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Immel v. Union Pacific Railroad Co.

United States District Court, D. Colorado

August 23, 2019

KIM IMMEL, Plaintiff,


          Daniel D. Domenico, United States District Judge.

         Plaintiff, 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.


         Plaintiff 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.[1] 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.

         The 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.

         The 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.

         II. ANALYSIS

         Summary 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.

         The 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. 2009).

         The 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.

         A. FELA's Contributory Negligence Bar

         Concerned 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.

         The 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 ...

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