FIFTH DIVISION July 25, 2008
No. 1-07-1816
LEONARD BRZINSKI, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County ) v. ) ) NORTHEAST ILLINOIS REGIONAL COMMUTER ) Honorable RAILROAD CORPORATION, d/b/a Metra, ) Elizabeth M. Budzinski, ) Judge Presiding. Defendant-Appellee. ) )
JUSTICE O’MARA FROSSARD delivered the opinion of the court:
Plaintiff, Leonard Brzinski, brought suit against his former employer, Northeast Illinois
Regional Commuter Railroad Corporation, d/b/a Metra (Metra), under the Federal Employers’
Liability Act (FELA) (45 U.S.C. §51 et seq. (2000)). Brzinski sought to recover for injuries he
sustained while working as a Metra claims specialist. Metra’s motion for summary judgement
was granted, and Brzinski appealed. We affirm.
BACKGROUND
From 1988 until 2004, Brzinski was employed by Metra as a claims specialist, where his
duties included investigating and evaluating accidents involving Metra commuter trains. On
April 4, 2003, Brzinski was assigned to the investigation of an accident in Orland Park, IL.
Brzinski arrived at the location of the accident shortly before 6 p.m., while the area was
still illuminated by daylight. It was cold and had been raining. The train track ran north and
south, with a service road running along its west side. Brzinski began walking on this service 1-07-1816
road toward the front of the train in order to photograph any damage.
In both his accident report and deposition testimony, Brzinski stated that the there was
nothing about the condition of the service road that appeared to be especially unsafe.
Nevertheless, he took extra care in proceeding along the road due to its wet surface and because
he had previously suffered a right knee injury. Just north of the locomotive, the ground gave way
and Brzinski stepped into an 18-inch-deep sinkhole with his left foot. Brzinski repeatedly
testified that neither he nor anyone else could have detected the presence of this sinkhole by
observation. Indeed he only detected the sinkhole when he stepped on it, and he testified that
Metra could not have warned him of that particular hazard because it was not visible and did not
collapse until he stepped into it.
However, Brzinski did opine that the service road was not constructed properly in that it
was not angled in such a way to allow water to drain away. He believed that the sinkhole was
caused by pooling water undermining the surface of the service road, especially in some “ruts”
that had developed due to Metra vehicles driving on the road. He also faulted Metra for not
properly inspecting the road and repairing any such defects, especially because he had knowledge
that Metra employees had previously been injured by sinkholes in other locations. Moreover,
other Metra employees testified that inspections following Brzinski’s accident revealed
additional sinkholes located nearby. However, Brzinski was not aware of any prior instances of
sinkholes developing at the location of his accident.
Brzinski filed the instant suit against Metra, under FELA, to recover for the injuries he
sustained when he fell into the sinkhole. In his complaint, Brzinksi alleged that Metra was
2 1-07-1816
negligent in that it failed to: (1) provide a reasonably safe place to work, (2) post warnings or
erect barriers around the sinkhole, (3) properly maintain the grounds along its track, (4) warn him
of any dangerous and unsafe conditions, (5) conduct inspections when ordinary inspection would
have disclosed the dangerous and unsafe conditions that caused his injuries, or (6) level and
maintain the ballast on the west side the track.
Metra filed a motion for summary judgement. Metra sought a judgment in its favor
because: (1) Brzinski was not employed within the class of individuals statutorily allowed to
recover under the FELA, and (2) Brzinski had not shown that Metra had either actual or
constructive notice of the sinkhole which caused the injury. On January 4, 2007, the circuit court
denied Metra’s first argument because “the record [did] not contain sufficient facts to allow a
determination” on that issue. Thereafter, the circuit court granted Metra summary judgment
motion on its second “notice” argument. Brzinski timely appealed.
ANALYSIS
On appeal, Brzinski asserts that the circuit court erred when it determined that he failed to
establish Metra’s negligence because the evidence clearly established that Metra failed to
properly inspect and maintain the service road. Metra disagrees and maintains the award of
summary judgment in its favor may also be upheld on the basis that Brzinski was not statutorily
permitted to recover under the FELA. Because we find that summary judgment was properly
awarded due to Brzinski’s failure to establish notice, we need not consider Metra’s alternative
argument.
Summary judgment is proper when the pleadings, depositions, and admissions on file,
3 1-07-1816
along with any affidavits, show there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2006). The propriety of an
order granting summary judgment is a question which we review de novo. Behrens v. California
Cartage Co., 373 Ill. App. 3d 860, 861 (2007). Actions brought in state court under FELA are
governed by federal substantive law, and federal court decisions control our interpretation of that
statute. Larson v. CSX Transportation, Inc., 359 Ill. App. 3d 830, 834 (2005).
FELA provides, in pertinent part, that “[e]very common carrier by railroad *** shall be
liable in damages to any person suffering injury while he is employed by such carrier *** for
such injury *** resulting in whole or in part from the negligence of any of the officers, agents, or
employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its
cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.”
45 U.S.C. §51 (2000). The statute was intended to provide a broad remedial remedy to railroad
workers and “ ‘imposes on railroads a general duty to provide a safe workplace.’ ” Holbrook v.
Norfolk Southern Ry. Co., 414 F.3d 739, 741 (7th Cir. 2005), quoting McGinn v. Burlington
Northern R.R. Co., 102 F.3d 295, 300 (7th Cir. 1996). A plaintiff’s burden when suing under the
FELA is therefore significantly lighter than in a common law negligence case, and a railroad will
be held liable where “employer negligence played any part, even the slightest, in producing the
injury.” Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500, 506, 1 L. Ed. 2d 493, 499, 77 S. Ct.
443, 448 (1957).
Nevertheless, the FELA “ ‘does not make the employer the insurer of the safety of his
employees while they are on duty. The basis of his liability is his negligence, not the fact that
4 1-07-1816
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FIFTH DIVISION July 25, 2008
No. 1-07-1816
LEONARD BRZINSKI, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County ) v. ) ) NORTHEAST ILLINOIS REGIONAL COMMUTER ) Honorable RAILROAD CORPORATION, d/b/a Metra, ) Elizabeth M. Budzinski, ) Judge Presiding. Defendant-Appellee. ) )
JUSTICE O’MARA FROSSARD delivered the opinion of the court:
Plaintiff, Leonard Brzinski, brought suit against his former employer, Northeast Illinois
Regional Commuter Railroad Corporation, d/b/a Metra (Metra), under the Federal Employers’
Liability Act (FELA) (45 U.S.C. §51 et seq. (2000)). Brzinski sought to recover for injuries he
sustained while working as a Metra claims specialist. Metra’s motion for summary judgement
was granted, and Brzinski appealed. We affirm.
BACKGROUND
From 1988 until 2004, Brzinski was employed by Metra as a claims specialist, where his
duties included investigating and evaluating accidents involving Metra commuter trains. On
April 4, 2003, Brzinski was assigned to the investigation of an accident in Orland Park, IL.
Brzinski arrived at the location of the accident shortly before 6 p.m., while the area was
still illuminated by daylight. It was cold and had been raining. The train track ran north and
south, with a service road running along its west side. Brzinski began walking on this service 1-07-1816
road toward the front of the train in order to photograph any damage.
In both his accident report and deposition testimony, Brzinski stated that the there was
nothing about the condition of the service road that appeared to be especially unsafe.
Nevertheless, he took extra care in proceeding along the road due to its wet surface and because
he had previously suffered a right knee injury. Just north of the locomotive, the ground gave way
and Brzinski stepped into an 18-inch-deep sinkhole with his left foot. Brzinski repeatedly
testified that neither he nor anyone else could have detected the presence of this sinkhole by
observation. Indeed he only detected the sinkhole when he stepped on it, and he testified that
Metra could not have warned him of that particular hazard because it was not visible and did not
collapse until he stepped into it.
However, Brzinski did opine that the service road was not constructed properly in that it
was not angled in such a way to allow water to drain away. He believed that the sinkhole was
caused by pooling water undermining the surface of the service road, especially in some “ruts”
that had developed due to Metra vehicles driving on the road. He also faulted Metra for not
properly inspecting the road and repairing any such defects, especially because he had knowledge
that Metra employees had previously been injured by sinkholes in other locations. Moreover,
other Metra employees testified that inspections following Brzinski’s accident revealed
additional sinkholes located nearby. However, Brzinski was not aware of any prior instances of
sinkholes developing at the location of his accident.
Brzinski filed the instant suit against Metra, under FELA, to recover for the injuries he
sustained when he fell into the sinkhole. In his complaint, Brzinksi alleged that Metra was
2 1-07-1816
negligent in that it failed to: (1) provide a reasonably safe place to work, (2) post warnings or
erect barriers around the sinkhole, (3) properly maintain the grounds along its track, (4) warn him
of any dangerous and unsafe conditions, (5) conduct inspections when ordinary inspection would
have disclosed the dangerous and unsafe conditions that caused his injuries, or (6) level and
maintain the ballast on the west side the track.
Metra filed a motion for summary judgement. Metra sought a judgment in its favor
because: (1) Brzinski was not employed within the class of individuals statutorily allowed to
recover under the FELA, and (2) Brzinski had not shown that Metra had either actual or
constructive notice of the sinkhole which caused the injury. On January 4, 2007, the circuit court
denied Metra’s first argument because “the record [did] not contain sufficient facts to allow a
determination” on that issue. Thereafter, the circuit court granted Metra summary judgment
motion on its second “notice” argument. Brzinski timely appealed.
ANALYSIS
On appeal, Brzinski asserts that the circuit court erred when it determined that he failed to
establish Metra’s negligence because the evidence clearly established that Metra failed to
properly inspect and maintain the service road. Metra disagrees and maintains the award of
summary judgment in its favor may also be upheld on the basis that Brzinski was not statutorily
permitted to recover under the FELA. Because we find that summary judgment was properly
awarded due to Brzinski’s failure to establish notice, we need not consider Metra’s alternative
argument.
Summary judgment is proper when the pleadings, depositions, and admissions on file,
3 1-07-1816
along with any affidavits, show there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2006). The propriety of an
order granting summary judgment is a question which we review de novo. Behrens v. California
Cartage Co., 373 Ill. App. 3d 860, 861 (2007). Actions brought in state court under FELA are
governed by federal substantive law, and federal court decisions control our interpretation of that
statute. Larson v. CSX Transportation, Inc., 359 Ill. App. 3d 830, 834 (2005).
FELA provides, in pertinent part, that “[e]very common carrier by railroad *** shall be
liable in damages to any person suffering injury while he is employed by such carrier *** for
such injury *** resulting in whole or in part from the negligence of any of the officers, agents, or
employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its
cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.”
45 U.S.C. §51 (2000). The statute was intended to provide a broad remedial remedy to railroad
workers and “ ‘imposes on railroads a general duty to provide a safe workplace.’ ” Holbrook v.
Norfolk Southern Ry. Co., 414 F.3d 739, 741 (7th Cir. 2005), quoting McGinn v. Burlington
Northern R.R. Co., 102 F.3d 295, 300 (7th Cir. 1996). A plaintiff’s burden when suing under the
FELA is therefore significantly lighter than in a common law negligence case, and a railroad will
be held liable where “employer negligence played any part, even the slightest, in producing the
injury.” Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500, 506, 1 L. Ed. 2d 493, 499, 77 S. Ct.
443, 448 (1957).
Nevertheless, the FELA “ ‘does not make the employer the insurer of the safety of his
employees while they are on duty. The basis of his liability is his negligence, not the fact that
4 1-07-1816
injuries occur.’ ” Consolidated R. Corp. v. Gottshall, 512 U.S. 532, 543, 129 L. Ed.2d 427, 440,
114 S. Ct. 2396, 2404 (1994), quoting Ellis v. Union Pacific R.R. Co., 329 U.S. 649, 653, 91 L.
Ed. 572, 576, 67 S. Ct. 598, 600 (1947). Thus, to survive a motion for summary judgment a
plaintiff must still offer “evidence proving the common law elements of negligence, including
duty, breach, foreseeability, and causation.” Williams v. National R.R. Passenger Corp., 161
F.3d 1059, 1061-62 (7th Cir. 1998). More particularly, “ ‘[t]o establish that a railroad breached
its duty to provide a safe workplace, the plaintiff must show circumstances which a reasonable
person would foresee as creating a potential for harm.’ ” Holbrook, 414 F.3d at 742, quoting
McGinn, 102 F.3d at 300. Such foreeseeability is established only where the railroad had actual
or constructive notice of the harmful condition. Holbrook, 414 F.3d at 742; Williams, 161 F. 3d
at 1063.
In light of the above authority, we find that the circuit court properly held that Brzinski
failed to establish the foreseeability element of his negligence claim. Certainly, the evidence
does not establish that Metra had actual notice of the sinkhole into which Brzinski stepped.
None of Metra’s employees testified that they were aware of sinkholes in the area, and Brzinski
offered no evidence to contradict these statements.
Brzinski also failed to establish that the Metra had constructive notice of the sinkhole. To
establish such notice, Brzinski was required to show that Metra could or should have known of
the sinkhole. Pryor v. National R.R. Passenger Corp., 301 Ill. App. 3d 628, 631 (1998). Indeed,
although Metra’s duty to provide a safe workplace included an obligation to conduct reasonable
inspections and maintenance, Brzinski had the burden of showing that such inspections could
5 1-07-1816
have discovered the sinkhole and that Metra would have had an opportunity to repair it.
Holbrook, 414 F.3d at 745, citing Deans v. CSX Transportation, Inc., 152 F.3d 326, 330 (4th Cir.
1998); Williams, 161 F.3d at 1063. This he failed to do.
The evidence in the record is inconclusive with respect to Metra’s inspection and
maintenance policies and practices. Several Metra employees testified that they were unsure of
when, if ever, the service road was last inspected or repaired. However, in a reply in support of
its motion filed in the circuit court, Metra refers to a “voluminous set of documents pertaining to
the consistency, testing, and conditions of the subject roadway” that it disclosed in response to
Brzinski’s discovery requests. While these documents apparently included reports of inspections
conducted six months prior to Brzinski’s accident, they were not included in the record filed with
this court.
However, even if we view the evidence in the light most favorable to Brzinski, there is
nothing in the record establishing how long the sinkhole existed or that any inspections Metra
could have conducted would have detected its existence. Indeed, the evidence in the record
supports just the opposite conclusion. Brzinski himself repeatedly testified that the sinkhole was
not detectible, either by him or anyone else, until he stepped into it.
We fail to see how Metra can be charged with constructive notice of an admittedly
undetectable sinkhole, and we find irrelevant the fact that other, easily detectable, sinkholes were
subsequently discovered in the area. We also find the evidence indicating Metra may have been
aware of sinkholes in other areas to be insufficient to charge it with constructive notice of the
actual sinkhole which caused Brzinski’s injury. See Pinto v. DeMunnick, 168 Ill. App. 3d 771,
6 1-07-1816
775 (1988) (refusing to charge a municipality with constructive notice where it was aware of a
general sinkhole problem, but where there was no evidence that a diligent inspection would have
revealed the existence of particular sinkhole which caused plaintiff’s injury).
We therefore find that the circuit court properly granted Metra’s motion for summary
judgment. In so ruling, we briefly distinguish two cases cited by Brzinski. In Harp v. Illinois
Central Gulf R.R. Co., 55 Ill. App. 3d 822, 825 (1977), the court found that the plaintiff did not
need to establish actual or constructive notice where “active negligence” was alleged after the
defendant railroad had improperly completed repairs to its track; i.e., where it had created the
hazard. However, Brzinski does not actually allege any such active negligence but, rather,
alleges Metra’s negligent failure to properly inspect and repair the service road. In Lockard v.
Missouri Pacific R.R. Co., 894 F.2d 299, 303-04 (8th Cir. 1990), the court found that the plaintiff
had properly alleged a violation of FELA for his railroad employers violation of its
“nondelegable” duty to provide a safe place to work after he slipped on some ice that had
accumulated while he was on-duty. However, in that case there was no evidence that the
dangerous condition presented by the ice would not have been detectible and curable with a
reasonable inspection. Such is not the case here.
CONCLUSION
For the foregoing reasons, the circuit court’s award of summary judgment in favor of Metra
is affirmed.
Affirmed.
FITZGERALD SMITH, P.J., and TULLY, J., concur.
7 REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
LEON AR D B RZ INS KI,
Plaintiff-A ppe llant,
v.
NO RT HE AST ILLINOIS RE GIO NA L COM MU TE R R AILR OA D C OR PO RA TIO N, d/b/a M etra,
Defendant-Appellee.
Ap pellate Co urt of Illinois First District, FIFTH DIVISION
July 25, 2008
Jus tice M arga ret O 'Ma ra Frossard authore d the opinion of the co urt:
Presiding Justice Fitzgerald Sm ith and Justice Tully concur.
Ap peal from the Circuit Court of Cook C ounty. The Hon. Elizabeth M. Budzinski, Judge Presiding.
Counsel for Plaintiff-Appellant James N . Vail, Chicago, IL 60602
Counsel for Defendant-Appellee Swanson, Martin & Bell, LLP, Chicago, IL 60611 OF CO UNSEL: Kevin V. Boyle and Catherine Basque W eiler