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Onysko v. Delaware & Hudson Railway Co., Inc.

United States District Court, M.D. Pennsylvania

January 26, 2017

MICHAEL ONYSKO, Plaintiff,
v.
DELAWARE & HUDSON RAILWAY COMPANY, INC. d/b/a C.P. RAIL SYSTEM, Defendant.

          MEMORANDUM

          Kosik Judge.

         This action, filed on August 14, 2015, by Plaintiff, seeks to hold Defendant liable for personal injuries sustained by Plaintiff as a result of an alleged violation of the Federal Employers' Liability Act (“FELA”)[1] and the Federal Safety Appliance Act (“FSAA”).[2] Currently before the Court is Plaintiff's motion for partial summary judgment. (Doc. 17). The motion has been fully briefed by both parties, and is now ripe for disposition. For the reasons that follow, the Court will grant in part and deny in part Plaintiff's motion.

         I. Background

         Plaintiff, a railroad worker, alleges he was injured on August 7, 2014, while working at Defendant's Binghamton, New York rail yard. (Doc. 17, Pltf.'s SOF ¶1). In the early hours of the morning, while assisting in the make-up of freight trains used by Defendant in its rail operations, Plaintiff chose to cross over a stationary rail car to get to the other side of the track to continue switching rail cars, as opposed to walking around a draft of cars, which could potentially be over a mile long. (Id., ¶¶ 4-5; Doc 22, Pltf.'s Reply Br., p. 5). The specific rail car, CP 337299, was equipped with a crossover board/end platform, which Plaintiff contends is a type of running board that is placed on the end of certain train cars to allow for safe movement between train cars. (Doc. 17, ¶ 5; Doc. 18, Pltf.'s Br., p. 2).

         As Plaintiff was traversing the crossover board, it suddenly gave way, sending him to the ground where he struck his back and head on the rail and ground. (Doc. 17, ¶¶ 6-8). An inspection of rail car CP 337299 revealed that the crossover platform had a missing bolt that appeared to be missing from its bracket for some time. (Id., ¶10). Defendant subsequently posted a safety alert, informing its employees that an “employee [was] injured when using end platform, ” and that upon inspection of the end crossover platform, it was identified that a bolt was missing. (Doc. 17-7, Safety Alert).

         Plaintiff also provides an expert affidavit opining that in addition to the crossover platform's defect, the ladder on the same rail car was also defective. (Doc. 23-8, Aff. of D.M. Greig). Plaintiff contends that these are separate violations of the FSAA. Plaintiff now moves for partial summary judgment as to the issue of liability.

         II. Standard of Review

         Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that 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). An issue is “genuine” if there is sufficient evidence with which a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Childers v. Joseph, 842 F.2d 689, 693-94 (3d Cir. 1988) (citing Anderson, 477 U.S. at 248). A factual dispute is “material” if it might affect the outcome of the case. Anderson, 477 U.S. at 248. In determining whether an issue of material fact exists, the court must consider the evidence in the light most favorable to the non-moving party. Skerski v. Time Warner Cable Co., 257 F.3d 273, 278 (3d Cir. 2001); White v. Westinghouse Elec, Co., 862 F.2d 56, 59 (3d Cir. 1988).

         A party seeking summary judgment always bears the initial burden of informing the court of the basis of its motion and identifying those portions of the record that it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The non-moving party then has the burden to “come forth with ‘affirmative evidence, beyond the allegations of the pleadings, ' in support of its right to relief.” U.S. Bank, Nat'l Ass'n v. Greenfield, No. 1:12-CV-2125, 2014 WL 3908127, *2 (M.D. Pa. Aug. 11, 2014) (quoting Pappas v. City of Lebanon, 331 F.Supp.2d 311, 315 (M.D. Pa. 2004)). “If 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), ” a court may grant summary judgment or consider the fact undisputed for purposes of the motion. Fed.R.Civ.P. 56(e)(2-3).

         III. Discussion

         1. Evidentiary Objections

         As an initial matter, Defendant has set forth evidentiary objections to all of Plaintiff's exhibits and documents used in support of his motion for partial summary judgment. In his reply brief, Plaintiff counters that the documents used in support of his motion are all properly authenticated and before the Court for our consideration.

         Defendant argues that Plaintiff's motion should be denied because it is “not supported by evidence in the record and relies upon inadmissible hearsay and [an] unsworn ‘report' from Plaintiff's expert ....” (Doc. 21, Def.'s Br. In Opp, p. 2). Specifically, Defendant argues that the following documents used to support Plaintiff's motion do not satisfy the requirements set forth in Federal Rule of Civil Procedure 56 or Local Rule 56.1: a transcript of an interview conducted by Defendant's district claims representative of Plaintiff (Doc. 17-2, Pltf.'s MPSJ), a Crew Information Sheet (Doc. ___, Ex___), [3] photographs (Doc.17-3, 4), an Asset Damage Report (Doc.17-5), Mechanical Inspection Report (Doc.17-6), a Safety Alert (Doc. 17-7), and an expert report from D.M. Greig (Doc.17-11). We find Defendant's argument raises both an authentication issue and hearsay issue to the documents, and we will address each in turn.

         A party moving for partial summary judgment must cite to “particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials ...” in order to support his assertion that a fact cannot be genuinely disputed. Fed.R.Civ.P. 56(c)(1)(A).

         a. Authentication

         In terms of authentication of documents, Federal Rule of Evidence 901(a) states, “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” The burden of proof for authentication is slight. McQueeney v. Wilmington Trust Co., 779 F.2d 916, 928 (3d Cir. 1985); see also Link v. Mercedes-Benz of North America, 788 F.2d 918, 927 (3d Cir. 1986) (stating that the “showing of authenticity is not on a par with more technical evidentiary rules, such as hearsay exceptions, governing admissibility. Rather, there need be only a prima facie showing, to the court, of authenticity, not a full argument on admissibility.”).

         Further, when a particular document has been produced by a party pursuant to a discovery request, “there is a sufficient foundation for a jury to determine that [the] document is what it is purported to be ....” Lexington Ins. Co. v. Western Pennsylvania Hosp., 423 F.3d 318, 329 (3d Cir. 2005); see McQueeney, 779 F.2d at 929 (“[T]he fact that copies were produced by the plaintiff in answer to an explicit discovery request for his Sea Service Records, while not dispositive on the issue of authentication, is surely probative.”); In re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238, 286 (3d Cir. 1983), rev'd on other grounds, 475 U.S. 574 (1986) (“[The exhibits] have the appearance, content, and substance typical of [board] minutes. They were produced by the defendants pursuant to a discovery order ...


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