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Huntsinger v. BNSF Railway Co.

Court of Appeals of Oregon

June 7, 2017

Jerald C. HUNTSINGER, Plaintiff-Appellant,
v.
BNSF RAILWAY COMPANY, Defendant-Respondent.

          Argued and Submitted December 22, 2015

         Multnomah County Circuit Court 120911791; A156588 David F. Rees, Judge.

          Cody Hoesly argued the cause for appellant. With him on the briefs was Larkins Vacura LLP.

          Wendy M. Margolis argued the cause for respondent. With her on the brief was Cosgrave Vergeer Kester LLP.

          Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

         Case Summary: Plaintiff, a railroad employee, was injured after he fell from defendant's locomotive while preparing a train for departure. Plaintiff brought a negligence action against defendant under the Federal Employers' Liability Act, 45 USC §§ 51-60, basing five of his claims on the Locomotive Inspection Act (LIA), 49 USC §§ 20701-20703. The trial court granted partial summary judgment to defendant and dismissed plaintiff's LIA claims, concluding that the LIA was inapplicable because the locomotive was not "in use" at the time of plaintiff's injury. On appeal, plaintiff assigns error to that ruling. Held: The trial court erred in granting partial summary judgment to defendant because, viewing the summary judgment record in the light most favorable to plaintiff, the locomotive was "in use" within the meaning of the LIA. Based on reasonable inferences drawn in plaintiff's favor, the locomotive was "in use" because defendant's customary processes for detecting and repairing defects to the locomotive were complete, the locomotive was coupled to railcars and being prepared for departure, and plaintiff was not engaged in tasks directed at detecting or remedying dangerous conditions in the locomotive itself. Judgment on claims 2 through 6 reversed and remanded; otherwise affirmed.

          GARRETT, J.

         Plaintiff, a railroad employee, was injured when he fell from defendant's locomotive while preparing a train for departure. He brought negligence claims against defendant under the Federal Employers' Liability Act (FELA), 45 USC §§ 51-60, basing five of his claims on violations of the Locomotive Inspection Act (LIA), 49 USC §§ 20701-20703, and associated federal regulations. The trial court granted summary judgment to defendant on plaintiff's LIA claims, concluding that the LIA was inapplicable because, at the time of plaintiff's injury, the locomotive was not "in use." On appeal, plaintiff assigns error to that ruling, arguing that, at the time of his injuries, the locomotive was "in use" within the meaning of the LIA. We conclude that the trial court erred in granting summary judgment to defendant because, viewing the summary judgment record in the light most favorable to plaintiff, under the totality of the circumstances, the locomotive was "in use."[1] Accordingly, the judgment is reversed and remanded with respect to claims 2 through 6 and is otherwise affirmed.

         We review the trial court's grant of summary judgment for legal error. Johnson v. State Board of Higher Education, 272 Or.App. 710, 714, 358 P.3d 307, rev den, 358 Or. 527 (2015). Summary judgment is proper when there are no genuine issues of material fact, and the moving party is entitled to prevail as a matter of law.[2] ORCP 47 C. Generally, in reviewing the trial court's grant of summary judgment, we view the facts in the light most favorable to plaintiff, the nonmoving party, and we draw all reasonable factual inferences in his favor. Morehouse v. Haynes. 350 Or. 318, 321, 253 P.3d 1068 (2011). In this case, the parties agreed for purposes of defendant's summary judgment motion that the facts are undisputed. See Towe v. Sacagawea, Inc., 357 Or 74, 95-96, 347 P.3d 766 (2015) (viewing the undisputed facts in the light most favorable to the nonmoving party).

         Because the relevant facts on appeal concern the condition of a train and one of its locomotives at the time of plaintiff's injury, we recount the circumstances surrounding the injury in some detail. Plaintiff was employed by defendant as a "carman, " meaning that he specialized in the inspection, maintenance, and repair of railcars, and, like other carmen employed by defendant, he was not authorized or qualified to work on locomotives. Defendant's locomotive department-consisting of machinists, hostlers, and electricians-was responsible for performing work on locomotives. Plaintiff was not a member of a transportation crew (i.e., the engineer and other workers who travel with the train).

         On the evening of plaintiff's injury, he was working on a train as part of a two-person, outbound-inspection crew in the Terminal 6 rail yard (the T-6 yard) in Portland. Nominally, the T-6 yard is a "storage yard, " but most of the traffic in the yard is from grain trains travelling to and from the nearby Rivergate terminal. Loaded grain trains travel from the east through the T-6 yard to the Rivergate terminal; after a train is unloaded, a crew typically brings the train back to the T-6 yard for routine inspection and maintenance before the train returns east. Defendant uses storage tracks in the T-6 yard as departure tracks for grain trains.

         Because the T-6 yard lacks a designated repair facility, locomotives or railcars needing repairs or maintenance are sent to a dedicated repair facility in Vancouver, Washington. However, if a locomotive needs only "light work or servicing, " defendant's locomotive department performs such work at the T-6 yard. Typically, defendant's locomotive department completes all necessary servicing and repairs on a locomotive before it is coupled to an outbound train for departure. Locomotive 4574, the lead locomotive for the train to which plaintiff was assigned, received an inspection at the Vancouver facility the night before plaintiff was injured.

          Before a train departs from the T-6 yard, the train's transportation crew arms electronic devices known as the "FRED" and "Mary." The FRED is a flashing device affixed to the rear of a train; the Mary is a small box located inside the lead locomotive. Together, the two devices monitor the air pressure in the train's air brake system and relay that information between the front and the back of the train.

         The train to which plaintiff was assigned was a grain train that was set out on two tracks but otherwise fully assembled, as the tracks were too short to hold the entire train during its predeparture preparations. On the evening of plaintiff's injury, he and a crewmate were inspecting cars, performing an "air test" on the train's brake lines, and arming the FRED and Mary (typically, the train's transportation crew arms the FRED and Mary, but any qualified person can do so). Plaintiff entered Locomotive 4574 to arm the Mary and observed that the device was not working. He then exited the locomotive and moved on to other inspection tasks in order to give the Mary time to start working properly. When he returned, the Mary was still not operative. In the course of removing the Mary to switch it with a replacement, plaintiff fell from the locomotive and suffered injuries to his elbow, arm, and wrist.

         At the time of plaintiff's injury, the train was "blue flagged." Blue-flagging is a safety measure used to indicate that workers are in, under, or around a train. See 49 CFR § 218.23 (a) (providing that "blue signals" signify that "workers are on, under, or between rolling equipment, " and, in general, rolling equipment "may not be moved" when it is blue-flagged). According to federal regulations, the carmen who blue-flagged the train were the only workers permitted to remove the blue flag, and they were not permitted to do so until they had completed their work.[3]

         When plaintiff was injured, a "handful" of cars had yet to be inspected. Locomotive 4574 was idling in order "to pump air into the air brake lines to build pressure in the train's air braking system." The train in question, as is typical of grain trains departing the T-6 yard, did not have a scheduled departure time. However, it was considered a "high priority train, " meaning that "departure from the T-6 yard is imminent" once the FRED and Mary are armed. As part of their preparation of the train, the trainmaster had asked plaintiff and his crewmate to "pull down the air" for one section of railcars, which refers to the task of disconnecting the train's air brake system from the air compressors in the rail yard. Ordinarily, once workers have ...


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