Motion-Secondary: GEORGE STEVEN WALLACE vs SUPER 8 WORLDWIDE, INC., ET AL

On March 19, 2009 a Motion-Secondary was filed involving a dispute between and for INJURY OR DAMAGE, OTHER INJURY OR DAMAGE in the District Court of Tarrant County.

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CAUSE NO. 342-236603-09 -
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GEORGE STEVEN WALLACE § IN THE DISTRICT COU~F ; ;....,..1
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SUPER 8 WORLDWIDE, INC., § ~~ -
NORTH BEACH HOSPITALITY, INC.
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PLAINTIFF'S MEMORANDUM IN OPPOSITION TO THE NO EVIDENCE ~~D ~
TRADITIONAL MOTION FOR SUMMARY JUDGMENT OF
DEFENDANT KANSAS CITY SOUTHERN RAILWAY COMPANY

BACKGROUND

The instant proceedings arise out of an incident which occurred on or about May 6, 2007.

At the time of the instant incident, Plaintiff, George Steven Wallace, was a guest at the Super 8

Motel owned and/or operated by North Beach Hospitality, Inc. ("North Beach") and/or Jagdish

Patel ("Patel"); having been assigned there by his railroad employer, Defendant Kansas City

Southern Railway Company ("KCS"). Plaintiff, George Steven Wallace, suffered severe and

debilitating injuries, warranting at least two separate surgical procedures, when he was assigned

to an unreasonably dangerous motel room by Defendants, Patel, North Beach, and KCS.

The instant proceedings were initiated by way of a Petition for Damages filed herein on

or about March 19, 2009. By way of the Petition for Damages, as amended, Plaintiff has

asserted negligence claims against his railroad employer, KCS, pursuant to the Federal

Employers' Liability Act, 45 U.S.C. Section 51, et seq. ("The FELA"). 1 Under the FELA,

Defendant KCS had a non-delegable duty to, inter alia, provide Plaintiff a reasonably safe place

to work. The allegations as to Defendant KCS are more fully set forth in Plaintiffs Third

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Additionally, Plaintiff has asserted negligence and premises liability claims against Patel and
North Beach, the owners and operators of the motel.
Amended Petition for Damages, a copy of which is attached hereto as Exhibit "A." In addition

to Plaintiffs Petition for Damages, please see the attached Plaintiffs Supplemental Responses to

the Request for Disclosures of KCS, attached hereto as Exhibit "B," which further identify

Plaintiffs claims as to KCS.

Most recently, Defendant KCS has filed a No Evidence and Traditional Motion for

Judgment. Contrary to Defendant KCS' assertions, however, issues of material fact exist

regarding, inter alia:

1. Whether Defendant KCS, its agents, servants, or employees, acting in the course and

scope of their employment, failed to provide Plaintiff with a reasonably safe place in

which to work;

2. Whether Defendant KCS, its agents, servants, or employees, acting in the course and

scope of their employment, failed to warn Plaintiff of an unreasonably dangerous

condition;

3. Whether Defendant KCS, its agents, servants, or employees, acting in the course and

scope of their employment, failed to properly inspect the lodging to which Defendant

KCS assigned its employees, including Plaintiff;

4. Whether Defendant KCS, its agents, servants, or employees, acting in the course and

scope of their employment, failed to promulgate a reasonable policy for and/or to require

maintenance of lodging in a reasonably safe condition;

5. Whether Defendant KCS, its agents, servants, or employees, acting in the course and

scope of their employment, failed to promulgate a reasonable policy for and/or to require

maintenance of lodging to which its employees were assigned so as to provide its

employees with a room free of slip and fall hazards of which Defendant KCS, its agents,

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servants, or employees, were and/or should have been aware;

6. Whether Defendant KCS, its agents, servants, or employees, acting in the course and

scope of their employment, failed to promulgate a reasonable policy for and/or to require

maintenance of reasonably safe lodging for its employees by failing to take appropriate

steps to minimize or prevent the hazardous conditions posed by wet floors in the rooms,

of which Defendant KCS, its agents, servants, or employees, were and/or should have

been aware;

7. Whether Defendant KCS, its agents, servants, or employees, acting in the course and

scope of their employment, failed to promulgate a reasonable policy for and/or to provide

proper warnings to its employees of slippery conditions on the floor of the rooms

assigned for lodging;

8. Whether Defendant KCS, its agents, servants, or employees, acting in the course and

scope of their employment, failed to promulgate a reasonable policy for and/or to conduct

reasonable inspections to check for the presence of foreign substances which posed slip

and fall risks to its employees;

9. Whether Defendant KCS, its agents, servants, or employees, acting in the course and

scope of their employment, failed to promulgate a reasonable policy for and/or to take

reasonable measures to remedy the presence of foreign substances which pose slip and

fall risks to its employees;

10. Whether Defendant KCS, its agents, servants, or employees, acting in the course and

scope of their employment, failed to have sufficient safe rooms for its employees,

including Plaintiff, when they knew and/or should have known of the requirements for

lodging;

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11. Whether Defendant KCS, its agents, servants, or employees, acting in the course and

scope of their employment, failed to assign Plaintiff a reasonably safe room;

12. Whether Defendant KCS is liable for the negligence of its agents, Defendants Patel

and/or North Beach.

13. Whether negligent actions on the part of Defendants, KCS, North Beach, and/or Patel

and/or their employees were a cause of Plaintiffs accident;

14. Whether, after advising Plaintiff of the wet floors in a room, the night auditor escorted

Plaintiff to the room, touched the floor, and advised Plaintiff that, even though the floor

was wet, the room was "OK," in direct violation of the motel's policies for safety of its

patrons;

15. Whether negligent actions on the part of Defendant KCS' agents and employees of

Defendant North Beach were a cause of Plaintiffs accident;

16. Whether, in violation of Defendants' established policies and procedures, an agent of

Defendant KCS and employee of Defendants North Beach and/or Patel assigned Plaintiff

to a room which should not have been rented;

17. Whether Defendant KCS' agents and employees of the motel negligently failed to

properly train employees of the motel so as not to rent rooms which presented an

unreasonable risks of harm;

18. Whether Defendant KCS' agents and representatives of Defendant North Beach

negligently failed to train its employees so as to not rent rooms which presented

unreasonable risks of harm;

19. Whether Defendant KCS' agents and employees of Defendants Patel and North Beach

had actual knowledge of the unreasonably dangerous condition of the room to which

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Plaintiff was assigned;

20. Whether KCS' agents and employees of Defendants Patel and North Beach had personal

knowledge that the condition of the room to which Plaintiff was assigned posed an

unreasonable risk of harm;

21. Whether KCS' agents and employees of Defendants Patel and North Beach failed to

exercise reasonable care to reduce or eliminate the risk of harm posed to the motel's

customers; and

22. Whether the negligence of KCS' agents and employees of Defendants Patel and North

Beach proximately caused Plaintiffs injuries.

As noted, Defendant KCS had a non-delegable duty to provide Plaintiff a safe place to

work. Thus, to succeed on its Motion, Defendant KCS must show that no genuine issues of

material fact exist regarding the negligence of KCS, its agents, servants, or employees including,

but not limited to Defendants North Beach and/or Patel. Plaintiff respectfully submits that

sufficient evidence has been presented and genuine issues of material fact exist warranting denial

of the No Evidence and Traditional Motion for Summary Judgment filed by Defendant KCS.

OBJECTION TO CONSIDERATION OF MOTION FOR SUMMARY JUDGMENT

Initially, Plaintiff objects to consideration of Defendant's Motion for Summary Judgment,

pending completion of the corporate deposition of KCS. The deposition had been noticed prior

to Defendant KCS filing its Motion for Summary Judgment? Moreover, the Second Amended

Objections and Responses to Plaintiffs written discovery requests, submitted by Defendant KCS

on March 31, 2011, provided new information, which warrant additional discovery regarding the

negligence of KCS. Plaintiff maintains that the deposition is necessary for a full and complete

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The deposition of KCS, most recently noticed for April 27, 2011, did not go forward in light of
the Motion to Quash filed by KCS. The Motion to Quash has not yet been set for hearing.

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response to Defendant's Motion. While Plaintiff and KCS have endeavored to reach certain

stipulations which might satisfy the Notice of Deposition of KCS, issues remain.

Further in this regard, Plaintiff has filed a Motion to Continue the hearing on Defendant

KCS' Motion for Summary Judgment, pending completion of the deposition of KCS. Please see

the affidavit of undersigned counsel, attached hereto as Exhibit "C."

Subject to the foregoing, Plaintiff has prepared the instant opposition, citing discovery

which has been conducted thus far.

EVIDENCE PRESENTED IN OPPOSITION TO THE MOTION FOR PARTIAL
SUMMARY JUDGMENT OF DEFENDANT KCS

Exhibit "A" - Plaintiffs Petition for Damages, as amended

Exhibit "B" - Plaintiffs Supplemental Responses to the Requests for Disclosures of KCS

Exhibit "C" - Affidavit of Counsel for Plaintiff

Exhibit "D"- Fourth Supplemental Responses of Defendant KCS to Plaintiffs and Defendants'
Requests for Disclosure

Exhibit "E"- KCS' First Supplemental Response to Plaintiffs and Defendants' Requests for
Disclosure

Exhibit "F"- Defendant KCS' First Amended Answers and Objections to Plaintiffs First Set of
Interrogatories, dated March 11, 2011

Exhibit "G"- Defendant KCS' Second Amended Answers and Objections to Plaintiffs First Set
of Interrogatories, dated March 31, 2011

Exhibit "H" - Portions of the transcript of the deposition of George Steven Wallace

Exhibit "I"- Portions of the transcript ofthe deposition of Jagdish Patel

Exhibit "J"- Portions of the transcript of the deposition of Zachary Matthews

Exhibit "K" - Portions of the transcript of the deposition of Sanjayan Tharippadi

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LAW AND ARGUMENT

A. SUMMARY JUDGMENT STANDARD

Defendant KCS has asserted a "no evidence" Motion for Summary Judgment upon the

elements of duty (foreseeability), breach of duty, and causation with respect to Plaintiffs FELA

claim. KCS has also asserted a traditional Motion for Summary Judgment on the elements of

duty, breach of duty, and causation with respect to Plaintiffs FELA claims.

Regarding a "no evidence" Motion for Summary Judgment, the Texas Courts have

pronounced

Texas Rule of Civil Procedure 166( a)(i) provides:

After adequate time for discovery, a party without presenting summary judgment
evidence may move for summary judgment on the ground that there is not
evidence of one or more essential elements of a claim or defense on which an
adverse party would have the burden of proof at trial. The motion must state the
elements as to which there is no evidence. The court must grant the motion unless
the respondent produces summary judgment evidence raising a genuine issue of
material fact.

Tex. R. Civ. P. 166(a)(i). A "no evidence" motion for summary judgment places
the burden on the non-movant to present enough evidence to be entitled to a trial.
See Robinson v. Warner-Lambert & Old Corner Drug, 998 S.W.2d 407, 409
(Tex. App.-Waco 1999, no pet.) (citing Lampasas v. Spring Center, Inc., 988
S.W.2d 428,432 (Tex. App.-Houston [14th Dist.] 1999, no pet.)). The purpose of
the summary judgment is to "pierce the pleadings and to assess the proof in order
to see whether there is a genuine need for a trial." Robinson, 998 S.W.2d at 409;
Lampasas, 988 S.W.2d at 436 (citing Matsushita Elec. Indus. Co. v.Zenith Radio
Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Thus, the
focus is shifted from the pleadings to the actual evidence. See Robinson, 998
S.W.2d at 410; Lampasas, 988 S.W.2d at 436. In that regard, a "no evidence"
motion for summary judgment is improperly granted if the non-movant brings
forth more than a scintilla of probative evidence to raise a genuine issue of
material fact. See Moore v. K Mart Corp., 981 S. W.2d 266, 269 (Tex. App.-San
Antonio 1998, pet. denied).

Quanain v. Frascon Restaurant and Catering, 17 S.W.3d 30, 41-41 (Tex. App.- Houston [14th

Dist] 2000, pet. denied). Plaintiff respectfully submits that substantially more than a scintilla of

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evidence has been presented regarding the claims asserted against Defendant KCS. Thus, the "no

evidence" Motion for Summary Judgment brought by Defendant KCS should be denied.

Regarding a "traditional" Motion for Summary Judgment, the Texas Courts have

pronounced:

A defendant moving for summary judgment on the basis of an affirmative
defense must conclusively prove all essential elements of that defense. See
American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). In
reviewing a traditional motion for summary judgment, we take as true all
evidence favorable to the non-movant, and we make all reasonable inferences in
the non-movant's favor. See KPMG Peat Marwick v. Harrison County Housing
Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). If the movant's motion and
summary judgment proof facially establish its right to judgment as a matter of
law, the burden shifts to the non-movant to raise a material fact issue sufficient to
defeat summary judgment. See HBO, A Div. ofTime Warner Entertainment Co.,
L.P. v. Harrison, 983 S.W.2d 31, 35 (Tex. App.-Houston [14th Dist.] 1998, no
pet.).

Quanain v. Frascon Restaurant and Catering, 17 S.W.3d 30, 41-41 (Tex. App.- Houston [14th

Dist] 2000, pet. denied). Plaintiff respectfully submits that genuine issues of material fact exist

sufficient to warrant denial of the "traditional" Motion for Summary Judgment brought by

Defendant KCS.

B. PLAINTIFFS IN FELA CASES FACE A DECREASED BURDEN IN
DEFEATING MOTIONS FOR SUMMARY JUDGMENT.

As noted, the claims of which KCS seeks dismissal have been brought pursuant to the

Federal Employers' Liability Act, 45 U.S.C. 51, et seq. ("the FELA"). Jurisprudence has

established the standards for consideration of a motion for summary judgment as to a FELA

claim.

Congress enacted the FELA to provide a federal remedy for railroad workers who suffer

personal injuries as a result of the negligence of their employer or their fellow employees.

Atchison, Topeka & Santa Fe Railway Company v. Buell, 480 U.S. 557, 561, 107 S.Ct. 1410

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(1987). Under the FELA, a case must not be dismissed at the summary judgment phase unless

there is absolutely no reasonable basis for a jury to find for the plaintiff. Gadsden v. Port

Authority Trans-Hudson Corporation, et al., 140 F.3d 207 (2nd Cir. 1998) (emphasis added),

citing, Syverson v. Consolidated Rail Corporation, 19 F.3d 824 (2nd Cir. 1994); see also Gallick

v. Baltimore and O.R.R., 372 U.S. 108,9 L.Ed.2d 618,83 S.Ct. 659 (1963).

Cognizant of the duty to effectuate Congress' intent that a FELA plaintiff be able to

secure the right to a jury determination, the U.S. Supreme Court vigilantly exercises its power of

review in any case where it appears that the litigants have been improperly deprived of this right.

Id. The decisions of the U.S. Supreme Court teach that Congress vested the power of decisions

in FELA actions exclusively in the jury, with the exception of those infrequent cases in which

fair-minded jurors would be unable to honestly differ as to whether fault of the employer played

any part in the employee's injury. Rogers v. Missouri Pacific Railroad Company, 352 U.S. 500,

77 S.Ct. 443, 1 L. Ed. 2d 493 (1957).

The necessity of the right to a jury trial is vital in FELA cases due to the reduced burden

of proof on the plaintiff. Under the FELA statute, the burden on the plaintiff in a jury case is met

when the proof justifies with reason the conclusion that employer negligence played any part,

even the slightest, in producing the injury or death for which damages are sought. Id. (emphasis

added). It is immaterial that, from the evidence, the jury may also attribute the injury to other

causes, including the employee's contributory negligence. Id. The employer is "stripped of his

common-law defenses" and for practical purposes, the inquiry is whether negligence of the

employer played any part, however small, in the injury. Id. at 508. A plaintiff has met his

burden of proof, "when there is proof, even though entirely circumstantial, from which the jury

may with reason make that inference." ld. (emphasis added).

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The Court decisions following Rogers have repeatedly held that the test for causation in a

FELA case is not the "proximate cause" test of a standard negligence action, but instead a

"causal relation" test that requires only minimal proof. Nivens v. St. Louis South Western Ry.,

425 F.2d 114 (5th Cir. 1970); Hausrath v. New York Central Ry., 401 F.2d 634 (6th Cir. 1968);

Heater v. Chesapeake & Ohio Ry., 497 F.2d 1243 (ih Cir. 1974); cert. denied, 419 U.S. 1013

(1974); Caillouette v. Baltimore & Ohio Ry., 705 F.2d 243 (ih Cir. 1983); see also E. Devitt &

C. Blackman, Federal Jury Practice and Instructions, §§ 94.12 through 94314 (3d Ed.

1977)(noting the distinction between "cause" and "proximate cause" in FELA cases as opposed

to standard common law cases). This minimal standard of causation aids in the overall liberal

construal of the FELA and advances its remedial goal put in place by Congress when it sought to

shift the cost of the "human overhead" of railroading from the injured railroad employees to the

railroads themselves. Tiller v. Atlantic Coast Line R.R. Co., 355 U.S. 426, 432 (1943);

CONRAIL v. Gottshall, 512 U.S. 532, 543 (1994). Therefore, the Courts advance the

humanitarian purpose of the act by interpreting itliberally. Kernan v. American Dredging Co.,

355 U.S. 426, 432 (1958).

To establish negligence, a plaintiff must prove duty, breach, foreseeability, and causation.

Fulk v. Illinois Central R.R. Co., 22 F.3d 120, 124 (7th Cir.), cert. denied, 513 U.S. 870, 115 S.

Ct. 193, 130 L. Ed. 2d 125 (1994). However, that burden is significantly lighter than it would be

in an ordinary negligence case. A plaintiff need only show that the employer's negligence

"played any part, even the slightest, in producing the injury." Harbin v. Burlington Northern

R.R. Co., 921 F.2d 129, 131 (7th Cir. 1990) (quoting Rogers v. Missouri Pac{fic R.R. Co., 352

U.S. 500, 506, 77 S. Ct. 443, 1 L. Ed. 2d 493 (1957)) (emphasis added). This lightened burden of

proof means that a FELA plaintiff can survive a motion for summary judgment provided there is

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even slight evidence of negligence. Lisek, 30 F.3d at 832; Harbin, 921 F.2d at 131 (emphasis

added).

Thus, FELA plaintiffs have a substantially decreased burden in responding to a motion

for summary judgment. In the instant proceedings, more than sufficient evidence has been

presented to warrant denial of Defendant KCS' pending Motion for Summary Judgment on the

FELA claims brought by George Steven Wallace.

C. DEFENDANT KCS HAD A NON-DELEGABLE DUTY TO PROVIDE
PLAINTIFF A SAFE PLACE TO WORK.

FELA creates a tort remedy for railroad employees injured on the job. Lancaster v.

Norfolk & Western Ry. Co., 773 F.2d 807, 812 (7th Cir. 1985), cert. denied, 480 U.S. 945, 107 S.

Ct. 1602, 94 L. Ed. 2d 788 (1987). The statute provides in relevant part:

Every common carrier by railroad ... shall be liable in damages to any person
suffering injury while he is employed by such carrier ...resulting in whole or in
part from the negligence of any of the officers, agents or employees of such
carrier, or by reason of any defect or insufficiency, due to its negligence, in its
cars, engines, appliances, machinery ... or other equipment.

45 U.S.C. § 51. In light of its broad remedial purpose, FELA is liberally construed in favor of

railroad employees. Consolidated Rail Corp. v. Gottschall, 512 U.S. 532, 543, 114 S. Ct. 2396,

129 L. Ed. 2d 427 (1994).

A railroad employer has a continuing non-delegable duty to use reasonable care to

provide its employees a reasonably safe workplace. Shenker v. Baltimore and Ohio R.R. Co.,

374 U.S. 1, 7, 83 S. Ct. 1667, 10 L. Ed. 2d 709 (1963); Bailey v. Central Vermont Ry., 319 U.S.

350 (1943). The railroad's duty of care becomes more imperative as the risk increases. Bailey,

supra at 353. The FELA imposes a higher standard of care beyond the general duty of

reasonable care that the law requires of everyone. Kernan v. American Dredging Co., 355 U.S.

426 (1958). A railroad is not relieved from its duty of care by the simple fact that an employee's

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work at a particular place is fleeting or infrequent. Bailey, supra. The Act does not contain

specific standards of care, but many duties owed by the railroads to their employees are well

beyond those imposed on employers at common law. It has been noted that the failure to furnish

a reasonably safe place to work is the most common basis for action under the FELA. Nivens v.

St. Louis Southwestern Railway Co., 425 F.2d 114, 118 (5th Cir. 1970).

The employer's duty is nondelegable and applies even when the employee is required

to go onto the premises of a third party over which the employer bas no control. Shenker,

374 U.S. at 7. (emphasis added). Liability also extends to the acts of others contractually

bound to perform operational activities on behalf of the employer. The concept of agency

is broadly defined for the purposes of FELA. Sinkler v. Missouri Pacific R.R. Co., 356 U.S.

326,331-32,78 S. Ct. 758,2 L. Ed. 2d 799 (1958). (emphasis added).

A railroad has the nondelegable duty to provide an employee with a safe place to
work. This is so despite the fact that it may not own, control or be under a
primary obligation to maintain the premises on which the employee is injured. A
railroad is not relieved from liability because such premises are unsafe or
because of the existence of an unsafe condition brought about through the act
of another and without fault, on the railroad's part.

If (a railroad) does delegate and relies upon the services of its agent to carry out
its duty, it may not shift its liability from itself to said agent when an employee
seeks to hold it directly liable. Under FELA, the employer is the one owing the
duty to the employee. The employee need not look elsewhere for his protection.
He has a right under FELA to rely on his employer and none other.

Payne v. Baltimore & Ohio R. Co., 309 F.2d 546 (6th Cir 1962), cert. denied, 374 U.S. 827, 83 S.

Ct. 1865, 10 L. Ed. 2d 1051 (1963). (emphasis added).

In Empey v. Grand Trunk Western Railroad Company, 869 F.2d 293 (6th Cir. 1989), the

Court held that a railroad employee was within the scope of his employment, for purposes of the

Federal Employers' Liability Act, when the employee suffered injuries at a hotel where the

railroad implicitly required that he stay. The Court went on to hold that the negligence of the

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hotel was properly imputed to the railroad.

In Empey, the Court noted that based upon the requirements of the Federal Hours of

Service Act, 45 U.S.C. Section 62 (1982), Grand Trunk Western Railroad Company ("Grand

Trunk") transported Plaintiff and other employees to the downtown motor lodge for the required

rest prior to their next work assignment. 869 F .2d at 294. The court noted that because the

statute required the railroad employers to provide rooms for their off duty trained crew, Grand

Trunk had a contract with the motel to board its employees who were on layover. Id. Empey

suffered injuries when he was stepping out of a shower in the motel room and slipped on water

which accumulated on the tile floor, causing him to fall backwards and injuring his back. Id.

Evidence presented at trial indicated that a faulty latch on the shower door allowed water to

escape the shower stall and accumulate on the floor. ld.

At the conclusion of trial, Grand Trunk asserted a Motion for Directed Verdict on the

issue of the scope of Empey's employment and on the issue of imputation of negligence. The

trial court ruled that Empey was within the scope of his employment with Grand Trunk when he

fell at the motel and that any negligence of the motel could be imputed to Grand Trunk pursuant

to the FELA. ld. The Court of Appeals noted that Grand Trunk provided housing for its

employees so they could recuperate and be prepared for their next work assignment. ld., at 295.

The court further noted that Grand Trunk implicitly required its employees to stay at the assigned

motel. ld. The Court went on to note:

It would violate the notions of fair play for the railroad to encourage its
employees to lodge at a particular establishment and then escape liability for
injuries suffered by its workers as a result of the poor quality of the facilities it
encouraged them to use.

Id. Accordingly, the Court held that an employee who is injured while he avails himself of

housing, which his employer has provided and implicitly encouraged him to use, is within the

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scope of his employment for the purposes of the FELA. Id., citing Mostyn v. Delaware, L.P. and

WR. Co., 160 F.2d 15 (2"ctCir.), cert denied, 332 U.S. 770, 68 S.Ct. 82, 92 L. Ed. 355 (1947)

and Carney v. Pittsburgh and Lake Eerie Railroad Company, 316 F.2d 277 (3rd Cir.), cert

denied, 375 U.S. 814, 84 S.Ct. 45, 11 L. Ed. 2d 49 (1963). Further, the Court found that the

negligence of the motel was properly imputed to Grand Trunk as an extension of Grand Trunk's

non-delegable duty to provide Empey with a safe place to work. Id. at 296, citing Payne v.

Baltimore and Ohio Railroad Company, 309 F.2d 546 (61h Cir. 1962), cert denied, 374 U.S. 827,

83 S.Ct. 1865, 10 L. Ed. 2d 1051 (1963) and Sinkler v. Missouri Pacific Railroad Company, 356

U.S. 326, 78 S.Ct. 758 2 L. Ed. 2d 799 (1958), and Shenker v. Baltimore and Ohio Railroad

Company, 374 U.S. 1, 83 S.Ct. 1667, 10 L. Ed. 2d 709 (1963).

As noted, Defendant KCS assigned Plaintiff lodging at the motel where the instant

accident occurred. KCS' contracted agent, the motel selected by KCS, negligently assigned

Plaintiffto a wet room, in direct violation of the company's established policies and procedures.

Further, genuine issues of material fact exist regarding whether Defendant KCS failed to verify

the condition of the motel before assigning its employees lodging at the premises. Thus,

Defendant KCS' Motion for Summary Judgment should be denied.

D. NEGLIGENCE AND CAUSATION UNDER THE FELA.

The rule determining causal connection between injury and negligence differs under the

FELA when compared to the general rules of causation in non-FELA tort negligence actions.

Hoyt v. Central Railroad, 243 F.2d 840, 842-43 (3rd Cir. 1957). The United States Supreme

Court, in Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 77 S.Ct. 443 (1957), stated:

Under this statute, the test of a jury case is simply whether the proofs justify with
reason the conclusion that employer negligence played any part, even the
slightest, in producing the injury or death for which damages are sought. It does
not matter that, from the evidence, the jury may also with reason, on grounds of

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probability, attribute the result to other causes, including the employee's
contributory negligence. Judicial appraisal of the proofs to determine whether a
jury question is presented is narrowly limited to the single inquiry whether, with
reason, the conclusion may be drawn that negligence of the employer played any
part at all in the injury or death.

!d. at 506-507 (emphasis added). Under the FELA, traditional notions of proximate cause have

been replaced with what amounts to a causal relation test. See Rogers, supra. Federal courts

interpreting Rogers over the years have indicated that the plaintiffs burden of proof with regard

to causation is substantially less under the FELA as compared to a standard negligence action.

See, Caillouette v. Baltimore & Ohio Chicago Term. R. Co., 705 F.2d 243, (7th Cir. 1983);

Nivens v. St. Louis Southwestern Railway Co., 425 F.2d 114, (5th Cir. 1970); Hausrath v. New

York Central Ry., 401 F .2d 634 (6th Cir. 1968). If there is evidence from which the jury can

rationally infer that employer negligence played some role in causing or contributing to the cause

of the injury or illness, the case must go to the jury. See Lawson v. Belt Ry. Co. of Chicago, 34

Ill. App. 3d 7, 17, 339 N.E.2d 381, 391 (Ill. App. 1975).

A railroad breaches its duty to its employees when it fails to use ordinary care under the

circumstances, or fails to do what a reasonably prudent person would have done under the

circumstances to make the working environment safe. Van Gorder v. Grand Trunk Western

R.R., Inc., 509 F.3d 265,269-270 (6th Cir. 2007); Tiller v. At/antics C.L.R. Co., 318 U.S. 54, 67,

63 S.Ct. 444, (1943). A railroad breaches its duty when it "'knew, or by the exercise of due care

should have known' that prevalent standards of conduct were inadequate to protect [the plaintiff]

and similarly situated employees." Urie v. Thompson, 337 U.S. 163, 178,69 S.Ct. 1018 (1949).

Reasonable foreseeability of harm is an element of the negligence claim under the FELA.

Importantly, however, an extremely expansive view of reasonable foreseeability has been

recognized in FELA jurisprudence. In Gallick v. Baltimore & Ohio Railroad Company, 372

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U.S. 108 (1963), the Court stated:

It is widely held that for a defendant to be liable for consequential damages he
need not foresee the particular consequences of his negligence acts: assuming
the existence of a threshold tort against the person, then whatever damages flow
from it are recoverable ... And we have no doubt that under a statute where the
tortfeasor is liable for death or injuries in producing [sic] which his "negligence
played any part, even the slightest" ... such a tortfeasor must compensate his
victim for even improbable or unexpectedly severe consequences of his
wrongful act. [Citations omitted]

Gallick, 372 U.S. at 120-21; accord, Lillie v. Thompson, 332 U.S. 459, 68 S.Ct. 140 (1947)

(emphasis added). The Act encompasses all reasonably foreseeable injuries which result from

the railroad's failure to exercise due care with respect to its employees. Buell v. Atchison,

Topeka & Santa Fe. Ry., 771 F.2d 1320 (9th Cir. 1985), aff'd in part, vacated in part, and

remanded, Atchison, Topeka & Santa Fe. Ry. V Buell, 480 U.S. 557 91987); CSX Transp., Inc.

v. Miller, 858 A.2d 1025, 1081 (Md. App., 2004) (foreseeability does not require the employer to

have anticipated the plaintiffs injury in the precise manner in which it occurred; it is suffici

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May 04, 2011

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March 19, 2009

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Motion-Secondary: GEORGE STEVEN WALLACE vs SUPER 8 WORLDWIDE, INC., ET AL

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