Dagon v. BNSF Railway Company

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

Tyler Dagon, as Administrator of the Estate of

Timothy Dagon, deceased,

Plaintiff,

Case No. 3:19-cv-00417-JPG

v.

BNSF RAILWAY COMPANY, Defendant,

and UNITED STATES STEEL

CORPORATION, Third-Party Defendant.

MEMORANDUM AND ORDER

This matter comes before the Court on Defendant BNSF Railway Company’s (“BNSF”)

Motion for Summary Judgement pursuant to Federal Rule of Civil Procedure 56. Defendant BSNF

moves to dismiss the remaining 1 negligence causes of action set forth in Count II and III.

I. Factual Background

This is a personal injury case arising from the death of Timothy Dagon (“decedent”).

Plaintiff Tyler Dagon (“Plaintiff” or “Estate”) alleges that BNSF and United States Steel

Corporation (“U.S. Steel”), are liable for common-law negligence and negligence pursuant to the

Survival Act and Wrongful Death Act. (Comp. at ¶¶ 45-52).

Plaintiff seeks to recover for the death of decedent, who was a switchman employed by

defendant U.S. Steel Corporation (“U.S. Steel”). BNSF is a common carrier Class I interstate

railroad, and U.S. Steel is a corporation that owns and operates a steel plant in Granite Cit, Illinois.

(Compl. at ¶¶ 4, 9). BNSF would deliver railcars to the plant through Terminal Railroad

Association of St. Louis (“TRA”), who would then deliver the railcar to the U.S. Steel gate. (Doc.

1 In a Memorandum and Order dated July 21, 2020, the Court dismissed Counts I and IV Federal Employers’ Liability

Act (“FELA”) claims after finding there was not an employment relationship between decedent and BNSF. (Doc. 84).

132 at 5). Between BNSF and U.S. Steel. they shared a “Confidential Quote” which refers to BNSF

Rules Book 6100 Series. (Doc. 132 at 4-5).

The accident at issue occurred on March 5, 2017, in Granite City, IL. (Compl. at ¶ 11).

Decedent was an employee of U.S. Steel, who worked as a switchman in the rail department at the

U.S. Steel Granite City plant. (Doc. 122 at 3). BNSF owned the railcar that decedent boarded or

attempted to board and U.S. Steel was a customer of BNSF. (Doc. 122 at 9). Decedent was crushed

by a BNSF-owned railcar while working for U.S. Steel. A video of the incident shows that

decedent appeared to be a person riding on the side of a train and fell or jumped from the train and

went underneath the railcar. Id. at ¶ 25. Decedent suffered a crush injury to his leg and was taken

by U.S. Steel Fire and Rescue and loaded into a helicopter to SLU Medical Center where he died

four hours later. Id. at ¶¶ 28-33. His son, Tyler Dagon, brings this lawsuit on behalf of decedent.

This case centers around the harm related to employees getting on and off moving

equipment (“GOOME”). Currently, railroads have changed their GOOME rules at various times

and currently railroads within the industry has GOOME rules that differ from each other. (Doc.

122 at 6) (Andres Dep., at 38-41, Doc. 122, Ex. L). At the time of decedent’s accident, U.S. Steel’s

Standard Safety Practices (“SSPs”) and Safe Job Practices (“SJPs”) prohibited employees from

GOOME. Id. After this accident, OSHA issued a citation against U.S. Steel for this incident related

to GOOME enforcement. (Doc. 132-1).

On March 5, 2019, Plaintiff filed its complaint in Madison County, Illinois, alleging claims

under FELA and common law Negligence. (Doc. 1-2). Defendants BNSF and U.S. Steel removed

this case to federal court. (Doc. 1). The Court later dismissed the FELA claim and only the common

law negligence claims remain. (Doc. 84).

II. Law & Analysis

Summary judgment must be granted “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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986);

Spath v. Hayes Wheels Int'l–Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court

must construe the evidence in the light most favorable to the nonmoving party and draw all

reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986). Thus, the Court construes evidence and draws all reasonable inferences in favor of

Plaintiff. On summary judgment a court may not make credibility determinations or weigh the

evidence, because these are tasks for a factfinder. See Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986); Betaco, Inc. v. Cessna Aircraft Co., 32 F.3d 1126, 1138 (7th Cir. 1994). In

evaluating a motion for summary judgment, “[t]he court has one task and one task only: to decide,

based on the evidence of record, whether there is any material dispute of fact that requires a trial.”

Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994).

The initial summary judgment burden of production is on the moving party to show the

Court that there is no reason to have a trial. Celotex, 477 U.S. at 323; Modrowski v. Pigatto, 712

F.3d 1166, 1168 (7th Cir. 2013). Where the nonmoving party carries the burden of proof at trial,

the moving party may satisfy its burden of production in one of two ways. It may present evidence

that affirmatively negates an essential element of the nonmoving party’s case, see Fed. R. Civ. P.

56(c)(1)(A), or it may point to an absence of evidence to support an essential element of the

nonmoving party’s case without actually submitting any evidence, see Fed. R. Civ. P. 56(c)(1)(B);

Celotex, 477 U.S. at 322-25; Modrowski, 712 F.3d at 1169. Where the moving party fails to meet

its strict burden, a court cannot enter summary judgment for the moving party even if the opposing

party fails to present relevant evidence in response to the motion. Cooper v. Lane, 969 F.2d 368,

371 (7th Cir. 1992).

In responding to a summary judgment motion, the nonmoving party may not simply rest

upon the allegations contained in the pleadings but must present specific facts to show that a

genuine issue of material fact exists. Celotex, 477 U.S. at 322-26; Anderson, 477 U.S. at 256-57;

Modrowski, 712 F.3d at 1168. A genuine issue of material fact is not demonstrated by the mere

existence of “some alleged factual dispute between the parties,” Anderson, 477 U.S. at 247, or by

“some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists only if “a fair-

minded jury could return a verdict for the [nonmoving party] on the evidence presented.”

Anderson, 477 U.S. at 252. Inferences that are supported by only speculation or conjecture will

not defeat a summary judgment motion. Hutchison v. Fitzgerald Equip. Co., Inc., 910 F.3d 1016,

1023 (7th Cir. 2018).

a. Allegations

First, the parties dispute what types of allegations are at issue. Defendant BNSF asserts that

the Plaintiff’s bases of the case rests in paragraph 42 of the complaint where Plaintiff asserts BNSF

failed to promulgate and enforce safety rules prohibiting GOOME for U.S. Steel employees and

failed to train U.S. Steel employees and supervisors on GOOME. (See Doc. 122 at 3-4; Comp, ¶

42(d), (f) and (g)). Plaintiff disagrees and states their bases of negligence are more expansive and

include allegations that it was foreseeable BNSF’s negligent acts would cause injury to decedent

using BNSF equipment while providing services to BNSF, Compl. at ¶ 46, BNSF invited decedent

“to work on its premises created a duty” to use reasonable care to not injure decedent, id. at ¶ 48,

BNSF failed to provide decedent reasonably safe place to work when BNSF knew decedent did

not appreciate or recognize the danger, id. ¶ 49(a), BNSF failed to refrain from unreasonably

dangerous active conduct, id. ¶ 49(b), BNSF failed to have comprehensive safety program to

eliminate hazards and warn persons at U.S. Steel of hazards, or have an inspection program to

discovery hazards, id. at ¶ 49(c), and BNSF failed to properly instruct decedent on safe proper

GOOME procedures, id. ¶ 49(d).

However, the crux of Plaintiff’s complaint revolves around the following duties, which the

Court will evaluate whether or not should be imposed on BNSF: duty to supervise regarding rules

enforcing GOOME prohibition and train U.S. Steel employees regarding GOOME prohibition,

and duty to warn regarding risks of GOOME, including a failure to provide anti-slip material.

b. Duty to Supervise and Train

The essential elements of common law negligence in Illinois are: (1) the existence of a duty

running from the defendant to the plaintiff; (2) a breach of that duty; (3) an injury proximately

caused by the breach of duty. Pavlik v. Wal–Mart Stores, Inc., 323 Ill.App.3d 1060, 1063, 257

Ill.Dec. 381, 753 N.E.2d 1007, 1010 (2001) (internal quotes omitted). “In order to recover on a

negligence claim, plaintiff must set out sufficient facts to establish that the defendant owed a duty

to plaintiff, that defendant breached that duty, and that the breach proximately caused injury to

plaintiff.” Grillo v. Yeager Constr., 387 Ill.App.3d 577, 326 Ill.Dec. 1002, 900 N.E.2d 1249, 1251

(citations omitted).

The existence of duty is considered a question of law to be determined by the court. Id. In

Illinois, an affirmative duty to aid or protect another against an unreasonable risk of physical harm

arises only in the context of a legally recognized “special relationship.” Simpkins v. CSX

Transportation, Inc., 2012 IL 110662, ¶ 19, 358 Ill.Dec. 613, 965 N.E.2d 1092; Iseberg v. Gross,

227 Ill.2d 78, 87–88, 316 Ill.Dec. 211, 879 N.E.2d 278 (2007). Courts have recognized four

“special relationships”—common carrier-passenger, innkeeper—guest, business invitor-invitee,

and voluntary custodian-protectee. Jane Doe-3 v. McLean Cnty. Unit Dist. No. 5 Bd. of Directors,

2012 IL 112479, 973 N.E.2d 880, 888 (citing Restatement (Second) of Torts § 314A (1965)).

Outside of these recognized exceptions, a court reviews factors to determine whether or

not a duty exists based on a foreseeable risk of injury. The factors for a court to consider in

examining the existence of a duty include: the reasonable foreseeability of injury; the likelihood

of injury; the magnitude of the burden to guard against it; and the consequences of placing blame

on the defendant (“Simpkins factors”). Simpkins, 2012 IL 110662, ¶ 18, 965 N.E.2d 1092, 1097.

The existence of a duty in any given “case is a question of law for the court to decide” and

“involves considerations of public policy.” Id. at 617–18, 965 N.E.2d at 1096–97. BNSF argues

Plaintiff alleges no “special exception,” and therefore an analysis of the four Simpkins factors

demonstrates that no duty is owed.

“Though foreseeability is not the only factor we consider, it is a necessary factor to finding

a duty. If the injury was not reasonably foreseeable, no duty can exist.” Simpkins, 2012 IL 110662,

¶ 24, 965 N.E.2d 1092, 1098. Because “with the benefit of hindsight, everything is foreseeable”

the court must focus on whether the “injury was reasonably foreseeable at the time defendant

engaged in the alleged negligent action.” Id. at ¶ 25. The concept of foreseeability is limited, and

to be foreseeable, something must be reasonable to expect objectively. The fact “[t]hat something

‘might conceivably occur,’ does not make it foreseeable.” Jarosz v. Buona Companies, LLC, 2022

IL App (1st) 210181, ¶ 37 (internal citations omitted). BNSF argues that it owed no duty to

decedent whereas Plaintiff argues BNSF owed a duty because its conduct created a foreseeable

risk of injury. (Doc. 122 at 14-15; Doc. 132 at 11-12).

The question, pursuant to the first Simpkins factor, is whether or not there was a foreseeable

risk of injury for BNSF’s failure to supervise or train U.S. Steel employees, namely the decedent.

The Court finds Plaintiff’s theory is far too attenuated. Viewing the evidence in the record in the

light most favorable to Plaintiff, and providing all reasonable inferences in favor of Plaintiff, the

Court finds it is not reasonably foreseeable that BNSF declining to train or supervise decedent on

GOOME, a U.S. Steel employee, would cause harm to the employee. U.S. Steel was the only entity

that trained and supervised decedent regarding its rules prohibiting GOOME. This Court will not

impose a duty on a non-employer to train and supervise regarding GOOME procedures that both

parties agree is “not in lockstep” with the rest of the industry or where there is inconsistent

prohibition on GOOME. See Doc. 132 at 13-14.

BNSF argues that it was not reasonably foreseeable that declining to train or supervise on

GOOME prohibitions, U.S. Steel rail employees would cause harm to those employees. (Doc. 122

at 15); Compl. at ¶ 42(d), (f) and (g). BNSF’s argument centers around the fact U.S. Steel, as

decedent’s employer, is the proper entity to train and supervise decedent, which it in fact did. (See

generally, Doc. 122 at 15). Plaintiff argues this is incorrect and puts forth evidence to contradict

BNSF’s claim. Specifically, Plaintiff puts forth the testimony of Dr. Robert Andres, Plaintiff’s

liability expert, who stated the following: Doc. 122-13, p. 24 (“BNSF was obviously aware of the

risks involved with GOOME and prohibited the practice to avoid an unreasonable risk of injury or

death to its employees. However, BNSF did not provide warnings directly to USSC or indirectly

by placing any kind of warning on the BNSF railcars involved in this incident.”); id., p. 25 (“BNSF

was aware of the potential for injury when trainmen are allowed to GOOME but did nothing to

transfer their knowledge to their customer USSC.”); id., p. 18 (citing statistics known to the

American Association of Railroads as early as 1987 that a significant percentage of injuries

“involve losing hold or footing while climbing or riding on the ladder.”); Doc. 122-14, Andres

dep. at 31:20-32:14 (it is well known that sill steps are slippery and are not made to be slip

resistant).

Plaintiff argues BNSF prohibited its own employees from GOOME, and knew it was

dangerous, and yet did nothing to prohibit U.S. Steel employees from GOOME. However, this

Court finds it is not reasonable to require BNSF to train U.S. Steel employees, an entirely different

entity.2 BNSF argues it was therefore not reasonably foreseeable the decedent would “deliberately

violate known safety procedures implemented for his protection.” (Doc. 122 at 15). Even if BNSF

was “obviously aware” of the risks involved with GOOME, which it may have believed so because

it prohibited its own employees from GOOME, Plaintiff has been unable to persuade this Court

that it was reasonably foreseeable to BNSF that harm would result to U.S. Steel employees for its

failure to do so.

Specifically, BNSF argues that it was further not foreseeable that harm would result from

GOOME because U.S. Steel had safety rules prohibiting GOOME and it was decedent who

violated the prohibition against GOOME. (Doc. 122 at 7). Plaintiff argues that whether U.S. Steel

was properly enforcing the prohibition against GOOME is in dispute. The Court does not find this

dispute to be material to the issue of duty to supervise and train. It is not reasonable for BNSF to

go into a U.S. Steel facility and premises and supervise and train U.S. Steel employees. Therefore,

even if there is a dispute as to whether or not U.S. Steel did not adequately enforce discipline from

GOOME, this dispute is not material as to whether or not it was reasonably foreseeable to BNSF

that harm would occur to decedent if it did not train or supervise on GOOME. See Doc. 132 at 6.3

2 Albeit in a different context, Illinois courts have evaluated that lack of control over an individual and the

individual’s work weighs against attaching negligence to that party because it is not in a good position to prevent

negligent performance. See Carney v. Union Pac. R. Co., 2016 IL 118984, ¶ 32, 77 N.E.3d 1, 7 (“Because the hiring

entity has no control over the details and methods of the independent contractor's work, it is not in a good position to

prevent negligent performance, and liability therefor should not attach.”).

3 Plaintiff also uses provides an OSHA violation, which cites U.S. Steel for failing to adequately enforce a prohibition

on GOOME, as evidence that U.S. Steel did not enforce GOOME prohibition. (Doc. 132 at 6-7). However, an OSHA

Additionally, while Plaintiff provides evidence that U.S. Steel’s efforts to prohibit GOOME were

inadequate (Doc. 132 at 1-2), Plaintiff does not provide evidence that BNSF knew or what should

have reasonably held accountable for knowing whether U.S. Steel enforcement was inadequate.

Simpkins, 2012 IL 110662, ¶ 25, 965 N.E.2d 1092, 1099 (“what is considered reasonably

foreseeable depends on what information about the nature of asbestos was known at the time of

plaintiff's alleged exposure and, therefore, what information defendant could reasonably be held

accountable for knowing.”). Plaintiff’s argument that BNSF should be charged with knowing or

should know “persons would not appreciate the risk of GOOME,” Doc. 132 at 13, is a stretch, and

charges BNSF with potential liability with everyone who encounters a BNSF-owned train. The

Court agrees with BNSF’s concerns. Namely, Plaintiff’s position would be wholly unworkable

where not all railroads have the same GOOME rules, some railroads conflict with U.S. Steel rules,

the open question regarding the role of third parties who transport the railcars, and the frequent

interchange of car owners between different industries. The Court does not find it is reasonably

foreseeable, with the facts provided regarding GOOME, that BNSF’s failure to train or provide

continuing supervision would cause harm to decedent.

Next, Plaintiff argues that BNSF failed to promulgate and enforce safety rules prohibiting

U.S. Steel employees from GOOME. BNSF argues Plaintiff is incorrect and that BNSF does not

“promulgate rules for industries using BNSF-owned railcars within the interchange system.” (Doc.

122 at 9); (Doc. 132 at 8). Plaintiff points to a “Confidential Quote” by BNSF for U.S. Steel, which

states “Transportation under this agreement is subject to BNSF Rules Book 6100-Series in effect

violation would generally not be admissible at trial for the purposes of proving negligence and a plaintiff cannot defeat

a defendant's summary judgment motion relying on inadmissible evidence. Carlisle v. Deere & Co., 576 F.3d 649,

655 (7th Cir. 2009); see United States v. Pitt-Des Moines, Inc., 168 F.3d 976, 992 (7th Cir. 1999) (finding OSHA

“serious” violation is not admissible because such a mini-trial on the OSHA violation could district and confuse the

jury on the main issues of the case and probative value is limited). Additionally, this document and information only

provides support U.S. Steel may not have been properly enforcing GOOME, and not that BNSF had knowledge of

issues with enforcement of GOOME prohibition.

as of the date of shipment.” (Doc. 122, Ex. 3). U.S. Steel corporate representative William

Bojaland testified and stated this quotation “refers to the rates BNSF charged U.S. Steel for its

transportation services.” (Doc. 132 at 5). This corporate representative stated he did not know how

long 6100 series has been affecting what U.S. Steel does as far as transportation, “but there has

typically always been some form of condition of carriage that ties to these movements, whether

it's a contract tariff or exempt quotation.” (Doc. 122, Ex. 7). This Court has already evaluated this

agreement and found in its previous Memorandum and Order, the following:

The Rules Book is precisely the kind of cooperation required under U.S. Steel and BNSF’s

agreement. BNSF relied on U.S. Steel to properly load its railcars so it could safely

transport them. And besides the loading rules, nothing in the record reveals that BNSF

could direct, control, or supervise any U.S. Steel employee.

(Doc. 84, at p. 17). The Court found previously BNSF could not direct, control, or supervise a U.S.

Steel employee, albeit in an employer/employee context. Here, the Court does not find how the

language Plaintiff points to, or the agreements above require BNSF enforce rules regarding BNSF-

owned cars regarding GOOME. Both the Confidential Quote and the Rules Book identify rates

and commercial terms for “conditions of carriage” such as indicating the “shipper is responsible

for loading.” Even providing Plaintiff all reasonable inferences, the Court does not see how the

documents allow a reasonable fact finder to infer that BNSF is required to supervise U.S. Steel

employees regarding GOOME.

Plaintiff also argues that the Rules Book has a quotation that requires BNSF impose rules

on U.S. Steel. Specifically, the Rules Book, which Plaintiff argues requires BNSF to impose rules

on U.S. Steel states “BNSF incorporates the AAR Loading Rules, Pamphlets and General

Information Series into our Loading Rules.” (Doc 122, Ex. 8). Plaintiff argues that it was

foreseeable to BNSF that persons would not appreciate the risk of GOOME and additionally cited

BNSF’s membership with Association of American Railroads4 (“AAR”) in its support. Plaintiff

argues that the AAR conducted studies and cited statistics that GOOME causes a significant

percentage of injuries. (Doc. 122-13, at 18). Therefore, Plaintiff argues that BNSF knew and

should have known, through its association with AAR that GOOME would cause significant harm.

Even providing reasonable inferences in favor of Plaintiff, Plaintiff is requiring this Court to make

too many leaps and jumps to grant its argument. First, the AAR has conducted research and cited

statistics regarding GOOME’s harm, and Plaintiff does not point to an AAR Rule against GOOME,

as the Rules Book states (“AAR Loading Rules”). Additionally, Plaintiff does not provide evidence

how GOOME is a “Loading Rule.” Thus, AAR statistics and studies do not play directly into the

language of the Rules Book. In short, the inclusion of the AAR language does not show that the

Rules Book somehow requires BNSF enforce GOOME rules on U.S. Steel.

Plaintiff’s theory that duty should be imposed because it is reasonably foreseeable to BNSF

that decedent, a U.S. Steel employee, would GOOME, in violation of U.S. Steel rules, requires

this Court to create weak links between BNSF and U.S. Steel, which would, in turn, require BNSF

to supervise and train employees of a different company than its own, regarding a practice that is

allowed but prohibited by U.S. Steel. (Doc. 132 at 13). The Court finds there is no objectively

foreseeable risk of injury for BNSF’s failure to supervise or train U.S. Steel employees.

Regarding the second factor regarding the likelihood of injury, for many of the same

reasons listed above, the Court believes there was not a substantial likelihood of decedent being

injured. Regarding the third and fourth factors - magnitude of the burden of guarding against the

injury and the consequences of placing that burden on BNSF – the Court finds that these factors

weigh strongly in favor of BNSF. As stated above, the imposition of duty “involves considerations

4 Plaintiff provides a provision of an agreement between BNSF and U.S. Steel which states ("BNSF incorporates the

AAR Loading Rules, Pamphlets and General Information Series into our Loading Rules.").

of public policy.” Simpkins, 617–18, 965 N.E.2d at 1096–97. Requiring a railroad owner to

supervise and train entities who purchase the railcar regarding GOOME, is an imposition with a

great burden. Additionally, the Court is concerned creating such a duty would require non-

employers to supervise and train non-employees regarding rules and regulations other than

GOOME. Adopting Plaintiff’s position leaves this Court with unanswered questions. Would

BNSF have to create continuing supervision and training regarding GOOME? Would it have to

train and supervise U.S. Steel employees regarding other potentially dangerous conduct? What

would qualify as dangerous conduct? Would such a non-employer have to train and supervise other

entitles that come into contact with the railroad? Would BNSF have to train and supervise entities

who do not have rules that prohibit GOOME? These questions demonstrate a slippery slope and a

large burden on BNSF. Public policy weighs against the imposition of duty for BNSF to train and

supervise U.S. Steel employees on GOOME prohibition.

Finally, case law on the issue regarding whether a manufacturer or a provider of goods

(here, BNSF is a provider of railcars) has a duty to train authorized dealers (here, U.S. Steel)

weighs in favor of BNSF. Two cases this Court was able to find within this circuit contradict

Plaintiff’s contention and indicate there is no duty to train authorized dealers. Ramm v. W & D

Mach. Co., No. 92 C 7478, 1994 WL 530827, at *2 (N.D. Ill. Sept. 29, 1994) (Illinois courts have

never adopted the argument that a manufacturer has a duty to train its purchaser’s employees);

Pessman v. Trek Bicycle Corp., No. 3:18-CV-50243, 2021 WL 5769530, at *8 (N.D. Ill. Dec. 6,

2021)(“[P]laintiff has not cited, and the Court has been unable to find any case in Illinois

recognizing that a manufacturer has a duty to train its authorized dealers”). Additionally, this Court

does not find BNSF’s course of action similar to others where courts have held a duty exists. Jarosz

v. Buona Companies, LLC, 2022 IL App (1st) 210181, ¶ 37 (finding risk of tripping and falling

reasonably foreseeable where common experience shows tripping over objects is extraordinarily

common in everyday life and the area and type of establishment had heavy foot traffic); Cf Ineeka,

Inc. v. Bond Corp., 2017 IL App (1st) 160631-U, ¶ 28 (finding risk of harm from fire not

foreseeable where defendant had working fire alarm system and working sprinkler system and

“pure speculation” presence of individual would foreseeability of injury); Snow v. Power Constr.

Co., LLC, 2017 IL App (1st) 151226, ¶ 67, 78 N.E.3d 587, 605 (finding because it is not customary

for tradespersons not to move materials belonging to another contractor, it was not objectively

reasonable for defendant to foresee plaintiff would attempt to move stacked drywall and become

injured).

In short, Plaintiff asks this Court to impose a duty on a company to supervise and train

another company regarding GOOME in the latter company’s facility, where GOOME is allowed

by some industries. The Court finds that, providing all reasonable inferences in favor of Plaintiff,

and based on an analysis of the Simpkins factors, BNSF does not owe a duty to supervise and train

to Plaintiff.

c. Duty to Warn or Provide Anti-Slip Material

The next duty the Court will evaluate is whether or not BNSF had a duty to warn decedent

regarding the dangers of GOOME. Plaintiff argues that BNSF could have included a warning about

GOOME or include some kind of slip-resistant material for the steps. (Doc. 132 at 13). According

to Defendant, negligence claim based on a failure to warn of the dangerous propensities of a chattel

is governed by section 388 of the Restatement (Second) of Torts, which states:

One who supplies directly or through a third person a chattel for another to use is subject

to liability to those whom the supplier should expect to use the chattel with the consent of

the other or to be endangered by its probable use, for physical harm caused by the use of

the chattel in the manner for which and by a person for whose use it is supplied, if the

supplier:

(a) knows or has reason to know that the chattel is or is likely to be dangerous for

the use for which it is supplied, and

(b) has no reason to believe that those for whose use the chattel is supplied will

realize its dangerous condition, and

(c) fails to exercise reasonable care to inform them of its dangerous condition or

of the facts which make it likely to be dangerous.

A duty to warn exists “where there is unequal knowledge, actual or constructive [of a

dangerous condition], and the defendant possessed of such knowledge, knows or should know that

harm might or could occur if no warning is given.” Hutchison v. Fitzgerald Equipment Company,

910 F.3d 1016, 1022 (7th Cir. 2018). BNSF argues that decedent and U.S. Steel had full knowledge

of the risk of GOOME and therefore there is no “unequal knowledge” that harm could occur if no

warning was given. (Doc. 122 at 19). Specifically, the purpose of the warning is to “apprise

someone of that which he has no knowledge” and therefore BNSF should have no duty to warn

decedent. Id.

Here, unlike a failure train and supervise, the Court believes BNSF has not met its burden

with this respect that it may have had a duty to include slip resistant material or put a warning on

the railcar. Dr. Andres testifies that the sill steps are slippery and are not made to be slip resistant.

(Doc. 122-14, Andres dep. at 31:20-32:1). Here, unlike an analysis of the factors above regarding

a duty to train and supervise, the Court believes an analysis of the factors weighs in favor of

Plaintiff regarding the anti-slip material.

First, regarding the reasonable foreseeability of the harm, the Court analyzed the

reasonable foreseeability regarding imposition of duty to train and supervise U.S. Steel employees.

However, the analysis of these factors weighs in favor of imposing a duty to warn. Here, it was

reasonably foreseeable that a failure to convey knowledge of the risk or prevent of some risk

through anti-slip pads of GOOME might result in some harm. Plaintiff introduces some evidence

that a warning may be appropriate because Dr. Andres testified that BNSF had studied injuries

because of GOOME (around 232 employees injured through GOOME in 1990). (Doc. 122-13 at

18-20). Additionally, the Court agrees with Plaintiff that it would not be unduly burdensome for

BNSF to require some sort of warning regarding GOOME or some kind of slip-resistant material

for the steps. Specifically, BNSF does not discuss an analysis of the factors regarding the duty to

warn or furnish anti-slip resistant material. Here, the third and fourth factors, and providing all

reasonable inferences in favor of Plaintiff, the Court finds BNSF has not shown there is no genuine

dispute regarding the duty to warn or duty to place anti-slip devices. Additionally, unless regarding

the duty to supervise and train, here. imposing a duty to warn would not have interfered with the

employer and employee relationship. Happel v. Wal-Mart Stores, Inc., 199 Ill. 2d 179, 194, 766

N.E.2d 1118, 1128 (2002) (“imposing a duty to warn here would not have intruded Wal–Mart into

the doctor-patient relationship.”).

BNSF argues that Cruz v. Texaco is directly on point here. 589 F. Supp. 777, 779 (S.D. Ill.

1984) (granting summary judgment in favor of defendant where operating a winch truck was a

complex procedure that involved specific training, defendant was entitled to rely on plaintiff’s

employer about warning on the inherent dangers of operating truck). Plaintiff argues this case is

distinguishable. Providing all reasonable inferences in favor of Plaintiff, the Court agrees with

Plaintiff. The court in Cruz found that such a procedure regarding harm of using the truck was

complex and was properly relegated to the employer. Id. Here, while the Court agrees the training

and supervision is properly relegated to U.S. Steel, a warning here against GOOME affixed on the

train is not complex.

BNSF argues no duty to warn should exist “since a purpose of a warning is to apprise a

party of a danger of which he was not aware” and U.S. Steel was aware of the danger of GOOME.

However, the Cruz court relied upon evidence in the record that the employer in that case was

“knowledgeable about how to use winch trucks and he fully understood the danger of driving a

loaded truck at highway speeds.” Id. at 779. Here, this fact as to whether or not U.S. Steel was

properly aware of the risk of GOOME is in dispute as it relates to duty to warn.5

Additionally, BNSF cites cases where an employer (here, U.S. Steel) is properly the liable

party and is the proper “warner” because the risk was obvious. French v. Barber-Greene Co., 215

Ill. App. 3d 1025, 1029, 576 N.E.2d 193, 196 (1991) (“Because any danger from the lack of

restraints on the paver was open and obvious to decedent, and the employer did not have any more

knowledge of that danger than did the employee, Monarch had no duty to warn him of the danger

of falling off of it.”). Here, the record is in dispute as to whether or not GOOME risk was obvious.

Fuller v. Fend–All Co., 70 Ill.App.3d 634, 388 N.E.2d 964, 968 (1979) (summary judgment is

improper where the obviousness of the danger is disputed in the record).

Here, the Court, providing all reasonable inferences in favor of Plaintiff, cannot say that

BNSF owes no duty as a matter of law regarding a duty to warn or provide anti-slip materials.

d. Premises Liability

In its response, Plaintiff argues that BNSF owed a duty to decedent because BNSF was a

premises owner, i.e., one of the special relationships that confers a duty on BNSF towards

decedent. (Doc. 132 at 16). Alternatively, Plaintiff argues BNSF owed a duty “as a possessor of

land who holds it open to the public.” Id. at 16. BNSF replies and argues that this is incorrect, and

the accident occurred on U.S. Steel premises. (Doc. 139 at 3). The Court agrees with BNSF. For

liability to attach to BNSF, it must possess and control the real property on which the injury

occurred. Simich v. Edgewater Beach Apartments Corp., 368 Ill. App. 3d 394, 406, 857 N.E.2d

934, 943 (2006).

5 While this Court above found this fact was not material to its analysis regarding the duty to supervise and train, it

is material regarding the duty to warn or provide anti-slip devices.

BNSF did not control U.S. Steel premises where the accident occurred. BNSF simply

furnished the railcar to U.S. Steel. BNSF had no “special relationship” that confers a duty between

BNSF and decedent for being a premises owner.

e. Causation

BNSF also argues that there is no evidence in the record that BNSF’s negligence was the

proximate cause of decedent’s injuries. (Doc. 122 at 19-20). Specifically, BNSF argues that Dr.

Andres even states “there are several different things that could contribute” to Dagon slipping or

otherwise falling from the railcar, and that it would be “speculative” to try to “state a conclusion”

about how the accident happened.” Id.

The issue of proximate cause in a negligence action is generally an issue of material fact

to be decided by the trier of fact; however, if the facts as alleged show that the plaintiff would

never be entitled to recover, proximate cause can be determined by a court as a matter of law.

Abrams v. City of Chicago, 211 Ill.2d 251, 257–58, 285 Ill.Dec. 183, 811 N.E.2d 670 (2004).

Under Illinois law, the “term ‘proximate cause’ describes two distinct requirements: cause in fact

and legal cause, which is a policy decision that limits how far a defendant's legal responsibility

should be extended for conduct that, in fact, caused the harm.” Dux v. United States, 69 F. Supp.

3d 781, 786–87 (N.D. Ill. 2014) (citing Lee v. Chi. Transit Auth., 152 Ill.2d 432, 178 Ill.Dec. 699,

605 N.E.2d 493, 502 (1992)); Jutzi–Johnson v. United States, 263 F.3d 753, 755 (7th Cir. 2001).

“Cause in fact exists where there is a reasonable certainty that a defendant's acts caused the

plaintiff's injury.” Krywin v. Chi. Transit Auth., 238 Ill.2d 215, 345 Ill.Dec. 1, 938 N.E.2d 440,

446–47 (2010) (citations omitted). Illinois courts generally employ either the “but for” test or the

“substantial factor” test when evaluating cause in fact. Turcios v. DeBruler Co., 392 Ill.Dec. 541,

32 N.E.3d 1117, 1124 (Ill. 2015). A defendant's conduct under the “but for” test, “is not the cause

of an event if the event would have occurred without it.” Id. Under the “substantial factor” test,

“the defendant's conduct is said to be a cause of an event if it was a material element and a

substantial factor in bringing the event about.” Id. Here, BNSF must show that either, no material

dispute exists that its failure to warn regarding GOOME or to provide anti-slip material was not

the “but for” cause or was not a “substantial factor” in bringing about the event.

“Legal cause is essentially a question of foreseeability: a negligent act is a proximate cause

of an injury if the injury is of a type which a reasonable man would see as a likely result of his

conduct.” Dux, 69 F. Supp. 3d at 787 (citing Lee, 178 Ill.Dec. 699, 605 N.E.2d at 503). Illinois

courts have held that whether an injury is “reasonably foreseeable is an objective test, not a

subjective one.” Stanphill v. Ortberg, 432 Ill.Dec. 624, 129 N.E.3d 1167, 1177 (Ill. 2018). “A

proximate cause is one that produces an injury through a natural and continuous sequence of events

unbroken by an effective intervening cause.” Dux, 69 F. Supp. 3d. at 787 (quoting Crumpton v.

Walgreen Co., 375 Ill.App.3d 73, 313 Ill.Dec. 178, 871 N.E.2d 905, 910 (2007)). “The occurrence

of an accident does not support an inference of negligence, and, absent positive and affirmative

proof of causation, plaintiff cannot sustain the burden of establishing the existence of a genuine

issue of material fact.” Kellman v. Twin Orchard Country Club, 202 Ill.App.3d 968, 974, 148

Ill.Dec. 291, 560 N.E.2d 888 (1990). Liability cannot be predicated on conjecture; rather proximate

cause is established when there is reasonable certainty that the defendant's acts or omissions caused

the injury. Kimbrough v. Jewel, Cos., 92 Ill.App.3d 813, 817, 48 Ill.Dec. 297, 416 N.E.2d 328

(1981).

Here, the Court finds it cannot say, as a matter of law that BNSF’s alleged conduct

regarding failure to provide anti-slip material was not the proximate cause of decedent’s injuries.

Specifically, here, there is a video of the accident. (Doc. 127 at 3). After decedent’s fall, he was

able to communicate with paramedics. Decedent told the paramedic that he fell after he stepped

up on the train while he was moving, and “then I went to grab the handle. I slipped and fell

backwards and then I got hit.” (Doc. 122 at 10). Dr. Andres, Plaintiff’s expert, indicated that there

were two scenarios of what occurred – “either Mr. Dagon attempted to mount one of the coke

hopper cars while it was moving, but in the process his foot slipped off the sill step, or Mr. Dagon

had successfully mounted the moving railcar, but his foot or feet slipped off the sill step as he was

riding the railcar.” (Doc. 122-13 at 16). Additionally, Dr. Andres stated in his deposition that “sill

steps are slippery” and are “plain steel” or “sometimes painted steel.” (Doc. 122-14); (Andres dep.

at 31:20-23).

The Court finds that the evidence in the record, specifically from decedent’s statements

and Dr. Andres’ testimony, shows a genuine dispute as whether BNSF’s failure to provide anti-

skid material may have been a substantial factor in causing this accident. Additionally, BNSF has

not met its burden that there is no material dispute to show if there was no anti-skid material,

decedent would not have been harmed. Additionally, there is evidence in the record that BNSF has

studied and has been aware of the dangers of GOOME. Using the objective standard, BNSF has

not met its burden that no reasonable man would determine that not having anti-skid material

would not cause decedent’s harm. Said another way, providing all reasonable inferences in favor

of Plaintiff, there is a genuine dispute of material fact whether a reasonable man could see that

having anti-skid surfaces likely was a foreseeable cause of decedent’s injuries.

BNSF argues, in a footnote in its reply, that federal regulations do not require sill steps on

hopper cars to have “anti-skid” surfaces because of a deliberate decision. (Doc. 139 at 5); 49 C.F.R.

231.2 and 231.1(d). However, at this point, with the briefing provided, the Court cannot say, per

regulations, an anti-skid surfaces absolves BNSF of negligence. BNSF has not provided the Court,

and Plaintiff has not had a chance to brief the Court on the issue. See e.g. Am. River Transp. Co.

v. Phelps, 189 F. Supp. 2d 835, 851 (S.D. Ill. 2001) (finding testimony at trial regarding custom

and usage demonstrated use of non-skid paint was not standard practice and was nearly impossible

on a barge deck in bad weather conditions where anti-skid paint); Kurpiel v. Calumet River

Fleeting, 691 F. Supp. 2d 827, 833 (N.D. Ill. 2010) (finding sworn affidavit and documents that

anti-skid paint was applied and not mandatory under Coast Guard regulations showed the vessel

was in satisfactory condition); American River Transportation Co. v. Phelps, 189 F.Supp.2d 835,

852 (S.D. Ill. 2001) (finding that custom and practice showed that non-skid paint was not required

and, accordingly, the failure to apply non-skid paint to the deck of a barge did not constitute

negligence nor render the barge unseaworthy).

Regarding the failure to warn, the Court finds there is too much speculation as to whether

failure to provide a warning was the proximate cause of this accident. The mere possibility of a

causal connection is not sufficient to sustain the burden of proof of proximate cause; the causal

connection must not be contingent, speculative, or merely possible. Krivanec v. Abramowitz, 366

Ill. App. 3d 350, 851 N.E.2d 849 (2006). Here, while there is evidence in the record Dr. Andres

indicated a warning would have been useful and an additional warning that was outside the rules

or training U.S. Steel provided, the Court finds this evidence speculative. Dr. Andres states “[i]t's

a different warning. It's a warning that's right at the point of operation as opposed to a rule that,

you know, you talk about when you're not doing the task. This is a warning that's present at the

point of the task performance.” Doc. 122-14, Andres dep. at 55:12-16. See also id. at 56:1-5

("Again, it's just context, that's the only difference. You could have the exact same words in a rule

book and the exact same words on the car, but because of where they're located, the context is

different.”). Even giving Plaintiff all reasonable inferences, Dr. Andres’ statements do not rise to

the level to show this Court warning could have prevented decedent’s harms. Plaintiff does not

show how a warning was the “but for” or substantial factor in bringing about this harm. Regarding

reasonable foreseeability in the section regarding duty above, the Court found above that a warning

was reasonably foreseeable (after finding all four factors weighed in favor of Plaintiff), the Court

finds that Plaintiff provides insufficient and speculative evidence that a warning was the cause-in-

fact of decedent’s accident. All that Dr. Andres provides is that a warning would have been useful.

Defendant has met its burden to show no reasonable juror would find a failure to provide a warning

was a proximate cause of decedent’s accident. Plaintiff’s proffered evidence are supported by

speculation and conjecture, which cannot defeat summary judgment.

With the arguments provided in the parties’ briefing, and providing all reasonable

inferences in favor of Plaintiff, the Court finds that BNSF has not met its burden to show that there

is no material dispute regarding proximate causation as to failure to provide anti-slip material. The

Court notes that issue of proximate cause in a negligence action is generally an issue of material

fact to be decided by the trier of fact and the facts do not show that “plaintiff would never be

entitled to recover.” Abrams v. City of Chicago, 211 Ill.2d 251, 257–58, 285 Ill.Dec. 183, 811

N.E.2d 670 (2004). However, the Court finds no reasonable juror could find that a failure to warn

was the proximate cause of this accident.

III. Conclusion

The Court finds BNSF did not meet its burden to show there is no material dispute as to

the duty to warn or provide anti-slip devices. Additionally, BNSF did not meet its burden to show

there is no material dispute as to proximate causation on the failure to provide anti-slip devices.

BNSF did meet its burden to show there was no material dispute as to proximate causation on the

failure to provide a warning. Based on these reasons, the Court DENIES IN PART and GRANTS

IN PART BNSF’s Motion for Summary Judgment (Doc. 121).

IT IS SO ORDERED.

Dated: September 1, 2022

/s/ J. Phil Gilbert

J. PHIL GILBERT

DISTRICT JUDGE