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Thomas v. Union Pacific Railroad Co.

United States District Court, W.D. Arkansas, Texarkana Division

August 7, 2018



          Susan O. Hickey United States District Judge.

         Before 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.

         I. BACKGROUND

         This is 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.

         On June 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.

         At some 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 the bridge.

         In his 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 the accident.

         On 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 Pacific's motion.


         When a 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.

         The 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.


         A. FELA Claim

         The 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 ...

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