Opposition Brief — Wilburn v. Consolidated Rail Corp.

No. 92-676

In The

Supreme Court of the United States

October Term, 1992

+

FRED T. WILBURN,

Petitioner,

vs.

CONSOLIDATED RAIL CORPORATION,

Respondent.

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

s

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

o

Bruce A. Wat tace, III,

Counsel of Record

CAPEHART & SCATCHARD, P.A.

Laurel Corporate Center

8000 Midlantic Drive, Suite 300

Mt. Laurel, New Jersey 08054

(609) 234-6800

> COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 42-2831

Se

QUESTIONS PRESENTED

In this personal injury action by plaintiff-petitioner, a

railroad employee, against the defendant-respondent,

Consolidated Rail Corporation, under the Federal

Employers Liability Act, Title 45, U.S.C., Sections 51 and

following, did the trial court commit error by granting

the Respondent’s motion for summary judgment pur-

suant to rule 56(c) of the Federal Rules of Civil Pro-

cedure?

il

TABLE OF CONTENTS

Page

QUESTIONS PUEerd © ei 0k 2k kaa eee ae eee ees i

TABLE OF AU SERIA ate oie aeee Ss aay ees bao’ iii

STATUTES ANU RULES ENVULVEL?. «0 c0cccsecexss 1

STATEMENT OF Uite Gigs. ies saar ne eane nes 1

ARGUMENT

POINT |

SUMMARY JUDGMENT IS THE APPROPRIATE

STANDARD OF REVIEW WHEN NO MATERIAL

QUESTIONS OF FACT SARIEss ci sasuceuea wes os: +

POINT II

THE FEDERAL EMPLOYER’S LIABILITY ACT

DOES NOT IMPOSE LIABILITY UPON AN

EMPLOYER RAILROAD ABSENT A SHOWING

OF NEGLIGENCE. ..<a5s.056nune eaeaee ee va aaan 5

POINT III

THE COURT’S DECISION IN THE MATTER AT

HAND IS NOT INCONSISTENT WITH THE

COURT’S DECISION IN GALLOSE THUS CER-

TIORARI SHOULD GE DENIED)... cc seacscscens 9

CONCTAISIIN 6s ic:cs5 as a eee ee ee 10

ili

TABLE OF AUTHORITIES

Page

Cases

Anderson v. Atchison, T. & S.F. Ry. Co., 333 U.S.

a Re er rer ee Tee ere rer Tee eee eee 7

Anderson v. Liberty Lobby, Inc., 477 U.S. 242

Sh 65 hs Waa AS ERK S 4a saad cde Naess sess anees 5

Beeber v. Norfolk Southern Corp., 754 F.Supp.

ee” a |) nnn iii tr 8

Brady v. Southern Ry. Co., 320 U.S. 476 (1943) ..... 7, 8

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ......... 5

Chesapeake & O. Ry. Co. v. Stapleton, 279 U.S. 587

Ke SLE eg wns ee er ee ree eee ere 7

Delaware L. & W.R. Co. v. Koske, 279 U.S. 7 (1929) ..... 7

DeRobertis by DeRobertis v. Randazzo, 94 N.J. 144

AAR Ae nr er ee ee ae 8

Foote v. Erie Lackawanna Ry. Co., 142 N.J. Super.

195 (App. Div. 1976). ........... cece eee cence eens. 6

Gallick v. Baltimore & Ohio R., Co., 372 U.S. 108

PP rrr re Teer ere creer er rere Tee 6, 8

Gallose v. Long Island R. Co., 878 F.2d 80 (2d Cir.

Ale Area reer eee ee reer ee 3, 8, 9, 10

Hersh v. Allen Prods. Co., Inc., 789 F.2d 230 (3d

8 Sr eo eT ee reer reer ere Tees 4

Illinois Cent. R. Co. v. Skaggs, 240 U.S. 66 (1916)..... 6

Inman v. Baltimore & Ohio Railroad, 361 U.S. 138

Aer err rr yet TCT Tree Tiere ce 6

iV

TABLE OF AUTHORITIES — Continued

Jersey Central Power & Light Co. v. Lacey Tp. 772

F.2d 1103 (3d Cir. 1985) ........ cece eee eee eee

Lang v. New York Life Ins. Co., 721 F.2d 118 (3d

Gi OEE 6s ca sca Pica etWs eke ses ed ee kree se

Layne & Bowler Corporation v. Western Well

Works, 261 U.S. 387, 43 S.Ct. 422, 67 L.Ed. 72..

Mascola v. Mascola, 168 N.J. Super. 122 (App. Div.

eR DIIGELEE ah Remit sasceman wert amine es

Meyer v. Riegel Prods. Corp., 720 F.2d 303 (3d Cir.

1983), cert. denied 465 U.S. 1091 (1984).........

Moody v. Maine Central R.R. Co., 823 F.2d 693 (1st

Se. See once diwans Su ce Gen eae esa aaeee

Morey v. Maine Cent. R. Co., 127 Me. 190, 142 A.

Re Ce ed ee

New Orleans, etc. R. Co. v. Harris, 247 U.S. 367

COR an gh Gcs a nea ede ecos es

Nivens v. St. Louis Southwestern Ry. Co., 425 F.2d

114 (5th Cir. 1970) cert. denied 400 U.S. 879....

O’Donnell v. Elgin, J. & E.R. Co., 338 U.S. 384

ONE Sires hn catrnaganivroecn Bite aa ue

Ottley v. St. Louis — San Francisco Ry. Co., 360 Mo.

eae ee Bt | ere Ere

Padgett v. Southern Ry. Co., 396 F.2d 303 (6th Cir.

REE iene aie ee aie ai Rate eB

Pratico v. Portland Terminal Co., 783 F.2d 255 (1st

Cae ch sree ee eee

Vv

TABLE OF AUTHORITIES - Continued

Page

Ragsdell v. Southern Pac. Transportation Co., 688

F.2d 1281 (9th Cir. 1982)........... cece rece eee eeee 7

Rice v. Sioux City Memorial Park Cemetery, 75

S.Ct. 614, 349 U.S. 70, 99 L.Ed. 897 (1955) .....--.. 9

Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500

tb) PEEL ee ee ee 6

San Antonio & A.P.R. Co. v. Wagner, 241 U.S. 476

(EDEG) sk acdbnccns dese kkes eedamnceneeeceernen sy es 6

Smith v. Pittsburgh Gage and Supply Co., 464 F.2d

870 (3d Cir. 1972) .... 20. ccccesensccctecteccessenss 2

Thomas v. Grigorescu, 582 F.Supp. 514 (S.D.N.Y.

1984), aff'd mem. 751 F.2d 371 (2d Cir. 1984) ....... 6

Tobin v. Nat’l R. Passenger Corp., 677 F.Supp. 674

(D.Mass. 1988). .......... 0c eee eee eee e eee teen ences 4

Williams v. Atlantic Coast Line R. Co., 190 F.2d

744 (Sth Cir. 1951)... 2. ncn ccc cece ence ensasereceses

STATUTE AND RULE

45 U.S.C. §& 51, €f SOG... 2. cnc secs sees wenssenenensnues

Fed. R. Civ. P. R. 56(c)

Respondent hereby adopts by reference the statements set

forth in petitioner’s brief with the addition of the follow-

ing:

Federal Rules of Civil Procedure, 56. Summary

Judgment

a.

b.

Cc.

On March 31, 1987, the plaintiff, Fred T. Wilburn,

filed a Complaint seeking damages for injuries allegedly

sustained on September 5, 1985.!

STATUTES AND RULES INVOLVED

Does not apply.

Does not apply

Provides in pertinent part:

.. . [summary] judgment . . . shall be ren-

dered forthwith if the pleadings, deposi-

tions, answers to interrogatories, and

admissions on file, together with the affi-

davits, if any, show 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.

Does not apply.

Does not apply.

Does not apply.

Does not apply.

¢

STATEMENT OF THE CASE

1 In deciding whether an issue of material fact does or does

not exist, the court is required to resolve all doubt in favor of the

The plaintiff was employed as a trackman with the

defendant/respondent, Consolidated Rail Corporation

(hereinafter “Conrail”). On the date of this incident, the

plaintiff was acting as a welder’s helper. (R. 33). He was

assigned that day to assist Jay “Chicken Leg” Hunter,

who was a senior qualified welder. (R. 34). They were

working around Barbour Street in Woodbury, New Jersey.

(R. 34). By his own admission, the plaintiff was acting as

a welder’s helper, which involved looking out for Mr.

Hunter, getting tools, etc. (R. 34-35).

“Chicken Leg” Hunter likewise testified that one of

the responsibilities of a welder’s helper is to watch for

the welder or act as a flagman. (R. 41-43).

At approximately 8:00 p.m., the plaintiff was bent

over cutting a piece of rail when a dog (allegedly co-

defendant’s black Labrador) snapped at him and bit him

on the right leg (without breaking the skin). (R. 37, 39). In

backing away from the dog, the plaintiff tripped and fell

striking his back on a railroad rail. (R. 37). Mr. Hunter

was at work welding when he heard the commotion of

the purported canine attack. (R. 43, 47).

The dog had apparently been observed about the

area earlier in the day. (R. 35). However, there was no

unruly, mischievous or vicious behavior on the dog’s

part. In fact, the dog appears to have acted very much the

non-moving party. Meyer v. Riegel Products Corp., 720 F.2d 303,

307 (3d Cir. 1983), cert. denied 465 U.S. 1091 (1984); Smith v.

Pittsburgh Gage and Supply Co., 464 F.2c' 870, 874 (3d Cir. 1972).

Therefore, although respondent disputed the plaintiff’s version

of events, for purposes of the motion for summary judgment his

testimony was accepted as true.

part of “Man’s Best Friend.” The plaintiff has said of his

prior sightings of the dog, “He was a friendly dog.” He

was not observed behaving in an unfriendly manner. (R.

36-37)

On May 3, 1988 the case was submitted to arbitration.

The arbitrator rendered an award specifically finding no

negligence on the part of respondent. (R. 17).

Thereafter, on November 14, 1988, Respondent filed a

motion for summary judgment which was granted by the

trial court on April 6, 1989 by memorandum and order.

(R. 18). Petitioner moved for reconsideration which was

denied by memorandum and order dated May 5, 1989. (R.

23). On December 16, 1991, petitioner’s action against the

dog owners was concluded by stipulation and order of

dismissal, reserving all rights as against the respondent.

(R. 25). Petition appealed to the United States Court of

Appeals for the Third Circuit. Said court affirmed with-

out opinion the trial courts granting of respondent's

motion for summary judgment.

Petitioner Fred R. Wilburn now seeks review based

on what he characterizes as inconsistent applications of

the appropriate judicial test for when a jury should be

permitted to determine the negligence, or lack thereof, of

a railroad employer under the FELA. Petitioner maintains

that the decision rendered in this case by the United

States District Court for the District of New Jersey and

affirmed by the United States Court of Appeals for the

Third Circuit is in direct conflict with the opinion of the

United States Court of Appeals for the Second Circuit in

the case of Gallose v. Long Island R. Co., 878 F.2d 80 (2nd

Cir. 1989). This contention is meritless as there are sub-

stantial factual differences between the two cases. Fur-

thermore, in the case at hand, no opinion was ever

published by the United States Court of Appeals for the

Third Circuit, therefore, there can be no conflict between

the Courts of Appeal.

ARGUMENT

POINT I

SUMMARY JUDGMENT IS THE APPROPRIATE

STANDARD OF REVIEW WHEN NO MATERIAL

QUESTIONS OF FACT EXIST.

Rule 56(c) of the Federal Rules of Civil Procedure

provides in pertinent part:

... [summary] judgment... shall be rendered

forthwith if the pleadings, depositions, answers

to interrogatories and admissions on file,

together with the affidavits, if any, show that

there is no genuine issue as to any material fact

challenged, and that the moving party is enti-

tled to a judgment or order as a mater of law. ©

See aisuv, Hersh v. Allen Products. Co., Inc., 789 F.2d 230, 232

(3d Cir. 1986); Lang v. New York Life Ins. Co., 721 F.2d 118

(3d Cir. 1983). The mere existence of factual issues where

those issues are not material to claims before the court

will not suffice to defeat a motion for summary judgment.

Jersey Central Power & Light Co. v. Lacey Tp., 772 F.2d 1103,

1109 (3d Cir. 1985). The issue in dispute must be outcome

determinative under the applicable law. Id.

The threshold inquiry of determining whether there

is a need for trial, is whether there are any genuine

factual issues that properly can be resolved only by a

finder of fact because they may reasonably be resolved in

favor of either party. Anderson v. Liberty Lobby, Inc., 477

U.S. 242 (1986). Summary judgment may be granted if the

evidence favoring the non-moving party is merely color-

able or is not significantly probative. Jd. One of the prin-

cipal purposes of the summary judgment rule is to isolate

and dispose factually unsupported claims or defenses.

Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Thus, the plain

language of Rule 56(c) mandates the entry of summary

judgment, after adequate time for discovery and upon

motion, against a party who fails to make a showing

sufficient to establish the existence of an element essen-

tial to that party’s case, and on which that party will bear

the burden of proof. Id.

POINT II

THE FEDERAL EMPLOYER’S LIABILITY ACT DOES

NOT IMPOSE LIABILITY UPON AN EMPLOYER

RAILROAD ABSENT A SHOWING OF NEGLIGENCE.

The plaintiff has brought the present action against

Conrail under the Federal Employer’s Liability Act

(FELA), 45 U.S.C. §51 et seg. Section 51 of the Act pro-

vides in pertinent part:

Every common carrier by railroad while engag-

ing 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, . . . for such

injury or death resulting in whole or in part

from the negligence of any of the officers,

agents, or employees of such carrier...

The FELA imposes liability upon an employer to pay

damages for injury due “in whole or in part” to its

negligence. The question is whether there is any evidence

that any employer negligence caused the harm, or, more

precisely, enough to justify a jury’s determination that

employer negligence played any role in producing the

harm. Gallick v. Baltimore & Ohio R. Co., 372 U.S. 108, 116

(1963). Whether a jury question is presented is narrowly

limited to the single inquiry whether, with reason, the

conclusion can be drawn that negligence of the employer

played any part at all in the plaintiff’s injury. Rogers v.

Missouri Pacific R.R. Co., 352 U.S. 500, 506-507 (1957).

But, while there is a considerably relaxed standard of

proof in FELA cases, the Act does not provide for strict

liability against employers nor make them insurers of

employees’ safety. See Inman v. Baltimore & Ohio Railroad

Co., 361 U.S. 138 (1959); Thomas v. Grigorescu, 582 F.Supp.

514 (S.D.N.Y. 1984), aff'd mem. 751 F.2d 371 (2d Cir. 1984);

Nivens v. St. Louis Southwestern Ry. Co., 425 F.2d 114 (5th

Cir. 1970), cert. denied 400 U.S. 879 (1970); Foote v. Erie

Lackawanna Ry. Co., 142 N.J. Super. 195 (App. Div. 1976);

Ottley v. St. Louts—San Francisco Ry. Co., 360 Mo. 1189, 232

W.2d 966 (1950). Before a recovery can be had, there must

be a showing by either direct or circumstantial evidence

that the railway company was negligent. Illinois Cent. R.

Co. v. Skaggs, 240 U.S. 66 (1916). See also, New Orleans,

N.E.R. Co. v. Harris, 247 U.S. 367 (1918). The mere fact of

injury will not warrant a recovery; there must be some

negligence on the part of the railroad company or on the

part of some employee as the basis for liability. San

Antonio & A.P. R. Co. v. Wagner, 241 U.S. 476 (1916). See

also, Brady v. Southern Ry. Co., 320 U.S. 476 (1943); Chesa-

peake & O. Ry. Co. v. Stapleton, 279 U.S. 587 (1929). There

must also be a showing that negligence on the part of the

employer was a proximate cause of the employee’s injury.

See Moody v. Maine Central R.R. Co., 823 F.2d 693, 695 (1st

Cir. 1987).

Absent some sort of statutory violation by the rail-

road, the long established principles of negligence apply.

See Pratico v. Portland Terminal Co., 783 F.2d 255, 262 (1st

Cir. 1985). The measure of duty owed to an employee

under the FELA is that of reasonable and ordinary care.

Delaware L. & W.R. Co. v. Koske, 279 U.S. 7 (1929). The

employer is bound to do what a reasonable and prudent

man would ordinarily do under the circumstances. Ander-

son v. Atchison, T. & S.F. Ry. Co., 333 U.S. 821 (1948).

Under the FELA, the railroad is obligated to provide

its employees with a reasonably safe place to work.

Padgett v. Southern Ry. Co., 396 F.2d 303 (6th Cir. 1968).

However, the railroad is not obligated to eliminate all

risks in the workplace; it is only obligated to eliminate

unreasonable risks. See Ragsdell v. Southern Pac. Transpor-

tation Co., 688 F.2d 1281 (9th Cir. 1982); Tobin v. Nat'l R.

Passenger Corp., 677 F.Supp. 674 (D.Mass. 1988). The dili-

gence required of an employer to furnish employees with

a safe place to work is commensurate with the dangers

reasonably apprehended. Williams v. Atlantic Coast Line R.

Co., 190 F.2d 744 (Sth Cir. 1951). A railroad is not required

to anticipate and guard against unexpected and improb-

able dangers to employees. Morey v. Maine Cent. R. Co.,

127 Me. 190, 142 A. 585 (1928). Events which are too

oo

remote to require reasonable provision need not be antici-

pated. Brady, supra.

The plaintiff in an FELA action must establish the

“reasonable foreseeability of harm.” Gallick, supra, at 117.

A railroad is not liable for failing to provide a safe

workplace if it has no reasonable way of knowing that the

potential hazard exists. Beeber v. Norfolk Southern Corp.,

754 FSupp. 1364, 1368 (N.D. Ind. 1990) (citing Gallose v.

Long Island R. Co., 878 F.2d 80, 85 (2d Cir. 1989)

The trial court found, and the appellate court

affirmed, that plaintiff had presented no evidence that

would support even an inference that Conrail was aware

of any danger presented by the dog. (R. 21). To the

contrary, deposition testimony from the plaintiff himself

established that the dog in all earlier contact had been

even-tempered and playful. In essence, the trial court

found as a matter of law that plaintiff had not established

the “reasonable foreseeability of harm,” or in other

words, that Conrail had any reasonable way of knowing

that the dog constituted a potential hazard. The plaintiff

himself described the dog before the alleged attack as a

“friendly dog”. (R. 36).

The FELA is basically predicated upon negligence.

O'Donnell v. Elgin, ].& E. R. Co., 338 U.S. 384, 391 (1949).

This means that if there is no statutory violation, tradi-

tional negligence principles apply. Pratico, supra. In New

Jersey, the common law was that owners of domesticated

animals, such as dogs, were liable only if they had scien-

ter, i.e. knowledge of the animal’s dangerous or mischie-

vous propensities. DeRobertis by DeRobertis v. Randazzo, 94

N.J. 144, 150 (1983). One not an owner of a vicious dog

may be liable as a keeper or joint owner, if he has such

knowledge if its vicious disposition. Mascola v. Mascola,

168 N.J. Super. 122, 127 (App. Div. 1979). The trial court's

ruling was thus consistent with the long-established prin-

ciple that a non-owner of a dog cannot be held liable

without prior knowledge of the dog’s vicious propen-

sities. There is no basis in the FELA to hold a railroad toa

higher standard of care.

POINT III

THE COURT’S DECISION IN THE MATTER AT HAND

IS NOT INCONSISTENT WITH THE COURT’S

DECISION IN GALLOSE. THUS CERTIORARI

SHOULD BE DENIED.

Certiorari should not be granted except in those cases

involving principles the settlement of which is of impor-

tance to the public, as distinguished from that of the

parties, and in cases where there is a real and embarrass-

ing conflict of opinion or authority between courts of

appeal. Rice v. Sioux City Memorial Park Cemetery, 75 S. Ct.

614, 349 U.S. 70, 99 L.Ed. 897 (1955) quoting Layne &

Bowler Corporation v. Western Well Works, 261 U.S. 387,

393, 43S. Ct. 422, 423, 67 L.Ed. 712 (1923). Here, not only

is there not a real and embarrassing conflict between

court of appeal, there is not conflict whatsoever.

The Plaintiff relies upon Gallose, supra, which was

decided after the trial court‘s decision on Conrail’s sum-

mary judgment motion. The facts of that case differ mate-

rially from those involved in the case sub judice. In

Gallose, plaintiff’s co-employee brought a large German

shepherd-mix dog to the workplace, where it remained in

OO

10

a bathroom until its escape and attack upon plaintiff. The

dog in that case was on the employer’s premises from the

time the plaintiff's co-employee brought it to work until

the attack. In the present case, the dog had been in the

area earlier, but there is no evidence Conrail had knowl-

edge that it was in the area immediately before its alleged

attack upon plaintiff. Furthermore, in Gallose, the plaintiff

was apparently unaware of the presence of the dog at the

workplace, thus raising the issue of the employer’s negli-

gence in failing to inform its employees of the dog’s

presence. To the contrary, the plaintiff here was aware of

the dog being in the area during the day and, therefore,

had the same information as his employer.

Under the circumstances, it would be unreasonable

to impose upon Conrail a duty to anticipate the dog’s

alleged attack. The plaintiff asserts that Conrail should

have furnished him with a lookout. However, the plaintiff

himself was a welder’s helper whose duties included

acting as a lookout for the welder. Essentially, the plain-

tiff claims Conrail should have provided a helper for the

welder’s helper, or a welder’s helper’s helper. It is not

clear how an extra helper would have prevented the

alleged sudden attack, since no one had any reason to

suspect such behavior from the dog.

¢

CONCLUSION

Based upon the foregoing reasons, it is respectfully

requested that this court should deny certiorari as sum-

mary judgment was correctly granted in the trial court,

no conflict exists between the United States Court of

11

Appeals for the Second Circuit and the United States

Court of Appeals for the Third Circuit, and petitioner has

failed to present a substantial question for review of the

Supreme Court of the United States of America.

Respectfully submitted,

By: Bruce A. Wattace, III

CAPEHART & ScaTCHaRD, P.A.

Attorneys for defendant/respondent

8000 Midlantic Drive, Suite 300

Mt. Laurel, New Jersey 08054

(609) 234-6800

Counsel of Record