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Gailey v. Norfolk Southern Railway Co.

United States District Court, M.D. Pennsylvania

July 24, 2015



MATTHEW W. BRANN, District Judge.

Pending before this Court is a motion for partial summary judgment filed by Defendants Norfolk Southern Railway Company and Consolidated Rail Corporation. The motion seeks judgment against Plaintiff Richard Gailey on his claim to the extent that he alleges that Defendants' improper use of ballast caused his injuries. Though Defendants have not filed a reply brief, the time for briefing has concluded and this matter is now ripe for disposition. In accordance with the following reasoning, Defendants' motion for partial summary judgment is granted in part and denied in part. To the extent Plaintiff's allegations relate to injuries which have resulted from walking on ballast in areas where track stability and support are concerned, his claim is dismissed. To the extent, however, that his claim is predicated on injuries which have resulted from walking in non-track areas, Defendants' motion for partial summary judgment is denied.


Plaintiff Richard Gailey has brought this action alleging violations of the Federal Employer's Liability Act, 45 U.S.C. § 51, et seq. (hereinafter "FELA"). Plaintiff was employed by the Defendants for thirty-six (36) years as a freight trainman and conductor. Pl.'s Statement of Facts ¶ 1, March 18, 2015, ECF No. 21 (hereinafter "Pl.'s SOF"). He alleges that he developed repetitive trauma injuries to his cervical and lumbar spine, hip and lower extremities during the course and scope of his employment with the Defendants. Defs.' Statement of Facts ¶ 1, February 26, 2015, ECF No. 19 (hereinafter "Defs.' SOF"). More specifically, Plaintiff claims that he was injured as a result of being exposed to "an environment in which he had to walk on uneven ground continuously over a long period of time" and which "had large main line ballast that was unsafe to work and/to walk on." Pl.'s SOF ¶ 2. He alleges that the injuries occurred in part because of poor walking conditions near the rail tracks, and also in part due to unsafe walking conditions in non-track areas. Id. ¶ 4.

Both parties appear to agree that ballast is a necessary material to have on the railroad to support the track and perform other functions. Defs.' SOF ¶ 7-11; Pl.'s SOF ¶ 10. Plaintiff argues, however, that ballast is not necessary in any other areas, including walking areas and roadways. Pl.'s SOF ¶ 10. Nevertheless, Plaintiff and several of his coworkers have testified that ballast goes down into these areas where there should instead be walking stone. Id. ¶ 6, 8-9, 13-18. It is the existence of this ballast in areas that do not support that track which Plaintiff alleges caused some of his injuries and therefore forms part of the basis of his claim.


Summary judgment is appropriate where "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 fact is "material" where it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is "genuine" where "the evidence is such that a reasonable jury, " giving credence to the evidence favoring the nonmovant and making all inferences in the nonmovant's favor, "could return a verdict for the nonmoving party." Id.

The burden of establishing the nonexistence of a "genuine issue" is on the party moving for summary judgment. In re Bressman, 327 F.3d 229, 237 (3d Cir. 2003) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986) (Brennan, J., dissenting)). The moving party may satisfy this burden by either (i) submitting affirmative evidence that negates an essential element of the nonmoving party's claim; or (ii) demonstrating to the Court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's case. Id. at 331.

Where the moving party's motion is properly supported, the nonmoving party, to avoid summary judgment in his opponent's favor, must answer by setting forth "genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250. For movants and nonmovants alike, the assertion "that a fact cannot be or is genuinely disputed must" be supported by "materials in the record" that go beyond mere allegations, or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1); see also Anderson, 477 U.S. at 248-50.

"When opposing summary judgment, the non-movant may not rest upon mere allegations, but rather must identify those facts of record which would contradict the facts identified by the movant.'" Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2003). Furthermore, "[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may... consider the fact undisputed for purposes of the motion." Fed.R.Civ.P. 56(e)(2).

In deciding the merits of a party's motion for summary judgment, the Court's role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Credibility determinations are the province of the factfinder, not the district court. BWM, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Although the Court may consider any materials in the record, it need only consider those materials cited. Fed.R.Civ.P. 56(c)(3).


Defendants have filed the instant motion relying exclusively on the doctrine of preemption. They argue that Plaintiff's FELA action is precluded by the Federal Railway Safety Act (hereinafter "FRSA") to the extent Plaintiff is alleging that working on large and/or uneven ballast caused or contributed to his injuries. They rely on an opinion from the United States Court of Appeals for the Sixth Circuit, Nickels v. Grand Trunk Western R.R., Inc., 560 F.3d 426 (6th Cir. 2009), which concluded that the size of ballast to be used was governed by federal regulation 49 C.F.R. § 213.103 and therefore preempted a FELA claim on that issue.

Plaintiff responds that the Nickels court based its holding on an overly expansive reading of the preemption section of the FRSA and therefore the subject matter at issue in this case is not covered by the federal regulation relied upon by the Defendants because it does not address worker safety, the grading of surfaces upon which employees are required to walk, or the size of the ballast to be used. Rather, he contends, the regulation sets only the base requirements that must be met in the use of ballast and the railroad is still under a duty to apply due care in their choices. Alternatively, Plaintiff asserts that if this Court finds that preemption is applicable regarding ...

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