Coro v. Union Pacific Railroad Company, et al

Material Facts: It was Plaintiff’s first or second time replacing a water pump on a locomotive. (UF, 3.) However, Plaintiff had seen the task completed by another employee, alone and without assistance. (UF, 4.) While Plaintiff purports to dispute that fact, he concedes he

received 90 days of training that included watching another machinist install a water pump. (Resp. to UF, 4; see also UF, 15 and response [addressing the training].) In any event, it is undisputed that Plaintiff never asked anyone to assist him in completing the task. (UF, 5.) Plaintiff also inspected the area before proceeding with the job [UF, 10], and he worked for approximately three hours before the incident occurred. During that time, Plaintiff traveled “up and down” the portable platform between 10-20 times without any issues. (UF, 11-12.)

The parties also agree that Plaintiff did not look behind him before he started to stand up from a kneeling position, in order to obtain a different tool. As Plaintiff turned to go down the platform, his left ankle twisted off the edge of the running board and landed on his right leg to keep from falling. (UF, 14; PAF, 8-9.) The parties further agree that before the incident Plaintiff never complained or reported a safety concern related to the task or the equipment involved nor did he ever feel that his footing was uneven. (UF, 9 & 13.)

Plaintiff had also previously worked on track 4 without issue. (UF, 6.) Defendant also contends more broadly that no one ever reported any issues with the height of the platform relative to the locomotive, but the evidence cited merely indicates that the supervisor never received such a report. (UF, 7 and response; Leighty Decl., Ex. D [the Garnica Dep.] at p. 39.) Defendant further suggests that the supervisor never received a request or information from the employee’s union that height-adjustable platforms should be utilized. (UF, 8; PAF, 5 [noting Garnica’s supervisory role].)

But, it does not appear the supervisor would have received such a request or information had it existed since he conceded he did not have contact with the union. (Resp. to UF, 8; Leighty Decl., Ex. D [the Garnica Dep.] at p. 40.) While not advanced in the separate statement, Defendant also suggests that there was no union agreement requiring the use of certain platforms because Plaintiff failed to produce such an agreement in response to written discovery. In his PAFs, Plaintiff notes that he picked up where a prior crew had left off and there was already a portable platform in place that was secured to the locomotive.

He further indicates the platform had been placed and secured by a railroad machinist. (PAF, 3-4.) While Defendant disputes that latter fact or suggests the evidence cited does not support the proposition asserted, the suggestion that the platform had already been installed by a crew was alleged in the Complaint. (Compl., ¶9.) The parties agree the platform was not height adjustable. (PAF, 12.) While Union Pacific started using adjustable platforms after the incident, as indicated above such evidence would be inadmissible to the extent it is used to show negligence or culpability. (PAF, 13 and response/objections.)

The supervisor testified he did not personally inspect the “area where the prior shift was working” before Plaintiff started and that if he “would inspect it, [he] probably would have seen” the height differential. (Garnica Dep. at pp. 26 and 31.)

Plaintiff also indicates that Hendrickson also knew in 2021, prior to the incident, that the height of the platform could be lower than the running board and took no corrective action; Hendrickson never warned Plaintiff or any other machinist or manager. (PAF, 14-15.) The evidence cited indicates Hendrickson did not have knowledge of anyone telling Plaintiff expressly about the height differential, but that, in general terms, Defendant discussed “stepping hazards” “all the time”; although Hendrickson, not being present at the safety meetings, was unaware of whether the platform was discussed specifically.

Hendrickson also conceded he was aware that there was sometimes a height differential involving the platforms, and he did not take any steps to correct the issue. (Hendrickson Dep. at pp. 30-36 and 41.) The supervisor also conceded he was never told there could be a height differential. (PAF, 16.) Overview of FELA: Railroad employees are not covered by state worker’s compensation laws. Damages for injury of a railroad employee engaged in interstate commerce are recoverable exclusively from the railroad under FELA and may not be recovered under state law. (Wabash R.R. v.

Hays (1914) 234 U.S. 86.) To establish liability under FELA, the employee must show that his injury was caused at least in part by the negligence of the employer or one of its employees. (Baez v. Southern Pacific Co. (1962) 210 Cal. App. 2d 714, 717.) The traditional elements of negligence – duty, breach, and causation – apply to a FELA claim. (So. California Regional Rail Authority v. Superior Court (2008) 163 Cal.App.4th 712, 739.) Thus, for a plaintiff to prevail under FELA, he must prove: (1) that he was injured while in the scope of his employment; (2) which employment is in furtherance of the railroad’s interstate transportation business; (3) that his employer was negligent; and (4) that his employer’s negligence played some part in causing the injury for which compensation is sought under FELA. (Green v.

River T.R. Co. (6th Cir. 1985) 763 F.2d 805, 808.) A railroad is deemed to have breached its FELA duty if it knew or should have known of a potential hazard in the workplace and yet failed to exercise reasonable care to protect its employees. (Ulfik v. Metro-North Commuter R.R. (2d Cir. 1996) 77 F.3d 54, 58.) Argument re Discovery: Defendant first argues that Plaintiff provided factually devoid discovery responses and, therefore, the burden shifts to him to prove his case. The facts relied on, however, are not asserted within the separate statement.

The golden rule of summary judgment or adjudication is that “if it is not set forth in the separate statement, it does not exist.” (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 313, as modified (Oct. 9, 2002).) Generally, it is true that a factually devoid response may be used to satisfy the moving party’s initial burden on summary judgment. (Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 934). The moving party must ensure, however, that the questions were adequately direct and specific. (Cassady v.

Morgan, Lewis & Bockius LLP (2006) 145 Cal.App.4th 220, 243–244.) Furthermore, in Saxena v. Goffney (2008) 159 Cal.App.4th 316, 334, the court indicated that the “simple failure to answer, or the giving of an evasive answer, requires the propounding party to pursue an order compelling an answer or further answer—otherwise the right to an answer or 4

further answer is waived and an evidence sanction is not available.” Discovery responses that do not exclude the possibility that the responding party may possess or may reasonably obtain evidence is insufficient to establish the initial burden on summary judgment. (Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1441-1442.) Here, in response to being asked how the incident occurred and to lay out the facts supporting the assertions that Defendant failed to provide a safe work environment (and safe equipment, etc.), Plaintiff simply provided a narrative that reiterated what occurred (e.g., he was tasked with replacing the pump and rolled his foot).

Plaintiff also explained how the incident occurred, by noting the height differential between the running board and the scaffolding, which he states was placed by a prior crew. He further indicated he was never trained on adjusting the scaffolding. (Leighty Decl., Ex. F.) These responses are not so factually devoid on the issue of what Defendant did or did not do that the burden should shift to Plaintiff. Argument re Notice: In this case, Defendant relies upon the purported lack of any prior incidents or complaints about the height differential as both supporting an absence of a dangerous condition and the absence of notice of the condition. (Opening Brief at pp. 10-11.)

However, the motion fails to cite any authority suggesting the absence of prior incidents or complaints, in and of themselves, shows that a condition was not dangerous or that there was no notice of the condition as a matter of law. As one California practice guide instructs: “[w]hile prior similar incidents are helpful to determine foreseeability, they are not required to establish it.” (6 Witkin, Summary 11th Torts § 1276.) “A rule which limits proof of foreseeability to evidence of prior similar incidents automatically precludes recovery to first-injured victims.

Such a rule is inherently unfair and contrary to public policy.” (6 Witkin, Summary 11th Torts § 1276 (2026) [citing Onciano v. Golden Palace Restaurant (1990) 219 Cal.App.3d 385, 392 and Robison v. Six Flags Theme Parks (1998) 64 Cal.App.4th 1294, 1297 [amusement park was liable when car struck picnickers, where picnic area was island in parking lot without barriers; some accident was foreseeable, even though the particular way accident occurred, i.e., slow learner, unlicensed driver involved in effort to push-start car, was not foreseeable].)

As indicated above, Defendant never addressed Plaintiff’s allegation that the scaffolding was set up by Defendant’s employees. Thus, the employer has failed to show that it lacked notice of the condition as a matter of law. In the same vein, there is no evidence from Defendant expressly refuting the assertion that none of its managers or supervisors knew of the height differential and the PAF’s tend to indicate Defendant was aware of the condition. (PAF, 14.) The dangerousness of the condition is also undoubtedly a triable issue of fact; a reasonable jury looking at the height differential could easily conclude the condition was dangerous and that injury was foreseeable. (Gallose v.

Long Island R. Co. (2d Cir. 1989) 878 F.2d 80, 85 [whether employer knew or should have known of a dangerous condition and whether it exercised reasonable care in light of that knowledge is generally a question of fact; trial court erred in

granting summary judgment because the issue should have been whether the employer was aware of the “mere presence” of a large dog, not whether it knew if the dog had vicious propensities, and whether a employer using reasonable care should have investigated further or taken steps to protect employees].) Finally, there may be some suggestion that Plaintiff bears some responsibility for the incident because he did not complain; because others were able to work without incident; and because he was aware of the condition, etc. Even so, 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.” (45 U.S.C. § 53.)

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