United States District Court, W.D. Arkansas, Texarkana Division
O. Hickey United States District Judge.
the Court is a Motion for Summary Judgment filed by Defendant
Union Pacific Railroad Company (“Union Pacific”).
ECF No. 25. Plaintiff Austin Thomas (“Thomas”)
has filed a response. ECF No. 31. Union Pacific has filed a
reply. ECF No. 34. The Court finds this matter ripe for
consideration. For the reasons explained below, the Court
finds that Union Pacific's motion should be granted in
part and denied in part.
an action to recover damages for injuries that Thomas
sustained after falling off a railroad bridge near Prescott,
Arkansas. At the time of the accident, Thomas was employed as
a bridge repairman by Rail 1, LLC, (“Rail 1”) a
bridge-work and maintenance-of-way company based in Texas. In
May 2012, Union Pacific entered into an agreement with Jay
Construction to provide bridge maintenance on an as-need
basis. In turn, Jay Construction often subcontracted with
Rail 1 for various work. Rail 1 was hired by Jay Construction
as a subcontractor to repair the Union Pacific railroad
bridge near Prescott.
24, 2013, Thomas was working to install guard timbers as part
of a bridge maintenance crew on the railroad bridge. Thomas
was assigned as a bridge labor hand, along with Brandon
Frederick and another Rail 1 employee. Kelvin Crecelius was
acting as the crew's foreman. Charles Mann, a Union
Pacific representative, was also at the job site.
point, Thomas and Frederick were informed that several
previously installed guard timbers were crooked. It is
undisputed that Thomas and Frederick were directed to
straighten the guard timbers; however, the parties disagree
as to who ordered the pair to fix them. As Thomas and
Frederick were prying up one of the guard timbers, it slipped
off the bridge to the ground 25-feet below. Thomas and
Frederick lost balance and fell along with it. Thomas
suffered fractures to his pelvis, spine and ankle as a result
of the fall. Although Thomas and Frederick were provided with
fall protection, neither was wearing it when they fell off
Complaint, Thomas alleges that he was injured because Union
Pacific negligently failed to provide him with reasonably
safe workplace conditions in violation of the Federal
Employers' Liability Act (“FELA”), 45 U.S.C.
§ 51, et seq. In addition to seeking relief
under the FELA, Thomas asserts a negligence per se claim for
alleged violations of the standards set forth in 49 CFR
§§ 237.133 and 237.55. Thomas also seeks recovery
under a general negligence theory for the damages caused by
February 14, 2018, Union Pacific filed the instant motion for
summary judgment, arguing that it is entitled to judgment in
its favor as to Thomas's FELA claim because Thomas was
not employed by Union Pacific. Union Pacific further argues
that summary judgment is appropriate as to Thomas's
common law negligence claim because Union Pacific had no duty
to warn Thomas about the dangers of falling off the bridge.
Lastly, Union Pacific argues that summary judgment should be
granted in its favor with regard to Thomas's negligence
per se claim because Arkansas law does not allow federal
regulations to impose duties in tort. With this background in
mind, the Court will proceed to the merits of Union
party moves for summary judgment, “[t]he court shall
grant summary judgment if 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); Krenik v. Cnty. of LeSueur, 47 F.3d 953, 957
(8th Cir. 1995). This is a “threshold inquiry of . . .
whether there is a need for trial-whether, in other words,
there are 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 v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see
also Agristor Leasing v. Farrow, 826 F.2d 732, 734 (8th
Cir. 1987). A fact is material only when its resolution
affects the outcome of the case. Anderson, 477 U.S.
at 248. A dispute is genuine if the evidence is such that it
could cause a reasonable jury to return a verdict for either
party. Id. at 252.
Court must view the evidence and the inferences reasonably
drawn from the evidence in the light most favorable to the
nonmoving party. Enter. Bank v. Magna Bank, 92 F.3d
743, 747 (8th Cir. 1996). The moving party bears the burden
of showing that there is no genuine issue of material fact
and that it is entitled to judgment as a matter of law.
Id. The nonmoving party must then demonstrate the
existence of specific facts in the record that create a
genuine issue for trial. Krenik, 47 F.3d at 957. A
party opposing a properly supported motion for summary
judgment may not rest upon mere allegations or denials, but
must set forth specific facts showing that there is a genuine
issue for trial. Anderson, 477 U.S. at 256.
FELA governs actions by employees for personal injuries
suffered while working for a railroad. 45 U.S.C. § 51.
The FELA states, in pertinent part, as follows:
Every common carrier by railroad while engaging in commerce
between any of the several States . . . shall be liable in
damages to any person suffering injury while he is ...