United States District Court, D. Colorado
ORDER DENYING PARTIAL SUMMARY JUDGMENT
D. Domenico, United States District Judge.
while working for the Defendant railroad, was riding on the
side of a train when he unexpectedly struck a switch stand
that, according to Colorado regulations, was too close to the
track. He seeks damages for Defendant's alleged
negligence under the Federal Employers' Liability Act
(“FELA”) and moves for partial summary judgment
on the question of liability. (Doc. 32.) For the following
reasons, the Court DENIES the motion.
UNDISPUTED MATERIAL FACTS
Kim Immel was a brakeman working for Defendant Union Pacific
Railroad Company. Mr. Immel and his crew were on an
assignment to take a train from Denver to Pueblo, Colorado;
place the train in the yard in Pueblo; and take the
locomotives consist to the roundhouse. As Mr. Immel rode
outside of the cab on the bottom step of the lead locomotive,
a common task in this process, his body hit a switch stand
next to the track (the “Switch”), and he was
knocked off the train.
Colorado Code of Regulations requires switch stands over
three feet high, like the one at issue, to be at least
8-feet, 3-inches from the center of the track. 4 Colo. Code
Regs. § 723-7:7325(g)(II). Union Pacific internal
standards require such switches to be at least 8-feet,
6-inches from the center of the track. But the Switch was
only 6-feet, 4-inches from the center of the track.
only fact relevant to this motion is not disputed: Union
Pacific failed to install the Switch in accordance with
Colorado regulations. On October 15, 2018, Mr. Immel filed
this negligence action against Union Pacific under FELA. On
June 21, Mr. Immel filed a motion for partial summary
judgment, arguing that Union Pacific's admitted violation
of Colorado regulations render it negligent per se.
judgment is appropriate if there is no genuine dispute of
material fact and the movant is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(c). Mr. Immel seeks summary
judgment on Union Pacific's liability and desires to go
to trial on the remaining question of damages. Union
Pacific's response sidesteps Mr. Immel's motion. It
argues that violations of certain state regulations, like the
one at issue, do not give rise to findings of
“negligence per se” under FELA provisions that
would preclude its ability to prove contributory negligence
by Mr. Immel at trial.
parties' confusion flows from courts' use of the term
“negligence per se” in two circumstances.
Traditionally, negligence per se is a doctrine recognizing
the violation of an absolute duty, Carter v. Atlanta
& St. A.B.R. Co., 338 U.S. 430, 434 (1949), or
statute designed to protect the party who was injured against
the type of injury which occurred. Moody v. Bos. &
Maine Corp., 921 F.2d 1, 4 (1st Cir. 1990). Such a
violation by a defendant having been established, the
doctrine relieves a plaintiff, in his prima facie case, of
proving all essential elements, save causation.
Carter, 338 U.S. at 434. But, specifically in FELA
cases, the term is often used in another way. FELA, a
remedial statute enacted to benefit railroad workers by
providing liberal recovery, has abrogated a railroad's
ability to assert affirmative defenses of contributory
negligence and assumption of risk if it has violated a
“statute enacted for the safety of employees.” 45
U.S.C. §§ 53, 54, 54a. This too is called
“negligence per se, ” see, e.g.,
Ries v. Nat'l R.R. Passenger Corp., 960 F.2d
1156, 1159 (3d Cir. 1992), but limited only to violations of
certain federal and state regulations. See Fletcher v.
Chicago Rail Link, L.L.C., 568 F.3d 638, 639 (7th Cir.
parties seem to be using the term differently. Mr. Immel
believes himself entitled to assert the former of these
theories to define the applicable standard of care and
relieve a portion of his burden at trial, and Union Pacific
responds that he may not claim the latter to cut off its
ability to prove contributory negligence. The Court will
address these arguments in reverse order.
FELA's Contributory Negligence Bar
that the present motion for summary judgment could affect its
ability to prove contributory negligence at trial, Union
Pacific points to 45 U.S.C. § 53, which provides that an
employee with a right to recourse under FELA cannot “be
held guilty of contributory negligence in any case where the
violation by [the railroads] of any statute enacted for the
safety of employees” contributed to the injury. In
other words, in a FELA case, an injured employee's
damages cannot be reduced based on his own contributory
negligence if the railroad violated a statute enacted to
protect the employee.
scope of Section 53 is informed by a provision establishing
the applicability of certain safety statutes:
A regulation, standard, or requirement in force, or
prescribed by the Secretary of Transportation under chapter
201 of Title 49 or by a State agency that is participating in
investigative and surveillance activities under section 20105
of Title 49, is ...