# Opposition Brief — Wilburn v. Consolidated Rail Corp.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 1033

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1488%3A2. Public record. Not legal advice.