On July 12, 2006, Raymond Alex, Sr., a structure carpenter for the BNSF Railway was driving a company boom to a work site in Mermentau. Around 3 p.m., Mr. Alex stopped at an intersection, was rear-ended by a large tractor-trailer rig driven by Edward Zenon, Jr. As a result of the accident, Mr. Alex alleged he suffered injuries to his neck with radiating pain down his right arm and hand. He was given injections in his neck at first, but ultimately required cervical spine surgery.
In July 2007, Mr. Alex sued Mr. Zenon, the lessor of the tractor/trailer, PACCAR Leasing Company, and his employer, Creole Fermentation. After some initial discovery, Mr. Alex settled with the defendants.
Two years after his previous suit, Mr. Alex decided to sue his employer, BNSF, under the Federal Employer’s Liability Act (FELA). In his petition, Mr. Alex alleged that BNSF was negligent for failing to provide a reasonably safe place to work, failing to warn him of dangerous conditions and providing a poorly designed truck for him to work in.
As stated in the Louisiana Third Circuit Court of Appeals’ ruling, “‘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.’”
The appellate court added that a FELA claim does not require as high a burden as in an ordinary negligence case. However, a showing of some negligence is necessary. In June 2010, BNSF filed for summary judgment, but agreed to continue the summary judgment hearing at Mr. Alex’s urging that further discovery would reveal the genuine issues of material fact present in the case. Further, BNSF made available employees the plaintiff sought to depose.
The case drug on into the next year, to March 2011, and a deposition of Mr. Alex. He testified that the truck he drove on the day of the accident was not his normal operating vehicle, which was out of service. The plaintiff said he was given an old truck from Texas, though he signed off on the condition of the truck both before and after the accident. Mr. Alex even said that the truck was “pretty crashworthy.”
Complaints of the truck’s boom not always working, dry-rotted seats, and old shocks were just that — complaints; they had nothing to do with the vehicle’s crash-worthiness. The strongest criticism to the truck’s crash performance offered was a suggestion that a lack of headrest might have contributed to Mr. Alex’s injuries.
BNSF again sought summary judgment in June 2011 — nearly two years after the case was filed and five after the accident — attaching the deposition of Mr. Alex as an exhibit. Plaintiff responded just before the summary judgment hearing, re-iterating its allegations and again seeking further discovery. Unlike the year before, BNSF smartly replied that allegations were not enough to withstand summary judgment. As for any other discovery, the BNSF employees plaintiff’s counsel wanted to testify were not witnesses to the accident and were found not able to contribute anything of merit to the negligence allegations.
The trial court granted summary judgment to BNSF, to which Mr. Alex appealed. Under a de novo review, the appellate court, was not swayed. Noting previous holdings that additional discovery is not warranted when plaintiff had over a year to do so, the appellate court summed its ruling thusly:
“…there was no evidence presented that the condition of the truck played any part in the injuries suffered by [Mr. Alex]. Thus…[he] could not prevail even under this “easier burden.”
When you enter litigation, make certain that you seek an appropriate legal remedy.
If you have been injured, call the Berniard Law Firm today to speak with an attorney who can help you find the right solution.