No. 8 6 - 2 8 5
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
DOUGLAS PLOUFFE,
Plaintiff and Respondent,
BURLINGTON NORTHERN, INC.,
a Delaware Corp.,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jardine, Stephenson, Blewett & Weaver; James E. Aiken,
Great Falls, Montana
For Respondent:
Erick Thueson, Great. Falls, Montana
Submitted on Briefs: Sept. 25, 1 9 8 6
Decided: December 30, 1986
Filed:
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Burlington Northern, Inc. appeals from an order by the
District Court of the Eighth Judicial District, Cascade
County, granting plaintiff Doug Plouffe's motion for summary
judgment on the issue of liability under the Federal
Employers Liability Act (Title 45 U.S.C., § 51, et seq.) and
denying defendant's motion for a new trial. We affirm.
Three issues are raised on appeal. The first is whether
the trial court erred in granting Plouffe's motion for
partial summary judgment on the issue of liability und-er the
Federal Employers Liability Act. The second is whether the
trial court erred in denying Rurlington Northern's motion for
a new trial. The final issue is whether the trial court
acted properly in denying Plouffe ' s motion for pre- judgment
interest.
This action began when Plouffe sued his employer
Burlington Northern (BN) under the Federal Employers
Liability Act to recover for four separate on-the-job
injuries received in 1979-1981. Plouffe maintained that his
injuries were the result of BN's admitted violation of
portions of the Federal Safety Appliance Act, 45 U.S.C. S 1,
et seq. Hence, he argued, partial summary judgment on the
issue of liability was proper, as BN's admissions precluded
their raising questions of material fact. BN responded that
a grant of partial summary judgment was improper in that it
removed from consideration the issues of causation,
contributory negligence and whether the defects existed.
The District Court granted Plouffe's motion for summary
judgment on the liability issue, agreeing with Plouffe that
the railroad had admitted prior to trial that Plouffe's
credibility concerning the accidents was not an issue and
that defects were in fact the only explanation for the
injuries. The court left the issue of medical causation to
the jury.
Plouffe's complaint and motion for partial summary
judgment were based on the Safety Appliance Act, 45 U.S.C. 5
1, et seq. This federal safety statute was enacted to
protect railroad employees and the public from injury caused
by defective equipment on cars and locomotives. Urie v.
Thompson (1949), 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282.
In addition to this recognized end, the statute also has the
effect of facilitating recovery under the Federal Employers
Liability Act, since violation by a carrier of a specific
safety requirement is held to constitute negligence as a
matter of law, regardless of a showing of negligence on the
employee's part. Urie; Coray v. Southern Pacific Co. (19491,
335 U.S. 520, 69 s.Ct. 275, 93 L.Ed. 208. The Safety
Appliance Act "imposes absolute liability upon any carrier
[violating] it." Callihan v. Burlington Northern, Inc.
(19821, 201 Mont. 350, 355, 654 P.2d 972, 975. See, e.a.
Anderson v. Burlington Northern, Inc. (Mont. 1985), 709 P.2d
641, 42 St.Rep. 1738; McGee v. Burlington Northern, Inc.
(1977), 174 Mont. 466, 571 P.2d 784. Further, contributory
negligence is not a factor in determining liability if the
Safety Appliance Act has been violated. Title 45, U . S . C . S
53 states:
... no such employee who may be injured or killed
shall be held to have been guilty of contributory
negligence in any case where the violation by such
common carrier of any statute enacted for the
safety of employees contributed to the injury or
death of such employee.
"The statute expressly imposes liability upon the
employer to pay damages for injury or death due 'in whole or
in part' to its negligence." Rogers v. Missouri Pacific
Railroad Co. (1957), 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d
493, citing 45 U.S.C. § 51. To prove liability as a matter
of law, Plouffe need only to have established a "defect or
insufficiency" due to the railroad's negligence. Title 45
U.S.C. § 51.
With these basic precepts in mind, we turn to the issue
raised of the propriety of the District Court's granting
partial summary judgment on the issue of liability for each
of the injuries in question.
The first of the four accidents occurred on March 28,
1979, when Plouffe was working as a switchman in the Havre
yard. He and his co-workers were moving a string of cars
onto another track when he noticed that a flat car in the
string would not roll properly. This is ordinarily caused by
sticking brakes. To eliminate the problem, Plouffe first
tried bleeding the air from the brakes. When this did not
work, he attempted to release the brakes by turning the
handbra.ke located on the end of the car. However, the
handbrake was stuck and would not turn. (The handbrake is a
vertical shaft with a wheel at its top. The wheel is
perpendicular to the shaft.) Plouffe knew that sometimes the
chain to the brake shaft would stick or get tangled and
prevent the handbrake wheel from turning. As Plouffe bent to
rattle the chain located under the car, the handbrake shaft
slipped down, causing the handbrake wheel on the top of the
shaft to hit Plouffe on the back of the head, knocking him to
the ground. There were no witnesses to this accident.
' The ra-ilroad raises several contentions. First, they
argue that the issue of contributory negligence should have
been submitted to the jury. Second, they claim that there
was no proof that the handbrake was defective. Finally, they
claim that Plouffe's credibility was an issue of fact that
should have been decided by a jury but was wrongly precluded
by summary judgment.
Title 45, U. S .C. S 11 provides that " [a]11 cars must be
equipped with ... efficient hand brakes. .. " Compliance
with S 11 is "not simply a question of whether the brake is
efficient; it is necessary that the brake can be operated
with safety. " Ballard v. Sacramento Northern R. Co. (1932),
126 Cal.App. 486, 14 P.2d 1045. If an inefficient brake
causes injury, there is inescapable liability under the
Federal Safety Appliance Act (FSAA), Title 45, U.S.C. SS
11-16.
After the accident, Plouffe filed a personal injury
report with the railroad. A tra-in master for BN conducted a
supervisory investigation which confirmed that the brake
shaft wheel dropped and hit Plouffe on the back of his head.
Burlington Northern never inspected the handbrake after the
accident, although under its own operating and safety rules
it had a duty to do so. Further, BN, through the person it
designated as a safety expert, admitted that if the handbrake
shaft and wheel came down, as it did without the latch being
released, it would be defective. These facts, undisputed by
BN, provide ample evidence to support the District Court's
finding that the FSA4 was violated because the equipment was
defective. Further, the law provides that if this Act has
been violated, then contributory negligence is not a factor
in determining ljability. In short, an inefficient brake
causes injury, there is inescapable liability. Title 45,
U.S.C. 55 11-16,
The United States Supreme Court discussed the absolute
liability features of the Safety Appliance Act in Lilly v.
Grand Trunk Western R. Co. (19431, 317 U.S. 481, 485-86, 63
S.Ct. 347, 87 L.Ed. 411, stating:
Negligence is not the basis for liability under the
act. Instead it "imposes upon the carrier an
absolute and continuing duty to maintain the
locomotive, and all parts and appurtenances thereof
in proper condition and safe to operate . ..
without unnecessary peril to life or limb.
(Citations omitted. Any employee engaged in
interstate commerce who is injured by reason of a
violation of the Act may bring his action under the
Federal Employers Liability Act, charging the
violation of the Boiler Inspection Act. The Act,
like the Safety Inspection Act, is to be liberally
construed in light of its prime purpose, the
protection of employees and others by requiring the
use of safe equipment."
In the instant case, absolute liability was properly imposed.
The defective condition of the brake was undisputed and BN
was unable to support its argument that a genuine issue of
material fact existed. Hence, the District Court properly
ruled that Plouffe was entitled to judgment as a matter of
law.
BM also claims that summary judgment foreclosed raising
Plouffe's credibility regarding the accident. This claim is
inconsistent with the railroad's pre-trial activity where,
during discovery, it did not dispute Plouffe's testimony
about how the accident occurred. In fact, the railroad's
claims manager made the following admissions during the
taking of his deposition:
Q. (By Plouffe's attorney): There is nothing in
the claims file indicating that the accident
occurred in any other way; correct? A. Not that I
am aware of, no.
Q. Do you know of any reasons to doubt that is
precisely what occurred in this instance? A.
Doubt that Plouffe was hit on the head with the
brake?
Q. Right. A. No.
Shortly following this dialogue, the railroad's attorney
added the following:
Q. (By Plouffe's attorney) ...
Is it Burlington
Northern's position that they don't dispute Mr.
Plouffe's description of how the accident occurred?
A. (By BN's attorney) Based upon all the
information I have in my review of the file, my
discussion with (BN's claims manager) , it's my
understanding that there is no basis at this point
that we are aware of nor witnesses who will say
that it didn't happen the way Mr. Plouffe says it
happened.
I will make it clear, however, that Burlington
Northern certainly disputes the nature and extent
of the injuries that relates to his back problems.
You understand that?
Q. I understand you are debating causation as far
as that accident goes-- A. And its relationship
to the overall problem, correct.
Q. --but we are not fighting over how the accident
occurred. That's what I am here for is to find
that out. A. I am not aware of anything that
suggests that Mr. Plouffe isn't telling the truth
or that anybody saw it happen differently.
Under well established concepts of law, a party cannot
take one position during pretrial discovery and then change
its position at the time of trial or on appeal. Under S
26-1-601, MCA, the following is a conclusive presumption:
The truth of a declaration, act, or omission of a
party, as against that party in any litigation
arising out of such declaration, act or omission,
whenever he has, by such declaration, act or
omission, intentionally led another to believe a
particular thing true and to act upon such belief.
Here, the railroad claimsman and attorney clearly lead
Plouffe to believe that the railroad was not contesting
Plouffe's credibility concerning how the accident occurred.
Hence, the railroad was estopped from making this argument at
trial and may not raise this issue on appeal.
The second accident occurred on July 28, 1979 when
Plouffe lost his footing while he was starting to climb down
from an engine. Plouffe specifically remembers that he was
looking where he was going because the deck on the locomotive
had been worn so smooth that it had a "silvery finish." The
cleats on the locomotive walkway, designed to prevent
slipping, had been worn smooth. F?hen he started to climb
down from the engine, his feet flew out from under him and he
bounced down the steps on his rear. There were no
eyewitnesses to this accident.
Again the railroad presented no evidence to the District
Court contradicting Plouffe's description of the accident.
Nor did it meet its duty, under its own safety rules, to
inspect the engine deck after the accident.
The railroad does not dispute that the walkway was
smooth and defective. Indeed, the person designated by BN as
a safety expert on locomotives admitted that the railroad
violated its own safety rules by having a walkway where the
metal cleats were worn down to the point where the deck was
shiny.
The Federal Employers Liability Act provides that
railroads have an absolute duty to maintain locomotives in
such a condition as to prevent unnecessary peril to life or
limb. Dallas v. Burlington Northern, Inc. (Mont. 1984), 689
P.2d 273, 41 St.Rep. 1902, 1906. In addition, federal
regulations require that floors be properly treated to
provide secure footing. Anderson v. Burlington Northern,
Inc. (Mont. 1985), 709 P.2d 641, 42 St.Rep. 1738 (citing 49
CFR S 229.119(c)).
In this case, where the cleats of the walkway had been
worn smooth, it's clear that an unnecessarily perilous
condition existed. In admitting this, the BN expert even
went so far as to explain that the railroad should have taken
precautionary measures of welding new cleats on the walkway.
Here again, summary judgment based upon the Safety Appliance
Act was proper. The District Court correctly held the
railroad strictly liable for Plouffe's injuries, regardless
of any contributory negligence.
The railroad claims that Plouffe's cause of action was
for negligence, and not legitimately a violation of the FSAA,
because there was a factual issue that Plouffe had oil on his
boots and that the oil could have contributed to his fall.
If this was the case, they argue, then there would be no
violation of the FSAA and the railroad could only be liable
for negligence for leaving the oil in the yard. However, the
admission that the walkway lacked cleats precludes this
theory, as the lack of cleats created an unnecessarily
perilous condition. The questionable oily condition of
Plouffels boots was not a factor discussed in determining
that the FSAA was violated.
The railroad also claims that Plouffe's credibility
concerning this accident was in issue and that it was error
for the District Court to deny it the opportunity to raise
the credibility issue at trial. Here again the railroad is
estopped because of its actions during discovery. The
following exchanges took place during the deposition of the
railroad's claims manager:
Q. Was any evidence developed that contradicts Mr.
Plouffels statement by you concerning how the
accident occurred? A. No one has told me that Mr.
Plouffe did not slip on Unit 1835 and hurt his
right arm.
Q. Was any evidence developed indicating that Mr.
Plouffe was somehow not telling the truth in that
regard? A. Not that I am aware of.
Q. Do you know of any reason to doubt Mr.
Plouffe's statement that he did. slip on the step on
Unit 1835? A. None whatsoever.
The railroad's attorney again followed this discussion with
the following admissions:
I would make the same statement that I made earlier
on the other accident [regarding the brake wheel]
that while there is--I am not aware of any
information, evidence or other witnesses who
contradict what he has put down in his report. We
do dispute the nature and extent of the injury,
disability, from the [fall from the engine].
Whatever [Doug Plouffe] said took place before we
don't dispute, whether he called it a fall or a
slip or whatever it was.
Once again, Plouffe's attorneys were lead to believe
that Plouffe's credibility was not an issue. Once again 5
26-1-601 estops the railroad from raising this issue in the
District Court or on appeal.
The third accident occurred on October 26, 1979.
Plouffe was attempting to straighten a drawbar on a flat car.
The drawbar is the heavy metal bar that supports the coupler.
These bars will slide to the left or right in order to allow
cars to go around curves in the track. To couple cars,
however, the drawbar must be in the middle of its housing
rather than off to its right or left. Otherwise, when the
coupler is brought together with the coupler on a.n adjacent
car, there can be damage to the coupler or to the car.
A responsibility of railroad workers is to make sure the
drawhar is straight and not misaligned when the cars are
being coupled. To straighten the drawbar, a switchman leans
against it and uses the weight of his body to move it into
position. BN safety rules instruct workers in writing to
straighten drawbars. It is the worker's duty to see that
coupling appliances are in place and to adjust the drawbars
prior to making coupling.
In compliance with these rules Plouffe straightened a
drawbar on October 29, 1979 and injured his back. Plouffe
reported the accident and this time the railroad inspected
the accident scene. Although the railroad found no defect in
the drawbar, the absence is irrelevant. "The fact the
coupler functioned properly before or after the incident in
question is immaterial." McGee v. Burlington Northern, Inc.
(1977), 174 Mont. 466, 571 P.2d 784. Once again, the duty of
the railroad to insure worker safety is absolute, without
regard to negligence or the normal efficiency of the
couplers. Title 45,U.S.C., S 2; Affolder v. New York C. &
St. L. F. Co.
. (1950), 339 U.S. 96, 70 S.Ct. 509, 94 L.Ed.
683. Title 45, U.S.C. § 2 holds that it is "unlawful for any
... common carrier (engaged in interstate commerce by
railroad) to haul or permit to be . . . used on its line any
car ... not equipped with couplers coupling automatically
by impact, and which can be uncoupled without the necessity
of men going between the ends of cars." Because the railroad
admits that Plouffe went between the cars to straighten the
drawbar, as was his obligation, and because the drawbar is
part of the coupling device and must be kept in operating
order, the railroad violates Title 45, U.S.C. S 2 if the
drawbar is so out of line that the car cannot be coupled
automatically on impact. Plouffe was entitled to summary
judgment on the liability issue for this accident.
The final accident took place on February 10, 1981.
Doug Plouffe was a switchman in a three man crew engaged in
uncoupling cars. One of the pins that allows the coupler of
a car to release was not working during the uncoupling
operation. This required Plouffe to walk along with the
movement of the train, holding the pin lifter level to make
sure the couplers disengaged. As he was getting ready to
give the engineer a stop signal, he stepped in a hole between
the railroad ties and the adjacent ballast, lost his footing
and sprained his lower back and right knee. Plouffe had not
seen the danger because fresh snow had filled the hole.
Plouffe's account of how this accident happened was
uncontradicted and is corroborated by the testimony of the
engineer who saw the accident and a crew member who actually
saw the hole and recommended to BN that it provide fill in
that area.
In McGee v. Burlington Northern, Inc. (1977), 174 Mont.
466, 477, 571 P.2d 784 this Court approved the following jury
instruction:
The Safety Appliance Act imposes an absolute duty
...upon the railroad to provide its cars with
coupling devices which operate efficiently at the
time of the accident. If you should find from the
evidence that plaintiff operated the uncoupling
device in the usual accepted and customary manner
and the uncoupler failed to immediately respond in
an efficient manner, the railroad was in violation
of the Safety Appliance Act.
Here, the pin lifter was not working and Plouffe was required
to walk along with the train. Based on Title 45, U.S.C. § 2
and the authority cited above, this in itself was a violation
of the FSAA. Therefore, we conclude there was sufficient
undisputed evidence on which the District Court could base an
order granting partial summary judgment. Appellant BN
claimed that the action should have been in negligence and
not brought under the FSAA because it was negligence (and not
a violation of the FSAA) for it to have inadequate fill
between the ties. This argument is illogical because it
ignores the fact that Plouffe would not have been walking
alongside the car (and hence injured) if the pin lifter had
been operating.
By granting summary judgment on liability the District
Court took the issues from the jury of whether BN's violation
of the FSAA caused the accidents. The railroad claims that
there was insufficient evidence to establish the cause of
Plouffe's accidents because there were no accidents in three
of the four incidents. BN speculates that Plouffe could have
been injured in ways that did not involve violations of the
FSAA. However, we follow the rule that inferences drawn from
circumstantial evidence can be as probative as direct
evidence. Barich v. Ottenstror (1976), 170 Mont. 38, 550
P. 2d 395; Anderson v. Burlington Northern, Inc. (Mont. 1985) ,
709 P.2d 641, 42 St.Rep. 1738. Furthermore, the party
opposing a motion for summary judgment on a record. which
reveals no issue of material fact must present facts of a
substantial nature. Conclusionary or speculative statements
are insufficient to raise genuine issues of material fact.
Barich, supra; Rule 56, M.R.Civ.P. Here the railroad relied
exclusively on speculative statements inconsistent with their
earlier admissions. We agree with the District Court's
conclusion that the railroad totally failed to set forth
specific facts showing that there is a genuine issue for
trial. "All (the railroad) does is tell the Court that it
would be better to let the matter go to the jury because of
its 'allegations or denials of its pleading. ' As set forth
in Rule 56(e), this is not sufficient."
The railroad is also incorrect in claiming that the
District Court took the issue of causation away from the
jury. The issue of medical causation, that is whether or not
the accidents caused injuries to Plouffe, was properly left
to the jury.
The manner in which the accidents occurred and how they
aggravated Plouffe ' s back condition was fully explored. In
short, the pertinent issues of causation of injury were left
to the jury. The only issues not submitted to the jury were
those that were established by uncontradicted evidence.
The second issue raised by the railroad involves what
the railroad believes is a post-trial event justifying a new
trial. The week after trial, Plouffe went to the trainmaster
in Havre and requested he be permitted to go back to work.
He presented a note from his chiropractor which said "Doug
Plouffe may now return to work." The same chiropractor had
testified at trial that it was not medically feasible for
Plouffe to return to work because it would aggravate his back
condition. The railroad contends this evidence implies that
Plouffe was physically able to return to work and that he
intended to continue working in spite of his injuries. The
railroad also argues that Plouffe committed fraud on the
court, arguing that the note supported their position that
the injuries were not severe enough to justify an award
compensating him for lost earnings to the extent of his work
life expectancy.
Contrary to the railroad's arguments, this evidence is
not new and it does not automatically imply that fraud has
been committed. The District Court, in its order ruling
against BN's motion for a new trial, found that the note was
similar to many other notes submitted when Plouffe was forced
to go to work because he needed the money. It is evident
from the record that it was not wise for Plouffe to continue
working, because he was only aggravating his back condition.
However, it is equally clear that Plouffe had unavoidable
financia.1 obligations of family and home that had to be met
in spite of his doctors' and chiropractor's recommendations.
After the judgment, Plouffe's financial status made it
imperative that he secure income pending appeal. Hence the
note to the railroad from Dr. Pardis. When Dr. Pardis felt
Plouffe had recovered enough to return to work, he would
submit notes similar to the one in issue. The trial changed
matters little. Plouffe still needed to work to meet his
obligations and Dr. Pardis, consistent with his earlier
routine, released Plouffe to return to work after trial. The
fact that Plouffe tried to continue to work despite his
disabilities is not new. It was the same type of evidence
presented at trial. Therefore, the railroad's contention is
meritless.
The final issue involves the District Court's denial of
Plouffe's motion for an award of prejudgment interest.
Plouffe relies heavily on Garcia v. Burlington Northern
Railroad Co. (D. Colo. 19841, 597 F.Supp. 1304, a 1984
decision currently under appeal that held that the
"legislative history and subsequent judicial application of
the FELA demonstrate that granting prejudgment interest . . .
would promote the policies underlying the Act." Although
prejudgment interest would address legimate concerns,
discouraging dilatory pretrial tactics, the law of Montana
does not provide such relief. Section 27-1-211, MCA,
provides, "Every person who is entitled to recover damages
certain or capable of being made certain by calculation and
the right to recover which is vested in him upon a particular
day is entitled also to recover interest thereon from that
day. " In short, this statute allows interest only from the
date of judgment, as that is the day the damages are capable
of being made certain. Callihan v. Burlington Northern, Inc.
(1982), 201 Mont. 35, 654 P.2d 972; Wyant v. Dunn (1962), 140
Mont. 181, 368 P.2d 917.
Therefore we affirm the District Court's grant of Doug
Plouffe's motion for partial summary judgment.
Justice
We Concur:
Chief Justice
I