Papers considered: Notice of Motion; Affirmation of P. Matthew Darby, Esq. with exhibits; Affidavit of Chris Barneycastle, with exhibit; Affidavit of Patrick Reilly, with exhibit; Affidavit of D. Joe Lydick, with exhibit; Supplemental Affidavit of D. Joe Lydick, with exhibit; Affidavit of Lawrence Mann, with exhibits; Memorandum of Law, with exhibits; Notice of Cross-Motion; Affirmation of Kathleen McCaffrey Baynes, Esq., with exhibits; Affidavit of Eric Harrington; Affidavit of Foster J. Peterson; Supplemental Affidavit of Foster J. Peterson; Affidavit of William A. Wallace; Memorandum of Law; Reply Affirmation of P. Matthew Darby, Esq.; Reply Memorandum of Law This matter comes before the Court on cross-motions for summary judgment. Plaintiff has moved for partial summary judgment on the issue of liability. Defendant has moved for summary judgment dismissing this case based on a lack of actual or constructive notice. Plaintiff, an employee of defendant railroad, brought this action under the Federal Employers’ Liability Act (FELA) and alleges that he was seriously injured when a fallen dead tree lying adjacent to or on the railroad track hit his feet and legs, pulling or knocking him from the locomotive on which he was riding. The proponent of a summary judgment motion bears the initial burden of making a prima facie showing of entitlement to judgement as a matter of law by submitting sufficient evidence to show that no material issues of fact exist (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]). If that showing is made, the burden of proof then shifts to the responding party to show the presence of questions of fact requiring trial (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). The facts must be construed in a light most favorable to the non-moving party (see e.g. Hanna v. St. Lawrence County, 34 AD3d 1146 [3d Dept 2006]). Plaintiff’s motion centers on the argument that Defendant violated 49 CFR 213.37, which requires railroads to prevent vegetation on railroad property in the immediate proximity to the roadbed from interfering with railroad employees performing normal trackside duties. Plaintiff cites numerous federal cases for the proposition that, in a FELA case, the violation of a safety regulation automatically constitutes a breach of an employer railroad’s duty, and thus, negligence per se (e.g. Schmitz v. Canadian Pacific Ry. Co., 454 F3d 678 [7th Cir 2006]; Walden v. Illinois Central Gulf R.R., 975 F2d 361 [7th Cir 1992]). That only remaining consideration is then causation, which under FELA has a very low threshold; if the railroad’s negligence played even the slightest part in producing the injury, then liability attaches (CSX Transp., Inc. v. McBride, 564 US 685 [2011]). In support of his argument, Plaintiff submitted a Track Violation Report Form completed by Nicholas Bloomingdale, an investigator with the Federal Railroad Administration (FRA), who recommends a violation of §213.37. Plaintiff also submitted affidavits from three experts — two railroad safety consultants and a forestry consultant. Annexed to each expert affidavit is a report prepared by that expert. The forestry expert opines that the tree which caused Plaintiff’s fall had been dead for a considerable period of time and should have been removed prior to its failure, generally faulting Defendant’s vegetation remediation program as ineffective. One of the safety experts opines generally that Defendant’s post-accident investigation was faulty, while the other opines specifically that Defendant violated both §213.37 and New York’s Railroad Law §59-d (the latter reference appears to be a typo, as the issue of debris is dealt with in §52-d). In response, Defendant submitted an affidavit from its own expert, in which he asserts that Defendant complied with §213.37 and disagrees with essentially all the opinions offered by Plaintiff’s experts as to Defendant’s performance of its duties of inspection, remediation and recordkeeping. In order to fill what the Court perceived to be a gap in the record, further briefing was requested on the nature and effect of a Track Violation Report Form. The fact that Bloomingdale “recommends” a violation of §213.37 appears to indicate that another person or body would decide whether a violation occurred. The Court’s inquiry was whether the Track Violation Report Form constitutes a determination that establishes a violation of §213.37 or whether it is more akin to a charging instrument, such as a traffic citation. In response to the Court’s request, the parties made further submissions from their respective railroad safety experts. Reading these supplemental affidavits, the parties’ experts agree that the Track Violation Report Form does not, by itself, establish a violation of §213.37. A report is first reviewed by the Supervisory Track Specialist and then is submitted for review by the FRA’s Office of Chief Counsel. Reports that have undergone this review process are aggregated and become the subject of an annual settlement conference with the particular railroad concerned. Plaintiffs’ experts assert that a violation was established because this process ran its course. The report at issue here was included in a list discussed at a settlement conference between the FRA and Defendant. It became part of a resulting settlement agreement, which included Defendant’s agreement to pay a $1,000.00 fine. One of Plaintiff’s experts opines that a violation was established when the FRA Office of Chief Counsel completed its review and found the recommended violation to be legally sufficient. Both experts assert that Defendant’s agreement to pay a $1,000.00 fine certainly established the violation of §213.37 in this instance. The defense expert does not dispute the fine payment but asserts that no violation was established. The defense also submits an affidavit from one of Defendant’s employees who states that he participated in the administrative settlement process with the FRA. Both affidavits point to language in the settlement agreement, which refers to “alleged violations” and specifies that Defendant’s execution of the agreement “does not constitute and admission that any violation has occurred.” The materials offered by the parties thus present basic disagreement as to whether Plaintiff violated §213.37. Indeed, Plaintiff’s own experts are not in complete agreement and arguably fail to support the necessary prima facie showing of a violation. One of Plaintiff’s experts refers to Track Violation Reports as containing “alleged violations,” and importantly, states that if no settlement is reached on a given alleged violation, then the matter is referred to the Department of Justice for litigation. This statement cuts against both experts’ opinion that the review and settlement process established a violation. A court deciding a summary judgment motion should not make credibility determinations when competing expert opinions are offered, unless one opinion is either conclusory (Rockefeller v. Albany Welding Supply, Inc., 3 AD3d 753 [3d Dept 2004]), speculative (Palmer v. Barnes & Noble Booksellers, Inc., 34 AD3d 1287 [4th Dept 2006]) or so lacking in factual or scientific foundation as to be utterly devoid of merit (Elsawi v. Saratoga Springs City School Dist., 141 AD3d 921 [3 Dept 2016]). The expert affidavits here do not suffer from any of these infirmities. All of the experts offer curriculum vitae that show them to be qualified by training and experience to be experts. Plaintiffs’ experts each submit a detailed report annexed to their respective affidavits. Defendant’s expert does not offer a detailed report, but he recites the bases for his opinions, including review of the various reports and records generated in this case, the data download from the train, photographs and deposition transcripts, the reports of Plaintiff’s experts, applicable regulations, and his own onsite inspection. He also cites to specific facts in support of his opinions. None of the affidavits are conclusory, or speculative, or so lacking in foundation as to be devoid of merit. The record here thus presents a question of fact as to whether Defendant violated §213.37, which precludes an award of partial summary judgment to Plaintiff. That same fact question also prevents the Court from granting Defendant’s motion for summary judgment. Defendant argues that Plaintiff’s injury was not reasonably foreseeable, there being a lack of actual or constructive notice, which subjects his claim to dismissal. While there is some variation in the way courts enunciate the elements of negligence, foreseeability essentially determines the scope of duty once a duty has been shown to exist (see e.g. Pink v. Rome Youth Hockey Assn., Inc., 28 NY3d 994 [2016]). As discussed above, a particular feature of actions under FELA is the rule that if a violation of a safety statute or regulation like 49 CFR 213.37 is established, then negligence per se is also established and Plaintiff is not required to prove the elements of duty, breach, or foreseeability (see e.g. Deso v. CSX Transp., Inc., 790 F Supp 2d 1 [ND NY 2011]). Because the finder of fact could determine that a §213.37 violation occurred, Defendant’s motion is premature. Therefore, in consideration of the foregoing, it is hereby ORDERED, that the motion by Plaintiff seeking partial summary judgment on the issue of liability is denied; and it is further ORDERED, that the motion by Defendant seeking summary judgment dismissing the Complaint is denied. Dated: August 30. 2021
