Raymond Alex, Sr. v. Bnsf Railway Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-462

RAYMOND ALEX, SR.

VERSUS

BNSF RAILWAY COMPANY

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, DOCKET NOS. 09-10760
HONORABLE HERMAN CLAUSE, DISTRICT JUDGE
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SYLVIA R. COOKS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks and
Elizabeth A. Pickett, Judges.

AFFIRMED.

Blake G. Arata, Jr.
W. Chad Stelly
C. Perrin Rome, III
Rome, Arata, Baxley & Stelly, L.L.C.
650 Poydras Street, Suite 2017
New Orleans, LA 70130
(504) 522-9980
ATTORNEYS FOR PLAINTIFF/APPELLANT
Raymond Alex, Sr.

Christopher J. Aubert
David M. Gold
The Aubert Law Firm
506 E. Rutland Street
Covington, LA 70433
(985) 809-2000
ATTORNEYS FOR THIRD PARTY DEFENDANTS/APPELLEES
Edward Zenon, Jr., Paccar Leasing Company, and
Creole Fermentation Industries, Inc.

J.E. McElligott, Jr.
Kevin M. Dills
Davidson, Meaux, Sonnier, McElligott, Fontenot, Gideon & Edwards
810 S. Buchanan Street
P.O. Drawer 2908
Lafayette, LA 70502-2908
(337) 237-1660
ATTORNEYS FOR DEFENDANT/APPELLEE
BNSF Railway Company

Cooks, Judge.

FACTS AND PROCEDURAL HISTORY

On July 12, 2006, Plaintiff, Raymond Alex, Sr., was driving a company boom

truck while in the course and scope of his employment as a structure carpenter for

BNSF Railway Company. At approximately 3:00 p.m. on that date, Plaintiff was

traveling in a southerly direction on North Eastern Avenue in Crowley on his way

to a job site in Mermentau. Immediately after stopping at an intersection,

Plaintiff‟s vehicle was rear-ended by a large tractor-trailer rig driven by Edward

Zenon, Jr. At the time of the accident, Mr. Zenon was in the employ of Creole

Fermentation Industries, Inc.

As a result of the accident, Plaintiff alleged he suffered injuries to his neck

with radiating pain down his right arm into his hand. Plaintiff was given injections

in his neck initially, but eventually required cervical surgery.

On July 6, 2007, Plaintiff filed suit for injuries arising out of the accident

against Edward Zenon, Jr., the lessor of the tractor/trailer, PACCAR Leasing

Company, and Zenon‟s employer, Creole Fermentation (hereafter the Zenon

defendants). In the petition, Plaintiff asserted the “sole cause of the instant

incident was the negligence of Edward Zenon, Jr.” After initial discovery was

conducted, Plaintiff settled with the Zenon defendants.

On July 9, 2009, Plaintiff filed a lawsuit against BNSF under the Federal

Employer‟s Liability Act (FELA), 45 U.S.C. § 51, et seq. It was alleged that

BNSF was negligent for failing to provide a reasonably safe place to work, failing

to warn Plaintiff of dangerous conditions, and providing a poorly designed truck

for him to work in. BNSF filed an answer on October 14, 2009. Written requests

for discovery were exchanged by the parties. BNSF responded to Plaintiff‟s

request for discovery in March, 2010.

On June 14, 2010, not having received a response to its request for discovery,

BNSF filed a Motion for Summary Judgment, contending Plaintiff “has not and

cannot produce any evidence which shows BNSF was in any way negligent and/or

that it did anything that caused or contributed to the subject accident or his alleged

injuries.” In its motion, BNSF noted that FELA, unlike state workers‟

compensation systems, requires a showing of negligence to recover. BNSF

maintained Plaintiff would be unable to make such a showing, thus summary

dismissal was appropriate. Plaintiff countered that there were genuine issues of

material fact which required denial of the motion for summary judgment. In the

alternative, Plaintiff contended that further discovery was necessary to address the

issues raised by BNSF and as such summary dismissal was premature.

In July of 2010, Plaintiff requested certain BNSF employees be made

available for depositions. Plaintiff also requested the summary judgment hearing

scheduled for July 19, 2010 be continued so further discovery could be conducted.

BNSF did not object and the hearing was continued without a set date.

In the interim, on September 17, 2010, BNSF also filed a Third Party petition

for indemnity and/or contribution against the Zenon defendants. In this petition,

BNSF contended, should Plaintiff be successful in proving any liability on the part

of BNSF, “such liability would necessarily be secondary and/or passive in nature

as compared to the primary and/or active negligence” of the Zenon defendants.

Thus, BNSF would be entitled to indemnity and/or contribution from the Zenon

defendants in any amounts it may be required to pay as a result of the incident.

On March 29, 2011, Plaintiff was deposed and testified on the day of the

accident he was not operating his normal truck, because “it was out of service.”

He stated he was given an “old truck that they sent from Texas.” Plaintiff also

testified he was assigned the truck and was its only driver on the day in question.
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He acknowledged he signed off on the operating condition of the truck. Shortly

after the accident, he signed a report averring that BNSF did nothing to contribute

to the accident or his injuries. Plaintiff also stated there appeared to be little

apparent damage to the BNSF vehicle following the accident, and it was drivable.

BNSF filed a supplemental motion for summary judgment on June 3, 2011,

with Plaintiff‟s deposition attached as an exhibit. The motion was set for hearing

on July 5, 2011, but was continued until August 29, 2011 on Plaintiff‟s motion. A

few days before the scheduled hearing, Plaintiff responded to the motion for

summary judgment, again arguing BNSF was negligent for failing to provide a

reasonably safe place to work and providing an inferior truck to him. Plaintiff also

asserted additional discovery was warranted. BNSF replied that allegations of

negligence and causation alone are insufficient to defeat a properly supported

motion for summary judgment. With respect to the additional discovery issue,

BNSF argued it did not resist the depositions requested by Plaintiff‟s counsel,

evidenced by the fact that there is no motion to compel in the record. BNSF also

noted none of the witnesses requested were present at the accident, and could not

contribute anything of merit to the negligence and causation allegations.

On August 29, 2011, the motion for summary judgment was heard. The trial

court granted BNSF‟s motion, explaining in open court that it found no evidence in

the record that the condition of the BNSF truck Plaintiff was driving caused or

contributed to his injuries in any way. The trial court also responded to Plaintiff‟s

request for additional discovery, stating that the BNSF employees sought to be

deposed could not provide competent evidence concerning causation. Final

judgment was signed, granting the motion for summary judgment. This appeal

followed, wherein Plaintiff contends the trial court‟s grant of summary judgment

was erroneous. Plaintiff argues he presented sufficient evidence of genuine issues
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of material fact, particularly under the reduced burden to be applied in cases under

FELA. In the alternative, Plaintiff argues “consideration of Defendant‟s Motion

for Summary Judgment should be pretermitted, pending completion of a

reasonable amount of discovery.”

ANALYSIS

In Dinger v. Shea, 96-448, pp. 4-5 (La.App. 3 Cir. 12/11/96), 685 So.2d 485,

488-89, we set forth the standard of appellate review of summary judgments:

Appellate courts review summary judgments de novo under the
same criteria that govern the district court‟s consideration of whether
summary judgment is appropriate. Potter v. First Federal Sav. and
Loan Ass’n, 615 So.2d 318 (La.1993). A motion for summary
judgment is properly granted only if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits submitted, if any, show there is no genuine issue of material
fact and that the mover is entitled to judgment as a matter of law.
La.Code Civ.P. art. 966(B). A fact is “material” if its existence
potentially insures or precludes recovery, affects a litigant‟s ultimate
success, or determines the outcome of the relevant legal dispute.
Cormier v. Wise, 93-1434 (La.App. 3 Cir. 6/1/94), 638 So.2d 688. A
fact is “at issue” if there exists any reasonable doubt as to its
existence. Durrosseau v. Century 21 Flavin Realty, Inc., 594 So.2d
1036 (La.App. 3 Cir.1992).

....

In the past, any doubt regarding the existence of material facts
was to be resolved against granting the summary judgment, even if
grave doubts existed as to a party‟s ability to establish disputed facts
at trial. Penton [v. Clarkson, 93-657 (La.App. 1 Cir. 3/11/94)], 633
So.2d 918. The amendment does not change the law regarding
burdens of proof, as the mover is still required to prove the absence of
a genuine issue and his entitlement to judgment. Short v. [Giffin], 96-
361 (La.App. 4 Cir. 8/21/96); 682 So .2d 249; Walker v. Kroop, 96-
618 (La.App. 4 Cir. 7/24/96); 678 So.2d 580. However, it now
appears, based on the new language of section (C), that in order to
rebut a showing made by the mover of the non-existence of a genuine
issue of material fact, the non-moving party will be held to a higher
standard of proof, i.e., a non-moving party must sufficiently establish
the existence of proof of an essential element of his claim on which he
is to bear the burden of proving at trial.

The lawsuit filed by Plaintiff against BNSF was brought pursuant to FELA, which

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provides the exclusive remedy for railroad workers against their railroad employers

for work-related injuries. “In order to recover under FELA, the plaintiff must

establish that (1) he was injured within the scope of his employment; (2) the

employment was in furtherance of the railroad‟s commerce in interstate

transportation; (3) his employer was negligent; and (4) this negligence played a

part in causing his injury.” West v. National Railroad Passenger Corp., 03-1707,

p. 5 (La.App. 4 Cir. 6/23/04), 879 So.2d 327, 333, writ denied, 04-1867 (La.

10/29/04), 885 So.2d 593, citing Williams v. Southern Pacific Transp. Co., 813

F.Supp. 1227 (S.D.Miss.1992). Although a FELA case may be brought and

adjudicated in state courts, the state‟s procedural laws will govern while the

substantive law remains federal. Duhon v. Southern Pacific Transp. Co., 98-268

(La.App. 3 Cir. 10/7/98), 720 So.2d 117.

Plaintiff argues “it is well accepted that a plaintiff in a FELA case has an

„easier burden‟ in getting his burden to a jury than in an ordinary negligence case.”

However, in the instant case the trial court found there was no evidence presented

that the condition of the truck played any part in the injuries suffered by Plaintiff.

Thus, it found it could not prevail even under this “easier burden.”

In his deposition, Plaintiff complains about three conditions that caused the

“old” truck to be unsafe. Specifically, he alleges the seats on the inside of the

truck were dry-rotted, the shocks “weren‟t a hundred percent,” and the boom did

not always operate properly. As BNSF notes, these allegations of the truck‟s

condition are not material to the truck‟s crash-worthiness. Further, Plaintiff

testified that the Zenon truck was going very fast when it struck the BNSF truck.

Plaintiff testified the Zenon truck was “damaged pretty heavily,” but the BNSF

truck did not suffer much damage. Plaintiff acknowledged in the affirmative that

the BNSF was in fact “pretty crashworthy.”
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Plaintiff did testify that the lack of a headrest “maybe” contributed to his

injuries. We find the failure to submit any evidence beyond this one self-serving

allegation is insufficient to establish that he will be able to satisfy his evidentiary

burden of proof at trial. The law is clear that the non-moving party is not allowed

to rely simply on the allegations of its pleadings in opposition to a properly

supported motion for summary judgment.

We also find no merit to Plaintiff‟s contention that the trial court erred in

failing to allow additional time for further discovery. In the lower court

proceedings, the hearing was continued, at Plaintiff‟s request, in excess of one year

to allow for adequate discovery. Despite this, Plaintiff still contended at the

hearing that he needed additional time for discovery. This court in LeCroy v. Byrd

Regional Hospital, 10-904, pp. 13-14 (La.App. 3 Cir. 4/30/08), 981 So.2d 897,

905-06, holding that additional discovery was not warranted when the plaintiff had

over a year to engage in same, stated:

The provision for adequate discovery does not grant a party an
absolute right to delay a decision on a motion for summary judgment
until all discovery is complete. West v. Watson, 35,278 (La.App. 2
Cir. 10/31/01), 799 So.2d 1189, writ denied, 01-3179 (La.2/8/02), 809
So.2d 140. Unless the party opposing the motion for summary
judgment shows a probable injustice, a suit should not be delayed
pending discovery when it appears at an early stage that there are no
genuine issues of fact. Advance Products & Systems, Inc. v. Simon,
06-609 (La.App. 3 Cir. 12/6/06), 944 So.2d 788, writ denied, 07-26
(La.3/9/07), 949 So.2d 444. The abuse of discretion standard is used
to determine if the trial court allowed adequate time for discovery. Id.

We find no merit to Plaintiff‟s argument that the grant of summary judgment was

premature.

We also note the trial court found the BNSF employees sought to be deposed

by Plaintiff were not present at the accident, and could not provide competent

evidence concerning causation. We find no error in the trial court‟s reasoning in

this regard.
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DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of

this appeal are assessed to Plaintiff-Appellant, Raymond Alex, Sr.

AFFIRMED.

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