Opposition Brief — Ruiz v. Southern Pacific Transportation Co.

No. 96-325

- In The

Supreme Court of the United States

October Term, 1996

JOSE RUIZ

Petitioner,

VS.

SOUTHERN PACIFIC TRANSPORTATION COMPANY,

Respondent.

On Petition For Writ of Certiorari

To The Utah Court of Appeals

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

E. SCOTT SAVAGE

Counsel of Record

CASEY K. MCGARVEY

BERMAN, GAUFIN, TOMSIC & SAVAGE

Attorneys for Respondent

50 South Main, Suite 1250

Salt Lake City, Utah 84144

(801) 328-2200

QUESTIONS PRESENTED

l. Is there a compelling reason for this Court to grant

Jose Ruiz’s petition for writ of certiorari in order to review an affirmed

order of summary judgment in favor of Southern Pacific Transportation

Company that was entered on the grounds that, as a matter of law upon

the undisputed facts of record, Mr. Ruiz was acting outside the scope

of his employment at the time he was injured because he was pursuing

his own interests and was not under the control or supervision of

Southern Pacific Transportation Company?

2. Should this Court grant certiorari to review the two

questions presented by Mr. Ruiz, regarding “the quantity and quality

of evidence” to defeat a motion for summary judgment granted on the

basis that upon undisputed facts the plaintiff was acting outside the

scope of his employment, when these issues are raised for the first time

in Mr. Ruiz’s Petition for Writ of Certiorari and were not considered

below because they were not raised below?

il

LIST OF PARTIES

There are no additional parties to this proceeding who do not

appear in the caption of this case. However, Southern Pacific

Transportation Company is a wholly owned subsidiary of Southern

Pacific Rail Corporation. Southern Pacific Rail Corporation is now

owned by Union Pacific Corporation. Some shares of Union Pacific

Corporation are publically traded. Southern Pacific Transportation

Company owns the stock of: 1) The Denver & Rio Grande Western

Railroad Company which owns a portion of the capital stock of: a)

Denver Union Terminal Railway Company; and b) TTX Company;

and 2) SPCSL Corp. which owns a portion of the capital stock of

Southern Pacific Mexico, S.A.deC.V. Southern Pacific Transportation

Company also owns a portion of the capital stock of: 1) Southern Pacific

Mexico, S.A.deC.V.; 2) Central California Traction Company; 2) The

Ogden Union Railway & Depot Company; 3) Portland Terminal

Railroad Company; 4) Portland Traction Company; 5) Sunset Railway

Company; 6) TTX Company; and 7) St. Louis Southwestern Railway

Company which also owns a portion of the capital stock of: a) The

Alton & Southern Railway Company; b) Arkansas & Memphis Railway

Bridge and Terminal Company; c) Kansas City Terminal Railway

Company; d) Southern Illinois and Missouri Bridge Company; e)

Terminal Railroad Association of St. Louis; and f) TTX Company.

iti

TABLE OF CONTENTS

Page

pS NEE Oe NUEE Ir MEINE RIED sabikccncnssesensnsancveenssesseeeansueyensavsosatonadiets i

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SII TG II THIEN EGINIIE »intsshescchecsrabdncancnicnsescoiuctecsanenteutatinatene 2

REASONS FOR DENYING THE WRIT ..........ccccccsscsssossessssessoesses 6

I. THE DECISIONS BY THE UTAH COURTS

BELOW DO NOT CONFLICT WITH THE

DECISIONS OF THIS COURT OR ANY

RE NUNENEIIER® oilisachininedkecsnubediebessaunsinahryssedueieendviinaienl 6

Il. PETITIONER’S ARGUMENT THAT A

FELA PLAINTIFF’S EMPLOYMENT STATUS

IS GENERALLY A QUESTION FOR THE

JURY IS MISLEADING AND MERITLES.................. 16

II. RUIZ ONLY WANTS ANOTHER CHANCE

Ae CRRA BEE MOPRIIES ccnrcccencsexsrensecsonsniscesonasecoseabene 18

IV. THE DECISIONS BELOW WERE DECIDED

CORRECTLY, AND THUS ANY REVIEW

BY THIS COURT WOULD RESULT IN THE

SEI cMIPETEIINUIED schsssninieninadabcdnbdiéntnnpenedniibicesnatdttiavesesnne 20

iv

TABLE OF CONTENTS-Continued

ICT IIS .. .nccrscoserncssenaseccasysonaensvansiuhin annrenersesnseshobatenieenibsociens 22

APPENDIX A-BRIEF OF RESPONDENT (SOUTHERN

PACIFIC) IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI TO REVIEW

THE DECISION OF THE COURT OF

APPEALS DATED MARCH 29, 1996 ............0000 la

TABLE OF AUTHORITIES

CASES: Page

Adickes v. Kress & Co., 398 U.S. 144 (1970) ........... cece eeeeeeeeeeeeneeeees 8

Anderson v. Liberty Lobby, Inc., 477 U.S. 242(1986) ......::cccccece 13

Aparicio v. Norfolk & Western Railway Co.,

SA Se BS COC, TG) weitere sccttrnticnevisetennvennnoniennnat 11,12

Atchison, Topeka & Santa Fe Railway Co. v. Wottle,

PDS FO CaS CRC TGR) scvnticecinenensssieaircenrccetensiontetes 21

Baker v. Texas & Pacific Railway Co.,

Da is BARE CLD GEE ‘weiiesinscnincivienansdenipattinkiniinbinns 9,14

Brady v. Southern Railway Co.,

Se STO CE OED. nnksceidimanitinentineneningnabnanens 9

Vv

TABLE OF AUTHORITIES - Continued

Brown v. CSX Transportation Inc.,

BS FS BAS CGI) wiccccincicenscnssteccsestisesove

Delta Air Lines, Inc. v. August, 450 U.S. 346 (1981)

Fowler v. Seaboard Coastline Railroad Co.,

GO Fs £7 CR ae TIRE) ectcecttcnibcevsieenesiasense

Gill v. Pennsylvania Railroad Co.,

Bas Fa TAG COUR AGG S) cctnccreionnnenes

Getty v. Boston & Maine Corp.,

SOS F.26 TZ2GC Tat Cor, TFTA) ns .cccsvesvsecsniensnsenee

Harbin v Burlington Northern Railroad Co.,

O21 F.3d LFS CF Caw, T9GO} wescescsocesicsnsssensesacse

Metropolitan Coal Co. v. Johnson,

Bed Fhe 17S Chae CA, TGR) -nacncinvsninticinsrerniansion

Mullahon v. Union Pacific Railroad,

G46 Se TSS Ce, PODS) wcicicrcnciensnricnnecvenins

NLRB v. Hendricks County Rural Electric Corp.,

TAs EF LEE) neivicssnisennieinstinmntoniasinnies

vi

TABLE OF AUTHORITIES - Continued

New York Central & Hudson River Railroad Co. v.Carr,

BIS Weds BOO CIDID) snncsnasinsestsninctotnerentensincnenebssanvevsanisdontes 17

North Carolina Railroad Co. v. Zachary,

BIE Ct, DEAD IG) cosscvtnievisicbichickiselsbatiacatiaisiailins 9, 16, 17

Quirk v. New York, C. & St. L. R. Co., 189 F.2d 97

CFR LUE, RUDE D ncsndinsncncscdecuesersabediannnepdeseiaamaebatonia 11, 21

Ramsey v. United Mine Workers, 401 U.S. 302 (1971) ..........cseeeeeee 8

Rice v. Sioux City Cemetary, 349 U.S. 70 (1955) ....cceecesesssseeeeeee 18

Rogers v. Chicago & Northwestern Transportation Co.,

S67 FOG GS7 C7 CU. TORE centcciintebaeitensiinsione 10, 21

Rogers v. Missouri Pacific Railroad Co.,

FID Whee DUNS CADET) . cresastevibiieinbuhlninssteanbundvinatabebeanaaiinn 12,14

Rudolph v. United States, 370 U.S. 269 (1962) .....ccccceccceceeeeeeeeenees 18

Sassaman v. Pennsylvania Railroad Co.,

BGA FBG DI Ca Ga, FIG) ccscsccreesncntscowiccgutouinnsnccetemunniie 21

Thompson v. National Railroad Passenger Corp.,

TOO. Same, TET CEI: GPA sececipeenscstsssensisivenecions 11

vil

TABLE OF AUTHORITIES - Continued

Turpin v. Chicago, Burlington & Quincy Railroad Co.,

403S.W. 2d 233 (MO. 1966) .......cscceesseeeseneeeneeeees 10, 13, 15

United States v. Johnston, 268 U.S. 220 (1925) ...cccsseseeeeeeeeereeneres 18

Vinyard v. Missouri Pacific Railroad,

632 S.W.2d 272 (Mo. Ct. App. 1982) .....ceeeereees 10, 13, 15

Williams v. Norfolk Southern Railway Co.,

767 F. Supp.756 (E.D.Va. 1991) ....scsssssscseseesenersnnennensnenenes 1]

Wilson v. Chicago, Milwaukee, St. Paul & Pacific Railroad

Co., 841 F.2d1347 (7th Cir. 1988) ......ccseccceseereeeeeeees 10,13,14

STATUTES:

QB U.S.C. § 1257 (a) ..scssesssscssssseresserenseeessennseenssnensenssnsnsenennsnnsnasensenses 1

AS U.S.C. § 51 ccsccsssscsscssssssssscssssensesseseessnscsenensenssenenensensnsenensuenaoonses 1,2

A5 U.S.C. § 56 cccssccscsscsssscssssssssseeeseresssssnscsssnsesenenserssesnsssenannnasnesneees 12

MISCELLANEOUS:

Supreme Court Rule 10 .......sesscesssssssssnensensneeneenssnsnsensncanensnnanananss 6,19

Utah Rules of Civil Procedure 56 ..........sscssseessneereeereesereeeennenneenenens 8

Deel

OPINIONS BELOW

The rulings, orders and opinions of the trial court and appellate

courts of Utah, which Jose Ruiz (“Ruiz” or “Petitioner”) seeks to have

this court review, have not been published in any official or unofficial

reporter. However, complete copies have been included in Appendix

A through Appendix C of Ruiz’s Petition for Writ of Certiorari.

JURISDICTIONAL STATEMENT

Southern Pacific Transportation Company (“Southern Pacific”

or “Respondent”) agrees that 28 U.S.C. § 1257(a) confers jurisdiction

on this Court to consider Ruiz’s Petition for Writ of Certiorari.

FEDERAL STATUTE INVOLVED

Ruiz’s state court action was based solely on the Federal

Employers’ Liability Act, 45 U.S.C. § 51 (“FELA”), which reads, in

pertinent part, as follows:

Every common carrier by railroad while engaged

in commerce between any of the several States . . .

shall be liable in damages to any person suffering

injury while he is employed by such carrier in such

commerce . . . resulting in whole or in part from the

negligence of... such carrier... . (Emphasis added.)

Ruiz also cites to the second paragraph of this statute. However,

that paragraph is not relevant to the issues before this Court, nor was it

ibe

2

relevant below. The second paragraph only clarifies that an employee's

duties for his/her employer furthers interstate commerce, for purposes

of this statute, when the duties of employment in “any way directly or

closely and substantially, affect such commerce.” The facts on which

summary judgment was granted in Southern Pacific’s favor was not

that Ruiz was not performing duties that furthered interstate commerce,

but more fundamentally that Ruiz was not performing any employment

duties for Southern Pacific at the time he was injured. On these facts,

the Utah state courts below all agreed that Ruiz was not acting within

the scope of his employment, as a matter of law, and none of those

courts ever had to consider the next issue of whether Ruiz’s conduct

also somehow furthered interstate commerce within the meaning of

the second paragraph of 45 U.S.C. § 51. This Court, therefore, should

not be confused by Ruiz’s references to such irrelevant portions of

Section 51.

STATEMENT OF THE CASE

Ruiz has initiated two state court actions against Southern

Pacific alleging the right to recover for the same injuries from the same

incident. The action now before this Court on Ruiz’s petition was

brought solely under the FELA, alleging Southern Pacific was negligent

as a FELA employer. Ruiz’s other action also alleges Southern Pacific

was negligent, but for common law reasons other than Southern Pacific’s

conduct as an employer. That other action still is pending and is not

affected by the dismissal of this action for which certiorari is sought.

Specifically, Ruiz claims that on May 18, 1990, while he was

driving to a work site, alone in his own automobile, he was injured in

3

a one-car rollover accident. Because the basis of the instant claim is

the FELA, an essential element Ruiz has to prove before he can recover

under this statute is that at the time of his roll-over accident he was

acting within the course or scope of his employment.

After discovery, Southern Pacific filed a motion for summary

judgment asserting that upon the undisputed material facts of record

Ruiz could not establish the essential element of his claim in this case

that he was acting within the scope of his employment when he was

injured. Therefore, as a matter of law, he could not prevail in this

action. On the same facts, Ruiz also filed a motion for partial summary

judgment to be entered in his favor on this same issue. The relevant

facts relied on by both parties were, and are, undisputed.

The Second District Court for Weber County, State of Utah,

denied Ruiz’s motion and granted Southern Pacific’s motion for

summary judgment. On appeal, the Utah Court of Appeals affirmed.

The Utah Supreme Court denied Ruiz’s petition for writ of certiorari.

The specific, undisputed facts relevant to the decisions of the courts

below are:

l. In May 1990, Ruiz was an employee of Southern

Pacific assigned to work on Southern Pacific's tracks and right-of-way

at Lakeside, Utah, which required him, and the other members of his

work gang, to live at Southern Pacific’s work camp at Montello, Nevada.

Montello is approximately 75 miles from Lakeside. (R. 174-75, 254.)

2. The entire work gang customarily assembled at

Montello at 5:00 a.m. and traveled together to the work site at Lakeside

Te

by company truck, which would take approximately two hours, during

which time they were under Southern Pacific's control and direction,

and were paid for their time. (R. 175-76, 259-60, 304.)

. However, prior to the date of the accident, Ruiz

voluntarily requested permission not to travel to Lakeside with the other

gang members in the company truck because, for his own convenience,

he wanted to drive his own vehicle to Lakeside so that, at the end of the

workday, he could leave directly from Lakeside for his home in Ogden,

Utah, rather than returning that evening to Montello with his work gang.

(R. 175, 305-14, 498-99.)

4. Ruiz’s request was granted by his supervisor with the

understanding that since Ruiz would not be under Southern Pacific's

supervision, Ruiz would not be paid for his time nor reimbursed for his

use of his own vehicle. (Id.)

5. On the day of the accident, May 18, 1990, Ruiz did

not gather with the rest of the work gang in the company truck, or

submit himself to the supervision or control of Southern Pacific, but he

left after the gang left, and drove his own car for his own convenience

to the work site at Lakeside. (R. 175, 31 1-15.)

6. On the day of the accident, Ruiz’s on duty point, for

the purpose of receiving compensation, was agreed to be Lakeside. (R.

314, 414.)

7. Ruiz was not paid for the time he spent commuting in

5

his car that day, nor was he reimbursed for his own use of his vehicle.

(R. 176.)

8. Ruiz was injured in a rollover accident 14 miles away

from Lakeside, before he had reported for duty at Lakeside. (R. 166-

68, 287, 395.)

The Utah courts below granted, and affirmed, summary

judgment for Southern Pacific because upon these undisputed facts of

record, at the time of the accident, Ruiz was pursuing his own personal

objective of driving his own car to the work site so that he could

conveniently get home earlier after work. Ruiz did not have to drive

his own car and his doing so did not benefit Southern Pacific. Moreover,

Southern Pacific had no control over or ability to supervise Ruiz while

he was driving his own car. The courts below found that all other courts

that have considered the scope of employment issue have concluded,

under circumstances involving the employee’s exercise of his own

choice and the employer’s lack of control or supervision, that such

employees were acting outside the scope of their employment when

injured. The Utah courts merely followed this precedent in also holding

that Ruiz was acting outside the scope of his employment when he

rolled his car.

REASONS FOR DENYING THE WRIT

I.

THE DECISIONS BY THE UTAH COURTS BELOW

DO NOT CONFLICT WITH THE DECISIONS OF

THIS COURT OR ANY OTHER COURT.

Ruiz has argued before this Court that there is a major conflict

in decisions coming out of various circuit courts, and that the decision

of the Utah Court of Appeals adds to this conflict. He does so because

Rule 10 of this Court states that conflicting decisions is the type of

reason this Court considers in granting certiorari. Indeed, this Court's

rule provides that “a writ of certiorari will be granted only for compelling

reasons.” Sup. Ct. R. 10. Nevertheless, there is no relevant conflict in

the decisions of the Utah Court of Appeals and any other court.

Therefore, there is no compelling reason for this Court to grant Ruiz’s

petition.

The decisions below, granting and affirming Southern Pacific's

motion for summary judgment, do not conflict with the decisions of

this Court or any other court. To the contrary, the decisions of both the

trial court and the Utah Court of Appeals are soundly reasoned, and

conform to applicable federal FELA case law. It is significant that

Ruiz does not make the claim before this Court that any other court has

entered a ruling or opinion, on the same or similar set of facts, that

holds an FELA employee, or any employee, was acting within the scope

of his employment. Indeed, all applicable FELA case law holds that an

employee is outside the scope of his/her employment when pursuing

7

his/her own objectives beyond the control and supervision of his/her

employer when injured. Ruiz does not even attempt, before this Court,

to claim otherwise.

Ruiz did argue to the Utah Supreme Court that it should exercise

its discretion to again review this case de novo, after the Utah Court of

Appeals had affirmed the summary judgment ruling, because there were

conflicting decisions from that court as well as this Court. Ruiz has

discarded that argument in the instant petition to this Court. He did so

for good reasons. There are no decisions froin Utah, any other state

court, any federal district or circuit court or this Court that conflict

with the holdings of the Utah trial court and court of appeals entered in

this case.! There simply is no conflicting case authority for the

substantive legal holding that upon the uncontested facts of record Ruiz

was acting outside the scope of his employment when he rolled his car

because he was pursuing personal objectives outside the control and

supervision of his employer.

Before this Court, Ruiz now takes the novel approach, never

before taken in this case, that the quantity and quality of the evidence

somehow resulted in a judgment that is in conflict with other circuit

court opinions. It is impossible to understand the applicability of Ruiz’s

argument because he never explains how it is relevant in the context of

this case.

1 The Argument section of Southern Pacific’s “Brief of Respondent in Opposition to

Petition for Writ of Certiorari to Review the Decision of the Court of Appeals,” that

was filed in the Utah Supreme Court, is reprinted as Appendix A hereto for the benefit

of the Court.

_——

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8

Ruiz argues that other court decisions pertaining to the

evidentiary requirements imposed upon FELA plaintiffs to withstand a

motion for summary judgment, on the issue of scope of employment

as well as other issues that are inapplicable to this case, are in conflict,

citing to various circuit court opinions. However, neither the trial court

nor Utah Court of Appeals ever considered the specific issue that some

other evidentiary requirement is imposed on Ruiz in this case. Those

courts below merely applied, without objection, the traditional standard

imposed by Rule 56, Utah Rules of Civil Procedure, that is similar to

the Federal Rules of Civil Procedure, which requires summary judgment

to be entered if the evidence of record “shows that there is no genuine

issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Ruiz never raised the issue below that a

different standard existed as to the specific issue involved in this case

so that either the trial court or appellate court could consider his

argument. Thus, Ruiz’s argument before this Court that the Utah Court

of Appeals has rendered an opinion regarding evidentiary standards

that conflict with other cases makes no sense in the context of this

case. Moreover, there are additional reasons why this Court should not

review this new issue raised by Ruiz.

Generally, this Court will not consider any issue that was not

raised in the courts below. E.g., Delta Air Lines, Inc. v. August, 450

U.S. 346, 362 (1981) (“{Q]uestion was not raised in the Court of Appeals

and is not properly before us”); Adickes v. Kress & Co., 398 U.S. 144,

147 n.2 (1970) (“Where issues are neither raised before nor considered

by the Court of Appeals, this Court will not ordinarily consider them.”).

See also, Ramsey v. United Mine Workers, 401 U.S. 302, 311-12

(1971)(finding consideration of an issue not presented below

9

inappropriate for lack of support in the record). Thus, this Court should

not grant a writ of certiorari to consider Ruiz’s new issue, that the Utah

courts below did not have a chance to consider, on which there is no

record.

In addition, the case authority cited by Ruiz does not establish

that any conflict exists between any two courts on the issue of whether

summary judgment is appropriate, and indeed required, when on

undisputed facts of record there is no reasonable basis to conclude that

a FELA plaintiff is acting within the scope of his/her employment.

The cases cited by Ruiz are in accord that summary judgment as a

matter of law is warranted simply when there are no facts of record to

support all the necessary elements of a FELA cause of action.

For example, in Brady v. Southern Ry., 320 U.S. 476, 479-80

(1943), this Court applied the traditional judgment as a matter of law

analysis to the issue of whether the railroad was negligent in failing to

furnish a reasonably safe place to work, and finding for the railroad the

Court stated that “[w]hen the evidence is such that without weighing

the credibility of the witnesses there can be but one reasonable

conclusion as to the verdict, the court should determine the proceeding

by non-suit directed verdict.” See also Baker v. Texas & Pac. Ry., 359

U.S. 227, 228-29 (1959)(applying traditional judgment as a matter of

law analysis and finding on the facts that reasonable men could differ

on whether the plaintiff was even an employee; therefore that issue

should have gone to the jury); North Carolina R.R. v. Zachary, 232

U.S. 248, 258-61 (1914)(applying traditional judgment as a matter of

law analysis and finding an essential fact in doubt requiring a remand

of the case for a jury trial on the issue of whether an employment

eee

10

relationship existed); Mullahon v. Union Pac. R.R., 64 F.3d 1358, 1362

(9th Cir. 1995)(finding no material factual disputes on the issue of

respondeat superior in a FELA action and granting summary judgment

on that issue for the railroad); Brown v. CSX Transp. Inc., 18 F.3d 245,

248-50 (4th Cir. 1994)(applying traditional directed verdict analysis

and finding no legally sufficient evidentiary basis for a reasonable jury

to find for the FELA plaintiff and directing verdict for the railroad);

Harbin v Burlington Northern R.R., 921 F.2d 129, 130-32 (7th Cir.

1990)(applying traditional summary judgment analysis and holding that

OE ee 2 hee

genuine issue of material fact precluded grant of summary judgment in

favor of railroad on negligence issue); Wilson v. Chicago, M., St. P. &

Pac. R.R., 841 F. 2d 1347, 1352-58 (7th Cir. 1988)(applying traditional

summary judgment analysis and holding that genuine issue of material

fact precluded grant of summary judgment in favor of railroad on scope

of employment issue); Gill v. Pennsylvania R.R., 201 F.2d 718, 721-22

(3rd Cir. 1953)(applying traditional directed verdict analysis and finding

no evidentiary support for jury verdict for FELA plaintiff and entering

judgment for railroad); Turpin v. Chicago, Burlington & Quincy R.R.,

403 S.W.2d 233 (Mo. 1966)(applying traditional directed verdict

analysis and finding no employment relationship as a matter of law);

Vinyard v. Missouri Pac. R.R., 632 S.W.2d 272 (Mo. Ct. App.

1982)(applying traditional directed verdict analysis and finding issues

in dispute so that jury should resolve the issue of whether employment

relationship existed).

Other cases, more on point but not cited by Ruiz, agree that the

traditional summary judgment analysis, as applied by the Utah courts

below, is the proper “evidentiary standard” for the issue of whether an

employee is outside the scope of employment. See, e.g., Rogers v.

1]

Chicago & Northwestern Transp., 947 F.2d 837 (7th Cir. 1991)(finding

no factual dispute and holding as a matter of law plaintiff not within

scope of employment; summary judgment granted); Fowler v. Seaboard

Coastline R.R., 638 F.2d 17 (Sth Cir. 1981)(finding no factual dispute

and holding as a matter of law plaintiff not within scope of employment;

summary judgment granted); Thompson v. National R.R. Passenger

Corp., 774 F. Supp. 1087, 1088 (N.D. Ill. 1991), aff’d, 966 F.2d 1457

(7th Cir. 1992)(finding no factual dispute and holding as a matter of

law plaintiff not within scope of employment; summary judgment

granted); Williams v. Norfolk Southern Ry., 767 F. Supp. 756 (E.D.Va.

1991)(applying traditional summary judgment analysis and holding as

a matter of law piaintiff not within scope of employment; summary

judgment granted). Cf. Getty v. Boston & Maine Corp., 505 F.2d 1226

(1st Cir. 1974)(applying traditional directed verdict analysis and finding

plaintiff outside scope of employment as a matter of law); Quirk v.

New York, C. & St. L. R.R., 189 F.2d 97 (7th Cir. 1951), cert. denied,

352 U.S. 871 (1951)(applying traditional directed verdict analysis and

finding plaintiff outside scope of employment as a matter of law).

The remaining cases cited by Ruiz are all irrelevant. They

have nothing to do with the issues involved in this case. For example,

Ruiz cites to a Sixth Circuit decision, Aparicio v. Norfolk & Western

Railway Co., 84 F.3d 803 (6th Cir. 1996), to demonstrate a conflict.

The Aparicio court considered, and resolved for the Sixth Circuit,

questions regarding the quantum of evidence standard necessary to

overcome a directed verdict on the issue of employer negligence in a

FELA action. Aparicio, 84 F.3d at 806-15. The court noted a line of

cases requiring a FELA plaintiff to show a “scintilla of evidence tending

to show negligence” to overcome a motion for a directed verdict on the

employer negligence issue. Id. at808-09. The court also noted a line of

Acstled?* nit eietnie Aight cal

12

cases requiring a FELA plaintiff to show something more than a

“scintilla” to overcome a motion for a directed verdict on the employer

negligence issue. Id. at 809-10.2 To resolve this“conflict,” the Sixth

Circuit ultimately adopted a requirementthat a FELA plaintiff must

show “more than a scintilla of evidence in order to create a jury question

on the issue of employer liability, but not much more.” /d. at 810.

The Aparicio court clearly did not consider the question at issue

in the case at bar of whether the alleged injury occurred while the

employee was acting within the scope of his/her employment. Thus,

any “conflict” as to the question of evidence necessary to prove

employer negligence does not affect the Utah courts’ rulings that as a

matter of law, on the undisputed facts of record, Ruiz was not acting

within the scope of his employment when he was injured. The profound

difference in these two legal issues is obvious.

Moreover, the employer negligence issue was not the only issue

considered by the Aparicio court. The Aparicio court, in the same

decision, upheld the lower court’s granting of the railroad’s summary

judgment motion on the basis that the plaintiff’s action was not filed

within three years as required by statute. 45 U.S.C. § 56. Applying

traditional summary judgment analysis, that lower court found no

material factual dispute, much like the Utah trial court on the issue of

2 The Aparicio court admitted that this “conflict” it presented may not be a real con-

flict at all, stating that its disagreement with apparently contrary authority “may be

based upon a distinction without a difference. ‘More than a scintilla’ means precious

little more than a scintilla given the Supreme Court's view that Congress has favored

Federal Employers’ Liability Act plaintiffs with a jury resolution of all colorable fac-

tual issues.” 84 F.3d at 810 (citing Rogers v. Missouri Pac. R.R., 352 U.S. 500,510

(1957)).

13

scope of employment. To this extent, Aparicio is in accord that summary

judgment is warranted simply when there are no facts of record to

support all the necessary elements of a FELA action.3

Also, Ruiz has failed to establish a conflict between Aparicio,

the Seventh Circuit in Wilson v. Chicago, Milwaukee, St. Paul & Pacific

Railroad Co., 841 F.2d 1347 (7th Cir. 1988), and the Missouri state

courts in Turpin v. Chicago, Burlington & Quincy Railroad Co., 403

S.W.2d 233 (Mo. 1966) and Vinyard v. Missouri Pacific Railroad Co.,

632 S.W.2d 272 (Mo. Ct. App. 1982) which he claims exists.

The Wilson court, unlike the Sixth Circuit in Aparicio,

considered the FELA scope of employment issue in the context of

summary judgment. Wilson, 841 F.2d 1352-58. Quoting Rule 56 of the

Federal Rules of Civil Procedure and citing to this Court’s opinion in

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), the Wilson court

explained that “a party opposing a summary judgment motion must

‘set forth specific facts showing that there is a genuine issue for trial.’”

Wilson, 841 F.2d at 1352. The court further stated:

‘Only if reasonable men could not reach differing

conclusions on the issue may the question be taken

from the jury.’ That is precisely the familiar sum-

3This includes the element of “employer negligence." Ruiz cites to no case authority

which holds that for purposes of summary judgement a different evidentiary standard

applies to this element other than the traditional summary judgement standard. The

Aparicio court was considering the amount of evidence neccesary to allow the issue of

employer negligence to go to the jury in the context of a motion for directed verdict.

Neither Aparicio, nor Rogers v. Missouri Pacific Railroad Co., relied upon by the

Aparicio court, stand for the proposition that in the context of a motion for summary

judgement brought by the employer the motion should be denied even when there are

no facts of record to reasonably support the conclusion that the employer was negli-

gent.

14

mary judgment standard. While having a jury is

‘part and parcel of the remedy afforded railroad

workers’ under FELA, there must be a genuine

issue of material fact for the jury to determine.

Id. at 1354 (quoting Baker v. Texas & Pac. Ry., 359 U.S. 227, 228

(1959)(other citations omitted).

The plaintiff in Wilson argued that the quality of evidence must

be less than that traditional summary judgment standard, based on this

Court’s opinion in Rogers v. Missouri Pacific Railroad Co., 352 US.

500 (1957). The circuit court disagreed and adhered to the traditional

summary judgment standard and analysis on the scope of employment

issue. The court then explained that to effectuate FELA’s pure

comparative negligence provisions, the Court in Rogers held that the

defendant’s negligence must go to the jury on even the slightest proof

of employer negligence. However, when the issue is whether the

plaintiff was in the scope of employment, as opposed to employer

negligence, Rule 56 governs as traditionally applied. Wilson, 841 F.2d

at 1353.

The Sixth Circuit in Aparicio never considered the scope of

employment issue on summary judgment, as did the Seventh Circuit in

Wilson. Because the cases focused on different issues, they cannot, by

definition, conflict. Moreover, the Wilson court upheld the application

of a traditional summary judgment analysis to the scope of employment

element of a FELA cause of action; thus, it is in complete harmony

with the analysis applied by the Utah courts below. No case has been

cited that conflicts with the holding of the Wilson case.

15

Like the court in Wilson, the Missouri courts decided issues

separate and distinct from the issues in Aparicio. The Supreme Court

of Missouri in Turpin v. Chicago, Burlington & Quincy Railroad Co.,

403 S.W.2d 233 (Mo. 1966), for example, considered in the context of

a directed verdict the issue of whether an employee was “employed”

by the railroad company (and thus covered by FELA) as a result of

being employed by the railroad’s wholly-owned subsidiary trucking

company. Applying reasoning similar to that of the Seventh Circuit in

Wilson, the Missouri Supreme Court rejected the Rogers “slightest

evidence” standard because the issue was not employer negligence,

but rather the existence of employment. Therefore, the court applied

traditional directed verdict analysis, and ultimately upheld the directed

verdict for the railroad on the employment question. Turpin, 403 S.W.2d

at 237-42.

In a later Missouri Court of Appeals case also cited by Ruiz,

Vinyard v. Missouri Pacific Railroad Co., 632 S.W.2d 272 (Mo. Ct.

App. 1982), the court considered a nearly identical set of facts, that is,

was an employee “employed” by the railroad company (and thus

covered by FELA) as a result of being employed by the railroad’s

wholly-owned subsidiary trucking company. /d. at 274. Applying the

same standards as the Turpin court, the appellate court nevertheless

found factual issues yet to be resolved by a jury, and therefore reversed

the granting of a directed verdict. Jd. at 274-77.

The two Missouri cases do not conflict with each other, except

as to facts. The two courts applied the same legal analysis. Neither do

these two cases conflict with the Seventh Circuit in Wilson. They all

employed similar, traditional legal analyses. Finally, these three cases

IM

16

do not conflict with the Sixth Circuit in Aparicio, as alleged by Ruiz,

because the Aparicio court considered wholly separate and distinct

issues, yet also applied a traditional judgment as a matter of law analysis.

Ruiz attempts to create conflict when none exists. This case is

in complete harmony with all known cases that have construed and

applied the law in the context of whether a FELA plaintiff is within or

without the scope of his/her employment when injured. There being

no conflict, especially with respect to the specific issue decided in the

case at bar, between the decision of any court and the Utah courts below,

there is no compelling reason for this Court to grant certiorari to once

again review this issue.

Il.

PETITIONER’S ARGUMENT THAT A FELA

PLAINTIFF’S EMPLOYMENT STATUS IS

GENERALLY A QUESTION FOR THE JURY IS

MISLEADING AND MERITLESS.

A FELA plaintiff’s employment status is not necessarily a

question for the jury. Instead, each case must be analyzed on its own

facts. Plaintiff’s argument to the contrary is overbroad, unfounded and

misleading.

Ruiz states in oversweeping terms in his petition that “(t}his

Court long ago determined that the issue of whether a railroad worker

was employed in commerce is generally for the jury.” (Pet. at 9.) To

support that broad proposition, Ruiz cites to this Court’s opinions in

North Carolina Railroad Co. v. Zachary, 232 U.S. 248 (1914), and

17

New York Central & Hudson River Railroad Co. v. Carr, 238 U.S. 260

(1915). However, Ruiz’s misleading proposition finds no support in

these opinions from this Court.

The Zachary Court considered the issue of whether a railroad

employee was “employed in commerce” at the time of an accident which

took the employee's life, so as to bring the employee within the FELA.

The Court determined that the evidence was conflicting, and that

therefore the issue should have gone to the jury. Zachary, 232 U.S. at

258-61. The Zachary Court made no sweeping statements to support

Ruiz’s proposition. Nor did the Court state, or imply, that each factual

scenario would result in the same outcome. The Court simply applied

the traditional summary judgment analysis, found material facts in

dispute, and remanded the issue for jury resolution. The Carr Court

considered a similar issue, and, citing to Zachary, affirmed judgment

for the plaintiff. Carr, 238 U.S. at 261-64. Again, no sweeping

statements exist within the text of Carr to support Ruiz’s overreaching

proposition.

Neither case states, or implies, that the scope of employment

issue always is for the jury. If relevant facts are in dispute, then the

dispute is resolved by the trier of fact. If the facts are not in dispute and

do not reasonably support a finding on this necessary element of the

plaintiff's case, then the question may properly be kept from the trier

of fact. At their broadest, these cases merely support traditional

summary judgment analysis and the general proposition that the trier

of fact resolves genuine issues as to material facts. Indeed the other

cases cited by Ruiz,as well as other authority as discussed in the

preceding point, all refute the broad conclusion Ruiz asks this Court to

make.

ee ee ee er

18

Ruiz’s argument on this issue is without merit. Ruiz misleads

the Court by citing to cases which do not support, even by inference,

Ruiz’s broad proposition. Again, this Court has been given no

compelling reason to grant certiorari.

Il.

RUIZ ONLY WANTS ANOTHER CHANCE TO

REARGUE HIS CASE.

This Court has expressly indicated that it does not routinely

review questions of fact. Sup. Ct. R. 10. See also NLRB vy. Hendricks

County Rural Elec. Corp., 454 U.S. 170, 176 n.8 (1981) (“[Wle are

presented primarily with a question of fact, which does not merit Court

review.”); Rudolph v. United States, 370 U.S. 269, 270 (1962)

(“{U]itimate facts are subject to the ‘clearly erroneous’ rule, and their

review would be of no importance save to the litigants themselves.

The appropriate disposition in such a situation is to dismiss the writ as

improvidently granted.”). And even when a petition for certiorari is

granted, this Court has refused to review the factual findings below.

United States v. Johnston, 268 U.S. 220, 227 (1925)(“We do not grant

a certiorari to review evidence and discuss specific facts.”). Such a

refusal to review factual findings is consistent with the Court’s desire

to review those cases that are important not just to the parties themselves,

but to the public as a whole. See Rice v. Sioux City Cemetary, 349 U.S.

70, 79 (1955)(“{I]t is important that we be consistent in not granting

the writ of certiorari except in cases involving principles the settlement

of which is of importance to the public as distinguished from that of

the parties ....”). In addition to not reviewing factual findings below,

this Court’s own recently amended rules also state that a “petition . . . is

19

rarely granted when the asserted error consists of . . . the misapplication

of a properly stated rule of law.” Sup. Ct. R. 10.

Despite Ruiz’s attempt to create conflicts where none exist, in

the end Ruiz simply requests that this Court grant certiorari to review

the facts and then reconsider his legal arguments regarding how the

facts of record support his contention rather than the trial court’s and

Utah Court of Appeals’ conclusions. The facts are undisputed, and the

general principles of law are undispute#

Ruiz merely interprets the facts and law differently than

Southern Pacific, the trial court and the Utah Court of Appeals.4

4in his arguments below Ruiz construed the evidence of record differently than South-

ern Pacific, the trial court and the Utah Court of Appeals. Hence, he most likely will

argue again before this Court that his version of the facts and law are correct. Indeed,

Ruiz states in his petition:

In any event in this case, unlike the two cited cases, there were disputed

factual issues....

Despite the evidence as to the disputed facts, the Utah Court of Appeals held

that “[t]he undisputed facts show that Ruiz was not within the scope of em-

ployment in furtherance of interstate commerce at the time of his accident.”

(Pet. at 14-15.) Ruiz was making reference to the Collective Bargaining Agreement

between Southern Pacific and Ruiz’s union that was before the trial court and the court

of appeals. Ruiz argued that agreement required Southern Pacific to pay Ruiz for his

time while he was driving his car to the worksite. The trial court and court of appeals

rejected Ruiz’s interpretation of the agreement. The Utah Court of Appeals stated:

Rule 30 of the Collective Bargaining Agreement provides, however,

that “[e]mployees shall not be allowed time while traveling .. .

between their homes and designated assembling points, or for other

personal reasons.” Thus, because Ruiz was traveling in his own vehicle

for personal reasons, he was not entitled to pay.

(Pet., App. at A-10.) Moreover, even if the fact that Ruiz was not entitled to pay at the

20

Interestingly, no prior court has had occasion to apply the general, and

well established, legal principles applicable to this case to facts similar

to the unique facts of this case. Thus, this case follows no precise

precedent and it likely will not set any precedent that would be expressly

applicable to any other case.

If certiorari is granted, this Court will merely be required to

apply its own analysis of the same legal! principles applied by the Utah

courts below to the same undisputed facts of record. There is no reason

for this Court to grant certiorari simply to reconsider Ruiz’s arguments

that have consistently been rejected. A grant of certiorari would waste

this Court’s finite resources and preclude it from utilizing its time

elsewhere. Therefore, Ruiz’s petition should be denied.

IV.

THE DECISIONS BELOW WERE DECIDED

CORRECTLY, AND THUS ANY REVIEW BY THIS

COURT WOULD RESULT IN THE SAME OUTCOME.

The Utah courts below correctly considered the issue of whether

or not Ruiz was acting within the scope of his employment when he

was injured. They found no factual dispute and ruled, as a matter of

law, that Ruiz was not acting within the scope of his employment when

time he was injured was disputable, it is not material. Railroad employees have been

determined to be outside the scope of their employment when they are pursuing their

own interests beyond the supervision of their employer even when entitled to pay as a

contractual benefit of their employment. See Fowler v. Seaboard C oastline R.R., 638

F.2d 17 (Sth Cir. 1981), Thus, Ruiz’s interpretation of the facts and law clearly is

misplaced, and his request to be able to have an opportunity to express his erroneous

and irrelevant views to this Court should be rejected. (See also, infra, App. at |2a-

13a.)

21

he was injured.

The issue of when an employee such as Ruiz acts inside or

outside the course of his/her employment has arisen under varying

factual circumstances. As Southern Pacific presented to the courts

below, most analogous to the facts of this case is the line of cases

commonly referred to as “commuter cases.” These cases generally

involve the factual situation of an employee traveling under his own

volition and control, without his employer’s supervision, to or from

work by means chosen by the employee without employer compulsion.

The courts confronted with this factual scenario consistently have held

that the employee is outside the scope of his or her employment. E.g.,

Rogers v. Chicago & North Western Transp., 947 F.2d 837 (7th Cir.

1991); Fowler v. Seaboard Coastline R.R., 638 F.2d 17 (Sth Cir. 1981);

Metropolitan Coal Co. v. Johnson, 265 F.2d 173 (ist Cir. 1959);

Atchison, T. & S.F. Ry. v. Wottle, 193 F.2d 628 (10th Cir. 1952); Quirk

v. New York, C. & St. L. R.R., 189 F.2d 97 (7th Cir. 1951), cert. denied,

342 U.S. 871 (1951); Sassaman v. Pennsylvania R.R., 144 F.2d 950

(3rd Cir. 1944).

The common factors which provided the foundation for these

courts’ decisions are: 1) the employee’s exercise of his or her own

choice in mode of travel; and 2) the employer’s lack of control over the

employee or the risks the employee may take in getting to or from

work. A review of the decisions of the Utah courts below reveals that

those courts properly considered these factors in accordance with FELA

precedence. (R. at 429, 437; Pet., App. at A-9 to -11.)

Ruiz voluntarily rejected going with defendant to the place

22

where he was to work on the day of the accident, although Ruiz had the

opportunity to do so and in fact customarily had submitted himself to

the control and supervision of Southern Pacific on previous occasions

in getting to the work site. Ruiz elected to go to the work site by himself

in his own automobile for his own personal reason of facilitating his

earlier arrival at home for the weekend. He chose to drive for his own

benefit.

Additionally, because Ruiz chose not to start his work at the

work camp with his gang and go with them in Southern Pacific’s truck,

under Southern Pacific’s control, to the work site, Southern Pacific had

no control over when, or if, Ruiz would leave the camp site or arrive at

the work site to report for duty. Consequently, Southern Pacific had no

control over Ruiz’s conduct (e.g., whether he would wear his seat belt),

Ruiz’s car, (e.g.,whether it was properly maintained), or Ruiz’s use of

his own car (e.g., whether he would speed or drive recklessly). Southern

Pacific did not compel Ruiz to drive his own car, and had no control

over the risks Ruiz voluntarily took in getting to work that day.

These facts are not disputed. Based on these facts, the courts

below were correct in granting summary judgment to Southern Pacific

as a matter of law on the issue of whether Ruiz was acting within the

scope of employment. Any review by this Court would result in the

same outcome. If not, decades of applicable FELA precedence would

be overturned. Thus, Ruiz’s petition should be denied.

CONCLUSION

Ruiz is not without a right to seek legal recourse for his injuries

23

simply because his FELA action has properly been dismissed. Ruiz

still can pursue his pending common law negligence action against

Southern Pacific. Ruiz has informed this Court that he has a severe

head injury that renders him mentally incompetent. That alleged fact,

even if true, has no relevance to the arguments Ruiz makes in his petition.

It apparently has been asserted only to incite sympathy. This Court

should not grant certiorari out of sympathy, especially where Ruiz

continues to have a viable cause of action against Southern Pacific.

The Utah courts below correctly decided that as a matter of

law, upon the record before them, Ruiz was injured while acting outside

the scope of his employment for purposes of maintaining a FELA cause

of action. The courts below correctly appiied the traditional summary

judgment standard and analysis, in conformity with Utah law and federal

precedence. The decisions below do not conflict with any decisions of

this Court or any other court. Those decisions also are correct in light

of applicable legal principles and FELA case authority. Ruiz’s

arguments are misplaced and incorrect. He only seeks another chance

to reargue his case before this Court. Southern Pacific, therefore,

requests that the petition be denied.

Respectfully VANS

(94 CN

E-SCOTT SAVAGE |

Counsel of Record

CASEY K. MCGARVEY

BERMAN, GAUFIN, TOMSIC & SAVAGE

Attorneys for Respondent

50 South Main, Suite 1250

Salt Lake City, Utah 84144

(801) 328-2200

em ee Cee ee ee ee eee ene ee Te Pre

l-a

APPENDIX A

IN THE UTAH SUPREME COURT

JOSE RUIZ,

Plaintiff/Petitioner

VS.

SOUTHERN PACIFIC

TRANSPORTATION

COMPANY,

Defendant/Respondent.

)

) Appellate Court No.

) 940661-CA

) District Court No. 910900648

) (Priority No. 15)

)

)

BRIEF OF RESPONDENT IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI TO REVIEW THE DECISION

OF THE COURT OF APPEALS [Dated March 29,1996]

An Appeal from the Second District Court

Weber County

Judge Michael D. Lyon

THE CROW LAW FIRM

Donald S. Britt

Gerald J. Adler

700 “E” Street

Sacramento, California 95814

(916) 441-2980

GRIDLEY, WARD, HAVAS

HAMILTON & SHAW

Erik M. Ward (3380)

635 25th Street

Ogden, Utah 84401

(801) 621-3317

BERMAN, GAUFIN, TOMSIC &

SAVAGE

E. Scott Savage (2865)

Casey K. McGarvey (4882)

50 South Main Suite 1250

Salt Lake City, Utah 84144

(801) 328-2200

Attorneys for Defendant/

Respondent

Attorneys for Plaintiff/Petitioner

2a

ARGUMENT

Plaintiff contends that the “special and important reason” for

the issuance of a writ in this case is to correct a “conflict with decisions

of the United States Supreme Court and decisions of this Court.”

(Plaintiff's petition, pages 4, 11, 13, 15 and 17). However, Plaintiff

has not demonstrated that there is any inconsistency with or departure

from controlling law. Indeed, the decision of the Court of Appeals is in

complete harmony with all federal and state cases that have considered

when an employee has acted within the course of his employment under

the FELA. Therefore, Plaintiff’s contention is erroneous. There is no

reason for this Court to allow Plaintiff a third opportunity merely to

reargue his position.

POINT I

PLAINTIFF HAS NOT CITED TO ANY DECISION OF THIS

COURT THAT CONFLICTS WITH THE

DECISION OF THE COURT OF APPEALS.

Plaintiff has cited throughout his petition to eight decisions

rendered by this Court. In none of them did this Court hold that under

facts similar to the undisputed facts before the Court of Appeals that a

railroad employee was acting within the course of his employment for

purposes of coming under the coverage of the FELA. None of those

cases even involved this specific issue or the FELA.2 Moreover, it is

2 Birkner v. Salt Lake County, 771 P.2d 1053, 1056-59 (Utah 1989)(“the issue was

whether improper sexual contact between a therapist and a patient falls within the

scope of the therapist’s employment” under the doctrine of respondeat superior, and

this Court held it did not as a matter of law); Clover v. Snowbird Ski Resort, 808 P.2d

1037, 1038, 1040-43 (Utah 1991)(under the doctrine of respondeat superior, where the

3a

significant that six of these eight cases where not cited by Plaintiff in

his briefs to the Court of Appeals.3 The two that were'cited by Plaintiff,

rd eta alin Ace hy ine ea

Se ee ee eit Sony Wee

primary motivation of an employee’s activity is personal and that activity is a substan-

tial diversion from the employee’s duties so as to constitute an abandonment of em-

ployment, that employee, as a matter of law, will be held to be acting outside the scope

of employment, but in this particular case this Court found that “[m]any of the facts

underlying Clover’s claims are in dispute” precluding summary disposition); Martinson

v. W-M Insurance Agency, Inc., 606 P.2d 256, 258 (Utah 1980)(in affirming the denial

of compensation under the Utah Worker’s Compensation Act to an insurance salesman

injured in an automobile accident, this Court stated that “if the predominate motiva-

tion and purpose of the activity is in serving the social aspect, or other personal diver-

sion of the employee, even though there may be some transaction of business or per-

formance of duty merely incidental or adjunctive thereto, the person should not be

deemed to be in the course of his employment”); Park Utah Consolidated Mines Co.

v. Industrial Comm'n, 103 Utah 64, 133 P.2d 314, 317 (1943)(in a workmen’s compen-

sation case, this Court confirmed the “rule that there can be no workmen’s compensa-

tion for an accident sustained going to or from work” because of the fact that the

employee selects “the particular way, means and conveyance for going to and from

work,” but where the “means for entrance [to his employment] are limited so that he

has no choice as to the mode of entrance, ail of the hazards which are peculiar to such

entrance attach to his employment”); Soldier Creek Coal Co. v. Bailey, 709 P.2d 1165

(Utah 1985)(in a workmen’s compensation case, this Court held as a matter of law that

an employee’s death did not arise out of or in the course of his employment, for pur-

poses of considering the applicability of the Utah Worker’s Compensation Act, where

the employee was thrown from his own automobile while he was driving to work,

specifically holding that exceptions to this going-to-and-from work rule recognized in

workmen’s compensation cases did not apply upon the undisputed facts); State Insur-

ance Fund v. Industrial Comm'n, 15 Utah 2d 353, 393 P.2d 397 (1964)(this Court

affirmed an order awarding workmen’s compensation benefits where the employee

was held to be within the course of his employment because he was travelling from

one office where he already had began his work to another office where he would

continue his work). See also Bountiful Brick Co. v. Giles, 68 Utah 600, 251 P. 555

(1926), aff'd, 276 U.S. 155 (1928) and Cudahy Packing Co. v. Parramore, 60 Utah

161, 207 P. 148 (1922), aff'd, 263 U.S. 418 (1923), both of which are discussed in

Footnote 4.

3 This is significant because in order to preserve a plea of error the alleged error must

have been raised below in order to allow that court to correct any error, if error there

be. Utah County v. Brown, 672 P.2d 83 (Utah 1983). Cf. Warburton v. Virginia Beach

Federal Sav. & Loan Ass'n, 899 P.2d 779 (Utah App. 1995) (argument not raised at

trial cannot be raised on appeal).

4a

Bountiful Brick Co. v. Giles, 68 Utah 600, 251 P. 555 (1926), aff'd, 276

U.S. 154 (1928) and Cudahy Packing Co. v. Parramore, 60 Utah 161,

207 P. 148 (1922), aff’d, 263 U.S. 418 (1923), also are not on point and

of no significance.4 Regardless of what plaintiff represents in his written

argument to this Court, the truth is that no Utah Supreme Court decision

conflicts with the decision of the Court of Appeals in this case. Plaintiff’s

request should not be granted for this reason.

POINT II

PLAINTIFF HAS NOT CITED TO ANY DECISION OF THE

UNITED STATES SUPREME COURT THAT

CONFLICTS WITH THE DECISION OF THE COURT OF

APPEALS.

Plaintiff also has cited throughout his petition to five Supreme

Court cases in addition to the Bountiful Brick and Cudahy Packing

cases discussed in Point I. Three of those cases also were not cited by

4 In both of these cases, the imposition of liability under the Utah Workmen’s Com-

pensation Act was affirmed because there was found to be a “causal connection” be-

tween the injury and the employment. 276 U.S. at 158; 263 U.S. at 423-24. In both

cases, the employee was killed while crossing over railroad tracks adjacent to their

work places which they necessarily had to cross in order to get to where they needed to

be to perform their duties for their employers. Hence, although only a “causal connec-

tion” between the injury and the employment was held to be sufficient under the state

worker's compensation act, the analysis still required, as do the FELA cases discussed

hereafter, that the injury resulted from a risk that the employee necessarily had to take

and not a risk the employee chose to, but did not have to, take in order to perform his

duties for his employer. 276 U.S. at 159 (“it was necessary for the employees, in order

to get to the place of work, to cross the tracks, and they were in effect invited by the

employer to do so”); 263 U.S. at 426 (“Parramore could not, at the point of the acci-

dent, select his way. He had no other choice than to go over the railway tracks in order

to get to his work, and he was in effect invited by his employer to do so”). In the case

at bar, Ruiz was invited, and in fact would have been paid, to travel to the work site

with his gang in Defendant’s truck, but he voluntarily chose to drive his own car in-

stead, and forego any pay, for his personal reasons.

Sa

Plaintiff below, and they do not address the issue of when a railroad

employee legally is deemed to be acting within the course of his

employment for purposes of construing the applicability of the FELA®

The two other cases merely support preliminary issues pertaining to

the scope of the FELA and they also do not conflict with the holding of

the Court of Appeals.® Again, the cases cited by Plaintiff do not support

Plaintiff’s contention that decisions from the United States Supreme

Court conflict with the decision of the Court of Appeals in this case.

There is no reason for this Court to grant Plaintiff’s petition.

POINT III

THE DECISION OF THE COURT OF APPEALS IS

CONSISTENT WITH APPLICABLE FELA CASE LAW.

5 Baker v. Texas & Pac. Ry, 359 U.S. 227 (1959)(held that a question of fact existed as

to whether the plaintiff, a workman for a third party contractor, also was “employed”

by the railroad within the meaning of the FELA; there was no dispute that the plaintiff

was injured while performing his duties within the course of his employment for the

third party contractor); Kelley v. Southern Pac. Co., 419 U.S. 318 (1974)(held that a

person is deemed to be “employed” by a railroad under the FELA where there is a

master-servant relationship, which requires a finding that the railroad exercises con-

trol over the person; there was no dispute that the plaintiff, if so “employed,” was

injured while performing his duties within the course of his employment for the truck-

ing company for whom he worked); Ward v. Atlantic Coast Line RR, 362 U.S. 396

(1960)(held that a question of fact existed as to whether a railroad sectionman was an

“employee” of the railroad for purposes of FELA coverage when he was working on a

third party’s track on his day off and was being paid by that third party; there was no

dispute that the sectionman was injured while performing his duties in repairing the

track of the third party).

6 Chesapeake & Ohio Ry v. Kuhn, 284 U.S. 44 (1931)(the FELA is governed by com-

mon law as interpreted and applied in the federal courts, not state courts); Robinson v.

Baltimore & Ohio RR, 237 U.S. 84 (1915)(in denying FELA coverage, it was held that

a person employed by a third party was not “employed” by the railroad merely because

his duties for his third party employer required him to work on a train; thus, “em-

ployee” and “employed” used in the FELA are “intended to describe the conventional

relation of employer and employee”).

6a

The issue of when an employee acts inside or outside the course

of his employment for purposes of construing FELA coverage has arisen

under varying factual circumstances. Most analogous to the facts of

the instant action are cases commonly referred to as “commuter cases.”

Commuter cases generally involve the factual situation of an employee

travelling under his own volition, and without his employer’s

supervision, to or from his work site in a manner chosen by the employee

without compulsion by the employer. In these cases, it is consistently

held that employees are outside the course of their employment even if

they are on their employer’s property or riding in their employer’s train

or vehicle.?

The two common factors underlying the decisions in the

commuter cases is the employee’s exercise of his own choice in his

mode of travel and the employer’s lack of control over the employee or

the risks the employee may take in getting to or from the work site.

Applying these factors to the instant case compels the conclusion that

the Court of Appeals properly affirmed summary judgment for

Defendant. Ruiz voluntarily rejected going with the Defendant to the

work site on the day of the accident, although Ruiz had the opportunity

to do so and in fact customarily had submitted himself to the control

7 In chronological order, cases pertaining to employees travelling from a work cite

include Young v. New York, New Haven & Hartford RR, 74 F.2d 251, 253 (2nd Cir.

1923), and 79 F.2d 844, 845 (2nd Cir. 1935); Sassaman v. Pennsylvania RR, 144 F.2d

950, 953 (3rd Cir. 1944); Quirk v. New York, Chicago, & St. Louis RR, 139 F.2d 97,

100-01 (7th Cir. 1951), cert. denied, 342 U.S. 871 (1951); Williams v. Norfolk S. Ry,

767 F. Supp. 756, 759 (E.D. Va. 1991), and cases pertaining to employees traveling to

a work cite include Metropolitan Coal Co. v. Johnson, 265 F.2d 173, 178 (1st Cir.

1959); Spoonamore v. Louisville and Nashville RR, 179 F. Supp. 290, 292 (E.D. Ky.

1959); Getty v. Boston & Marine Corp., 505 F.2d 1226, 1228 (ist Cir. 1974); Thomp-

son v. National Railroad Passenger Corp., 774 F. Supp. 1087, 1088 (N.D. Ill. 1991),

aff'd, 966 F.2d 1457 (7th Cir. 1992). In all of these cases FELA coverage was denied.

SS ee

Ta

and supervision of Defendant on previous occasions in getting to the

work site. Plaintiff elected to go to the work site by himself in his own

automobile for his own personal reason of having his car available to

him to use in getting home from work earlier. In other words, he did

not have to drive to the work site in his own car in order to do his work

that day. He chose to drive for his own benefit.

In addition, because Plaintiff chose not to start his work at the

work camp with his gang and go with them in Defendant’s truck to the

work site, Defendant had no control over when, or if, Plaintiff would

leave the camp site or arrive at the work site to report for duty, nor did

Defendant have any control over Plaintiff, the Plaintiff’s car, or his use

of his car. As further evidence in support of these factors, Plaintiff

voluntarily chose not to be paid until he reported for duty at the work

site.

This case falls squarely within the reasoning of the commuter

cases that deny FELA coverage. Therefore, the Court of Appeals was

correct in affirming summary judgment for Defendant as a matter of

law.

POINT IV

THE FELA CASES RELIED UPON BY PLAINTIFF

AREINAPPLICABLE ON THE UNDISPUTED

FACTS OF THIS CASE.

Plaintiff does not deny the existence and affect of the line of

FELA cases known as commuter cases. However, he emphasizes other

lines of cases. These other lines of cases apply to other factual situations

8a

that are inapplicable where an employee is travelling pursuant to his

own choices and without the contro’ or supervision of the employer to

where he is to report for his work assignments. Plaintiff's cases,

therefore, do not help Plaintiff on the facts of record before this Court.

One line of cases cited by Plaintiff pertains to the factual

situation where an employee is injured at an employer provided work

camp. These cases are referred to herein as “work camp” cases. These

work camp cases all involve negligence which occurred at the camp or

place where the injured employee was required or encouraged by his

employer to stay in order to rest and prepare to perform his work. The

employers in these cases clearly had control over the camp facilities

and/or benefitted from the employees staying at the work camps. These

cases do not suggest that an employee who has left his work camp in

his own vehicle and for his own personal agenda remains covered by

the FELA while he operates his motor vehicle at any speed and in any

manner of his own choosing, as did Ruiz.

The Tenth Circuit case of Atchison, Topeka & Santa Fe Railway

Co. v. Wottle, 193 F.2d 628 (10th Cir. 1952) particularly is instructive

on this point. In Wottle, a laborer, shortly after returning from the work

site to his company provided camp site, left in his own automobile to

8 Plaintiff cited the following cases to the Court of Appeals and in his petition: Chi-

cago, Milwaukee, St. Paul & Pac. RR v. Kane, 33 F.2d 866, 868 (9th Cir. 1929), cert.

denied, 280 U.S. 388 (1929); Mostyn v. Delaware, Lawanna & W. RR, 160 F.2d 15, 17-

18 (2nd Cir. 1947), cert. denied, 332 U.S. 770 (1947); Casso v. Pennsylvania RR, 219

F.2d 303, 305-06 (3rd Cir. 1955). Plaintiff now also cites, for the first time, the follow-

ing two cases involving facts along this same line: Baum v. Baltimore & Ohio RR, 256

F.2d 753 (7th Cir. 1958); Empey v. Grand Trunk W. RR, 710 F. Supp. 653 (E.D. Mich.

1987). Interestingly, the Bawm Court held that the employee, who was in the process

of leaving the work camp at the time, was outside the course of this employment.

9a

go buy groceries for himself. The laborer was killed while still on his

employer’s property when attempting to drive over the tracks. /d. at

630-31. The court in Wortle found that the laborer’s own choice to

drive his own car in pursuit of his own objectives was not a necessary

incident to his employment so as to bring him within the coverage of

the FELA. To rule otherwise, the court reasoned, would in effect mean

that “there is no limitation upon the coverage [of the FELA] so long as

there is a possibility that the employee will return to his work-a-day

duties,” and then stated, “[o]bviously, the legislation was not intended

to go so far.” Id. at 631. See also Loya v. Denver & Rio Grande W. RR,

993 F.2d 1551 (10th Cir. 1993)(unpublished opinion which is attached

hereto); Rogers v. Chicago & North W. Transp., 947 F.2d 837 (7th Cir.

1991); Fowler v. Seaboard Coastline RR, 638 F.2d 17 (Sth Cir. 1981).

In the case at bar, Ruiz was not at the work camp or work site.

He was not under the control or direction of Southern Pacific at the

time. Defendant did not receive any benefit from Plaintiff's choosing

to drive his own car to the work site so he could conveniently get home

sooner for the weekend. Ruiz was injured while pursuing his own

interests. Thus, the work camp cases relied upon by Plaintiff are

inapplicable on the facts of this case.

Plaintiff also relies on a line of cases that pertain to the factual

situation where an employee is injured on or near his employer’s

property in order to perform the specific job to which he is assigned.

These cases are different from the commuter cases because the employee

is injured after arriving at the general area where his work is to be

performed, and it is found that the employee’s being in the area in

which he is injured was necessary in order for the employee to get to

10a

precisely where he needed to be in order to accomplish his work.? These

cases are referred to herein as “traversing the work site” cases. In all of

these traversing the work site cases, as opposed to the commuter cases,

the employee was not pursuing his own interest, nor was he exercising

his own choice as to the means by which he got to or from the actual

work site. Rather in these cases, the employee already had arrived at

work and was required by his employer to go where the injury occurred

as part of or in preparation for the performance of his duties. Clearly,

what the employee was doing in these cases was for the benefit of his

employer because it was necessary for the performance of his required

duties.

These cases provide no he!p to Plaintiff under the facts of

record. Ruiz had not yet arrived at the work site before he drove his car

off of the road. He was 14 miles away from where he was to report to

his supervisor and obtain his assignment for the day. He had not yet

reported to work, and he was not traversing the work site to get to the

exact location where he was to perform his duties for Defendant on

that day.

The fact that Plaintiff was on Defendant’s property at the time

of his accident is not significant. The traversing the work site cases do

not find the employee to be within his employment because he is on his

employer’s property. Many of the employees were on their employer's

property in the commuter cases, discussed in Point III, and the

employees in the Wottle, Fowler and Rogers cases, cited above in this

9 Plaintiff cited the following cases to the Court of Appeals and in his petition: Carter

v. Union RR, 438 F.2d 208 (3rd Cir. 1971); Caillouette v. Baltimore & Ohio Chicago

Terminal RR, 705 F.2d 243 (7th Cir. 1983).

lla

point, were on their employer's property at the time of injury, yet they

were found not to be within the course of their employment at the time.

See also Aldredge v. Baltimore & Ohio RR, 20 F.2d 655, 658-60 (8th

Cir. 1927), cert. denied, 275 U.S. 550 (1927); Symonski v. Central RR,

131 A. 628, 629-30 (N.J. 1926), aff'd, 135 A. 921 (1927).!° Obviously,

the very nature of the traversing the work site cases most likely will

place the employee on his employer’s property at the time of injury,

and at least very close to where the employee's duties are to be

performed. Nevertheless, whether or not an employee is on his

employer’s property is not a determinative factor in the analysis of

whether the employee is within the course of his FELA employment at

the time of injury.!!

In the instant action, Ruiz had a safe way to get to the work site

that was under the control of the Defendant. He could have travelled

with the rest of his gang in Defendant's truck, as he had done prior to

the accident, and had he done so on the day of the accident, Defendant

could have assured his safety through, among other things, its

maintenance of the truck, control of the speed it was driven and required

use of seat belts. However, Plaintiff chose to pursue his own interests.

His choice was not necessary for him to perform his duties for Defendant

10 The only cases Plaintiff cites in opposition to this FELA authority are cases dis-

cussing Utah law construing the “going-to-and-from-work rule” and the “premises

exception” to that rule as they are applied in state workmen's compensation cases. The

FELA is not a workmen's compensation statute. Moreover, the United States Su-

preme Court clearly has held that the FELA is governed by common law interpreted

by federal courts, not state courts. Chesapeake, Ohio Ry v. Kuhn, 284 U.S. 44 (1931).

No FELA case law supports Plaintiff's contention that is contrary to the FELA author-

ity cited in the text.

11 See also Restatement (Second) of Agency § 229 cmt. c (1958) (“the fact that the

acts are done upon the master’s premises or with his instrumentalities is . . . not conclu-

sive’).

12a

any more than it would be for any commuter going to work. Plaintiff’s

FELA cases do not compel a determination different than the

determination made by the Court of Appeals after it had carefully

considered all these FELA cases on the issue before it.

POINT V

NO ERROR WAS COMMITTED IN

AFFIRMING SUMMARY JUDGMENT.

Plaintiff suggests that because of the Union Agreement Plaintiff

could not voluntarily take himself out of the course of his employment

when he substituted personal transportation for company transportation,

for personal reasons, and thereby removed himself from the control

and supervision of his employer. It is ludicrous for Plaintiff to argue

that no matter what he did for personal reasons he could not remove

himself from the course of his employment. The Wottle, Loya, Rogers

and Fowler cases, cited above, expressly negate this argument. !2 There

are no cases supporting Plaintiff's argument.

In addition, Plaintiff tries to argue that genuine issues of fact

exist that were ignored by the Court of Appeals. In reality, Plaintiff

simply is trying to create an issue of fact by arguing that the Union

Agreement required Defendant to pay Plaintiff for the time he spent

driving his own car to work, and that this fact supports the legal

conclusion that Plaintiff was within the course of his employment. This

straw-man argument fails because there is no competent evidence of

record that the Union Agreement required that Plaintiff be paid for the

12 See text, supra, at pp. 14-15 [8a-9a.]

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13a

time he spent driving his own car. The Union Agreement speaks for

itself and expressly provides that employees will not be paid when

travelling for personal reasons. (R. 369.) Moreover, even if Plaintiff

was entitled to compensation under the Union Agreement, Plaintiff still

would be outside the course of his employment. See Loya attached

hereto. Hence, Plaintiff was outside the course of his employment

regardless of whether or not the Union Agreement allowed Plaintiff to

claim pay during his commute as a contractual benefit of his

employment.

Contrary to Plaintiff’s contentions of error, uncontroverted

FELA authority supports finding an employee to be outside the course

of his employment when he voluntarily chooses to commute to work

in his own vehicle on his own schedule and for his own benefit, during

which time he was not furthering his employer’s business and was not

under the control or direction of his employer. Summary judgment is

completely in harmony with FELA principles and case law.