Ezidore v. City of New Orleans ex rel. Public Belt Railroad Commission of New Orleans

897 So. 2d 794, 2004 La.App. 4 Cir. 0763, 2005 La. App. LEXIS 917, 2005 WL 775767
CourtLouisiana Court of Appeal
DecidedFebruary 16, 2005
DocketNo. 2004-CA-0763
StatusPublished

This text of 897 So. 2d 794 (Ezidore v. City of New Orleans ex rel. Public Belt Railroad Commission of New Orleans) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ezidore v. City of New Orleans ex rel. Public Belt Railroad Commission of New Orleans, 897 So. 2d 794, 2004 La.App. 4 Cir. 0763, 2005 La. App. LEXIS 917, 2005 WL 775767 (La. Ct. App. 2005).

Opinion

MAX N. TOBIAS, Jr., Judge.

This appeal arises from a claim for damages under the Federal Employers’ Liability Act (“FELA”)1 for injuries allegedly sustained as a result of heavy lifting done by the plaintiff, Jerome Ezidore (“Ezi-dore”), while employed by the Public Belt Railroad Commission of the City of New Orleans (“NOPB”). NOPB argues that because Ezidore cannot pinpoint any specific accident or occurrence on the job that caused his injuries, he is precluded from recovering under the Federal Employer’s Liability Act (“FELA”); further, NOPB maintains that there is insufficient medical testimony or objective evidence to link Ezi-dore’s symptoms to the work he did for NOPB.

Ezidore began working for NOPB in the mid-1970s. For the next several years, Ezidore performed a variety of jobs for the railroad, including welders’ helper, dump truck driver,2 and lookout. While working for NOPB, Ezidore worked with a number of NOPB employees, including Glenn Des-hotel (“Deshotel”), who worked as a track inspector and welder for NOPB. On the occasions when they worked together, Deshotel and Ezidore would use a small 12motorcar to travel the miles of track in and around New Orleans, repairing damaged track, and replacing missing bolts in the track. Ezidore testified that when he and Deshotel worked together, they were able to move the small motorcar together. However, NOPB employees, including Ezi-dore, would frequently work alone while using the small motorcar, and would not have assistance in its operation or maneuvering.

The “small” motorcar (hereinafter referred to as the “Motorcar”) utilized by the NOPB 3 in its track work is a two-man vehicle, which can be operated either forwards or backwards. It has two metal handles protruding from the rear, and the open-air cab is surrounded by a heavy curtain that can be drawn closed or remain open. Two methods exist by which the Motorcar can be turned. If the Motorcar is near a switch in the section of the track system containing more than one track, the switch can be utilized to turn the car around, obviating the need to remove the Motorcar from the tracks. If, however, the Motorcar is not near a switch at the time it is turned, or if it is on the single, main track, it has to be manually lifted and maneuvered to travel in the opposite direction at a point where a street crosses the track.

In order to move this Motorcar without the benefit of a switch, the individual(s) [797]*797operating the Motorcar has to grasp the handles and lift the rear, lifting the rear wheels off of the ground so that the entire car can be swung to the side, essentially pulling it off the track. Then, the car has to be turned, replacing the wheels of the car on the track in the opposite direction. According to the | «testimony of various NOPB employees, the difficulty of this task varied with the type of street crossing.4 Further, according to both testimony of railroad employees and photographs of street crossings utilized by the NOPB, the road surface may have been eroded in some spots, creating holes or ditches alongside the rail.

On 29 March 1999, Qwest Communications Corporation of Delaware (“Qwest”) obtained a permit to lay fiber optic cable along the tracks maintained by NOPB, and Qwest crews began the project shortly thereafter. Under federal law, NOPB was required to either train the conductors working for Qwest to protect the crews from oncoming trains, or provide lookouts for the crews. NOPB provided lookouts for the crews, and those lookouts would use either the small or large motorcar to reach the worksite,5 haul equipment needed by the crew, and/or protect the crew. Ezidore claimed that he used the Motorcar when he worked as a lookout on the Qwest job.

Sometime in early May 1999, Ezidore developed numbness, tingling, and pain in his neck, shoulder, arms, and fingers. On 31 May 1999, Ezidore presented to Courtney Russo, M.D., an orthopedic surgeon, with complaints and was diagnosed with two herniated discs in his cervical spine and bilateral carpal tunnel syndrome. Dr. Russo prescribed physical therapy and a cervical collar and pillow. He placed Ezi-dore on a no-work status on 24 June 1999.

When he presented to Dr. Russo, Ezi-dore did not relate his pain to his work at NOPB, and Dr. Russo’s records reflect that Ezidore did not inform Dr. Russo of 1 ¿having to perform any heavy lifting in connection with his work. In fact, Dr. Russo’s records do not relate Ezidore’s complaints to injuries sustained on the job at all. Further, the notes taken by Dr. Russo during his initial evaluation indicate that Ezidore’s first symptoms began at 5:30 a.m. on 11 May 1999. Ezidore did not complete any accident report with the NOPB concerning any incident that may have caused his injuries. NOPB asserts that it did not even learn that Ezidore was claiming a work-related injury until he filed suit over one year later.

Ezidore filed suit on 18 July 2000, alleging that

[o]n or about June 10, 1999, and for five years before that date, Jerome Ezidore was a trackman working for the City of New Orleans by and through the Public Belt Railroad Commission of the City of New Orleans, and he had to pick up and turn around a heavy motor car as a regular part of his job each day. This lifting and manhandling of the motorcar caused severe injuries to his neck and back, each episode exacerbating the injury further.

Ezidore alleges, in particular, that NOPB was negligent in failing to provide him with a reasonably safe workplace or equipment; failing to provide him with sufficient assistance in his job to lift and turn the Motorcar; and failing to give him suffi[798]*798cient time to move the Motorcar in a safe manner.6

A bench trial in this matter began on 17 March 2003 and concluded on 14 April 2003. During the trial, the court heard testimony from a number of fact witnesses, including Ezidore and his wife, several coworkers, and his supervisor,' as well as a number of expert witnesses in medical causation, ergonomics, and engineering.

| sEzidore testified regarding his history working for NOPB. He confirmed that he had worked for NOPB since the late 1970s,7 and described the numerous jobs he had performed at the railroad. He described the motions he used to move the Motorcar off of the track, and how he replaced it back on the track. Ezidore testified that moving'the Motorcar was the heaviest work he had to do with NOPB and that he had asked his supervisor twice for assistance in using it.- Ezidore further testified that, at times, he would have to turn the Motorcar at a street crossing without benefit or use of a switch if a train were coming and he did not have time to make it to a switch. His testimony, as well as that of other witnesses, established that a trackman must have the Motorcar at least four feet from the track for the train to pass safely. Further, although the Motorcar could be operated in the backward direction, obviating the need to turn the car around, Ezidore testified that he did not feel safe operating the car in that manner, because the curtain obstructed his vision.8

With regard to the Qwest job, Ezidore testified that he began working on that project as a flagman, and that he used the Motorcar during that job.

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897 So. 2d 794, 2004 La.App. 4 Cir. 0763, 2005 La. App. LEXIS 917, 2005 WL 775767, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ezidore-v-city-of-new-orleans-ex-rel-public-belt-railroad-commission-of-lactapp-2005.