United States District Court, D. Kansas
MEMORANDUM & ORDER
JOHN W. LUNGSTRUM, District Judge.
Plaintiff Lee Lain filed this negligence action under the Federal Employers' Liability Act against BNSF Railway Company, his employer, for injuries he sustained after he slipped and fell due to an "unnatural accumulation of ice" on a pedestrian pathway at the BNSF Technical Training Center on the campus of Johnson County Community College. This matter is presently before the court on BNSF's motion for summary judgment on plaintiff's claim. As will be explained, the motion is denied.
"Summary judgment is appropriate if the pleadings, depositions, other discovery materials, and affidavits demonstrate the absence of a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Water Pik, Inc. v. Med-Systems, Inc ., 726 F.3d 1136, 1143 (10th Cir. 2013) (quotation omitted); see Fed.R.Civ.P. 56(a). A factual issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Water Pik, Inc ., 726 F.3d at 1143 (quotation omitted). "The nonmoving party is entitled to all reasonable inferences from the record; but if the nonmovant bears the burden of persuasion on a claim at trial, summary judgment may be warranted if the movant points out a lack of evidence to support an essential element of that claim and the nonmovant cannot identify specific facts that would create a genuine issue." Id . at 1143-44.
The following facts are either uncontroverted or related in the light most favorable to plaintiff, the nonmoving party. A contract exists between BNSF and Johnson County Community College (JCCC) under which BNSF employees receive training at the BNSF Technical Training Center on the campus of JCCC. On January 26, 2011, plaintiff, a BNSF employee, attended the first day of a scheduled training session at the BNSF Technical Training Center pursuant to the direction of BNSF. Consistent with BNSF's regular practice, BNSF began the training session with a safety briefing to discuss potential hazards, evacuation procedures and emergency procedures. During the safety briefing, the BNSF instructor advised employees that a designated smoking area could be located outside on the side of the building. While the instructor did not advise the employees that there was an exit door down the hall from the classroom that would lead employees directly to the smoking area, BNSF asserts that this exit door was obvious and that at least two employees used that exit to reach the smoking area.
At the conclusion of the safety briefing, just before 8:00am, the instructor advised the employees that they could take a short cigarette or coffee break and that they should return to the classroom in ten minutes. When plaintiff exited the building to take a cigarette break, he did not utilize the exit door closest to his classroom and closest to the smoking area. Rather, plaintiff exited the building through the main entrance. Plaintiff testified that most of the employees in his class utilized the main entrance to exit the building at that time. According to plaintiff, he elected not to use the exit door near the classroom because he was not familiar with the facility, the door appeared to be an emergency exit, and he was not sure whether the door would lock behind him. After exiting the main doors, plaintiff followed a wide path around the side of the building to explore the area and to obtain an "overview" of his surroundings, and eventually came to the designated smoking area. He did not encounter any slick or icy conditions on this route. According to plaintiff, he was the only employee to utilize the designated smoking area; the other employees who had exited the main entrance with him stayed near the main entrance and smoked cigarettes there in violation of BNSF and JCCC policy.
After smoking one or two cigarettes, plaintiff began walking back from the designated smoking area to the main entrance. He did not take the same wide path that he had taken on his way out to the smoking area. Instead, he walked closer to the building in front of some dumpsters that were located adjacent to the building in a loading dock area. Despite the fact that plaintiff was walking on what appeared to him to be clean and dry pavement, plaintiff fell on a patch of "invisible" ice and sustained injuries. Although the temperature was below freezing at the time of plaintiff's fall, temperatures on the prior day had reached into the 40s. According to plaintiff, the invisible ice was caused by improper snow removal practices in that the snow was not removed from the area but was simply pushed behind the dumpsters, permitting that snow to melt in warmer temperatures, drain onto the pavement in front of the dumpsters, and then re-freeze on the pavement in lower temperatures.
Section 1 of FELA provides for the railroad's liability to its employees for "injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier." 45 U.S.C. § 51. To hold a railroad liable under FELA, the employee must prove that (1) his injuries occurred within the scope of his employment; (2) he was employed as part of the railroad's interstate transportation business; (3) the railroad was negligent; and (4) the negligence at least in part caused in the injury for which the employee seeks compensation. Volner v. Union Pacific R. Co ., 509 Fed.Appx. 706, 708 (10th Cir. -). With respect to the third prong, an employee must prove the common law negligence elements of duty, breach, foreseeability and causation. Id . (citations omitted). "It is not enough that" Mr. Lain was injured; BNSF "must actually be negligent for there to be liability under FELA." Id . (citations omitted).
In the pretrial order, plaintiff claims that BNSF negligently failed to provide a safe place to work; negligently failed to inspect the premises; and negligently failed to warm plaintiff about unsafe working conditions. BNSF moves for summary judgment on all claims on the grounds that plaintiff's injury was not foreseeable; BNSF had no duty to protect its employees from injuries resulting from the mere existence of snow and ice; and plaintiff's injury occurred outside the scope of plaintiff's employment. Construing the evidence in the light most favorable to plaintiff, a reasonable jury could conclude that plaintiff's injury was foreseeable; that BNSF had a duty to prevent or remedy weather-related conditions on the premises under the circumstances presented; and that plaintiff was acting within the scope of his employment at the time of his injury. Summary judgment is therefore denied.
No Foreseeability of Harm
According to BNSF, plaintiff cannot survive summary judgment on the foreseeability element of his claim in light of his admissions that the ice upon which he slipped was "invisible" and that he fell while walking across a loading dock area rather than using the authorized route between his classroom and the designated smoking area. More specifically, BNSF contends that plaintiff has come forward with no evidence from which a jury could reasonably conclude that BNSF knew or should have known about the "black" or "invisible" ice that caused plaintiff's injury (given the fact that plaintiff himself could not detect it in broad daylight) or that BNSF knew or should have known that plaintiff, in returning to his classroom after a smoking break, would fail to use the most direct route back to his classroom and, instead, would utilize the loading dock area. BNSF, then, contends that plaintiff has not shown that the harm he suffered was reasonably foreseeable to BNSF. See CSX Transp., Inc. v. McBride, 131 S.Ct. 2630, 2643 (2011) (reasonable foreseeability of harm is an essential ingredient of FELA negligence); Holbrook v. Norfolk Southern Railway Co ., 414 F.3d 739, 742 (7th Cir. 2005) (to establish foreseeability for purposes of FELA, plaintiff must show that employer had actual or constructive notice of harmful circumstances); Schaefer v. Union Pacific Railroad Co ., 1999 WL 333099, at *2 (10th Cir. May 26, 1999) (employer not liable under FELA if it has no reasonable way of knowing that a potential hazard exists; plaintiff must prove that employer knew or should have known of conditions which created a likelihood that plaintiff would suffer injury).
On this record, a reasonable jury could conclude that plaintiff's injury was foreseeable. With respect to the invisible ice, plaintiff testified that BNSF, rather than removing snow from the area, simply pushed the snow behind the dumpsters, thus permitting melting and refreezing of the snow in the area in front of the dumpsters. This evidence is not controverted by BNSF and,  thus, is sufficient to raise a triable issue of fact as to whether BNSF created the icy condition through its negligent snow removal. In such circumstances, plaintiff need not establish that BNSF had actual or constructive knowledge of the invisible ice. See Webb v. Illinois Central Railroad Co ., 352 U.S. 512, 515 (1957) (railroad charged with notice of condition that it created through its own negligence); Johnson v. Norfolk Southern Ry. Co ., ...