the end of train device3 from the last car rendered the train
as not one that could be used in interstate commerce. (Defs. Oppn Mem. at 3-4.)
Accordingly, Defendants urge this Court to follow Trinidad and find that the vehicle was
not in use because the crew had not completed their pre-departure inspections. (Defs.
Supp. Mem. at 10, 12-13.) The Court finds that Trinidad is inapposite here because it
only addressed whether the train was in use. Furthermore, the Court finds the bright-line
rule employed in Trinidad is too rigid because a train or rail vehicle could remain in
use as construed under the applicable FSAA provisions even though the crew continues
to conduct its pre-departure inspections.
This Court is persuaded by the well-reasoned Underhill decision and adopts a
facts-and-circumstances approach for determining the in use status and will apply such
3 An end of train device is a radio-controlled device connected to the last car on a train. It
monitors the air pressure in the brake system and applies emergency brakes when necessary,
taking the place of a caboose and permitting the train to operate without a person in the last car
to monitor the brakes. Robinson v. CSX Transp., 838 N.Y.S.2d 203, 204-05 (N.Y. App. Div.
2007).
12
factors in the context of whether the usage of a vehicle, locomotive, or train is at issue.
This case involves a safety requirement that is applicable to rail vehicles -- a vehicle may
only be used if it is equipped with secure sill steps. Thus, the Court must decide whether
this vehicle was in use at the time of Kobes injury. The Court finds that the primary
factors in determining whether a rail vehicle is in use are (1) the activity of the injured
party and (2) the location of the vehicle at the time of the accident (as this may show
whether a vehicle was being serviced or repaired at a maintenance facility). See
Underhill, 2006 WL 1128619, at *5; see also Schendel, 267 U.S. at 291-92 (finding that
rail car was in use where the plaintiff was injured during attempt to detach damaged car
and move it to side track so that the train could continue to its destination).
A. The rail vehicle here was in use
Applying 20302(a)(1)(B) and the law interpreting the statute as it applies to rail
vehicles, the Court finds that rail vehicle No. 7421 was in use when Kobe was injured.
The record shows that this vehicle was on the main track before the crew discovered that
it had an air leak. It was Kobes job to help move this vehicle off to a side track so that it
could be cut from the train, which would then allow the train to continue to its
destination. In order to accomplish this task, the crew needed to move the rail vehicle
past the switch leading to the side track. Kobe directed the engineer to back the train
onto the side track. Kobe then boarded the vehicle by stepping on a sill step, but it gave
way and he fell from the train and was injured. Notably, this vehicle was not in a
maintenance facility nor was it under repair when Kobe was injured.
13
The FSAA should be liberally construed in light of its purpose the protection of
railroad workers from injury and death. United States v. Seaboard Air Line R.R., Co.,
361 U.S. 78, 83 (1959). The sill step is frequently used by railroad workers in moving
and detaching cars from the train and it would defy common sense to interpret the FSAA
so that the sill-step requirements did not apply when the sill steps are used regularly and
railroad workers depend on them for their safety. Therefore, the Court finds that rail
vehicle No. 7421 was in use at the time of Kobes injury.
B. Violation of 20302(a)(1)(B)
Under FELA, a railroad is liable for an employees injury or death caused by a
violation of the FSAA. Crane, 395 U.S. at 166. In such actions, the injured employee is
required to prove only the statutory violation and thus is relieved of the burden of proving
negligence[.] Id. (citations omitted).
Here, the applicable FSAA provision provides that a railroad may use a rail
vehicle on its lines only if it has secure sill steps. 49 U.S.C. 20302(a)(1)(B). There is
no material dispute that the rail vehicles sill step was not secure when Kobe stepped
on it. Defendants photographs of the vehicle after the accident showed a bolt missing
from the left end of the sill step. Also, a CN mechanical manager arrived at the scene
two days later to inspect the sill step and confirmed that it was defective and not secure.
That manager noted on his inspection report that the sill step was missing a bolt and that
he [r]epaired all defects listed. (Unger Aff. Ex. 4.)
14
Accordingly, the Court finds that Defendants violated 49 U.S.C. 20302(a)(1)(B)
and Kobe is entitled to partial summary judgment on the issue of liability.4
Consequently, because the Court has found that Kobe has established strict liability as a
matter of law, the Court need not and does not address Defendants arguments
concerning Kobes negligence claim under FELA.
CONCLUSION
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that:
1. Defendant CNs Motion for Summary Judgment (Doc. No. 26) is DENIED;
2. Defendant DWPs Motion for Partial Summary Judgment (Doc. No. 26) is
DENIED; and
3. Plaintiffs Motion for Partial Summary Judgment (Doc. No. 31) is GRANTED IN
PART and DENIED IN PART as follows:
a. GRANTED as to liability on his strict-liability claim under FELA for
Defendants violation of the FSAA.
b. DENIED as moot as to liability on his negligence claim under FELA.
Date: September 18 , 2007
S/Richard H. Kyle
RICHARD H. KYLE
United States District Judge
4 The only issues that remain for trial are causation and damages.
 

 
 
 

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