Petition for Writ of Certiorari — Albert v. Southern Pacific Transportation Co.

Supreme Court brief1995

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.S.

() FILED

DB41927 MAY 24 1995

No. 94-___ QEFICE O£ THE CLERK

In The

Supreme Court of the United States

October Term, 1994

BERTRAND E. ALBERT,

Petitioner,

SOUTHERN PACIFIC TRANSPORTATION

COMPANY, a corporation,

Respondent.

On Petition For Writ Of Certiorari

To The California Court Of Appeal,

Second Appellate District, Division Four

PETITION FOR WRIT OF CERTIORARI

BRIAN R. MAGANA

Counsel of Record

DEBORAH MITZENMACHER

MAGANA, CATHCART & McCartHy

1801 Avenue of the Stars, Suite 810

Los Angeles, California 90067-5899

(310) 553-6630

Attorneys for Petitioner

May 25, 1995

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

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

DOES THE FEDERAL EMPLOYERS’ LIABILITY

ACT, 45 U.S.C. §§ 51-60 (1908, AS AMENDED), CON-

TAIN A “ONE FREE HEART ATTACK” EXEMPTION?

TABLE OF CONTENTS

Page

CHES TION PURO T I 6 <b wa eens ee ieveuenenwewens i

TAREE OF BUT fk ios cts cuvierseaveces ow iii

PETITION FOR WRIT OF CERTIORARI............ l

OPINIONS AND ORDERS BELOW .............. ]

Ps ERS cco cone bere sneer ee 2

CONSTITUTIONAL PROVISIONS AND STAT-

UTES TIC VEMREE 6 aires nae cue yceess pier Car eeneee 2

STAT EMSECE £00 40x 0c eua ti eerie eee ate 2

A. FR Be 42 44nd kee eee 2

BD. PROM CUAL, Piles een coe eesens 6

REASONS FOR GRANTING THE PETITION..... 7

I. THIS CALIFORNIA STATE COURT OPIN-

ION, AMONG OTHERS, CREATES A BASE-

LESS JUDICIAL EXEMPTION TO THE

CLEAR LANGUAGE OF THE FELA........ 8

II. THIS SOLE PUBLISHED CALIFORNIA

STATE COURT OPINION CONFLICTS WITH

OTHER FEDERAL AND STATE OPINIONS

BASED ON SIMILAR FACTS ince iccucascs 12

Il. THIS PUBLISHED CALIFORNIA STATE

COURT OPINION CAN AND SHOULD BE

SUMMARILY REVERSED PER CURIAM .... 16

COIN LENGE «0k v'b'vin bu 0'o os ee 16

APPENDIX

index to ADDORGIN «2... 6.805 0enckgeunapeeee ia

TABLE OF AUTHORITIES

Page

Cases:

Affolder v. New York, Chicago & St. Louis Railroad

eg RE a, | rn rrr ee ere 3

Atchison, Topeka & Santa Fe Railway Co. v. Buell, 480

sae LA ok we ip oak vas bad es ma 8 48 * 8

Bailey v. Central Vermont Railway Co., 319 U.S. 350

NE es eas hss SAE pa NeW COTA SAR REO SSS 8

Bailey v. Missouri Pacific Railroad Co., 383 So. 2d

397 (La. App.) cert. denied, 385 So. 2d 784 (La.),

ye A a Se. eG |) es ee 15

Bashram v. Pennsylvania Railroad Co., 372 U.S. 699

hes erie ses we ag haa pin ehh hie RAS O eb eS s 3

Consolidated Rail Corp. v. Gottshall, 512 U.S. _ L

314 S.Ct. 2496, 129 L.Ed.2d 427 (1994) ............. 8

eee ge ee. S|. : Se 16

Creamer v. Odgen Railway, 242 P.2d 575 (Utah

1952), cert. denied, 344 U.S. 912 (1953)............. 11

Davis v. Virginian Railway Co., 361 U.S. 354 (1960) ..... 3

Ferguson v. Moore-McCormack Lines, 352 U.S. 521

SEE SRA? Go i ern ee ee eae 11

Gallick v. Baltimore & Ohio Railroad Co., 372 US.

ae ai iar i ak ass e484 ks ewan ek <8 9

Grand Trunk Western Railway v. Lindsay, 232 U.S. 42

a ak calla e isha Skat ced od 0d0e sear oes 3

Harbin v. Burlington Northern Railroad Co., 921 F.2d

eR I ay ins oho pa nee ws 0's aos apes 12, 13

Hines v. Consolidated Rail Corp., 926 F.2d 262 (3d

ee ee rai cou Nod ans ab ts os ele eae hs 11

TABLE OF AUTHORITIES — Continued

Page

Morrison v. Illinois Central Gulf Railroad Co., 387

eB Re et err errr re 1]

New York, New Haven & Hartford Railroad Co. v.

Cragan, 352 F.2d 463 (1st Cir. 1965), cert. denied,

eR ee ne eC Oe mmr ret eee 1]

O'Donnell v. Elgin, Joliet & Eastern Railway Co., 338

8 Ae ge.) ey PP ca eer re Seer nee 2

Owens v. Union Pacific Railroad Co., 319 U.S. 715

SPE ick 5 ees as Bae el a ea ae eR 10

Pedersen v. Delaware, Lackawanna & Western Rail-

Wy 50. ee See BO As a hc oho bv es ada 3

Pierce v. Southern Pacific Transportation Co., 823

pa ee eg See tne Fores Oe eee 14

Pitt v. Pennsylvania Railroad Co., 66 F. Supp. 443

(E.D. Pa. 1946) affirmed, 161 F.2d 733 (3d Cir.

SONS ied oi Seis kee wni te ies coi bah ee as 9, 10

Ringhiser v. Chesapeake & Ohio Railway Co., 354 U.S.

ed BOP eg Be ere OS Par EM rs perp tr Ean: 16

Robert v. Consolidated Rail Corp., 832 F.3d 3 (1st Cir.

1 / Dane Re papiemenems Dade Rarer eae oly Mina yr ec skit Ss 11

Rodriguez v. Delray Connecting Railroad, 473 F.2d

ae COM Se CO abies 8 4a n oe ew Gace hoe waa ae ee i oe 9

San Antonio & Arkansas Pass Railway Co. v. Wagner,

De Wee PW COON Sak 6 AORN eek SNe oe EEA aoe 2

Seaboard Air Line Railway v. Lorick, 243 U.S. 572

| +) Rear pan iat amen Grenr cries pe ene MORE Pe aa 3, 4

Shenker v. Baltimore & Ohio Railroad Co., 374 U.S. 1

CRS 0 5 66's bw b.0 655d eee ee ae ee 3

TABLE OF AUTHORITIES - Continued

Page

Stone v. New York, Chicago & St. Louis Railroad Co.,

SER US; Gar Sie 3 ck cena eerie Fa 7

Thompson v. Tippit, 300 S.W.2d 351 (Tex. Civ. App.

1957), cert. dismissed, 355 U.S. 943 (1958).......... 11

Tiller v. Atlantic Coast Line Railroad Co., 318 U.S. 54

CRUG 6 cic a ee ee 10

Urie v. Thompsan, 337 U.5..169 (i999) i665 oc ceccersedes 9

LL S. Bele, Sar Sek ee Ca so cas coe ees 2

Webb v. Illinvis Central Railroad Co., 352 U.S. 512

USGS irk cs cba Pe per ee CA ete taeens bee 11

Wilkerson v. McCarthy, 336 U.S. 53 (1948)............ 11

CONSTITUTIONS:

LS. Comet. AGE VG eS Ear OS eee eee 2

133. GC omee. eC a Pree o s on cS cnc ieaeeersee 2

STATUTES:

Se UTR BS 22 CE oe ao a nei sews eee eee 2

45 U.S.C. §§ 2 & 13 (1893, as amended).............. 2

OF CBA. G St Ob WR. ec kak ie ct een eens Heenan 6

45 U.S.C. § 51 (1908, as amended 1939).............. 8

45 U.S.C. §§ 51-60 (1908, as amended) ............. +

SS UG. Ce Ce oi es eee aes eee 10

45 USC. § 54 (908, as amended 1999) .. 2.26.50: 10

£5 DSL. Oe Sere 66s Bi ae hasnt rset ia 11

48 USC. & 56 (1908, amenaen 1998). x... 6 i ccecaness 8

TABLE OF AUTHORITIES - Continued

40 Cong. Rec.

42 Cong. Rec.

Russell Baker,

Page

Lecis-aTive History:

| ER ren eertiny pe 12

RE een 12

Shes vv coon hbNR Laas eee 12

oo | Re Sel ae eet: a

OTHER AUTHORITIES:

Growing Up (Signet 1982) at 221...... 11

No. 94-___

In The

Supreme Court of the United States

October Term, 1994

BERTRAND E. ALBERT,

Petitioner,

SOUTHERN PACIFIC TRANSPORTATION

COMPANY, a corporation,

Respondent.

On Petition For Writ Of Certiorari

To The California Court Of Appeal,

Second Appellate District, Division Four

PETITION FOR WRIT OF CERTIORARI

Bertrand E. Albert respectfully petitions for a writ of

certiorari to review and reverse the judgment of the Cali-

fornia Court of Appeal, Second Appellate District, Divi-

sion Four.

OPINIONS AND ORDERS BELOW

The California Supreme Court Order denying review

(17a) is unreported. The California Court of Appeal Order

denying rehearing (12a) is unreported. The California

Court of Appeal, Second Appellate District, Division

Four, affirmance (la-1la) is reported at 30 Cal. App. 4th

529, 35 Cal. Rptr. 2d 777 (1994). The Los Angeles County

Superior Court Judgment (13a) and Order (14a-15a)

granting the railroad summary judgment under FELA as

against its employee are unreported.

JURISDICTION

The California Supreme Court denied review on Feb-

ruary 23, 1995. Jurisdiction is invoked under 28 U.S.C.

§ 1257 (1988).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOKED

Text excerpts of U.S. Const. Art. VI, cl. 2 (1787), U.S.

Const. Amend. VII (1791), and the Federal Employers’

Liability Act, 45 U.S.C. §§ 51-60 (1908, as amended) are in

the Appendix. 18a-20a.

STATEMENT

A. FACTS

The Federal Safety Appliance Act of 1893 prohibits a

railroad from hauling a car with a defective automatic

coupler if it can be repaired where the defect is discov-

ered. U.S. v. Erie, 237 U.S. 402, 409 (1915); 45 U.S.C. §§ 2 &

13 (1893, as amended). Despite that fact, railroads often

defer required repairs for a long time. San Antonio &

Arkansas Pass Railway Co. v. Wagner, 241 U.S. 476 (1916)

(railroad history of poor maintenance practices). Then,

the railroads demand that their employees make the

required repairs on a rush basis. Davis v. Virginian Railway

Co., 361 U.S. 354, 355-356 (1960) (“Railroad employees

classified the Ford ‘switching operation’ as a ‘hot job’

because ‘you do your job a little faster than you would in

the yard.’ ”). As a result, many railroad workers have

been killed or maimed attempting to couple or repair

defective automatic couplers still in service. Grand Trunk

Western Railway v. Lindsay, 232 U.S. 42 (1914); O'Donnell v.

Elgin, Joliet & Eastern Railway Co., 338 U.S. 384 (1949);

Affolder v. New York, Chicago & St. Louis Railroad Co., 339

U.S. 96, 98 (1950).

Repairers of automatic couplers are covered under

the FELA. Pedersen v. Delaware, Lackawanna & Western

Railway Co., 229 U.S. 146 (1913); Bashram v. Pennsylvania

Railroad Co., 372 U.S. 699, 700 (1963); 45 U.S.C. §§ 51-60

(1908, as amended). A railroad’s FELA responsibilities to

its repairers are nondelegable duties. Shenker v. Baltimore

& Ohio Railroad Co., 374 U.S. 1, 7-8 (1963).

For eighty years railroads have known, as to repair-

ing automatic couplers, that: “To do so it was necessary

to raise the coupler; and for this a jack was the appropri-

ate appliance.” Seaboard Air Line Railway v. Lorick, 243 U.S.

572, 573 (1917). For eighty years railroads have known

that, absent a functional hydraulic jack, a repairer will do

the job with brute force. Lorick, supra, 243 U.S. at 573.

On March 28, 1991, Southern Pacific told its longtime

employee, 55.5-year-old Bertrand Albert and an even

older employee, Charlie Moten, to repair two extremely

worn automatic couplers on a rush basis so that a car

could be returned to interstate service in just a few hours,

between 10:30 a.m. and noon that same day. As a South-

ern Pacific manager, supervisor Jerry Cain testified that

the only proper tool for the job was a functional hydrau-

lic jack. Accord, Lorick, supra, 243 U.S. at 573.

The sole tool Mr. Albert had was a 16-pound sledge-

hammer. Starting at 9:30 a.m., as directed by Foreman

John Juarez, Mr. Albert alone performed all of the repairs

at one end of the car by 10:30 a.m., just one hour later.

Starting again at 11:30 a.m., as Foreman Juarez watched

impatiently, Mr. Albert alone performed most repairs at

the other end by 12:00 p.m., just one-half hour later.

Trying to remove the extremely worn-out cross-key from

the equally worn-out draft gear of the old automatic

coupler, Mr. Albert rapidly swung the 16-pound sledge-

hammer thirty times in quick succession. Foreman Juarez

then ordered a forklift to yank the worn-out old cross-key

out of the worn-out old draft gear.

Trying to insert a new cross-key into the worn-out

old draft gear, Mr. Albert rapidly swung the 16-pound

sledgehammer thirty more times in quick succession. The

new cross-key only went halfway into the worn-out old

draft gear. Foreman Juarez then ordered a forklift to yank

the new cross-key out of the worn-out old draft gear so

that a burr caused by the pounding could be ground off

the cross-key.

Trying to reinsert the new cross-key into the worn-

out old draft gear, Mr. Albert rapidly swung the 16-

pound sledgehammer fifteen more times in just twenty-

five seconds. The new cross-key went but three-fourths of

the way into the worn-out old draft gear.

Feeling very tired and very, very weak, Mr. Albert

put down the 16-pound sledgehammer and entered the

bathroom. Meanwhile, Foreman Juarez ordered a forklift

to push the new cross-key the remaining one-fourth of

the way into the worn-out old draft gear. As a Southern

Pacific manager, Supervisor Jerry Cain testified:

“Q In your opinion, was that a proper method

of trying to pass a cross key?

Paramedics arrived and took Mr. Albert to a hospital

where he first saw Dr. Khan who diagnosed Mr. Albert's

first heart attack. As a treating physician and medical

expert, Dr. Khan testified:

“Q ...I1 am trying to isolate the variable of

Mr. Albert’s exertion at work... .

“A More likely is that he was involved in

heavy activity or exertion [at work] and he

got symptomatic following that, and most

likely that was the timing of his heart

attack.”

“Q....Is it correct, Doctor that it is your belief

that the exertion was a substantial factor in

bringing about his heart attack?

“A Yes.”

“Q .... Doctor, can you say to a degree of

reasonable medical or scientific probability

that Mr. Albert’s heart attack was brought

on by the exertion at work on March 28,

1991?

“A Yes, I agree.”

Each material fact with supporting or conflicting evi-

dence as presented to the courts below appears in the

Appendix. 21a-36a.

B. PROCEDURAL HISTORY

As a result of the damage to his heart, Mr. Albert

filed a Complaint for Damages for Personal Injuries

against Southern Pacific Transportation Company under

45 U.S.C. § 51 et seq. On the eve of trial, the railroad

moved for summary judgment asserting that “(1) plain-

tiff’s heart attack was not reasonably foreseeable by SP

and... (2) plaintiff cannot show by expert opinion that to

a reasonable medical probability, plaintiff’s heart attack

was caused or contributed to by alleged negligence on

SP’s part.” The railroad assumed its own negligence and

objected to Mr. Albert’s evidence on point as irrelevant.

At the hearing, the railroad twice conceded its negligence.

Yet, the superior court entered summary judgment on

December 29, 1992 (13a) based on the grounds in its

December 7, 1992, Order (14a-15a): (1) the railroad had no

prior knowledge that Mr. Albert had “any heart prob-

lems” and (2) the sledgehammer method used was not

“an inherently unsafe one.” The California Court of

Appeal, Second Appellate District, Division Four,

affirmed that judgment de novo in its published Opinion

filed on November 28, 1994. 1a-1la. The California Court

of Appeal denied rehearing on December 21, 1994. 12a.

The California Supreme Court denied review on February

23, 1995. 17a.

REASONS FOR GRANTING THE PETITION

In the superior court, the railroad argued (RT 4):

“IF THIS WERE A BACK CASE, WOULD THIS

BE A PROPER CASE FOR SUMMARY JUDG-

MENT{[?] AND, FRANKLY, I THINK IT WOULD

NOT. I THINK IF MR. ALBERT HAD RUP-

TURED A DISK, THE QUESTION OF FORE-

SEEABILITY WOULD BE SUCH THAT UNDER

THE LAW THAT SHOULD GO TO THE JURY.”

The railroad reiterated that oral argument in the appellate

court. Accord, Stone v. New York, Chicago & St. Louis Rail-

road Co., 344 U.S. 407, 408-409 (1953) (“The likelihood of

injury to men pulling or lifting beyond their capacity

[during repairs] is obvious.”).

Why is a ruptured disk different from a ruptured

coronary artery? Given the expert medical testimony of

Dr. Khan, it is not. Both conditions result from overstress-

ing a part of the body by the inordinate and unnecessary

exertion resulting from a work method that Supervisor

Jerry Cain, testifying as the railroad’s manager respons-

ible for its worker, Mr. Albert, described as improper.

In this case, the railroad’s abuse of “mortal clay” as

an alternative to a functioning hydraulic jack was unrea-

sonable, unsafe and unsuitable for the work required that

day: replacing an extremely worn-out cross-key in an

equally worn-out draft gear in an old automatic coupler

on a rush basis. Dr. Khan so testified. Facts Nos. 16, 18,

19, & 21-26 (21a-36a). The California state courts cannot

find otherwise as a matter of law under the FELA.

I. THIS CALIFORNIA STATE COURT OPINION,

AMONG OTHERS, CREATES A BASELESS JUDI-

CIAL EXEMPTION TO THE CLEAR LANGUAGE

OF THE FELA.

Concurrent state court FELA jurisdiction exists. 45

U.S.C. § 56 (1908, amended 1948). “Congress enacted the

FELA to provide a federal remedy for railroad workers

who suffer personal injuries as a result of the negligence

of their employer or their fellow employees.” Atchison,

Topeka & Santa Fe Railway Co. v. Buell, 480 U.S. 557, 561

(1987). “By imposing liability, FELA ... also was meant to

encourage employers to improve safety measures .. . to

avoid those claims.” Consolidated Rail Corp. v. Gottshall,

512 U.S. __, 114 S.Ct. 2496, 129 L.Ed.2d 427, 448 (1994).

This Court has “liberally construed FELA to further Con-

gress’ remedial goal.” Id. at 440. “To deprive these

workers of the benefit of a jury trial in close or doubtful

cases is to take away a goodly portion of the relief Con-

gress has afforded them.” Bailey v. Central Vermont Rail-

way Co., 319 U.S. 350, 354 (1943).

“Every common carrier by railroad while

engaged in commerce between any of the sev-

eral States .. . shall be liable in damages to any

person suffering injury while he is employed by

such carrier in such commerce . . . for such

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

negligence of any of the officers, agents, or

employees of such carrier, or by reason of any

defect or insufficiency, due to its negligence, in

its cars, engines, appliances, machin-

ery, ... works... or other equipment.”

45 U.S.C. § 51 (1908, as amended 1939). Both parties agree

that the railroad, Mr. Albert, and his work fall within the

FELA. They agree that he suffered his heart attack at

work. They disagree on only one point: Is his first heart

attack one “resulting in whole or in part from the [rail-

road’s] negligence”?

FELA negligence, undefined by the statute, is a ques-

tion of federal law. Urie v. Thompson, 337 U.S. 163, 174

(1949). “Reasonable foreseeability of harm” is an essential

element of FELA negligence. Gallick v. Baltimore & Ohio

Railroad Co., 372 U.S. 108, 117 (1963). A railroad is liable

to its employee if it “ ‘knew, or by the exercise of due care

should have known’ that prevalent standards of conduct

were inadequate to protect [the injured employee] and

similarly situated employees.” Urie, supra, 337 U.S. at 178.

In Rodriguez v. Delray Connecting Railroad, 473 K2d

819, 819 (6th Cir. 1973) an employee “was injured while

on the job during an attempt to loosen spikes with a

sledge hammer type object known as a spike maul.” The

Rodriguez court concluded (id., 473 F.2d 821):

“What is ‘reasonably’ safe is affected to some

extent by the alternatives. Here there was testi-

mony that safety was an advantage of the

hydraulic spike remover. In view of this evi-

dence and considering the special treatment ~ ~

afforded F.E.L.A. cases, we cannot say that the

jury was not entitled to find the old maul

method ‘unreasonable.’ ”

In Pitt v. Pennsylvania Railroad Co., 66 F. Supp. 443,

445 (E.D. Pa. 1946) affirmed, 161 F.2d 733 (3d Cir. 1947) the

court considered “whether the defendant used ordinary

care to furnish plaintiff with an adequate, proper, effi-

cient and safe tool, reasonably suitable for the plaintiff's

use in the service he was directed to perform by the

defendant.” Finding the railroad negligent for providing

its employee with a hard steel 1'/2 pound ball-peen or

machinist hammer (instead of a soft steel carpenter’s or

claw hammer) with which to drive an eight-penny nail

into oak hardwood trim, the Pitt court explained (id., 66 F.

Supp. 446):

“ ‘It cannot be said, as a matter of law, without

reference to the use to be made of it, that

because a hammer *** is a common and simple

appliance, the master when furnishing it to his

servant for use in the discharge of his duties, as

such, does not owe to him the duty to use ordi-

nary care to see that it is reasonably suitable and

safe for the servant’s use in the service to be

performed by him.’ ”

Contributory negligence does not bar an employee's

recovery. 45 U.S.C. § 53 (1908). Assumption of the risk

does not bar an employee’s recovery. 45 U.S.C. § 54 (1908,

as amended 1939). As stated in Owens v. Union Pacific

Railroad Co., 319 U.S. 715, 721 (1943), however:

“Old confusions die hard. And in this instance

some refused to die at all or only did so inter-

mittently.”

“Congress, by abolishing the defense of assumption of

risk in that statute, did not mean to leave open the

identical defense for the master by changing its name to

‘non-negligence’.” Tiller v. Atlantic Coast Line Railroad Co.,

318 U.S. 54, 58 (1943).

“[An] FELA plaintiff need only present a mini-

mum amount of evidence in order to defeat a

motion for summary judgment. ‘[A] trial court is

justified in withdrawing .. . issue[s] from the

jury’s consideration only in those extremely rare

cases where there is zero probability either of

employer negligence or that any such negli-

gence contributed to the injury of an employee.’ ”

Hines v. Consolidated Rail Corp., 926 F.2d 262, 268 (3d Cir.

1991). Accord, Webb v. Illinois Central Railroad Co., 352 U.S.

512, 513-514 (1957); Ferguson v. Moore-McCormack Lines,

352 U.S. 521, 522-523 (1957); Wilkerson v. McCarthy, 336

U.S. 53, 60-61 (1948).

“Any ... device whatsoever, the purpose or intent of

which shall be to enable any common carrier to exempt

itself from any liability ..., shall to that extent be void

....” 45 U.S.C. § 55 (1908). The published opinion below

is wrong as a matter of law.

Its position is not unique. See, e.g., cases denying

FELA claims related to heart injuries: Creamer v. Odgen

Railway, 242 P.2d 575 (Utah 1952), cert. denied, 344 U.S. 912

(1953); Robert v. Consolidated Rail Corp., 832 F.3d 3, 6 (1st

Cir. 1987); New York, New Haven & Hartford Railroad Co. v.

Cragan, 352 F.2d 463 (1st Cir. 1965), cert. denied, 386 U.S.

1035 (1967); Thompson v. Tippit, 300 S.W.2d 351, 355 (Tex.

Civ. App. 1957), cert. dismissed, 355 U.S. 943 (1958). See,

also, Morrison v. Illinois Central Gulf Railroad Co., 387 So.2d

754 (Miss. 1980) (stroke).

In Russell Baker, Growing Up (Signet 1982) at 221, the

author describes his new step-father’s employment in

1939, as follows:

“Herb did join the railroad ...; he was a

fireman and had been for years. It was back-

breaking labor . . . If you survived, and if

enough engineers on the seniority ladder ahead

of you keeled over with heart attacks or came

down with tuberculosis or were scalded to

death in accidents, one day they would have to

call you in and tell you .. . you were going to be

the man at the throttle. This was the stage at

which Herb had arrived - waiting for the call

.... He was forty-five years old.”

How can a railroad employee’s heart attack be

“unforeseeable”?

“The companies have no hearts, and no sensa-

tions except through their financial nerves. The

only manner in which they can be persuaded to

take reasonable care of their employees is by

holding them responsible in damages for the

absence of such care. This is not unjust to the

companies.”

40 Cong. Rec. 4605 (1906). Only this Court can decisively

delete the baseless “one free heart attack” exemption the

cases above have wrongly read into the FELA.

II. THIS SOLE PUBLISHED CALIFORNIA STATE

COURT OPINION CONFLICTS WITH OTHER

FEDERAL AND STATE OPINIONS BASED ON

SIMILAR FACTS.

Congress intended to enact “the strongest law we can

pass.” 42 Cong. Rec. 4542 (1908). “It is being passed ... in

response to the demands of the laboring people of this

country for remedial and protective legislation.” 42 Cong.

Rec. 4550 (1908). “It is not intended to exclude anyone.”

42 Cong. Rec. 4541 (1908).

Reversing a railroad’s summary judgment, in Harbin

v. Burlington Northern Railroad Co., 921 F.2d 129, 130 (7th

Cir. 1990), the court recounts this evidence:

“Harbin’s complaint alleges that the Railroad

negligently caused his heart attack. He charges

the Railroad with negligence for failing to pro-

vide adequate ventilation or proper equipment

with which to perform the boiler cleaning task.

“Harbin proffers the testimony of a medical

expert... to establish a link between the Rail-

road’s negligence and his injury. At his deposi-

tion Dr. . . . testified that inhalation of

particulate matter may irritate the lungs, caus-

ing impairment of oxygen in the blood stream

and forcing the heart to pump at a rapid rate.

Dr. . . . offered his opinion that the strenuous

physical exertion involved in cleaning the

boilers, compounded by the additional stress

upon the heart attributable to the sooty atmo-

sphere, precipitated Harbin’s heart attack.”

“Although we discern no case presenting identical facts,

numerous FELA actions have been submitted to a jury

based upon far more tenuous proof - evidence scarcely

more substantial than pigeon bone broth.” Harbin, supra,

921 F.2d at 132. The Harbin court explained (Harbin, supra,

921 F.2d at 131-132):

“Harbin has adduced ample evidence bearing

upon the Railroad’s negligence to raise a jury

question. The facts establish that locomotives

emitting clouds of exhaust fumes were left run-

ning in an area with no special system of ven-

tilation. In this same building, Harbin was

directed to scrape clean boilers using a process that

generated additional soot and debris. . . . Instead of

utiliz‘ng an air pressure hose to disperse the thick

fog of soot particles generated in the boiler

cleaning process, the Railroad might have

employed a vacuum cleaner. . . . Based upon this

evidence, a jury could reasonably conclude that

the Railroad’s failure to employ a different

boiler cleaning method or take additional pre-

cautions to ensure safety of its employees was

negligent.”

Holding a railroad liable for the death of its

employee, in Pierce v. Southern Pacific Transportation Co.,

823 F.2d 1366, 1367 & 1372 n.2 (9th Cir. 1987) the court

ruled based on these facts:

“At the time of his death on November 8, 1980,

William Pierce was 46 years old and had been an

employee of SP for 28 years. He died because of

a heart attack brought on by stress-related

aggravation of a congenital heart disease known

as long-QT syndrome. Pierce was unaware of his

heart condition. [emphasis added]

“The events which caused the stress and resul-

tant heart attack occurred two days earlier. ....

[T]he negligent conduct of an accident investi-

gation and a decision to pull the victim from

service caused him emotional distress. That dis-

tress subsequently led to his death from a heart

attack, which was the physical manifestation of

the extreme stress and distress caused by the

Rule G accusation.

a“

.... [¥] Here the cause of the injury was

emotional but the plaintiff suffered a physical

condition, long-QT syndrome, that made him

unusually susceptible to the emotional injury.

When an emotional injury causes physical mani-

festations of distress we can see no principled

reason why the eggshell plaintiff doctrine

should not apply.”

Holding a railroad liable for its employee’s perma-

nent injuries, in Bailey v. Missouri Pacific Railroad Co., 383

So. 2d 397, 399 (La. App.), cert. denied, 385 So. 2d 784

(La.), cert. denied, 449 U.S. 836 (1980) the court based its

opinion on these findings:

““A. Defendant was negligent in requiring the

plaintiff to perform a two man job alone consid-

ering his age and the weather conditions.

“B. This negligence caused plaintiff's heart

attack and resulting damages.

“C. It was foreseeable considering plaintiff's age

[58 or 59 years] and weather conditions [hot and

humid] that he would suffer some sort of collapse

similar to that which he experienced [on-site heat

stroke followed by a myocardial infarction in the

hospital two days later] as a result of this increased

activity under the circumstances. [emphasis

added]

“D. Plaintiff was not negligent in performing

the task assigned to him which caused his col-

lapse. He could hardly refuse to do the work he

was instructed to do. The remaining crew mem-

bers had other tasks to perform. . . . He could

not procrastinate. . . . There was apparently no

other way to perform the work assigned to him

other than the way he did.’ ”

The Bailey court explained (Bailey, supra, 383 So. 2d 402):

“Defendant’s main argument against a finding

of negligence, aside from insufficiency of the

evidence, is that the plaintiff's heart attack was

unforeseeable because of his unknown arte-

riosclerotic condition... .

“ _.. Plaintiff’s heart attack and resulting inju-

ries, while perhaps unforeseeable, were conse-

quential to the foreseeable harm suffered

initially by defendant's negligence, i.e., collapse

or heat prostration; therefore, defendant is liable

in damages.”

Ill. THIS PUBLISHED CALIFORNIA STATE COURT

OPINION CAN AND SHOULD BE SUMMARILY

REVERSED PER CURIAM.

Historically, this court has curtailed hostile and inac-

curate state court interpretations of the FELA by sum-

mary reversal per curiam. See, e.g., Ringhiser v. Chesapeake

& Ohio Railway Co., 354 U.S. 901 (1957) and Conner v.

Butler, 361 U.S. 29 (1959). Mr. Albert invites this Court to

do so now.

CONCLUSION

For the reasons stated above, a writ of certiorari

should issue to review and reverse the judgment below.

Respectfully submitted,

BRIAN R. MAGANA

Counsel of Record

DEBORAH MITZENMACHER

MAGANA, CATHCART & McCartHy

1801 Avenue of the Stars, Suite 810

Los Angeles, California 90067-5899

(310) 553-6630

Attorneys for Petitioner

May 25, 1995

APPENDIX

INDEX TO APPENDIX

Page

California Court of Appeal, Second Appellate Dis-

trict, Division Four, Opinion - November 28,

1994 - Albert v. Southern Pacific Transportation

Co., 30 Cal. App. 4th 529 (1994) ...........--- eee. la

California Court of Appeal Order - December 21,

|) SRNR RG Gara eaten we err rary ier or Oe eI 12a

Los Angeles County Superior Court Judgment -

Py en Le oe eee pe REN eee Om 13a

Los Angeles County Superior Court Order -

(ES OSS, ae: CREAR TG eek ae Ampere 14a

California Supreme Court Order - February 23,

5. RR Oar eT ee Oe re rer ree Trey renee re 17a

2h el ae. aah re. See ae re eeee ere 18a

13S Coie ee: WEE CET OEE 6 seo a vob cds haan eos 18a

45 U.S.C. §§ 51-60 (1908, as amended) ............. 19a

Plaintiff's Response in Opposition to Defendant

Southern Transportation Co.’s Separate State-

ment of Undisputed Material Facts - October

Fy RAE cheek « 5ece coh derds bans neneees it ees 21a

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF

THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

BERTRAND E. ALBERT, No. B073689

Plaintiff and Appellant, (Super Ct.

)

) No. BC035177)

) (Filed

)

Vv.

SOUTHERN PACIFIC

TRANSPORTATION COMPANY,

Defendant and Respondent.

Nov. 28, 1994)

APPEAL from a judgment of the Superior Court of

Los Angeles County, David P. Yaffe, Judge. Affirmed.

Magana, Cathcart & McCarthy, Brian R. Magana and

Deborah Mitzenmacher for Plaintiff and Appellant.

Lane, Powell, Spears & Lubersky and Lawrence P.

Riff for Defendant and Respondent.

Bertrand E. Albert (Albert) appeals judgment entered

against him in his action against Southern Pacific Trans-

portation Company (ST or respondent) after the court

granted respondent’s motion for summary judgment.

(Code Civ. Proc., § 437c, subd. (c).)

While working for SP on March 28, 1991, Albert, then

55 years old, suffered a heart attack. He had never experi-

enced any symptoms or been told by any physician that

there was anything wrong with his heart. Until the attack,

Albert felt “[vJery normal.” As a result, no one at SP had

any knowledge of his heart condition.

Albert had been a carman for SP since 1973, working

in the Cornfield Yard, where SP repairs and maintains its

cars. On March 28, 1991, during the 6 a.m. safety meeting,

Albert and his partner, Charlie Moten, were assigned to

replace couplers and perform other repairs on a car that

his supervisor wanted repaired before the SP switch

engine picked up the cars between 10:30 a.m. and noon. !

March 28 was a “clear, sunny” day. There was noth-

ing out of the ordinary about Albert’s physical condition.

Before stopping for lunch at 10:30 a.m., Albert had

replaced one coupler and changed the brake shoes on one

end of the car. At that time, Albert felt that everything

was “[bjeautiful.”

After lunch, Albert and Moten commenced work on

the second coupler. They had difficulty removing the

“cross key,” a large cotter pin-like device that fits into a

slot in the coupler. Although he had a 12-pound sledge-

hammer in his work cart, Albert attempted to drive the

key out of its slot with the 16-pound sledgehammer as

was his habit when there was a “cross key that did not

want to move.” Albert and Moten alternated turns using

the sledgehammer. Albert swung the sledgehammer 10

times in each of 3 sets, while Moten did not swing it as

many times.

While Albert was working on the coupler, Johnny

Juarez, the foreman, noticed that they were not having

1 Such a car is called a “hot car.”

success with the sledgehammer and he suggested that it

would be easier to use a forklift and chain to finish the

job. Juarez then left and the forklift driver was sum-

moned to remove the cross key.

Juarez returned to the car after the cross key had

been removed. He monitored the progress made by

Albert. Albert said seeing his supervisor there “kind of

made me nervous in a way” knowing that the job was to

be completed by noon.

After removing the worn cross key, the forklift driver

delivered a replacement. They could not insert the new

cross key into the coupler. Albert and Moten repeated

their process of alternating in hitting the cross key with

the sledgehammer. Again the cross key was struck about

30 times by Albert and about 10 times by Moten. They

were not successful. The forklift driver was again sum-

moned to remove the new cross key, have it ground to

remove a burr that had formed on it, and returned to the

car.

After the forklift driver repositioned the cross key,

Albert hit it another 15 times in about 25 seconds, but

with no success. At that point, Albert felt tired, but not

ill. The forklift was used to pound the cross key in. On

the drive to the locker room, at about 12:55 p.m., Albert

experienced the onset of the heart attack symptoms.

On August 14, 1991, Albert filed a complaint against

respondent in which he alleged a cause of action for

negligence pursuant to the Federal Employers Liability

Act (FELA). Respondent answered and then moved for

summary judgment on the grounds that (1) Albert’s heart

attack was not foreseeable by SP, and (2) Albert could not

show by expert opinion that, to a reasonable medical

probability, Albert’s heart attack was caused by SP’s neg-

ligence. The court granted the motion and entered judg-

ment for respondent.? This appeal followed. We affirm.

A motion for summary judgment shall be granted “if

all the papers submitted show that there is no triable

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

entitled to a judgment as a matter of law.” (Code Civ.

Proc., § 473c, subd. (c).) When the defendant is the mov- |

ing party, summary judgment is proper if the defendant |

demonstrates the absence of an essential element of the |

plaintiff’s case. (Dolquist v. City of Bellflower (1987) 196

Cal.App.3d 261, 266.) In the instant case, the trial court

granted summary judgment on the grounds that, as a

matter of law, Albert’s heart attack was unforeseeable,

thus negating an essential element of his negligence

action. Our review of this determination is de novo.

(Homestead Savings v. Darmiento (1991) 230 Cal.App.3d

424, 430.)

Under FELA a railroad employer is “liable in dam-

ages to any person suffering injury while he is employed

by such employer” for such injury or death resulting in

whole or in part caused by the employer’s negligence. (45

U.S.C., § 51.) Thus, the FELA plaintiff “must show both

negligence on the part of the employer and causation.”

(Heater v. Chesapeake and Ohio Railway Company (7th Cir.

* Albert objected to certain deposition testimony of him-

self, Johnny Juarez and Jeffrey Cain introduced in support of the

motion. The trial court impliedly overruled his objections. He

renews them on appeal. We have considered and also overrule

those objections.

1974) 497 F.2d 1243, 1246.) The plaintiff must make out a

prima facie case of negligence on the part of the

employer, including the element of reasonable fore-

seeability. (Gallick v. Baltimore & Ohio R.R. Co. (1963) 372

U.S. 108, 117 [“reasonable foreseeability of harm is an

essential ingredient of [FELA] negligence [Citations.]”].)

“To recover, the plaintiff must prove that the railroad,

with the exercise of due care, could have reasonably

foreseen that a particular condition could cause injury.

[Citations.] The defendant’s duty is measured by what a

reasonably prudent person should or could have reason-

ably anticipated as occurring under like circumstances.

[Citation.]” (Davis v. Burlington Northern, Inc. (8th Cir.

1976) 541 F.2d 182, 185; Dale v. Baltimore & Ohio R. Co. (Pa.

1989) 552 A.2d 1037, 1038 [“a plaintiff must establish,

inter alia, that the employer could have foreseen that

injury to the employee was likely or reasonably proba-

ble. ...”].) Although foreseeability is ordinarily a ques-

tion of fact for the jury, it can be decided as a matter of

law when “reasonable minds cannot disagree on the pro-

priety of the [trial] court’s resolution of the issue.” (Id. at

p. 1040.)

Relevant authority holds that a railroad employer

cannot be held liable under FELA for a heart attack

suffered by its employee in the regular course of his

employment when neither the railroad nor the employee

had any reason to believe that the employee had a heart

condition. Under these circumstances, the injury was not

reasonably foreseeable. (Robert v. Consolidated Rail Corp.

(1st Cir. 1987) 832 F.2d 3, 5-7; Morrison v. Illinois Cent. Gulf

R. Co. (Miss. 1980) 387 So.2d 754, 756; Thompson v. Tippit

(Tex. App. 1957) 300 S.W.2d 351, 355-358; Creamer v.

Ogden Union Railway & Depot Co. (Utah 1952) 242 P.2d

575, 577-578.)

In Robert, the plaintiff alleged that he suffered an off-

the-job heart attack as the result of an extended period of

on-the-job harassment by his supervisors. Conrail moved

for summary judgment on the grounds that the plaintiff's

heart attack was unforeseeable because he had never

previously experienced symptoms of heart trouble, had

not complained about the harassment or related stress

and had not alleged that Conrail negligently failed to

stop the harassment. (Robert v. Consolidated Rail Corp.,

supra, 832 F.2d at p. 5.) The trial court granted summary

judgment and the plaintiff appealed:

On appeal, while acknowledging the broad remedial

purpose of FELA, the reviewing court upheld the sum-

mary judgment because the plaintiff’s “case is lacking as

to proof of foreseeability. .. . [T]he record fails to show

that Conrail knew or should have known of the possi-

bility that its conduct toward Robert would cause him to

suffer a heart attack. We would have a much different

case if Conrail, knowing of appellant’s heart condition,

acted negligently toward Robert.” (Robert v. Consolidated

Rail Corp., supra, 832 F.2d at p. 6, fn. omitted.) The court

concluded that the plaintiff “failed to establish that Con-

rail could or should reasonably have foreseen that he

would suffer a heart attack from stress of which Conrail

was never informed.” (Id. at p. 7.)

Similarly, in Morrison, the reviewing court upheld a

directed verdict where the plaintiff, who suffered an on-

the-job stroke, claimed that the railroad was negligent in

failing to restrict his duties to avoid the possibility of a

stroke or heart attack when there was no evidence that he

suffered from a medical condition that might induce a

stroke or heart attack. (Morrison v. Illinois Cent. Gulf R.

Co., supra, 387 So.2d at p. 756.)

In Thompson, the plaintiff suffered from an arterial

condition that made him susceptible to heart attack but

neither he nor his employer, the railroad company, was

aware of it. While engaged in heavy physical exertion,

the plaintiff sustained a heart attack and subsequently

brought a suit against the railroad under FELA. The jury

returned a verdict in his favor. The railroad appealed and

the judgment was reversed on the grounds that the evi-

dence failed to support a finding of negligence because

“the record is still devoid of any evidence from which it

may be fairly said that the defendant was charged with

notice of any fact or facts from which the heart attack

which plaintiff sustained could be anticipated as a result

of the work to which he was assigned.” (Thompson v.

Tippit, supra, 300 S.W.2d at p. 355, original italics.)

Finally, in Creamer, cited by the court below in sup-

port of its decision, the reviewing court reversed a judg-

ment in favor of a plaintiff who suffered an on-the-job

heart attack while in the course of his employment

because of a latent rheumatic heart condition of which

neither he nor the railroad was aware. At trial, the plain-

tiff argued that the railroad was negligent in failing to

supply him with equipment that would have eliminated

the necessity of any physical exertion on his part. The

court rejected the argument, holding that to impose lia-

bility based on a physical condition known neither to the

employee nor the employer “is to predicate negligence on

some elusive quality of clairvoyance quite inconsistent

with principles of reasonable foreseeability. (Creamer v.

Ogden Union Railway & Depot Co., supra, 242 P.2d at p. 577,

fn. omitted.)

By contrast, in Stewart v. Alton and Southern Ry. Co.

(Mo.App. E.D. 1993) 849 S.W.2d 119, the plaintiff alleged

that his on-the-job heart attack was due to verbal harass-

ment by his supervisor. The evidence showed that the

employee had complained to the supervisor of pain and

that he was known by the supervisor to suffer from high

blood pressure. Under such circumstances, the reviewing

court held that foreseeability was established by the

employee's “[p]rotestations of discomfort. ...” (Id. at p.

126.)

What these cases establish is the principle that lia-

bility may not be imposed on a railroad under FELA

when an employee suffers a heart attack in the ordinary

course of his employment where neither he nor the rail-

road have any notice of heart trouble and the employee

has not complained of discomfort or pain prior to the

heart attack. Under such circumstances, the injury is not

reasonably foreseeable as a matter of law. Absent fore-

seeability, negligence is not established under FELA and

without a showing of negligence, recovery is not permit-

ted. (Robert v. Consolidated Rail Corp., supra, 832 F.2d at p.

6 ["“FELA does not impose strict liability on

employers.” ].)

In the instant case, the evidence shows that neither

Albert nor SP was aware that he suffered from any kind

of heart trouble nor did he complain of pain or discom-

fort prior to his heart attack. Moreover, contrary to

Albert’s assertions on appeal, there is no support in the

record for the claim that he was subjected to any unusual

Stress to get the job done nor that the weather was

unseasonably hot. Based on the evidence adduced below,

it was not reasonably foreseeable to SP that Albert would

suffer a heart attack in the performance of his regular

duties and, therefore, SP was not negligent.

In the court below, and at oral argument, Albert

contended that SP’s failure to provide him with a func-

tional hydraulic jack, as an alternative to a sledgeham-

mer, to remove the cross key arguably violated its duty to

provide him with proper tools, and liability could be

assessed against SP on this ground. The argument is

without merit.

In the first place, as the trial court found, the failure

to provide an employee with alternative means to do his

job is not negligence unless the means provided are

inherently unsafe. (Soto v. Southern Pacific Transp. Co. (5th

Cir. 1981) 644 F.2d 1147, 1148.) There was no such show-

ing made here. The only evidence introduced by Albert

was a fragment of deposition testimony by one Jeffrey

Cain that he would have advised use of a hydraulic jack

rather than a sledgehammer to remove the cross key but

Cain was not a percipient witness nor, apparently, was he

qualified as an expert. By contrast, Albert himself testi-

fied that he used the sledgehammer “[w]henever we had

a cross key that did not want to move.”3 Accordingly,

Albert failed to make a showing that use of the sledge-

hammer was inherently unsafe.

* Bizarrely, having raised this issue before, Albert argues

on appeal that the court denied him due process by making a

finding on it. There is no merit to this claim.

10a

In any event, whether SP should have provided

Albert with an alternative to the sledgehammer still

requires a showing that a heart attack was a foreseeable

consequence of his use of the sledgehammer. This simply

has not been established. In essence, the same argument

that Albert makes now was made by the plaintiffs in

Morrison and Creamer. where it was argued that the rail-

road was negligent in failing either to have restricted

their duties (Morrison v. Illinois Cent. Gulf R. Co., supra,

387 So.2d at p. 756), or provided them with equipment

that would have minimized physical exertion (Creamer v.

Ogden Union Railway & Depot Co., supra, 242 P.2d at pp.

577-578). In each case the court rejected the argument

because of the unforeseeability of the stroke (Morrison) or

heart attack (Creamer). Similarly, because it was not fore-

seeable to SP that Albert might suffer a heart attack as the

result of the physical exertion involved in his job, its

failure to provide him with a hydraulic jack or some other

means of doing his job was not negligence.

Equally without merit is Albert’s repeated assertion

that SP is liable for his injury even though other causes

may have contributed to it. This contention confuses caus-

ation with negligence, which Albert is also required to

prove. (Heater v. Chesapeake and Ohio Railway Company,

supra, 497 F.2d at p. 1246.) The fact that his employment

may have been a cause of his heart attack does not make

SP liable for his injury in the absence of proof of its

negligence. It was the absence of negligence, not causa-

tion, that supports summary judgment in this case.

Finally, we have read and considered the two deci-

sions on which Albert principally relies for the proposi-

tion that this heart attack was foreseeable. (Pierce v.

lla

Southern Pacific Transp. Co. (9th Cir. 1987) 823 F.2d 1366,

and Bailey v. Missouri Pac. R. Co. (3d Cir. 1980) 383 So.2d

397.) Both Pierce and Bailey are legally and factually dis-

tinguishable from the instant case.

The judgment is affirmed. SP to have its costs on

appeal.

CERTIFIED FOR PUBLICATION.

WOODS (Arleigh), PJ.

We concur:

VOGEL (C.S.), J.

HASTINGS, J.

12a

OFFICE OF THE CLERK

COURT OF APPEAL

STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

JOSEPH A. LANE, CLERK

DIVISION: 4 DATE: 12/21/94

Magana, Cathcart & Mccarthy

Brian R. Magana

1801 Avenue of the Stars

Suite 810

Los Angeles, CA. 90067

RE: Albert, Bertrand E.

Vs.

Southern Pacific Transportation Co.

2 Civil B073689

Los Angeles NO. BC035177

THE COURT:

Petition for rehearing denied.

ieee ea

13a

Lawrence P. Riff, (State Bar No. 104826)

LANE POWELL SPEARS LUBERSKY

333 South Hope Street, Suite 2400

Los Angeles, California 90071

Telephone: (213) 680-1010

Attorneys for Defendant, SOUTHERN PACIFIC

TRANSPORTATION COMPANY

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

BERTRAND E. ALBERT, ) CASE NO.

Plaintiff, ) BC 035 177

JUDGMENT

e (C.C.P. §437c)

SOUTHERN PACIFIC

TRANSPORTATION CO., [PROPOSED]

Defendant. ) (Filed

Dec. 29, 1992)

This court, having on December 7, 1992, granted

Defendant SOUTHERN PACIFIC TRANSPORTATION

COMPANY ’S Motion for Summary Judgment, and having

ordered entry of judgment as requested in said Motion:

IT IS ORDERED, ADJUDGED, AND DECREED that

plaintiff, BERTRAND E. ALBERT shall take nothing, and

that defendant, SOUTHERN PACIFIC TRANSPORTA-

TION, shall recover from plaintiff costs of suit herein in

the amount of $

DATED: Dec. 29, 1992 /s/ Judge David P. Yaffe

JUDGE OF THE

SUPERIOR COURT

l4a

SUPERIOR COURT OF CALIFORNIA,

COUNTY OF LOS ANGELES

Date: December 7, 1992 ) T. Acuna,

Honorable David P. Yaffe, ) Deputy Clerk

Judge ) None (C.S.R.)

12. A. Ayala, )

C.S.L.

(Parties and Counsel! checked if present)

BC035177 Counsel For

Plaintiff:

BRIAN MAGANA

ALBERT, BERTRAND E.

vs.

SOUTHERN PACIFIC

TRANSPORTATION COMPANY

Counsel For

Defendant:

LAWRENCE P. RIFF

NATURE OF PROCEEDINGS:

MOTION OF DEFENDANTS FOR SUMMARY JUDG-

MENT.

Motion for Summary Judgment having been taken under

submission on December 2, 1992, the court rules as fol-

lows:

Motion is granted.

Evidence is adduced in support of the motion that plain- |

tiff’s heart attack was not foreseeable by defendant. That

evidence consists of plaintiff’s deposition testimony that |

he had no reason to suspect before the heart attack that

15a

there was anything wrong with his heart, and the deposi-

tion testimony of defendant’s foreman and manager to

the effect that they had no knowledge that plaintiff had

any heart problems before he suffered his heart attack.

Plaintiff produces no contrary evidence to create a triable

issue of fact, but relies instead on the contention that

because plaintiff was 57 years old and had been a smoker

it was reasonably foreseeable that he would suffer injury

if required to do the strenuous work of the type he was

performing when he sustained his heart attack. Such

contention has been rejected on the ground that to accept

it, “is to predicate negligence on some elusive quality of

clairvoyance quite inconsistent with principles of reason-

able foreseeability.” Creamer v. Ogden Union Railway, 242

P2d 575, 577 (Utah Sup Ct, 1952).

Although it is true that foreseeability is ordinarily a triable

issue, it may be decided as a question of law if, under the

undisputed facts, there is no room for a reasonable differ-

ence of opinion. The evidence in support of the motion

shows the absence of any reasonable difference of opin-

ion, to the extent that it is possible to prove such a

negative.

Plaintiff has come forth with no controverting evidence,

except that one witness Jeffrey L. Cain, testified that if he

had been present he would have recommended the use of

a jack to do the work instead of a sledge hammer. Plain-

tiff argues that such evidence creates a triable issue as to

the existence of a “threshold tort”, and that any damages

flowing from it are recoverable. However, the fact that

there were other, more advanced methods that could

have been used to do the work is of no significance where

16a

the method used was not an inherently unsafe one. Soto v.

Southern Pacific, 644 F2d 1147, 1148 (5th Cir. 1981).

In granting this motion the court does not adopt defen-

dants’ argument that it may base its motion upon a

failure by plaintiff to demonstrate that he can support his

claim. Under California practice it is the defendant who

must affirmatively prove that plaintiff does not have a

case, but defendant has met that burden here.

Counsel for defendant to prepare the judgment, serve

opposing counsel and the court. The court will hold for

ten days prior to signing and filing.

The Court orders the Final Status Conference and Jury

Trial off calendar as moot.

A true copy of this minute order is mailed via U.S. Mail

this date to counsel as follows:

Brian Magana, Esquire Lawrence P. Riff, Esquire

1801 Avenue of the Stars 333 South Hope Street

Suite 810 Suite 2400

Los Angeles CA 90067 Los Angeles CA 90071

17a

Second Appellate District, Division Four,

No. B073689 -— S044229

IN THE SUPREME COURT OF

THE STATE OF CALIFORNIA

IN BANK

(Filed Feb. 23, 1995)

BERTRAND E. ALBERT, Appellant

SOUTHERN PACIFIC TRANSPORTATION

COMPANY, Respondent

Appellant’s petition for review DENIED.

Mosk, J. is of the opinion the petition should be

granted.

Lucas

Chief Justice

18a

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. CONST. ART. VI, CL. 2 (1787)

This Constitution, and the Laws of the United States

which shall be made in Pursuance thereof... shall be the

supreme Law of the Land; and the Judges in every State

shall be bound thereby . .

U.S. CONST. AMEND. VII (1791)

In Suits at common law, where the value in contro-

versy shall exceed twenty dollars, the right of trial by

jury shall be preserved, and no fact tried by jury shall be

otherwise re-examined in any Court of the United States,

than according to the rules of the common law.

19a

FEDERAL EMPLOYERS’ LIABILITY ACT

TITLE 45 - RAILROADS

CHAPTER 2 - LIABILITY FOR INJURIES

TO EMPLOYEES

45 U.S.C. §§ 51-60 (1908, as amended)

§ 51. Liability of common carriers by railroad, in inter-

state or foreign commerce, for injuries to

employees from negligence; employee defined

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 . . . , for

such injury .. . resulting in whole or in part from the

negligence of any of the officers, agents, or employees of

such carrier, or by reason of any defect or insufficiency,

due to its negligence, in its cars, engines, appliances,

machinery, track, roadbed, works, boats, wharves, or

other equipment. .... (Apr. 22, 1908, c. 149, § 1, 35 Stat.

65; Aug. 11, 1939, c. 685, § 1, 53 Stat. 1404.)

§ 53. Contributory negligence; diminution of damages

In any actions . . . brought against any such common

carrier by railroad under or by virtue of any provisions of

this chapter to recover damages for personal injuries to

an employee ..., the fact that the employee may have

been guilty of contributory negligence shall not bar a

recovery, but the damages shall be diminished by the jury

in proportion to the amount of negligence attributable to

such employee .. . . (Apr. 22, 1908, c. 149, § 3, 35 Stat. 66.)

20a

§ 54. Assumption of risks of employment

In any action brought against any common carrier

under or by virtue of any provisions of this chapter to

recover damages for injuries to .. . any of its employees,

such employee shall not be held to have assumed the

risks of his employment in any case where such injury

. resulted in whole or in part from the negligence of

any of the officers, agents, or employees of such carrier;

and no employee shall be held to have assumed the risks

of his employment in any case, where the violation by

such common carrier of any statute enacted for the safety

of employees contributed to the injury .. . of such

employee. (Apr. 22, 1908, c. 149, § 4, 35 Stat. 66; Aug. 11,

1939, c. 685, § 1, 53 Stat. 1404.)

§ 55. Contract, rule, regulation, or device exempting

from liability; set-off

Any contract, rule, regulation, or device whatsoever,

the purpose or intent of which shall be to enable any

common carrier to exempt itself from any liability created

by this chapter, shall to that extent be void... . (Apr. 22,

1908, c. 149, § 5, 35 Stat. 66.)

21a

Brian R. Magafia State Bar. No. 57680

MAGANA, CATHCART & McCARTHY

1801 Avenue of the Stars, Suite 810

Los Angeles, California 90067

(310) 553-6630

Attorneys for Plaintiff

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

CASE NO. BC 035 177

PLAINTIFF’S RESPONSE

IN OPPOSITION TO

DEFENDANT SOUTHERN

PACIFIC

TRANSPORTATION CO.’S

SEPARATE STATEMENT

OF UNDISPUTED

MATERIAL FACTS

BERTRAND E. ALBERT, )

)

) DATE: Nov. 12, 1992

)

Plaintiff,

VS.

SOUTHERN PACIFIC

TRANSPORTATION CO.,

Defendant.

TIME: 8:30 a.m.

DEPT: 68

DISCOVERY

CUTOFF: None

MOTION

CUT-OFF: 10/30/92

TRIAL DATE:

Dec. 14, 1992

(Filed Oct. 29, 1992)

Plaintiff BERTRAND E. ALBERT submits this oppos-

ing response under Cal. Civ. Proc. Code § 437c(b) (1990)

to the separate statement of undisputed material facts

submitted by defendant SOUTHERN PACIFIC TRANS-

PORTATION CO.:

22a

DEFENDANT'S FACTS:

Plaintiff was not

aware that he suffered

from any heart ail-

ments or infirmities

prior to his heart

attack on March 28,

1991.

No doctor had ever

told plaintiff he had

any heart problems

prior to the date of his

heart attack.

Plaintiff felt fine the

day of his heart attack

prior to the heart

attack occurring.

Plaintiff felt fine even

while performing his

duties prior to his

heart attack occurring.

RESPONSE:

UNDISPUTED.

The phrase “prior to his

heart attack,” however, is

vague and ambiguous. Cal.

Evid. Code § 350.

UNDISPUTED.

Albert Depo. EX A 46:13-20

& 51:23-52:5.

DISPUTED.

Khan Depo. EX 1 59:17-19

& 45:13-23; Albert Depo.

EX 2 46:5-7, 64:19-24,

72:4-5, 73:8-9 & 15-17,

73:18-74:1, 74:5-75:1,

75:11-14 & 24-25, & 76:1-2.

Albert Depo. EX A

61:19-62:5 & 63:5-8.

DISPUTED.

Kahn Depo. EX 1 59:17-19

& 45:13-23; Albert Depo.

EX 2 46:5-7, 64:19-24,

72:4-5, 73:8-9 & 15-17,

73:18-74:16. The phrase

“prior to his heart attack

occurring” is vague and

ambiguous, hence, irrele-

vant and inadmissible. Cal.

Evid. Code §350.

23a

Jerry Cain, plaintiff's

manager, was not

aware that plaintiff

had any heart prob-

lems prior to plain-

tiff’s March 28, 1991

heart attack.

John Juarez, Plaintiff’s

foreman, was not

aware that plaintiff

had any heart prob-

lems prior to piain-

tiff’s March 28, 199]

heart attack.

Plaintiff had no signif-

icant history to indi-

cate a pending heart

attack.

Cain Depo. EX E 42:16-22.

DISPUTED.

Albert Depo. EX 2 7:25-8:1,

23:11-13, 28:7-9 & 47:2-10;

Khan Depo. EX 1 20:8-11,

21:5-6 & 55:15-56:13.

Juarez Depo. EX D 48:7-19.

DISPUTED.

Albert Depo. EX 2 59:7-9,

60:6-12, 64:4-7, 66:16-23,

67:2-6, 71:1-11, 72:4-5 &

74:1-7; Albert Depo. EX 2

7:25-8:1, 23:11-13, 28:7-9 &

47:2-10; Khan Depo. EX 1

20:8-11, 21:5-6 &

95:15-56:13. The phrase

“prior to plaintiff’s

- . - heart attack” is vague

and ambiguous, hence,

irrelevant and inadmiss-

ible. Cal. Evid. Code § 350.

Khan Depo. EX F 18:7-11.

DISPUTED.

Albert Depo. EX 2 7:25-8:1,

23:11-13, 28:7-9 & 47:2-10:

Khan Depo. EX 1 20:8-11,

21:5-6 & 55:15-56:13. The

phrase “significant history”

is vague and ambiguous,

hence, irrelevant and inad-

missible. Cal. Evid. Code

§350. Defendant did not

establish that the witness

has personal knowledge on

24a

point as required by Cal.

Evid. Code §702(a); Cal.

Civ. Proc. Code §437c(d) &

L.D.P.M. 4204(1). Hearsay

is not admissible. Cal. Evid.

Code §1200. Moreover, the

conflict between the “no

significant PMH” entry in

the hospital admission

records and the “signficant

past medical history” entry

on the hospital discharge

summary evidence at Khan

Depo. EX F 17:22-18:8 cre-

ates a triable issue of mate-

rial fact.

8. Plaintiff had never Kahn Depo. EX F 19:6-18.

suffered prior chest DISPUTED.

pains. Defendant did not establish

that the witness has per-

sonal knowledge on point

as required by Cal. Evid.

Code §702(a); Cal. Civ.

Proc. Code §437c(d) &

L.D.P.M. 4204(1). Hearsay

is not admissible. Cal. Evid.

Code §1200.

9. Plaintiff had no indi- Khan Depo. EX F 21:7-16.

cation of heart disease DISPUTED.

prior to the day his Albert Depo. EX 2 7:25-8:1,

heart attack occurred. 23:11-13, 28:7-9 & 47:2-10;

Khan Depo. EX 1 20:8-11,

21:5-6 & 55:15-56:13. The

phrase “indication of heart

disease” is vague and

ambiguous, hence, irrele-

vant and inadmissible. Cal.

Evid. Code §350.

10.

12.

25a

Plaintiff had never

suffered any angina.

It cannot be predicted

when someone is

going to have a heart

attack.

Plaintiff showed no

symptoms to indicate

he could not reason-

ably be expected to

carry on strenuous

activity the day his

heart attack occurred.

Khan Depo. EX F 50:10-22.

DISPUTED.

Defendant did not establish

that the witness has per-

sonal knowledge on point

as required by Cal. Evid.

Code §702(a); Cal. Civ.

Proc. Code §437c(d) &

L.D.P.M. $204(1). Hearsay

is not admissible. Cal. Evid.

Code §1200.

Khan Depo. EX F 53:23-24.

DISPUTED.

Khan Depo. EX 1 20:8-11,

21:5-6, 52:8-12, 54:7-15 &

55:15-56:13. The terms

“when” and “someone” are

vague and ambiguous,

hence, irrelevant and inad-

missible. Cal. Evid. Code

§350. Defendant did not

establish that the witness

had expertise on point as

required by Cal. Evid.

Code §§702(a), 720(a) &

801(b); Cal. Civ. Proc. Code

§437c(d) & L.D.P.M. $204.